A critical look at the relation between Article 8 of the ECHR and the Children Act 1989 with respect to the need to Investigate abuse and remove children from the risk of harm.
The Children Act 1989 was enacted by the government to increase the protection for children in the context of families. The statutory aim was designed to offer much-needed protection for children who are living in broken families and overcrowded families and thereby exposed to threats of violence and abuses of any kind. Hence, the 1989 Act empowered the court to make orders to remove children from such families that were perceived to be a threat of any kind to the growth and development of the child in question. Typically, the local authorities would be involved in removing these children from such homes into foster care and orphanages. However, with the enactment of the Human Rights Act 1998 by parliament to honour the European Convention of Human Rights (ECHR)[1], there exists in principle a possible breach of the afore-mentioned Treaty[2]. Article 8 of the ECHR guarantees the human right to privacy and family life. Article 8 is a controversial human right provision in itself whereby the right to family and private life is not absolute as s2 of the said article states that this right can be interfered with where the prevention of crime or the protection of the rights and freedoms of others is concerned[3]. This second part of the provision makes articles 8 a flexible one in that it appreciates and provides for article 8 not necessarily to be interfered with, but for authorities to utilise s2 of the article when necessary, where the rights of others or the prevention of crime could relate directly to a child. It is almost as if s2 was written with the local authorities in mind in that if a parent or guardian was breaching the rights of a child then s2 could be invoked by the local authorities to override the parent’s or guardian’s right to family life. This essay will critically discuss the compatibility of the Children Act 1989 with Article 8 of the ECHR with respect to the need to investigate abuse and remove children from the risk of harm.
The provisions of the Children Act 1989
Under Part III of the Children Act 1989, the local authority is empowered to act when a child is being abused and harmed. Section 17 of the 1989 Act sets out the general duties of the local authorities by stating that the local authority has a duty to promote and safeguard the welfare of children who are in need and to promote the upbringing of the children by their families. This is done by the provision of a range of services to match the children’s needs as set out in section 17(6) such as accommodation and cash assistance.[4] Section 20 of the 1989 Act further sets out the provision of accommodation for children. In particular, the local authority is under a duty to provide accommodation for any child who requires shelter as a result of a loss of parental care, abandonment or for whatever reason, the person providing parental care is prevented from caring for the child.
Under section 47 of the 1989 Act, the local authority shall make necessary enquiries to enable them to decide whether they should take any action to safeguard or promote the child’s welfare. This duty arises when a local authority is informed that a child living in its area of responsibility is subjected to an emergency protection order or is in police protection. The local authority also has the same duty when they have reasonable cause to suspect that a child is likely to suffer significant harm.
Pursuant to this overarching duty to promote and safeguard the welfare of children, the Children Act 1989 also provides the local authority with sufficient tools through the variety of orders that can be applied from the court. Firstly, the local authority can apply for a care order under section 31 of the 1989 Act if it believes that a child is suffering or is likely to suffer significant harm. Secondly, under section 31, of the 1989 Act, the local authority can also apply for a supervision order to place the child under the supervision of the local authority without conferring parental responsibility on the local authority. Thirdly, the local authority can also apply for a child assessment order when leading an investigation into the health, welfare and development of a child under section 43 of the 1989 Act and lastly the local authority can secure an emergency protection order under section 44, of the 1989 Act when a child is likely to suffer significant harm from abuses. The Emergency Protection Orders (EPO) are very extreme measures used with great caution in cases of emergencies and give the local authorities the power to remove the child from the family home or keep the child in a safe place for a specified duration. They demand the handover of the child to the local authority who have applied to the court to secure such an order. The courts have a broad discretion to grants the above orders if the child is likely to suffer significant harm.[5]
In light of the broad powers that the court has in removing children from their natural family environment, there is a possibility that the human right of the children and their parents pursuant to s1 Article 8, ECHR relating to privacy and family home may be breached. However, there has been a steady stream of cases upholding the compatibility of the 1989 Act with respect to Article 8 ECHR. In R (on the application of S) v Swindon Borough Council[6] the court held that in relation to the requirement of local authorities to take action, the Children Act 1989 is not incompatible with Article 8 ECHR as enshrined in the Human Rights Act 1998. The Applicant in this judicial review case drew the courts attention to a possible breach of Article 8 after the local council had taken a decision on the welfare of a child. The applicant argued that the local council hadn’t exercised its powers properly under the Children Act 1989. The court, however, did not accept the argument and ruled dismissing the application that nothing improper nor a breach of Article 8 had occurred on the part of the respondent. The court was satisfied that reasonable suspicion instead of actual proof of harm was enough for the council to take the decision it did at the time. Another landmark ruling from the Supreme Court that defended the Children Act 1989 is the case of Re B (A Child)[7]. In this case, a child was removed from her parents at birth pursuant to an interim care order that was made under section 31, Children Act 1989. The reason for her removal was the possible psychological and emotional harm that the child could be subjected to in view of the fact that her mother was in an abusive relationship with her stepfather. In addition to this, the mother also had a tendency to fabricate matters. The court found that the child would be harmed and could imitate her mother’s behavior. Upon appeal by the parents against the interim care order, the Supreme Court held that there was no breach under Article 8 because the local authority had satisfied degree of threshold for such an order under the Children Act 1989. The court was keen to protect what was in the best interests of the child and that the courts will only make an order as a measure of last resort. As such, the system of orders under the 1989 Act is broadly compatible with Article 8, ECHR. From the court’s ruling, the court emphasized further, on the facts at the time, which the failure of the child’s parents in offering elementary cooperation with professionals that would guarantee the child’s safety in their home meant that putting the child up for adoption by the authorities was the only viable option. However, Lady Hale was reluctant and highlighted in her dissenting opinion that the decision of the lower court was based on the possibility of harm to the child and not the probability of harm. It brings into stark relief the difficult question of when the state is allowed to take away a child. The local authorities according to the Supreme Court in this case need not fear the physical abuse or neglect of a child, but simply rely on the character of parents, which render them as deficient parents. This comes across worrying as some parents cannot help but be deficient. It is worth noting that though the parents in question clearly had significant problems, their care of their daughter was held to be highly satisfactory. This resonates with the observations of Hedley J in Re L (Care: Threshold Criteria) calling on society to tolerate very diverse standards of parenting including the inadequate and the inconsistent.[8]
The judgment of the Supreme Court also emphasized on the test of proportionality that serves to highlight the nature of the right in Article 8 ECHR. The right in Article 8 is not absolute and contracting states may limit the right’s extent it if there is a legitimate aim to be pursued and the measure in pursuance of that aim satisfies the test of proportionality. As such, the court held that the fundamental question when applying this test is to assess whether the measure in question is necessary to achieve a particular outcome. For example, in Re K (Children)[9], the Court of Appeal ruled that the interim care order and child arrangement order made against two boys to remove them from their father’s care breached Article 8 ECHR since it did not satisfy the test of proportionality. This was because the lower court did not adequately consider the options available and there was no sufficient welfare analysis. The welfare options were also not identified with sufficient clarity. As such, the removal of the children amounted to a breach of Article 8 ECHR. Similarly, in Re S (Minors)[10], the court also held that the removal of the children from a chaotic and dysfunctional family was not justified because there was nothing on the facts that indicate that the safety of the children required immediate separation from the mother. Furthermore, the care plans failed to consider the issue of contact with the parents. From these cases, one can conclude that the threshold required to persuade the court to grant an order to remove a child is high as only a real possibility of harm can justify such an order. As such, these cases demonstrated the court’s awareness and willingness to rule against any orders that are granted without a proper consideration of the proportionality of the response.
Besides the legal reasoning in these cases, in assessing whether there is a breach of Article 8 by the grant of care orders by the court, one should also consider the various practical difficulties faced by social workers when making a decision on whether to remove a child from their home via the institution of care proceedings. Whilst their decisions may not always be flawless in all cases, the system created by the statute strongly encourage social care workers and local authorities to intervene and risk erring on the side of caution rather than allow the safety of children to be compromised. One need only consider two vividly horrific child abuse cases which resulted in brutal deaths to appreciate the significance of the intervention by local authorities under the statutory powers conferred under the Children Act 1989. In the Baby P case, Baby Peter was murdered at the hands of his own mother, her boyfriend and her lodger in 2007 but a lack of clear evidence means that no one was charged for murder[11]. What makes this case all the more shocking were the circumstances in which it happened whereby there were many child healthcare professionals and medical specialists attending to the various injuries suffered by Baby P but yet their involvement could not prevent his death. This case seems to be a sequel to the horrifying child sex abuse cases in 1987 known as the Cleveland child abuse scandal[12] and the abuse and murder of Victoria Climbie in 2000[13]. Hence, in light of these deaths and sexual abuses to children, it seems justified that the local authorities institute proceedings when there is the belief of significant harm to a child. In such circumstances, the right in Article 8 ECHR can be interfered with.
Child protection system
After the unfortunate incidents afore-mentioned, there have been numerous recommendations for the child protection system in the UK. In 2000 Victoria Climbie, an 8-year-old girl was tortured to death by her guardians after the authorities missed several attempts to save her life. Her death triggered a public inquiry resulting in major changes in child protection policies in the UK. This led to the Children Act 2004, which amended the Children Act 1989.
When Professor Munro was commissioned to review the child protection system in this country. When her report was published in May 2011[14], it recommended a subjective approach in protecting a child instead of a one size fits all approach, asking for more freedom for local authorities to create their own systems in implementing child protection instead of being bound by statutory guidance. It also encouraged senior and experienced social workers to stay on the frontline in a bid to supervise the junior or less experienced practitioners. Lastly, it called for the abolition of the excessive plethora of inspections and serious case reviews into child deaths conducted by Ofsted[15] After reading the report one would agree that there were indeed too many unnecessary targets at play which impeded the real issue here, the protection of the child. A child risks harm if only three of say five targets have been reached before action is taken. Targets should normally not be the legitimate reason to interfere with parents’ rights under Article 8 however; not doing so could equally interfere with the child’s rights under the same Article 8 ECHR.
The protection of the child should be paramount to all agencies involved in implementing policy geared towards the protection of children and should be ready to interfere with parents rights under article 8 seeing as s2 of this same article gives them the power to do so. However, it is important that these policies and legislation are framed in such a way that the child is not disadvantaged in any way during the processes leading up to safeguarding the rights of the child and ultimately its protection. It is in light of this that the provision in the Children and Families Bill is worrying in that it directs that all cases be completed within 26 weeks[16]. This 26-week deadline is directed at the best interests of the child but could be problematic especially in complex cases where this is not achievable and the pressure on the court process could end up in the wrong decision being made regarding some children.
Bainham disagrees with how easily parents’ rights can be breached under Article 8 and makes the point that children under suspicion of harm cannot be removed from home unless there is actual proof of such[17]. He goes on to say that it is unfair the low threshold criteria local authorities have to meet in removing a child from home and sees this as a gross violation of parents’ rights under article 8. He makes another point further that supervision orders also require the threshold criteria to be satisfied as such an order can be long term and could have the opposite effect on the child. Therefore, according to Bainham, without actual proof of a child being at risk of significant harm or if the threshold criteria for a supervision order has not been met then there is a legitimate reason to interfere with the child’s rights under and preserve that of the parent’s under Article 8. The courts as we have seen would disagree with this view. His suggestions for reform include cheaper cost of litigation in child protection cases and higher threshold criteria in child protection proceedings have not yet materialised.
Article 8 ECHR as incorporated within the Human Rights Act 1998 has had its impact on care proceedings under the Children Act 1989 and the courts are mindful of the possible breaches of the said Article under the convention. In reconciling the two pieces of legislation the courts try as best as they can to strike a fair balance not necessarily to make both parties happy but to make sure that Article 8 ECHR, either for the parent or the child is not breached. For example in Re H (Care Plan: human Rights)[18], the court granted an injunction the under the Human Rights Act 1998, preventing the local authority from a removing a child from it’s mother, despite the lower court having made an interim care order in favour of the local authority. The court held that removing the child breached the child’s rights under Article 8 and interfered with the child’s right to a private and family life. However in Yousef v Netherlands[19], in the European Court of Human Rights in Strasbourg, the courts agreed that there was a violation of the parent’s right under Article 8 but did not forget to add that the interference was in line with the national courts interpretation of the law and even though it is expected that a fair balance would be struck, the child’s rights must prevail. This shows that despite the rights of the parents under article 8, the child’s rights will most of the time reign under the same article. The courts seem to have struck the right balance looking at the above cases.
Conclusion
The UK has come far with regard to child protection services from scandals like that of Victoria Climbie and the recommendations in the Munroe report. In addition to this, the Courts have also helped in shaping the tools needed by the local authorities to protect children. Article 8 ECHR itself is not an absolute right and striking the balance in its interpretation is difficult. The compatibility of the article with the Children Act 1989 is not clear as the issue of its compatibility borders solely on striking the correct balance with regard to investigating and removing children from the family home. However, the fact that no court since 1998 has issued a certificate of incompatibility against Article 8 might be a clue as to its compatibility with the Children Act 1989. The views of Bainham in his article and the highlights in the Munroe report could be support for the incompatibility of the article but until the courts decide that it is not fit for purpose, they will continue to work with article 8 to safeguard the best interests of the child and they are supported in doing so, by the ECtHR in the Yousef v Netherland case.
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The information provided in this article is not intended to constitute professional advice and you should take full and comprehensive legal, accountancy or financial advice as appropriate on your individual circumstances by a fully qualified Solicitor, Accountant or Financial Advisor/Mortgage Broker before you embark on any course of action.
Bibliography
Legislation
European Convention on Human Rights 1953
The Children Act 1998
The Human Rights Act 1998
The Children and Families Bill 2014
Foreign Legislation
The European Convention on Human Rights 1953
Cases
[2014] EWHC 3983 (Admin) R (on the application of C) v Southwark LBC
[2001] EWHC Admin 334 R (on the application of S) v Swindon Borough Council
[2013] UKSC 33 Re B (A Child)
[2007] 1 FLR 2050 Re L (Care: Threshold Criteria)
[2014] EWCA Civ 1195 Re K (Children)
[2010] EWCA Civ 421 Re S (Minors)
2011] EWCA Civ 1009 Re H (Care Plan: human Rights)
2003] 1 FLR 210 Yousef v Netherlands
Reports
Munroe E, The Munroe review of child protection: Final Report 2011
Articles
Bainham A, Striking the Balance in Child Protection (2009), Cambridge Law Journal, vol 68, pp42-45
[1] European Convention on Human Rights 1953 [2] Article 8, European Convention of Human Rights 1953 [3] The Children Act 1998 s2 [4] R (on the application of C) v Southwark LBC [2014] EWHC 3983 (Admin). [5] See also the welfare checklist set out in section 1, Children Act 1989. [6] [2001] EWHC Admin 334 [7] [2013] UKSC 33 [8] [2007] 1 FLR 2050 [9] [2014] EWCA Civ 1195 [10] [2010] EWCA Civ 421 [11] http://news.bbc.co.uk/1/hi/england/london/7706598.stm accessed 15 April 2015 [12] http://www.davidlane.org/children/choct2002/choct2002/pragnell%20cleveland%20abuse.html accessed 15 April 2015 [13] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/273183/5730.pdf accessed 15 April 2015 [14] Prof Eileen Munroe, The Munroe review of child protection: Final Report, 2011 [15] Office for Standards in Education, Children's Services and Skills. Inspect and regulate services that care for children and young people, and services providing education and skills for learners of all ages. [16] The Children and Families Bill 2014 [17] A Bainham, Striking the Balance in Child Protection (2009), Cambridge Law Journal, vol 68, pp42-45 [18] [2011] EWCA Civ 1009. [19] [2003] 1 FLR 210