The effect of human rights issues on care orders

When deciding whether to make a care order or supervision order
whichever represented the most proportionate intervention should be
made. In this case, on its facts, a supervision order was
proportionate to the risks involved. That was the decision of the
high court in the case of Re EC on 28 March 2001.

The local authority had applied for a care order in respect of
the child E, whose parents had a violent relationship. On one
occasion, the mother left E with the father who caused head
injuries resulting in severe global developmental delay. He pleaded
guilty to the assault and was sentenced to eight years in prison.
Upon E’s discharge from hospital he went with his mother to a
residential unit where they remained for three months. Mother and
child then returned to their own home, with support from the local
authority, the health visitor and the community
psychotherapist.

The local authority said that the mother was vulnerable, had
only been on her own for 8 weeks, had continued her relationship
with E’s father, and she had lacked judgement when she had left E
with the father when he could not feed him.

The mother did not want a care order, as she had been supervised
for months, was happy with her social worker, had shown over a
number of months that there were no specific concerns or problems,
and did not believe that it was necessary to leave the power with
the local authority.

The guardian ad litem considered this to be a finely-balanced
decision, and pointed to the progress made. The guardian indicated
that this was not a case where a care order was likely to last
until E was 18 and that the justification for a care order would
become weaker with time, but one was appropriate at the moment
given the extent of E’s disabilities, the uncertainties about him
and the responsibility on the mother.

Mr Justice Sumner said that the risks for the future were not at
all significant. Since E’s release from hospital, his mother had
done all that had been asked of her in caring for him. She would
continue to protect and promote his welfare without a care
order.

The local authority had not proved the need for a care order,
indeed it had indicated that it would not seek to remove the child
without a court order. Under the European Convention on Human
Rights the intervention by a public authority had to be
proportionate to the legitimate aim. In this case a supervision
order was proportionate to the risk. The court made a supervision
order for three years.

Comment: Proportionality is a concept very dear to the
Strasbourg court’s heart. If a state wants to interfere in the life
of a citizen, then there must be a justifiable aim in mind and
sensible means used to pursue the aim. There are many cases from
the court to say that a state is justified in commencing care
proceedings, that the protection of children from abusive families
is entirely reasonable. What has to be balanced is the risk to the
child against the interference of the right of a family to live in
peace. Courts in the UK have been doing this since the inception of
the Children Act, and the ECHR adds very little. If the local
authority cannot prove the need for a care order they will not get
one, with or without the ECHR.

Bernadette Livesey

Walker Morris Solicitors