Child protection and the right to family life

Does the Children Act 1989 adequately balance the need for local authorities to investigate abuse and remove children from the risk of harm, against the rights of parents and children to respect for their private and family life under Article 8 of ECHR?

Introduction

Child protection is a particularly emotive area of the law. The much publicised cases concerning child neglect and abuse such as Victoria Climbie, Peter Connelly (Baby P), and Daniel Pelka ignited public outrage for the lack of state intervention that allowed these children to suffer so much before being killed by members of their respective families. However, the overzealous state intervention in Cleveland in the 1980s and in Shetland in the early 1990s that saw a mass removal of children from families that were blameless likewise filled the public with horror. For these reasons the role of local authorities in intervening to protect vulnerable members of a family must be carefully balanced against that family’s right to respect for their private and family life under Article 8 of the European Convention on Human Rights (ECHR). The Children Act 1989 (the “1989 Act”) was introduced as a method of balancing these interrelated considerations. The 1989 Act, which has undergone recent amendment by the Children and Families Act 2014, seeks to protect the integrity of the family unit while simultaneously ensuring children remain protected from significant harm.

European convention on human rights

Article 8 of the ECHR ensures respect for ‘private and family life.’ The right is not absolute in that state intervention in private and family life is permissible if it is done so in accordance with the law and is necessary. There is no doubt that child protection issues fall into the category of necessary state intervention and they must be carefully managed to comply with the law. The European Court of Human Rights (“ECtHR”) has afforded a wide margin of appreciation for states to set their own levels of assessment in carrying out child protection related activities. However where state intervention is required it has been recognised that consultation with the parents, and where appropriate the child, is essential in order for the state to meet the Article 8 criteria of necessary intervention and proportionate response. In the case of W v United Kingdom it was held that the whole decision making process should sufficiently inform and take into account the views of the parents so that their own interests could be adequately protected. In practical terms this means the local authority has a duty to disclose any reports to parents unless there is a compelling reason for it to be withheld. In T P and K M v United Kingdom it was found that failure by the local authority to disclose a recording of an interview with a child making a statement as to the identity of the person who had abused her breached her mother’s Article 8 rights. In this case it transpired that the abuser shared a first name with the boyfriend of the child’s mother who was resident with them. The court found that where the local authority was in doubt about whether the information should be disclosed the issue should be considered by the court in order for an appropriate direction to be made. It naturally follows that where a parent is given the opportunity to be involved with the local authority in the decision making process no breach of Article 8 occurs. In Scott v United Kingdom a child had been placed on an at risk register due to the mother’s alcohol abuse issues. The child had been placed temporarily with foster parents at one time and had been subject to a number of care orders. The mother required a period of psychiatric care related to her alcohol problem and then suffered a subsequent relapse. The child therefore remained influx with regards to her care. To facilitate a sense of permanent security for the child the local authority sought a court order to free the child for adoption without the mother’s consent which was granted. The mother argued that her rights under Article 8 of the ECHR had been breached but the ECtHR found that the decision making process had not been unfair and the alternative of leaving the child with her mother would have been to the child’s detriment.

Local authority duties under the 1989 act

Safeguarding and promoting the welfare of the children in their area is a responsibility imposed on local authorities by the 1989 Act. The duty additionally requires that as far as is practicable while protecting a child’s welfare the local authority should promote the upbringing of that child by his or her family. In fact the 1989 Acts further provides that a local authority may provide assistance to the family in general if it is to the ultimate benefit of the child’s welfare. It has been suggested that protecting the family unit by providing necessary support is a method of preventing a child from being taken into care. The emphasis on family integrity is an essential consideration which encompasses the states obligation under Article 8 of the ECHR to respect for private and family life. However it should be noted that the assistance from the local authority to the family is discretionary rather than obligatory.

The 1989 Act imposes a positive obligation on local authorities to investigate the welfare of a child in their area if there is a reasonable cause to expect that the child is suffering or will suffer significant levels of harm. What constitutes ‘significant harm’ has been the subject of much debate. The 1989 Act defines harm as “ill-treatment or the impairment of health or development” be that directly inflicted or indirectly through observation of another being subject to such harm. Harm can be inflicted through positive or negative acts either intentionally or unintentionally. However the act does not provide definitive guidance on what constitutes significant harm. Ward LJ opined that “the harm must… be significant enough to justify the intervention of the state and disturb the autonomy of the parents.” Any definition of ‘significant harm’ has been purposefully wide in scope in order to encompass the myriad of possibilities that it may require to cover. Lady Hale believed there was benefit in restricting the definition of ‘significant’ to the dictionary meaning of ‘considerable, noteworthy, or important.’

During the course of the investigation the local authority does not gain parental rights and responsibilities. Therefore the local authority should be working in partnership with the family. The scope of the investigation and the subsequent plans in relation to the child’s welfare should be made in consultation with the parents and where appropriate the child. However without a court order there is no obligation on the family to accept any local authority imposed plan.

If the family fails to cooperate during the course of the investigation the 1989 Act provides that the local authority to obtain a child assessment order. A child protection order is only suitable where the concerns the local authority have do not meet the threshold criteria outlined in s.31 of the 1989 Act which include the child being at risk of ‘significant harm.’ In such cases a care order or supervision order is appropriate. However if during the course of the investigation there is reasonable cause for the local authority to believe the child is suffering or will suffer significant harm the local authority is required to apply for an emergency protection order in respect of the child. The duality of an emergency protection order is that it operates to either sanction the removal of a child from harm by an authorised person or it can prevent removal of the child to a place where harm is likely to occur. The operation of the various orders contained in the 1989 Act provide a legal tool for state intervention in family life. The various orders must therefore be carefully regulated by the court to ensure that the interference with a families rights under Article 8 are done so out of necessity, are proportionate to the situation, and that no alternative course of action is available.

Failures in local authority action

In 1974 the Maria Colwell inquiry concluded that incompetence by social workers and systematic failures allowed the child to suffer ongoing abuse before eventually being killed by her stepfather while she was subject to a supervision order. Over the course of the next decade a further 29 inquiries were undertaken into the deaths of abused children and similar findings were made. During the mid-1980’s child welfare officials were placed under increased scrutiny for these perceived failures to protect children they knew or should have known were vulnerable to abuse. It is perhaps unsurprising that the response by professionals was to become over-zealous in their assessments of children and in 1987 over 100 children in Cleveland were removed from their families and a similar mass removal of children occurred in Shetland.

The introduction of the Children Act 1989 was to provide “order, integration, relevance and a better balance to the law.” It provides a legislative framework for local authorities to operate in partnership with families, respecting their autonomy while simultaneously ensuring the welfare of children. Local authorities have also put in place procedures to ensure interagency communication regarding individual children, a past failure which has persistently been blamed for child protection failures. In particular Nick Allen draws attention to the fact that Schedule 2 of the 1989 Act places an obligation on a local authority whereby if there is a suspicion that a child living in their area is likely to suffer harm but the child proposes to move to another local authority area the new authority is required to be advised of the harm that is believed to be likely and where the child will be resident in the new area. This provision is significant in mitigating against ‘losing’ vulnerable children.

The reality remains that the 1989 Act has not prevented the deaths of more children at the hands of their families. Critics of the 1989 Act argue that it is a “charter for abusive parents” having prioritised the rights of parents over the rights of abused children. The arguments in support of the 1989 Act can be summarised in the words of Baroness Hale who states that the 1989 Act “is concerned with all children and not just the abused and neglected… Any civilized state has to start from the proposition that children are best brought up in their own families.”

In fact the failures of local authorities may have a more prosaic explanation than any failure inherent in the 1989 Act: lack or resources. It has been suggested that poorly resourced local authorities are forced to divert funds away from ongoing family support services. As a result the local authority essentially evolves into a crises management body dealing with the immediately pressing issues which usually involve children requiring compulsory care. In such a culture the potential of the legislative framework to promote and protect the rights of children and parents is substantially diminished.

Conclution

The 1989 Act is a remarkable attempt at balancing the rights of families, as enshrined in Article 8 of the ECHR, with the need to protect children from harm. It is evident that the 1989 Act seeks to enforce a partnership between local authorities and families which works to promote the welfare of the child. In recognising that a child is usually best brought up in their own family the 1989 Act affords protection of the right of the child and the parents to respect for private and family life. However, the emphasis of the Act on maintaining family integrity where possible has led some to suggest that the act neglects to address the rights of abused children. In addition, restrictive fiscal limitations on local authorities means the potential of the 1989 Act to operate with true purpose in respecting the Article 8 rights of families is essentially stifled. There is no doubt that the 1989 Act provides a strong legislative framework from which a well-resourced local authority should be able to support children and families while simultaneous protecting their right to private and family life.

Bibliography

Allen, N Making Sense of the Children Act 1989 (John Wiley & Sons, 2005).

Frost, N and Paton, N Understanding Children’s Social Care: Politics, Policy and Practice (SAGE Publications Ltd 2009).

Gilmore, S, Herring, J and Probert, R Great Debates in Family Law (Palgrave McMillan, 2015).

Harris-Short, S and Miles, H Family Law: Texts, Cases and Materials (Oxford University Press, 2011).

Herring,  J and Wallbank, J (eds) Vulnerabilities, Care and Family Law (Routledge, 2014)

Herring, J (ed) Family Law (Routledge, 2012).

Herring, J Family Law (3rd ed Pearson Education Ltd 2007).

Journal articles

Devine, L ‘Presumed Innocent from Salem to Soham’ (2005) Crim Law 149, 2.

Gingell, B ‘Children’s rights are human rights: liability of the state for damage to children caused in the course of child protection work’ (2001) Cov L J 6(2), 78.

Herring, J ‘The human rights of children in care’ (2002) L Q R 118(Oct), 534.

Palmer, E ‘Courts, Resources, and the HRA: Reading Section 17 of the Children Act 1989 Compatibly with Article 8 ECHR’ (2003) EHRLR 3, 308.

Cases

Hasse v Germany App no. 11057/02 (ECtHR 8 July 2004).

M A (Children) [2009] EWCA Civ 853.

McMichael v UK (1995) 20 EHRR 205.

R (on the application of G) v Barnet London Borough Council [2001] EWCA Civ 540.

Re B (A Child) [2013] UKSC 33 at 185.

Re B (Disclosure to other parties) [2002] 2 FCR 32.

Re H (Care Plan: Human Rights) [2011] EWCA 1009.

Scott v United Kingdom [2000] 1 FLR 958.

T P and K M v United Kingdom [2001] 2 FCR 289.

W v United Kingdom (1988) 10 EHRR 29

Footnotes

Sonia Harris-Short Family Law: Texts, Cases, and Materials (Oxford University Press 2011).

Julie Wallbank and Jonathan Herring (eds) Vulnerabilities, Care and Family Law (Routledge 2014).

Jonathan Herring Family Law (3rd ed Pearson Education Ltd 2007).

Article 8(1) ECHR.

Article 8(2) ECHR.

Jonathan Herring (n. 3).

Hasse v Germany App No. 11057/02 ECHR (2005).

Re H (Care Plan: Human Rights) [2011] EWCA 1009.

W v United Kingdom (1988) 10 EHRR 29 at 63.

McMichael v UK (1995) 20 EHRR 205.

Re B (Disclosure to other parties) [2002] 2 FCR 32.

[2001] 2 FCR 289.

Jonathan Herring (ed) Family Law (Routledge 2012).

[2000] 1 FLR 958.

Ibid.

1989 Act s. 17(1)(a).

1989 Act s. 17(1)(b).

1989 Act s. 17(3).

Nick Frost and Nigel Paton Understanding Children’s Social Care: Politics, Policy and Practice (SAGE Publications Ltd 2009).

Sonia Harris-Short et al (n. 1).

R (on the application of G) v Barnet London Borough Council [2001] EWCA Civ 540.

The Children Act 1989 s. 47.

Jonathan Herring (n. 3).

The 1989 Act s.39.

Jonathan Herring (n. 3) referring to Re V (Care or Supervision Order) [1998] FLR 776.

M A (Children) [2009] EWCA Civ 853.

Jonathan Herring (n. 3).

Re B (A Child) [2013] UKSC 33 at 185.

J Herring (n.15).

The 1989 Act s. 43.

The 1989 Act s. 31.

The 1989 Act s. 31(4).

The 1989 Act s. 44.

Jonathan Herring (n. 15).

Jonathan herring (n. 3).

Julie Wallbank (n. 2).

Nick Frost and Nigel Parton Understanding Children’s Social Care: Politics, Policy and Practice (xxx

David Mellor, Hansard Vol 151, no 94, col 1107

John Herring (n. 15).

Julie Wallbank (n. 2)

Nick Allen Making Sense of the Children Act 1989 (John Wiley and Sons 2009).

Nigel Speight and Jane Wynne ‘Is the Children Act failing severely abused and neglected children?’ Arch Dis Child (2000) 82,192.

Baroness Hale of Richmond ‘In defence of the Children Act 1989’ Arch Dis Child (2000) 83, 463.

Sonia Harris-Short (n. 1).