The authorities’ failure to monitor the conditions of the upbringing of a minor by a foster family. The statute of limitation of the claim starts from receipt of proof of damage. Sexual abuse of a minor
JUDGMENT
Loste v. France 03.11.2022 (app. no. 59227/12)
SUMMARY
Authorities liability in case of fostering a minor.
The case concerned an applicant who complained of failings by the child welfare service (ASE)
regarding the follow-up of her placement with a foster family at the age of five. In support of her
application she argued that the ASE had not protected her against the sexual abuse to which she had
been subjected from 1976 to 1988 by her foster father. She also complained of the failure by the
family, who were Jehovah’s Witnesses, to comply with the undertaking they had given in the form of
a religious neutrality clause.
The Court noted at the outset that the administrative courts had dismissed the applicant’s action for
damages against the département of Tarn-et-Garonne on the basis of the four-year limitation rule. In
that regard the Court held, in the very specific circumstances of the present case, that the domestic
courts had displayed excessive formalism, the effects of which were incompatible with the right to
an effective remedy. There had therefore been a violation of Article 13 of the Convention taken in
conjunction with Articles 3 and 9.
The Court also observed that the competent authorities had not put in place the preventive
measures provided for by the legislation in force at the relevant time in order to detect a risk of
ill-treatment. It found that the lack of regular follow-up by the ASE, combined with a lack of
communication and cooperation between the competent authorities, should be considered to have
significantly influenced the course of events. It concluded that the national authorities, firstly, had
failed in their obligation to protect the applicant against the ill-treatment to which she was
subjected while in foster care and, secondly, had not taken the measures required of them in order
to ensure observance of the religious neutrality clause. There had therefore been a violation of the
substantive aspect of Article 3 and also of Article 9 of the Convention.
PROVISIONS
Article 3
Article 9
Article 13
PRINCIPAL FACTS
The applicant, France Loste, is a French national who was born in 1971.
In 1976, aged five, the applicant was placed by a juvenile judge in the care of the child welfare
service (ASE). Between 1976 and 1991 she was placed with a foster family (Y.B., a nursery school
assistant, and her husband M.B.). The foster parents gave an undertaking to the ASE that in caring
for the applicant they would take “the necessary steps to achieve the objectives identified by the child welfare service”, respect the applicant’s political, philosophical and religious views and those of her birth family, and facilitate the authorised employees of the ASE in overseeing observance of the
conditions set out in the foster care agreement. However, shortly after being placed with the family
in 1976, the applicant – according to the allegations made in her statements during the criminal
proceedings, which were partly admitted by M.B. – became the victim of sexual abuse. Furthermore,
although her birth family were Muslims, the applicant was raised in the faith practised by the
members of her foster family, who were Jehovah’s Witnesses and who took her with them to
meetings of the congregation and to preaching activities. On 9 September 1988, at the age of 17, the
applicant was involved in a serious road-traffic accident. While she was in hospital the foster family
wrote to the hospital requesting that she should not be given any blood products.
The foster care arrangement was nevertheless maintained until the applicant reached the age of
majority.
In a letter of 16 November 1998 to the département’s health and social affairs directorate (DDASS),
the applicant requested permission to consult her case file. On 22 January 1999 the ASE informed
her that she could consult the file in situ, which she did on 24 February 1999.
In 1999 the applicant lodged a complaint with the public prosecutor. After a decision was taken not
to prosecute, she lodged a further complaint together with a civil-party application, following which
it was established that she had been subjected to sexual abuse by her foster father, M.B. However,
the case was not sent for trial owing to the rules on limitation periods for criminal offences
applicable at the relevant time.
In 2004 the applicant brought a first set of administrative proceedings against the State. The
first-instance court ordered the State to pay her 22,000 euros in compensation, but that judgment
was set aside by the Bordeaux Administrative Court of Appeal. The Court of Appeal found that, at
the relevant time, the ASE had been acting in the name and on behalf of the département and that
the State could therefore not be held liable for any negligence that may have been committed.
In 2007 the applicant brought a fresh action in the administrative courts, this time against the
département. The action was dismissed on the grounds that the four-year limitation period
prescribed by the Act of 31 December 1968 had expired, as the administrative courts had set the
summer of 1994 as the starting-point of the period for lodging an application. The courts found that
the applicant, who had been 23 at the time, had confided in members of the Jehovah’s Witnesses
and had broken off all relations with her foster family at that point. She had therefore freed herself
from the control of her sectarian environment and had been in a position to assess the harmful
consequences of the alleged failings by the département. In the domestic courts’ view, as the first
day of the period allowed for bringing an action had been 1 January of the following year (that is,
1 January 1995), the limitation period had expired on 31 December 1998.
THE DECISION OF THE COURT
Article 13 taken in conjunction with Articles 3 and 9: complaint concerning the application of
the four-year limitation period
The Court noted that a remedy had existed before the administrative courts by which to establish
liability on the part of the département of Tarn-et-Garonne, but that the applicant had been unable
to exercise it owing to the application of the four-year limitation period by the domestic courts,
which had found that the applicant had four years (from 1 January 1995 to 31 December 1998) in
which to bring an action for damages.
The Court found that the national courts had applied the relevant procedural requirement in a
manner which prevented the applicant’s action from being examined on the merits. It held that the
national courts, ruling between 2010 and 2012 with all the relevant information concerning the
criminal and administrative proceedings brought by the applicant at their disposal, could have taken
into consideration the fact that the applicant had not had access to the documents in her foster care
file revealing the alleged failings by the national authorities until 24 February 1999. From that date
onwards the applicant had had “sufficient information” enabling her to demonstrate that the
damage she had suffered was attributable to the administrative authorities and to bring an action
for compensation.
In the Court’s view, the compensatory remedy used by the applicant had been rendered ineffective
by the way in which the administrative courts had applied the rules concerning the four-year
limitation period, without considering – in accordance with section 3 of the Act of 31 December
1968 – from what date onwards the applicant had had sufficient evidence to demonstrate the
alleged failings of the national authorities and could thus bring an effective action to establish their
liability. The Court held, in the very specific circumstances of the present case, that the domestic
courts had displayed excessive formalism, the effects of which were incompatible with the right to
an effective remedy. There had therefore been a violation of Article 13 of the Convention taken in
conjunction with Articles 3 and 9.
Article 3: complaint concerning the sexual abuse allegations
The Court noted that, from the beginning of her placement in foster care, the applicant had been in
a particularly vulnerable situation on account, firstly, of her very young age (five years old at the
time of her placement) and, secondly, of the fact that she was a child left without parental care.
Against that background, the sexual abuse to which she had been subjected over several years, as
emerging from the criminal proceedings and only partly contested by M.B., was sufficiently severe to
come within the scope of Article 3 of the Convention.
The Court observed that at the relevant time the legislative framework in force had been apt to
protect children in care against serious harm by individuals in a given case, since it was accompanied
by a number of measures and mechanisms for preventing and detecting the risks of ill-treatment in
foster families.
However, with regard to the implementation of those prevention and detection measures and
mechanisms, the Court noted that only six inspection visits had been carried out over the relevant
period of almost twelve years. The fact that the first visit to the foster family’s home had taken place
almost eleven months after the placement of the applicant, who had been five years of age when
the foster care arrangement began, suggested that no action had been taken to check on the
applicant’s situation at the very beginning of her period in foster care, although this had been a
particularly sensitive and crucial time for her. Moreover, the subsequent visits had not been carried
out on a regular basis, having taken place in 1977 and 1978 and not again until 1981 (two and a half
years later), and in 1982 and 1983 and not again until 1998 (over five years later).
The Court also noted that the inspection reports had been rather succinct and formal. There was
nothing to indicate that the ASE employees had had regular one-to-one conversations with the
applicant on their premises, although the report of 19 July 1978 had mentioned the fact that she
seemed nervous and that she was repeating her first year of school, during a period that appeared
to coincide with the first episodes of sexual assault admitted by M.B. In the Court’s view, those signs
should have led to particular attention being focused on the applicant’s situation, and certainly not
to a wait of two and a half years after the visit of 19 July 1978 before another home visit or
one-to-one meeting was arranged.
Furthermore, the Government did not provide any documentary evidence of contact between the
ASE and the headteachers of the schools attended by the applicant. Moreover, following the entry
into force of legislation making it a requirement as of 7 September 1984 to send an annual situation
report to the juvenile judge, only two welfare reports had been prepared, more than two years
apart, in 1986 and 1988. Thus, there did not appear to have been any regular or proper follow-up of
the applicant’s situation by the ASE.
The Court took the view that the national authorities had not put in place the preventive measures
provided for by the legislation in force in order to detect a risk of ill-treatment. Had those measures
actually been implemented, the ASE employees would have been able to establish a relationship of
trust with the applicant and give her the attention she deserved. Those measures would have been
especially decisive given that in 1985 the applicant, who was 14 at the time, had confided in a
member of the Jehovah’s Witnesses congregation about the sexual abuse to which M.B. was
subjecting her within the foster family. The Court noted that during the same period no home visits
had been arranged by the ASE, from 23 February 1983 until 18 May 1988, a period of five years. The
Government could not rely on the argument that they could not have been aware that the applicant
was being subjected to sexual abuse since she had never made any complaint to the ASE concerning
her foster family, as there had been manifest deficiencies in the regular follow-up of the applicant
imposed by the statutory provisions in force at the time.
In those circumstances the Court found that the lack of regular follow-up by the ASE, combined with
a lack of communication and cooperation between the competent authorities, should be considered
to have significantly influenced the course of events. It added that implementing the applicable rules
under domestic law so as to afford protection to the applicant would not have imposed an excessive
burden on the competent authorities. The Court concluded that, in the specific circumstances of the
present case, the French authorities had failed in their obligation to protect the applicant against the
ill-treatment to which she was subjected by M.B. while in foster care. There had therefore been a
violation of the substantive aspect of Article 3 of the Convention.
Article 9: complaint concerning failure to comply with the religious neutrality clause
The Court observed that the applicant, when she was placed with the foster family, had not been a
member of the Jehovah’s Witnesses and had become one as a result of growing up in a household
whose members belonged to that congregation.
The Government argued that the ASE had been unaware that Mr and Mrs B. and their children were
Jehovah’s Witnesses. While there was no evidence that the ASE had possessed that information at
the time of the applicant’s placement, the Court noted that the on-site inspection prior to the
applicant’s placement, and especially the home visits and conversations with the applicant that were
a statutory requirement throughout the placement, should have enabled the ASE to be informed
about the foster family’s religious practices, to take the necessary action to remind the foster
parents of their duty of neutrality, and, if appropriate, to move the applicant to a different foster
family.
In any event, the ASE had been informed of those practices at the latest in September 1988, by the
doctor in the emergency department where the applicant had been taken following her serious
road-traffic accident of 9 September 1988. On that occasion the foster family, in breach of their duty
of neutrality, had written to the hospital requesting, on the grounds of their religious beliefs, that
the applicant should not receive any blood products.
The evidence in the case file showed that the social worker responsible for overseeing the foster
care arrangement during that period had not followed up on this information. The Court observed,
firstly, that the social worker had not spoken to the applicant about her upbringing, the foster
family’s religious practices or her religious conversion, and, secondly, that she had not mentioned
the information in question in the welfare report drawn up a month after the incident, on
21 November 1988. Furthermore, there was no evidence that the ASE had subsequently informed
the juvenile judge of the situation, in particular before the latter took his decision on 13 December
1988 to maintain the foster care arrangement with the same family until 11 February 1991.
Consequently, the Court considered that the national authorities had not taken the measures
required of them, pursuant to their specific positive obligations in the present case, to ensure that
the foster family observed the religious neutrality clause in which they had undertaken to respect
the religious views of the applicant and of her birth family. There had therefore been a violation of
Article 9 of the Convention.
Just satisfaction (Article 41)
The Court held that France was to pay the applicant 55,000 euros (EUR) in respect of non-pecuniary
damage.
