Little more than six months after its implementation, the Human
Rights Act 1998 is already beginning to have a significant impact
on child protection work.
Two judgements last month – one in the European Court of Human
Rights and the other in the Court of Appeal – have shifted power
away from social work and back towards the judicial system.
In the first, the European court fined two local authorities for
failing to maintain a proper balance between the right to family
life and the right to protection from inhuman and degrading
treatment. In the second, the court of appeal ruled that the right
to family life demanded much closer scrutiny by the courts of the
implementation of care plans.
Even if these developments fall short of what some believe to be
a de facto rewriting of the Children Act 1989, they certainly bring
back unhappy memories of the wardship arrangements that the act was
designed to remove.
Paradoxically, the kind of court involvement in child protection
cases which prevailed before the Children Act would, if
reintroduced through the Human Rights Act, harm children’s best
interests rather than enhance them.
Judicial proceedings are slow and squabbles between
professionals and family members about care plans will do little to
It is true that, in emphasising the rights to family life and to
protection, the Human Rights Act formalises two of the most
important considerations in professional judgements about children
at risk. But the prospect of heavy fines for getting these
judgements wrong may force social services departments into closer,
more bureaucratic relationships with the courts. Delays in court
processes are already damaging the welfare of children and it would
be a sad irony if the Human Rights Act deepened the crisis.
It is wrong for care home owners to hold service users to
ransom. Their actions highlight how powerless consumers have always
been in the market.
The crisis in private care homes requires a strategic response,
focused on maintaining the security and care of residents, present
The problem is underfunding. Not only do the consumers have no
say, but those purchasing care on their behalf are not given enough
money to do it. As purchasers have gained confidence, and the need
for different forms of care has become obvious, fees have been held
down and providers forced to diversify.
In the long term, fewer traditional care home places will be
needed. But the transition will require both new and existing
provision to be funded.
Care home owners are not the only ones who must ensure users are
not left high and dry. Local government can be expected either to
fund existing provision, or to fund the development of new
provision. Central government must take a strategic approach, and
accept responsibility for one or the other.