FIFTH SECTION
CASE OF ASSOCIATION INNOCENCE EN DANGER
AND ASSOCIATION ENFANCE ET PARTAGE
v. FRANCE
(Applications nos. 15343/15 and 16806/15)
 
JUDGMENT 
 
Art 3 (substantive) • Positive obligations • Lack of necessary and appropriate measures by the State to protect child from fatal ill-treatment by parents • Failure to question the child’s teachers who had reported the suspected ill-treatment • Failure to investigate the family environment, in the context of their numerous changes of address • Interview with the child without the presence of a psychologist • Decision to discontinue the investigation without measures to ensure that increased monitoring of the child would continue • Lack of any mechanism to centralise the information • Absence of meaningful action by the social services to identify the child’s actual situation
Art 13 (+3) • Effective remedy • Requirement, not unreasonable, to establish gross negligence to engage the State’s responsibility for the defective operation of the justice system • “Gross negligence” could result from an aggregate of more minor acts of negligence

 
STRASBOURG
4 June 2020
FINAL
 
04/09/2020
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Association Innocence en Danger and Association Enfance et Partage v. France,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Gabriele Kucsko-Stadlmayer,
 Ganna Yudkivska,
 André Potocki,
 Yonko Grozev,
 Lәtif Hüseynov,
 Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Deputy Section Registrar
Having regard to:
the applications (nos. 15343/15 and 16806/15) lodged with the Court against the French Republic by two French associations, Innocence en Danger and Enfance et Partage (“the applicant associations”), under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 March 2015 and 7 April 2015 respectively,
the parties’ observations. Noting that on 27 September 2017 the Government were given notice of the complaints under Articles 2, 3 and 13 of the Convention and the remainder of application no. 15343/15 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. Noting that on 4 June 2019, the President of the Section decided, pursuant to Rule 54 § 2 (c), to invite the Government and Association Innocence en Danger to submit further written observations. Having deliberated in private on 15 April 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applications were submitted by two associations which work for child protection. The case concerns, essentially under Articles 2 and 3 of the Convention, the issue of whether the French authorities fulfilled their positive obligations to protect a child from fatal ill-treatment inflicted by her parents. Under Article 13 of the Convention, it also concerns the question of the right to an effective remedy in order to engage the French State’s civil liability for defective operation of the public justice system. THE FACTS
2. The applicants are two associations, both of which have their headquarters in Paris. They were represented by Mr G. Thuan Dit Dieudonné, a lawyer practising in Strasbourg, and by Mr R. Costantino, a lawyer practising in Paris. 3. The French Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry for Europe and Foreign Affairs. THE CIRCUMSTANCES OF THE CASE
4. The applications are linked to the death in 2009 of an eight-year-old girl, M., following ill-treatment at the hands of her parents. 5. Some of the factual information provided in the account below is taken from the report of 30 June 2014 by the Défenseur des droits (“Defender of Rights”, see paragraphs 90 et seq. below). Measures taken while M. was aliveEvents prior to June 2008

6. In 2000 M.’s parents lived together for almost a year. Her mother – who already had a son, A., born in 1999 from a previous relationship – quickly became pregnant with M. The couple married in October 2000 but separated shortly thereafter, when the mother was six months pregnant. The mother gave birth to M. anonymously (that is, without revealing her own identity) on 27 February 2001. 7. A month later the mother changed her mind and collected M. The child subsequently lived with both of her parents and her half-brother A.; the couple had a further three children, born in 2003 (a sister, O.), 2004 (a brother, R.) and 2008 (a brother, D.) respectively. M.’s health liaison book – a document containing medical information which is used to monitor a child’s health from birth until the age of 18 – was said to have been lost in the family’s numerous ensuing changes of address. 8. M. began attending school for the first time in April 2007 at the age of six, the mandatory school attendance age at the relevant time. However, the various schools in which she was enrolled on account of her family’s changes of address noted that she was frequently absent. 9. During M.’s first school year in 2007-2008, her teachers reported, in writing, various injuries that were regularly observed, mostly on the child’s face, but also on her body. In September 2007 one of M.’s two primary-school teachers telephoned Dr A., the doctor responsible for health issues in the school, to report the presence of bruises on M. and inform him about her concerns. On 18 October 2007 M. and her father met Dr A., who recorded on that occasion traces of old injuries, which in his view were “nothing to worry about”. Dr A. subsequently stated, in the course of proceedings following a complaint for “failure to assist a person in danger” after the parents’ conviction by the assize court (see paragraphs 47 and 57 below), “[w]e were not in an emergency context... If I had received something tangible, an injury to note, an emergency situation, I would have gone there (immediately)”. Following a meeting between M. and the school nurse, scheduled for November 2007, Dr A. opened a school medical file and met at least one of the child’s two teachers. He stated that nothing conclusive had been observed, but nonetheless asked the school to be vigilant and that, from then on, anything that could be considered suspicious was to be recorded. Tests to ascertain whether M. had a squint were recommended but did not occur on account of her frequent absences from school. After a meeting between Dr A. and M., in her father’s presence, on 15 February 2008, Dr A. contacted the doctor named by the family as being their general practitioner. Dr A. informed him about the suspicions of ill-treatment, but the GP knew the family only a little, as they had arrived in the area only one year previously. 10. On 31 May 2008 the family moved to a neighbouring municipality and M. was enrolled in a new school on 16 June. Child-protection alert of 19 June 2008
11. On 19 June 2008 the headteacher of this new school sent a “child-protection alert” (“signalement au titre de la protection de l’enfance”, see paragraph 64 below) to the Le Mans public prosecutor and to the president of the département council. The report did not mention the need for an immediate protection measure. The headteacher was concerned about the fact that, following a change of address by the family, M. had still not turned up at her new school, unlike her brothers and sister. She was troubled by this absence, given that the headteacher of M.’s previous school had informed her about suspected ill-treatment and she had received a school file referring to physical marks observed on M.’s body by her teachers throughout the year. She attached to her letter, which was headed “child-protection alert (suspected ill-treatment)”, copies of four hand-written pages by these teachers, recording various marks found on the child’s body throughout the 2007-2008 academic year. These pages read, in particular, as follows:
“- 14 September 2007, 3 bruises on the right shoulder-blade, 3 bruises on the stomach and traces of bruising on the arms and pelvis;
- 18 September 2007, a 2cm pink mark in the small of the back, a haematoma on the right elbow and small bruises on the arm;
- 1 October 2007 (after a week’s absence on account of flu), a bruise on the left forehead;
- 11 October 2007, 3 bruises on the face: 2 on the cheek (jaw and cheekbone) and one on the ear;
- 21 January 2008 (when M. was summoned to school with her parents, during a period when M. was absent), “following a severe episode of conjunctivitis, [M.]’s face was swollen and bruised and she could not open her eyes. Her face was partly covered by cream”;
- 25 January 2008 (after 3 weeks of absence), a bruise under the entire right eye; a scratch on the side of the eye, a large crust, about 2cm across, and a large bruise around it;
- 29 January 2008, 2 hematomas on the left ankle, 4 bruises all along the right leg;
- 25 March 2008, cut on the thumb;
- 3 April 2008, a bruise on the right cheek;
- 28 April 2008, very grazed knee;
- 6 May 2008, a bruise on the forehead, “[M.] told me that she had sore fingers because she had caught her fingers at home”;
- 23 May 2008 (at the swimming pool), several small bruises on the upper back, a large mark on the left thigh.”
12. On the same date the deputy prosecutor with responsibility for minors at the Le Mans public prosecutor’s office sent written instructions (“soit‑transmis”) to the commanding office of the gendarmerie, requesting an investigation into “possible ill-treatment inflicted on the child”. The deputy prosecutor gave instructions that the investigation was to begin with a forensic medical examination of the child and a videotaped interview with her, and that real-time processing was to be used (“traitement en temps réel” (“TTR”), a procedure by which the public prosecutor’s office replies by telephone, rather than by letter as in standard preliminary investigations, to police requests for guidance in handling such cases and takes immediate decisions on the next steps). However, it transpires from the subsequent report by the Defenseur des droits that the TTR procedure was not ultimately used in the investigation. 13. Twelve days later, that is, on 1 July 2008, the social services informed the public prosecutor by email that M.’s new school doctor, Dr D., had noted recent bruising. The email stated that a medical certificate was available in the premises of the academic inspectorate. 14. On 2 July 2008 the investigation was assigned to a police officer, under the supervision of a warrant officer, a senior police officer. 15. On 10 July 2008 (three weeks after the headteacher’s report and the prosecutor’s written instructions, a forensic doctor was assigned to the case. The gendarmes contacted M.’s parents to inform them that an investigation was being conducted and that the child was to be presented to the forensic doctor five days later. 16. On 15 July 2008 M. was examined by the forensic doctor, Dr. B., in her father’s presence. In his report Dr. B. described M. as a child who spoke little and was very withdrawn. He noted that she did not appear to be upset by the consultation. He was “immediately struck by M.’s very short height and very unusual way of walking”. He noted “numerous seemingly non-recent lesions across her entire body”. In concluding his report, which was submitted to the gendarmerie on 17 July 2008, Dr B. stated:
“Examination [of the child] reveals a very large number of seemingly old injuries, each of which, taken individually, may be the result of everyday accidents, but the number of which is highly suspicious... Despite the consistent explanations given by the father ... we cannot rule out acts of violence or ill-treatment.”
17. On 23 July 2008, in spite of her age (eight years), M. was questioned in the premises of the juvenile delinquency prevention brigade, in a room containing video equipment that was located two rooms away from the waiting area in which her father had been placed. M. and her parents had consented to the interview being recorded. The transcript of the audiovisual recording contains the following description:
“As soon as she arrived in the premises ..., [M.] was taken charge of and prepared [for the interview]. She expresses herself normally, using vocabulary appropriate to her age. She shows no particular apprehension towards the investigator.
[M.], whose measurements seem [closer to those] of a younger child, appears relatively calm. She has clearly been prepared and is relaxed. We did not note any unusual behaviour on her part, such as twitches, mimics or hand gestures. ...’
During the interview, M. did not allege that she had been subjected to violence by her parents or anyone else, but did state that “her brothers and sister [would] hit her, either with their hands or fists”. The gendarme pointed to each injury and M. provided an explanation (accident at home, fight with her siblings). When asked, “Does anyone hit you?” M. replied, “Only my mum and dad”, before correcting herself and saying, “Dad doesn’t hit me, and my mum doesn’t hit me.”
18. The family moved again on 15 August 2008, to a municipality not far from their previous home. The parents went to enrol their children in a new school, but failed to mention M.’s existence. However, M. turned up at school on the first day of the new school year. The school doctor, Dr D. (who had examined M. in her previous school and was also responsible for this school’s catchment area) spotted her in the school bus and informed the headteacher of the new school about the need to be vigilant with regard to this child. 19. On 17 September 2008 the police officer responsible for the investigation visited the family home. He was received by the mother, who confirmed that the lesions found on M.’s body had been caused by accidents and stated that there was no violence within the adults’ relationship or against the children. Following that visit, the police officer prepared a report on the questioning of a witness. 20. On 18 September 2008 the police officer drew up and signed the summary report of the investigation. He noted as follows: “[M.] did not strike us as being at risk within her family. She was smiling all the time and even began laughing in front of us. She did not mention any problems, either with her parents or with her brothers and sisters. The interview indicated that her various injuries were due to minor accidents, for which she gave clear and precise explanations, or to bickering with her brothers and sisters.” When he had visited the family home on 17 September 2008, the mother had “been unable to give any other explanation concerning [M.’s] injuries” and had “stated that everything was going well with her husband and that there had never been any instances of domestic violence or violence against her children”. The police officer stated that “the [two] houses [visited] were well maintained and clean” and that “the children ... always appeared healthy and polite, and lacked for nothing”. He concluded: “... the investigation has not brought to light any evidence for presuming that [M.] has been or is the victim of abuse”. Accordingly, he closed the investigation as it stood. 21. On 26 September 2008 the Child Welfare Service (“the ASE”; see paragraph 65 below) – which had also received the child-protection report on 19 June 2008 – sent a letter to the public prosecutor informing him, in the context of the investigation, that M.’s family had again changed address. 22. On 27 September 2008 the gendarmerie forwarded the file on the preliminary investigation to the public prosecutor’s office. It was received at that office on 1 October 2008. 23. On 6 October 2008 the public prosecutor’s office closed the case, on the grounds that the alleged offence was “not sufficiently made out”. Events after the proceedings were discontinued on 6 October 2008
24. In October and November 2008 M.’s situation was raised by her new teacher in discussions with an inspector from the Ministry of Education. They referred to the lack of information and action following the child-protection report that had been submitted in June. 25. On 5 March 2009 (that is, five months after the investigation was closed), the ASE examined its pending files and noted that the prosecutor’s office had not informed it of the follow-up taken in response to the child-protection report of 19 June 2008. The ASE made telephone enquiries and the prosecutor’s office informed it that the investigation had been discontinued. 26. On 27 April 2009 – following M.’s failure to return to school after the Easter holidays, justified by “corns on her feet” – the headteacher of the school that she had attended since September 2008 noted the poor condition of M.’s feet. He alerted the school doctor, Dr D., who already knew M. well. When questioned in the course of the parents’ trial before the assize court (see paragraph 47 below), Dr D. stated that he had been “horrified by the condition of the sores” and that “the father’s explanations as to the cause of the injuries [had] not seemed in the least convincing”. (a)    Report of concern (child-protection) of 27 April 2009
27. Also on 27 April 2009, the headteacher submitted a “report of concern (child-protection)” (“information préoccupante (protection de l’enfance))”, see paragraph 63 below) to the president of the département council (rather than to the prosecutor). He stated that M. had been absent for a total of 33 days since the beginning of the school year; these absences had not been systematically reported by her family and no medical certificates had been submitted. M. had often come to school with small injuries for which it was difficult to have a specific explanation. He also reported that, despite her father’s promises to that effect, M. had not been taken to see an ophthalmologist or a paediatrician, as requested by the school doctor in view of her regular complaints of headaches and a sore stomach, and her bulimic approach to food. Lastly, he reported the physical violence which M. had referred to; on 16 March 2009 she had stated “I don’t know what was wrong with my Mum this morning, but she hit me again” and on 17 March 2009, “Mum hit me again this morning.”
The headteacher attached to the report-of-concern form a three-page document listing the absences from school and the various marks observed on M.’s body since the start of the school year in September 2008, such as bruising to the eyes and chin, scratches to the face, as well as cuts on the top of her skull, including a deep cut to the scalp. (b)    M.’s hospitalisation from 27 April 2009 to 26 May 2009
28. On 27 April 2009 M.’s admission to hospital – resulting from the observations about the condition of her feet (see paragraph 26 above), and decided on in parallel with the child-protection alert – prompted the preparation of numerous medical opinions, several meetings of the care team and two meetings with M.’s father. One specialist stated that the child’s X‑rays did not indicate any underlying bone disease, but that the possibility of ill-treatment could not be ruled out. 29. On 26 May 2009 the hospital’s paediatric department sent a memorandum to the ASE, reporting on M.’s hospital stay and inquiring about the family’s living conditions. The social worker in the paediatric department had previously informed the ASE by telephone about M.’s situation and of the outstanding issues. The ASE had advised her to submit an official report of concern, but the memorandum received on 26 May was not considered by the ASE to constitute such a report. In the ASE’s view, the hospital’s memorandum merely supplemented the information that had been transmitted to the ASE in the report of concern of 27 April 2009. 30. On the same day (26 May 2009) M. was discharged from hospital and an appointment was arranged for 2 July. She rejoined her family in a new municipality, following a fourth change of address since their arrival in the Sarthe département in February 2007. (c)    The follow-up given to the report of concern of 27 April 2009
31. On 4 May 2009 the Sarthe Département Council received the report of concern. It was dealt with successively by two ASE staff members, each attached to a different territorial sector in view of the family’s change of address between the date on which the report of concern was sent and the point at which it was dealt with. At the relevant time no centralised unit existed in the Sarthe for gathering and processing reports of concern in child‑protection cases (see paragraph 69 below). 32. Between 25 May 2009 and 11 June 2009 the two ASE officials took partly overlapping measures. In the subsequent proceedings in respect of the complaint alleging “failure to assist a person in danger” (see paragraph 57 below), the second official testified that, following a careful examination of the case, the memorandum submitted by the hospital (see paragraph 29 above) had not been sent to the public prosecutor’s office “given that the case [concerned] a suspicion of ill-treatment, [that the public prosecutor’s office] had discontinued the investigation in 2008, and that there were no new established acts of ill-treatment or negligence”. Home visit of 17 June 2009
33. On 17 June 2009 two social workers made a home visit, which had been notified in a letter from the département council five days previously. The property was visited in full, and the assessing social workers spoke to each of the children, including M. 34. Each of the two social workers prepared their own visit report, on 1 and 29 July 2009 respectively. There was nothing in those reports that could give rise to any particular concern. 35. In addition to the home visit itself, the first assessor mentioned a chance encounter with M. and her older brother the next day in the village street. She noted that, although they had not seemed upset by the encounter or by the previous day’s visit, the two children’s appearance had been considerably less well-groomed than the day before. 36. The second social worker reviewed the previous reports about the family. She also stated that M., who was smiling and spoke fluently and spontaneously, said that she was happy in school and had made friends. 37. The ASE filed the two reports pending further visits by the two social workers, scheduled for August and September. Steps taken after the visit of 17 June 2009
38. The second social worker did not find anyone at the family home when she visited for a follow-up appointment, scheduled for 24 June 2009. She returned the following day without informing the family, and again found no one at home. She called the father at the end of July to confirm that a meeting was scheduled for 27 August 2009. 39. It would appear that M. died during the night of 6 to 7 August as a result of multiple acts of torture and barbarity by her parents; her death was not immediately discovered. 40. According to the report by the Défenseur des droits, the assessment of the report of concern continued in August and September, through visits by the two social workers; on each occasion the parents gave an explanation for M.’s absence. Discovery of M.’s death
41. On 9 September 2009 the father informed the gendarmes that M. had disappeared in the car park of a fast-food restaurant. An extensive search operation was launched to find the child. However, discrepancies were quickly noted between the responses provided by M.’s parents to police questions and those given by her half-brother. In addition, several persons informed the investigators that they had doubts about the alleged disappearance. Eventually, on 10 September 2009, the father led the investigators to premises where they discovered the child’s body. Proceedings after M.’s death
42. M.’s parents were immediately placed in police custody. The couple’s three other children (O., R., and D.), and M.’s half-brother (A., the mother’s son), were entrusted to the ASE, before being placed together in a foster family in February 2014. 43. On an application by the public prosecutor dated 11 September 2009, a judicial investigation was opened against the parents, who were placed in pre-trial detention from 12 September 2009. An autopsy of the child’s body was carried out, as were anatomical pathology analyses and other tests, but these yielded no conclusive results. The judicial investigation provided M.’s brothers and sister with an opportunity to comment on her life. It revealed that, in addition to the events of 6 August 2009 which had led to M.’s death, the child’s sufferings had begun when she was aged about two and a half. An educational worker responsible for monitoring M.’s brothers and sister would later state that they were finding it difficult to find their bearings outside the family setting, which exemplified “normal life” for them. The parents’ trial
44. In an order of 17 June 2011, the investigating judges of the Le Mans tribunal de grande instance ordered that the parents be indicted and committed for trial before the Sarthe Assize Court on charges of torture and barbaric acts resulting in death, committed against a minor aged under 15 years by a parent, and of making a fanciful accusation. 45. M.’s father appealed against that order. In a judgment of 5 October 2011, the Indictment Division of the Angers Court of Appeal upheld the order against him. 46. Various associations (including the two applicant associations) and the ad hoc administrator representing M.’s brothers and sister were listed as civil parties in the order of 17 June 2011 and in the judgment of 5 October 2011. Their civil-party claims thus conferred on them the status of parties to the criminal proceedings (see paragraph 84 below). M.’s paternal aunt was also listed as a civil party in both decisions but the judgment of 5 October 2011 states that she was “neither present nor represented”. 47. The trial before the Sarthe Assize Court took place from 11 to 26 June 2012. By a judgment of 26 June 2012, the parents were each sentenced to thirty years’ imprisonment. No appeal was lodged against that judgment. 48. In a civil judgment delivered on the same day, the Sarthe Assize Court ordered each of the parents to pay the two applicant associations, in their capacity as civil parties, a token euro in damages. In its judgment the Assize Court referred, inter alia, to Article 2 of the Code of Criminal Procedure (see paragraph 84 below) and specified that the facts which had given rise to the criminal conviction constituted negligence on the part of the parents which had caused damage to the civil parties. Proceedings to establish the State’s civil liability
49. On 5 October 2012 the two applicant associations brought proceedings against the State to establish its civil liability for the defective operation of the justice system. In particular, they argued that between June and October 2008 the investigation and prosecution services had committed gross negligence, consisting in a series of negligent failings which amounted to gross negligence within the meaning of Article L. 141-1 of the Code of Judicial Organisation (COJ). They submitted that if the criminal investigation had been conducted correctly, the child could have been saved. They requested that the State be ordered to pay them one token euro. (a)    The Paris District Court’s judgment of 6 June 2013
50. On 6 June 2013 the Paris District Court (13th Administrative District) delivered its judgment, against which no ordinary appeal was possible. 51. It ruled first on the legal standing of the two applicant associations. It pointed out that the applicant associations had each already received a token one-euro award as civil parties (see paragraph 48 above). Noting further that their standing had not been challenged by the Government Law Officer (agent judiciaire de l’État), it declared the action for damages admissible. 52. On the merits, it dismissed all of the claims made by the applicant associations. Firstly, it described the elements characterising the concept of gross negligence:
“Gross negligence is defined as any deficiency established by a fact or a series of facts resulting in the inability of the public justice system to fulfil its mission, which also concerns the police and gendarmerie services which are involved in the tasks of the judicial service under the authority and supervision of judges or prosecutors. Gross negligence is an act which entails a manifest or gross error in assessing legal or factual aspects and which results from abnormally deficient conduct, error established by a fact or series of facts resulting from this incapacity, and which must be assessed not in the light of subsequent events that could not be foreseen at the date of the impugned decisions, but in the context submitted to the judges, prosecutors and investigators. Although taken separately none of these possible negligent acts amounts to gross negligence, taken in the aggregate they may give rise to defective functioning of the justice system, and thus amount to gross negligence such as to engage the State’s liability...”
The court then examined each point raised by the applicant associations. It found, in particular, that the deputy prosecutor’s response – on the same date that the child-protection alert of 19 June 2008 was received – had been appropriate. It considered that the applicant associations were wrong to criticise the prosecutor for failing to question various individuals. Thus, it noted that the teachers had not witnessed the events which resulted in the marks observed on the child and had alleged that the parents were responsible for them. The headteacher of the previous school had not submitted a child-protection alert and the headteacher of the new school had only reported M.’s first two days of absence. It considered that the forensic doctor (Dr B.) had issued a detailed opinion, which did not require any additional investigation, and noted that the medical certificate drawn up by the school doctor (Dr D.) on 1 July 2008, referring to the presence of bruises, pre-dated the expert report and could have made no difference to its conclusions, since it did not mention the cause of these bruises. The court considered that the filmed interview with M., without the presence of a psychologist, had not been procedurally flawed, in that the gendarme who conducted the interview was an investigator who specialised in taking children’s testimony. Setting out the material in the summary record of the preliminary investigation, the court concluded that the prosecutor’s office could not be blamed for having discontinued the investigation without ordering additional measures. Lastly, the district court ruled on an argument which had not been raised in the original writ. In its pleadings, the association Enfance et Partage had added to the case file the letter from the département council dated 26 September 2008, informing the prosecutor about M.’s family’s change of address (see paragraph 21 above), and the new indication of a report of concern, registered on 4 May 2009 by the President of the Département Council (paragraphs 27 and 31 above). The court dismissed the argument by which the association criticised the prosecutor’s office for failing to reopen its investigation when this new information was received; the court noted that the report in question had not been addressed to the prosecutor’s office and that the president of the département council who had ordered a social-services report had never transmitted that report to it. The court concluded that the associations had failed to produce sufficient evidence of gross negligence or of numerous minor acts amounting to gross negligence on the part of the prosecutor’s office or the police investigators. 53. The two associations appealed on points of law against the judgment of 6 June 2013; on that occasion, the association Innocence en Danger submitted a request for review of the constitutionality of a national law (“QPC”). (b)    Judgment refusing to refer the QPC
54. The association Innocence en Danger raised the question whether the legal regime governing civil liability for gross negligence was compatible with the principle of the right to an effective judicial remedy. It considered that, where the matter concerned children about whom ill-treatment reports had been received, the requirement that victims of wrongful acts committed by persons in the justice system establish gross negligence was too strict a criterion. 55. On 12 February 2014 the Court of Cassation decided that there was no cause to refer the above-mentioned QPC to the Constitutional Council. It considered that the question was not new and that it had no serious merit. (c)    Judgment dismissing the appeals on points of law
56. In a judgment of 8 October 2014, the Court of Cassation joined the appeals on points of law submitted by the two associations and dismissed them. It endorsed the findings of the judgment of 6 June 2013, holding that the Paris District Court had been entitled to infer that no gross negligence, within the meaning of Article L. 141-1 of the COJ, had been made out. Complaint alleging failure by the Sarthe Département Council to assist a person in danger
57. On an unspecified date La Voix de l’enfant, another child-protection association (not an applicant in the present case) lodged a complaint against the Sarthe Département Council, alleging failure to assist a person in danger. The complainant submitted that the département council had been aware of the danger to which M. was exposed and had had an opportunity to help her, but that it had refused to react. 58. This complaint was discontinued on 31 May 2013, after a new investigation which included interviews with fifteen witnesses, including employees of the département council and staff from the paediatric ward in which M. had been hospitalised. The investigation had not established that the individuals questioned were aware of the seriousness of M.’s situation, and it was noted that none of them had refused to take action in response to that situation. RELEVANT LEGAL FRAMEWORK AND PRACTICE
CHILD protection
59. The French legislation on child protection is based on a two-part system of protection: (i) administrative, under the responsibility of the département councils (conseils départementaux in French, conseils généraux at the relevant time), and (ii) judicial, under the responsibility of the public prosecutor and of the children’s judge. 60. This legislation was consolidated by the Child Protection (Reform) Act (Law no. 2007-293 of 5 March 2007, “the 2007 Act”), which was further amended on 14 March 2016. The main concepts in this areaThe endangered minor

61. It follows from Article 375 of the Civil Code that a minor is endangered when his or her health, security or morality are imperilled, or where the conditions of his or her education are seriously endangered or his or her physical, emotional, intellectual and social development are seriously compromised. Reports of concern (child-protection) and child-protection alerts
62. There is a difference between a “report of concern (child-protection)” (information préoccupante (protection de l’enfance) and a “child-protection alert” (signalement au titre de la protection de l’enfance), in that they are transmitted to the administrative and judicial authorities respectively. 63. More specifically, a report of concern about a minor who is endangered or likely to become so within the meaning of Article 375 of the Civil Code is transmitted to the president of the département council, for the purpose of enabling the minor’s situation to be assessed and determining which protection and assistance measures might be available to the minor and his or her family. 64. A child-protection alert informs the public prosecutor about serious facts and risk factors that are likely to compromise the minor’s development within the meaning of Article 375 of the Civil Code. Administrative protection, under the responsibility of the département councils
65. Within each département, the Child Welfare Service (the ASE) is placed under the authority of the département council. 66. The département council is the cornerstone of the system for gathering reports of concern, which it centralises in a single circuit. Any reports of concern ought, in principle, to pass through it. 67. After assessment of each report of concern, the president of the département council must decide on the administrative measures that it could usefully be suggested to the families and must, where appropriate, take responsibility for notifying the judicial authorities. 68. In line with the principle of subsidiarity in respect of judicial intervention, the involvement of the judicial authorities is required only if the département council’s intervention is insufficient to resolve a situation where a child is in danger. 69. Since the 2007 Act, in accordance with Article L. 226-3 of the Social Action and Family Code (CASF), protocols have been drawn up, at département level, with a view to centralising the collection of reports of concern within a unit for gathering, processing and assessing such reports (“a CRIP”). This unit receives all the reports concerning endangered or potentially endangered minors and ensures that they are dealt with by a specialised department. Thus, it carries out an initial assessment prior to possible additional analysis or notification to the prosecutor’s office. It then monitors progress on the file, especially by ensuring compliance with the relevant time-limits. Judicial protection, under the responsibility of the prosecutor and the children’s judge
70. The public services, and also private and public bodies which might become aware of situations where minors are or might be endangered, may, where this is justified by the seriousness of the situation, inform the public prosecutor directly, provided that they also send a copy of this information to the president of the corresponding département council. 71. Where a matter is referred directly to the public prosecutor in this way, he or she must transmit to the President of the Département Council the information necessary for the latter to conduct his or her mission of child protection and, at the same time, inform the person who submitted the alert about the follow-up given to it. 72. Where the public prosecutor receives an alert alleging that an offence has been committed against a minor, he or she orders a criminal investigation. Under Article 40 of the Code of Criminal Procedure:
“The public prosecutor receives complaints and denunciations and assesses how they are to be dealt with, in accordance with the provisions of Article 40-1. Every constituted authority, every State agent or civil servant who, in the performance of his or her duties, has gained knowledge of the existence of an offence or of a crime is obliged to notify forthwith the public prosecutor about the offence and to transmit to this prosecutor any relevant information, official reports or documents.”
73. In parallel to the criminal investigation, the public prosecutor may take steps for the protection of minors through various measures, depending on the seriousness and urgency of the situation identified. 74. Thus, he or she may request that the administrative authorities carry out a social inquiry. 75. Where the information contained in the alert, the nature and the circumstances of the offence indicate that the minor is in a situation of risk within the meaning of Article 375 of the Civil Code, the public prosecutor may refer the matter to the children’s judge, with a view to initiating the procedure for educative assistance measures. 76. Lastly, in the event of a serious risk to the child (such as serious and substantiated violence), he or she may order the child’s temporary placement in care, subject to the condition that the case is referred to the children’s judge within eight days (the latter can then, if appropriate, impose a placement measure). Cooperation between those involved in child protectionThe machinery provided for by the CASF

77. The CASF lays down a co-operation system, applicable to all of the parties involved in child protection, in order to identify and assess at-risk situations, based on the principle of complementarity between the administrative and judicial measures. 78. Article L. 226-4 of the CASF specifies, inter alia, the cases in which the president of the département council must notify the public prosecutor of at-risk situations. In the version in force at the relevant time, this article was worded as follows:
“I. – The president of the département council shall immediately inform the public prosecutor where a minor is at risk within the meaning of Article 375 of the Civil Code and ... [where] one or several measures have already been taken in this regard, but these have not made it possible to improve the situation; ... He or she shall also inform the public prosecutor immediately where a minor is presumed to be in a situation of risk within the meaning of Article 375 of the Civil Code but where it has proved impossible to assess this situation. The president of the département council shall inform the public prosecutor about the action already taken, if necessary, with regard to the minor and the family in question. The public prosecutor shall inform the president of the département council as soon as possible of the measures taken in response to his or her communication. II. – Any person working within the [public services, and public or private establishments likely to come across situations in which minors are or are likely to be at risk] who, on account of the seriousness of the situation, notifies the public prosecutor directly about the situation of a minor who is at risk shall send a copy of this notification to the president of the département council. Where the prosecutor is informed by another person, he or she shall transmit to the president of the département council the information necessary for the latter individual to carry out the child-protection tasks entrusted to him or her, and shall notify the person who communicated the information about the follow-up given to it, as provided for in Articles 40-1 and 40-2 of the Code of Criminal Procedure.”
79. Article 40-1 of the Code of Criminal Procedure, as worded at the relevant time, read as follows:
“Where he or she considers that facts brought to his or her attention in accordance with the provisions of Article 40 constitute an offence ..., the district prosecutor with territorial jurisdiction decides if it is appropriate:
1. to press charges;
2. to put in place an alternative procedure to prosecution, ... or
3. to discontinue the case without taking any further action, where the particular circumstances linked to the commission of the offence justify this.”
80. Article 40-2 of this Code provides as follows:
“The public prosecutor shall inform the complainants and the victims, if these have been identified, and also the persons or authorities mentioned in the second paragraph of Article 40, of any prosecution, or alternative procedure to prosecution, which have been decided upon in consequence of their complaint or notification. Where he or she decides to close the investigation without taking further action, he or she shall also inform these persons of this decision, indicating the legal or policy reasons justifying this course of action.”
Protocol signed by the various entities involved in child protection in the Sarthe département
81. A “département protocol for the coordination of child protection in the Sarthe” was agreed in March 2010 by the various professionals in the Sarthe département who, in the course of their functions or their duties, were required to deal with reports of concern regarding the situation of at-risk minors; in particular, this concerned the département council, the Ministry of Education, the prosecutor’s office, the police and gendarmerie and the main local hospital. The protocol, which was not in place when M. died, was nonetheless the culmination of work which had begun in 2006. It was updated on 31 January 2013. 82. In its updated version, the protocol lists several measures, such as the establishment of a paediatric forensic-medical unit, which is responsible, in particular, for conducting interviews with child victims. It also provides that the investigations must have regard both to the context of the disclosures (which includes an interview with the individuals who reported the factual elements and/or had observed them), and to the victim’s family setting (in every case, an interview with the parents is to be conducted, subject to the proper safeguards). Lastly, among other points the protocol provides that the département council’s services are to transmit, immediately and without assessment, information about situations of actual or suspected ill-treatment to the public prosecutor. THE associations’ LOCUS STANDIIn general terms

83. In accordance with section 6 of the Associations Act of 1 July 1901, “any association which is properly registered may, without requesting special permission, take part in legal proceedings ...”. In the context of civil proceedings brought before the criminal courts
84. Where an offence causes harm to a victim, her or she may claim compensation through civil proceedings, which may be conducted concurrently and in conjunction with the criminal proceedings before the criminal courts. The fact of submitting a civil-party claim has the effect of making the victim a party to the criminal proceedings. Under Article 2 of the Code of Criminal Procedure, such civil proceedings are reserved for persons who have personally suffered from the damage directly caused by the criminal offence. However, in certain situations, set out in specific provisions, the legislature permits associations to exercise the rights conferred on civil parties, on account of the harm to the particular collective interest that they defend. Thus, with regard to the prevention of child abuse, Article 2-3 of the Code of Criminal Procedure provides as follows:
“Any association which has been lawfully registered for at least five years at the relevant time, where its articles of association include protection of or assistance to children who are at risk and victims of all forms of ill-treatment, may exercise the rights conferred on civil parties in respect with intentional offences against life or limb [or] assault... committed against ... a minor and offences in which minors are endangered ... where criminal proceedings have been brought by the public prosecutor’s office ....”
STATE LIABILITY INCURRED AS A RESULT OF THE ACTIONS OF ITS SERVICESThe possibility of bringing proceedings in the ordinary courts to establish State liability for the defective operation of the justice system

85. Article L. 141-1 of the COJ provides that the State’s civil liability may be engaged on account of the defective operation of the justice system in the event of gross negligence or a denial of justice. 86. The development of the domestic case-law as regards proceedings to establish State liability for the defective operation of the justice system is set out in Benmouna and Others v. France ((dec.), no. 51097/13, §§ 35-39, 15 September 2015). As described in that decision, the concept of gross negligence has also gradually been interpreted in a more extensive manner in the case-law of the ordinary courts. In a judgment by the Paris Court of Appeal of 25 October 2000 (CA Paris, 25 October 2000, no. 155, Gaz. Pal. 8-9 Dec. 2000, p. 17), for example, concerning the decision by a family affairs judge to grant residence rights to a mother whose mental health was impaired, that court held as follows: “... although, taken individually, none of the instances of negligence observed amounts to gross negligence, in contrast, taken in the aggregate, they give rise to defective functioning of the justice system which can amount to gross negligence.” The legal literature has emphasised that it is the aggregate of abnormal shortcomings, negligent acts or mere negligence, excusable when taken individually, which has been held to amount to gross negligence. 87. More recently, the State was found liable for gross negligence in respect of the death in his cell of an individual being held in police custody (CA Paris, 19 May 2015, RG no. 13/13107) and the suicide of an individual during police custody (TGI Bastia, 22 March 2016, RG no. 15/00427), and in a case where a woman was killed by her partner, where she had filed a complaint against him nine months previously but no criminal-law proceedings had ensued (CA Paris, 17 January 2017, RG no. 15/19415). The possibility of bringing proceedings before the administrative courts to establish the liability of a public authority
88. The possibility of bringing proceedings to establish a public authority’s liability has been developed through the case-law. 89. The public authorities’ liability was established with regard to shortcomings in the manner in which a minor was placed in care by the social services in the relevant département (CAA Bordeaux, 7 March 2001, no. 10BX00189), and in the context of abuse of children placed in foster families (CE, 13 October 2003, no. 244419, and TA, 13 July 2012, no. 1005941). A département’s liability was also engaged with regard to shortcomings in the way it dealt with a report of concern that had been transmitted to it (CAA Nantes, 5 July 2012, no. 11NT00456). In that case, the headteacher of a lower secondary-school had sent the social services a document stating that the children in question, accompanied by their mother, had spoken about the difficulties encountered by them when visiting their father. The family affairs judge had withdrawn all of the father’s visiting and residence rights on the basis of a report prepared by the social services. In proceedings to establish the public authorities’ liability, the administrative courts held that it had been negligent to draw up the report without hearing the father or carrying out additional investigations, which were essential to establish the veracity of the children’s statements, given the conflictual context of the pending divorce.
the REPORT ON M.’S CASE, ISSUED ON 30 June 2014 BY the Défenseur des droits
90. Under the Institutional Act of 29 March 2011, the Défenseur des droits is responsible for defending and promoting the best interests and rights of the child. 91. In the preamble to his report of 30 June 2014, he explained that he had been asked on numerous occasions to comment on M.’s death. His research had resulted in a finding about what, in his view, had led to a failing by the child-protection system. 92. Thus, he noted that the parental couple exerted complete control over M., a circumstance which had hidden her ordeal and distorted the ability of all those who had been in contact with the child to see and hear what was going on. He noted that it had become possible to understand the child’s real situation only after her death. 93. He then noted that the various forms of institutional involvement in the present case had been fragmented, and that all those who intervened had become locked in their own logic. He also referred to the scope of the investigations and assessments, which, in his view, had been too rigid. 94. With regard to the child-protection alert which resulted in a decision to discontinue the investigation, he noted, among other points, that there had been no discussion between the prosecutor and the investigator about the discrepancies between the investigation’s findings, the teachers’ observations and the forensic doctor’s hypotheses. He added that the decision to discontinue the investigation had “placed an excessive psychological burden on all those involved in [child] protection” and that his review had “brought home [to him] the decisive importance – for all the actors in the welfare, education and health sectors – of the decisions taken by the prosecutor’s office (or its failure to take decisions)”. 95. With regard to the report of concern of 27 April 2009, he found that the ASE had assessed M.’s family environment “blindly”, with the result that there had been “very little chance of breaking through the protective wall of her parents’ control”. 96. The Défenseur des droits concluded that M.’s death had triggered closer collaboration between the prosecutor’s office and the Conseil général, the creation of a CRIP, responsible for centralising reports (see paragraph 69 above), and the release of considerable additional resources, as a result of updating of the département protocol (see paragraph 81 above). RELEVANT INTERNATIONAL LAW
97. The Court summarised a series of instruments on child protection adopted by the Conseil of Europe and the United Nations in its judgment in the case of O’Keeffe v. Ireland ([GC], no. 35810/09, §§ 91 to 96, ECHR 2014 (extracts). 98. In the Bălşan v. Romania judgment (no. 49645/09, § 42, 23 May 2017), which concerned violence against a woman by her husband, the Court referred to the Council of Europe Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention”). This Convention – which was ratified by France on 4 July 2014 and entered into force in that country on 1 November 2014 – defines, in Article 3 (b), “domestic violence” as “all acts of physical, ..., psychological ... violence that occur within the family”. In this connection, the “Explanatory Report” on this Convention specifies that “Domestic violence includes ... inter-generational violence which typically occurs between parents and children... Inter-generational domestic violence includes physical, ... psychological ... violence by a person against her or his child...”
THE LAW
JOINDER OF THE APPLICATIONS
99. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. LOCUS STANDIThe parties’ submissionsThe Government

100. The Government considered that the applicant associations did not have standing to act on M.’s behalf and to lodge applications with the Court. 101. In their view, it was indisputable that M. alone was the direct victim of the alleged violations of the Convention. They argued that the applicant associations had not put forward sufficiently relevant grounds to be considered as indirect victims from the standpoint of the Court’s case-law. The Government concluded that, since the two association did not have standing as either direct or indirect victims, it remained to be determined whether “exceptional circumstances” should lead to their applications being declared admissible in the light of the criteria adopted by the Court. 102. The Government disputed neither the vulnerability of the direct victim (M.) nor the seriousness of the alleged violations of the Convention. 103. Equally, they did not deny that the applicant associations had taken part in the domestic proceedings, initially as civil parties during the judicial investigation which resulted in the criminal conviction of M.’s parents, then when they brought civil proceedings to establish State liability for the defective operation of the justice system. 104. The Government argued that the associations had not shown any link to M. during her lifetime, or any significant contact with her relatives after her death; nor had they received any authority or instructions from those relatives. 105. They added that M. had not been without family members. 106. In this connection, they stated that M. had had three brothers and a sister, who had themselves witnessed the violence inflicted on their sister. The siblings had joined the proceedings before the assize court as civil parties, through the ad hoc statutory representative appointed for that purpose, and that since M.’s older brother had come of age on 28 March 2017 he had also been entitled to bring proceedings to establish the State’s liability. With regard to the remaining siblings, the Government pointed out that the minor children were still being supervised by the children’s judge and were living with a foster family; the children’s judge could at any point appoint an ad hoc representative with locus standi to intervene on behalf of the minor children, who could take any decision likely to serve their best interests, including where this involved bringing proceedings to establish the liability of the French State. 107. The Government then indicated that M.’s paternal aunt had joined, as a civil party, the proceedings which resulted in the conviction of her brother (M.’s father). 108. They considered that these members of M.’s family had locus standi, unlike the applicant associations. Thus, in the Government’s view, the purpose of the present applications was not to bring before the Court complaints in respect of a victim who had no relatives, so as to ensure that a situation did not arise whereby serious allegations of a violation of the Convention could not be examined at international level. The applicant associations
(a)    The association Innocence en Danger
109. The association Innocence en Danger acknowledged that, since the direct victim of the alleged violations was the deceased child, it could not claim to be a direct victim. 110. On the other hand, it considered that there were “exceptional circumstances” which meant that it could be granted status to act as M.’s representative, even in the absence of an authority to act and although she had died, aged eight, before the application was lodged. 111. The applicant association stated that it had raised serious complaints that the direct victim – who had been extremely vulnerable and had died as a result of particularly brutal ill-treatment at the hands of her parents – was obviously unable to bring before the Court. 112. With regard to the existence of M.’s relatives, the applicant association considered that M.’s brothers and sister – all of whom had been minors at the relevant time and were placed in care as soon as their parents were taken into custody – were not in a position to bring the case before the Court. It considered that this was also the case with regard to M.’s paternal aunt, who had not apparently had any particular relationship with the child and had joined the proceedings as a civil party at the last moment in order to be able to attend the assize court’s deliberations, which were held in camera (a fact which prevented any persons other than parties to the proceedings from attending). 113. The applicant association pointed out that its standing and interest in taking part in the proceedings at national level had never been called into question under domestic law. 114. Lastly, the applicant association stressed that an examination of the merits of the case was clearly in the public interest, given the seriousness of the alleged violations. (b)    The association Enfance et Partage
115. The association Enfance et Partage pointed out that it had capacity to being legal proceedings in defence of its own interest, defined in its statutes and recognised by law, specifically the fight against child abuse (see paragraph 84 above). It concluded that it was entitled to bring proceedings for protection of the interests that it defended, given that these had been breached, and that it ought to be considered as a “victim” of the acts in question, in that it was directly and/or indirectly affected by the State’s wrongful omissions. It added that there were “exceptional circumstances” within the meaning of the Court’s case-law which justified its capacity to take part in legal proceedings. 116. With regard to M.’s siblings, the applicant association found it hard to imagine that an ad hoc representative, appointed to that role by the State, would challenge the State for its failings and actively lodge an application with the Court against his or her “contractor” on behalf of the deceased child’s brothers and sister. It stated that the task of an ad hoc representative with responsibility for defending minors’ interests was very strictly circumscribed and limited to representing the latter in the context of the investigation stage and criminal proceedings, and that he or she could not go beyond that role. 117. The applicant association also stated that although M.’s paternal aunt (the father’s sister) had joined the proceedings as a civil party in order to be able to attend the trial hearings before the assize court in their entirety, she had never considered it necessary to be assisted by a lawyer or to submit a single claim for compensation in respect of any damage, having decided that there was no reason for her to do so. 118. Arguing that the alleged violations of the Convention were serious ones, and that it had taken part in all of the domestic proceedings, it concluded that only child-protection associations were in a position to take effective action to ensure respect for the child victim’s rights.

Outcome for Article 3: violation