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Dealing with the inconvenient human rights of others

allan norman 60.jpgby Allan Norman, Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.

The practice of social work frequently throws up human rights issues – of course – but also, by its very nature, issues where human rights of different parties are in direct conflict. As the Human Rights Act matures, it increasingly appears that judgements which deal not merely with whether a Claimant’s human rights have been breached, but rather with whose rights take precedence, are going to be greatly significant. And social work practice is at the forefront of this debate.

Two such judgements on this issue have been given in the last few days.

Of course, we know that in principle an absolute right willnecessarily trump a qualified right. The latter are those where abalancing exercise is needed, the former where there is no balancingexercise.

Qualified rights v qualified rights

The issue in B, C, and D (Children), Re [2010] EWHC 262 (Fam) (05 February 2010)was the wish of parents whose children had been removed into care tospeak publicly, through the media, about their perception that they hadbeen mistreated by the local authority and social workers concerned.Their rights to freedom of expression had to be balanced against thatof the adoptive family, including the children removed.

In athoughtful judgement, the Court very carefully avoided the knee-jerk”children’s right trump parent’s rights” conclusion – there is no suchlegal principle, although that may frequently be the consequence of thelegal principles that do exist.

Thebirth parents assert their qualified right to freedom of expression.They consider that there is a public importance in the public beingaware of the (in their view) unjust way in which the local authority,social workers, a guardian, courts and judges, and, collectively, thesystem, have treated them and their children…

Ifand to the extent that these can be achieved without causing or riskingdamage, disruption or upset to the children and their adoptivefamilies, these seem to me to be entirely legitimate objectives. Thereis undoubtedly considerable and important public interest in, anddebate about, the interference of the state, including courts, in thelives of families, and that debate can only be informed by concreteexamples...”

The resultingmodification of a previous injunction that had prohibited media contactprotects the rights of the children, but also gives effect to the birthparents’ rights to freedom of expression.

Limited rights v qualified rights

Yesterday,the Supreme Court ruled on another issue touching social work closely,the presumption against children giving evidence in care proceedings.The Court of Appeal had ruled on this as recently as last month, so in passing the Supreme Court has demonstrated an ability to act with commendable speed where appropriate.

TheCourt of Appeal felt bound by previous authorities to conclude thatthere was such a presumption. The context was where serious allegationsmade by the child were disputed, and that child was in any event goingto have to give evidence in criminal proceedings. However, the Courtwas concerned by the problem that the Article 6 rights to a fair trial- rights of the father in the care proceedings – might be infringed.

On Appeal, in W (Children), Re (Rev 1) [2010] UKSC 12 (03 March 2010),the Supreme Court was not bound by the state of previous authority, andtook up the Court of Appeal’s invitation to revisit the issue. Thebarrister for the father

understandsthat article 6 is not a qualified right in the same way that article 8is a qualified right, but he accepts that what is entailed in a fairhearing in Children Act proceedings will have to take account of thearticle 8 rights of all concerned. All he asks for is “an intensefocus” upon their comparative importance rather than an assumption thatthe one will almost always trump the other.

Hegot what he asked for. The Supreme Court did not wait for the detailedreview of the question by expert committee that is apparently to takeplace. It confirmed that however rare it may be for the child to becalled to give evidence, there is no presumption against it:

rarity should be a consequence of the exercise rather than a threshold test” [para 30]

Social workers’ rights v service users rights

Inpassing, I have observed before that another human rights conflict thatemerges from time to time is that between our rights as professionalsand those of service users. The Courts have been willing to protect ourrights when the pendulum had been swinging a long way in the otherdirection, see ‘2009 – a good year for social workers’ human rights‘.

But in the first case above, while dealing with the comparative rights of birth and adoptive families, the court also observed,

Neither local authorities, nor judges, nor guardians, norsocial workers who work in this public field can claim any immunity orprotection from their names being mentioned in legitimate mediareporting.

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