In Loste v France  ECHR (application no. 59227/12) [in French], Ms Loste had been placed in foster care at the age of 5. She complained that the child welfare service, l’association Sauvegarde de l’Enfance (ASE), had not protected her against the sexual abuse to which she had been subjected from 1976 to 1988 by her foster father, Mr B. She also complained that the foster family, who were Jehovah’s Witnesses, had failed to comply with the undertaking that they had given in the form of a religious neutrality clause to respect Ms Loste’s Muslim family background. Mr and Mrs B would take her with them to meetings of the Witnesses and to preaching activities, and when in September 1988 at the age of 17 she was involved in a serious road traffic accident, they wrote to the hospital requesting that she should not be given any blood products [13 & 14].
She lodged a criminal complaint 1999, but in 2000 the public prosecutor at the Montauban Tribunal de Grande Instance told her that he was closing the case without further action on the grounds that it was time-barred . In 2004, she brought a first set of administrative proceedings against the State and was successful at first instance, but the judgment was set aside by the Bordeaux Administrative Court of Appeal and further proceedings were unsuccessful.
Ms Loste argued that she had not had an effective remedy by which to obtain a determination of the ASE’s liability because of the unduly restrictive or possibly erroneous application by the administrative courts of the statutes of limitation, contrary to Articles 6 (right to a fair hearing) and 13 (right to an effective remedy); however, the Court decided to examine her complaint from the standpoint of Article 13 taken in conjunction with Articles 3 and 9 of the Convention.
Under Article 3 (prohibition of inhuman or degrading treatment), Ms Loste contended that the ASE had not protected her against sexual abuse. The mechanism for monitoring foster families and the living conditions of placed children had not been sufficiently protective and the ASE had failed to control and monitor her placement – and that failure had made possible her exposure to inhuman and degrading treatment. As to Article 9 (freedom of thought, conscience and religion), the authorities had not taken the necessary steps to enforce the religious neutrality clause on her foster family, and the host family’s refusal of any blood transfusion during her hospitalization in September 1988, when she was still a minor, should have alerted the ASE to her living conditions .
The Government did not dispute that Ms Loste had been sexually abused as a minor by her foster-father and that that had been serious enough to constitute inhuman and degrading treatment within the meaning of Article 3. However, it believed that the legislation in force at the material time had provided adequate protection for her, and that the ASE in Tarn-et-Garonne had not failed in its missions of control, follow-up and monitoring of the conditions of her placement in her host family during her stay. There had been no evidence to suggest that she had been in danger of sexual assault within her foster family or anything likely to alert the domestic authorities to the ill-treatment she had suffered. She had never made the slightest complaint about her foster family to the ASE service, nor had she asked to be moved; on the contrary, when she came of age in 1989 she had asked to maintain her placement with that family. Further, once the acts of rape and sexual assault had come to light in her complaint of 19 March 1999, a criminal investigation had been initiated by the public prosecutor and investigations were carried out by the examining magistrate .
During the first ten years of her care by the foster family, the agents of the ASE had apparently been unaware that Mr and Mrs B were Jehovah’s Witnesses and took Ms Loste to meetings. That ignorance revealed the extent of the ASE’s deficiency in monitoring her living conditions . Though the Government maintained that, at the material time, there had been no evidence capable of alerting the domestic authorities to Ms Loste’s ill-treatment, that was not a conclusive argument . The criterion provided for in Article 3 did not require it to be demonstrated that, had it not been for the failure of the public authority, the inhuman or degrading treatment would not have taken place. The mere fact that the national authorities had not taken reasonably available measures which would have had a real chance of changing the course of events and mitigating the damage to Ms Loste was sufficient to engage the State’s liability. The Toulouse administrative court had concluded in its decision of 28 December 2006 that the attacks had been made possible until 1983 by the failure of the State to control the conditions of Ms Loste’s placement with the family .
The Government could not rely on the fact that it could not have been aware of the existence of the sexual abuse to which Ms Loste was subjected because there had been a manifest deficiency in the regular monitoring of her foster placement as provided for by the legal provisions then in force . The authorities had therefore failed in their obligation to protect Ms Loste from the ill-treatment that she had suffered during her placement and there had been a violation of Article 3 of the Convention [103 & 104].
As to Article 9, it was common ground that on her arrival in the foster family Ms Loste had not been a Jehovah’s Witness and that she had only become one while growing up in that household. Even if her religious identity had been based solely on the fact that she came from a Muslim family and that her personal religious beliefs were not affirmed at the beginning of her placement, she was nevertheless proselytised by Mr and Mrs B despite the fact that the religious neutrality clause formed an integral part of the conditions of her placement . The Court considered that the national authorities had not taken the necessary measures to have the foster family respect the religious neutrality clause under which it had undertaken to honour Ms Loste’s religious opinions as well as those of her family of origin . Accordingly, there had also been a violation of Article 9 .