How do human rights protect children and parents in care proceedings?
A person’s human rights are protected under the Human Rights Act 1998 and the European Convention on Human Rights. The protection of a person’s human rights is paramount in all aspects of law and this is of high significance in Care Proceedings. The Local Authority have a legal obligation to protect children from harm and they have a positive obligation to take preventative measures to prevent this harm to the child from those who pose a risk.
Article 3 of the European Convention on Human Rights protects a child to ensure that there is not a delay by the Local Authority in removing the children from the harm or risk of immediate harm. This convention right specifically deals with the prohibition of torture or inhuman or degrading treatment or punishment and therefore a delay in removing a child from a situation whereby they are being harmed or at risk of immediate harm could be considered degrading treatment specifically.
Article 6 and Article 8 of the European Convention on Human Rights are the main protected rights in the Care Proceedings process. When Care Proceedings are issued by the Local Authority to remove a child from the care of parents or guardians, the court must weigh up the rights of the child against the competing rights of the parents or those who hold parental responsibility for that child. The European Court have stressed that the removal of a child from the care of a parent should be considered a temporary step with the aim to take the necessary measures to return the child to their care where appropriate and justified. Any decision made to not allow parents to see their child or children must be reviewable by the Local Authority or consequentially the court.
With regard to Article 8 which covers the right to a family and private life, any removal of a child from their family’s care must be considered as necessary and justified in the short term and long term. If the Local Authority feel that the permanent removal of the child is in their best interests, they may apply to the court for an adoption order as part of their final care plan. To protect the interest of those with parental responsibility, it is necessary for all other care options for the child to have been considered. If there are any possible family members or connected persons that could still be assessed to care for the child, the court cannot make an order for adoption until these options have been exhausted due to the child and parent’s right to family and private life. This right also protects absent parents by ensuring that adoption cannot occur without a parent’s knowledge.
Article 6 covers the right to a fair trial and ensures that those who hold parental responsibility are involved in the decision-making process and are properly consulted. This convention right also ensures that all evidence and relevant documents are disclosed to the parents, so they can respond to and consider the evidence against them. To ensure that parents have a “fair trial” or hearing in care proceedings, they are entitled to seek legal representation if they wish due to the complexity of the situation. This legal representation within the court process is not means or merits tested due to the seriousness of the matter as to not provide a barrier to access.
The child or children involved in the case will also be appointed legal representation through their Children’s guardian to ensure their wishes can be portrayed in the court proceedings. Furthermore, if a child is taken into Local Authority care and resides with a foster carer, Looked After Children Reviews will take place. An Independent Reviewing Officer is appointed to the case at this stage to ensure the Local Authority is acting within their statutory duty to protect the child and uphold their human rights for the duration of their placement with foster carers.
The Human Rights Act 1998 which incorporates the European Convention on Human Rights into UK law imposes a duty in public authorities to not breach the human rights of parents or children. It is evident that both parents and children are protected by these rights throughout the Care Proceedings with the child’s welfare being at the centre of this process. It is ultimately a judge who decides the final outcome for the child and they have to consider if the child and parent’s rights have been upheld and protected before reaching a decision; it may be possible to appeal a decision made by the court if parents disagree.