An act for all the family

To what extent has
the Human Rights Act 1998 conflicted with the Children Act 1989, asks
children’s law specialist John Ellison, who explains how it has been used to
challenge professionals’ judgements.

In early October
2000, about the time the Human Rights Act 1998 came into effect, legal specialists
in children law were frequently overheard uttering short human rights slogans
outside courtrooms in London and presumably in the rest of the country. In the
public areas and meeting rooms at Wells Street (where the Inner London and City
Family Proceedings Court has its base), in the corridors and meeting rooms at
1st Avenue House, High Holborn (where the Principal Registry stands tall) and
in the talking areas of the awesomely spacious Royal Courts of Justice in the
Strand, the words were heard repeatedly: “necessary” “proportionate”, and
especially “It’s in breach of article 8”. In fact “article 8” became, for a
time, a little warning chant aired by lawyers.

It was, as we know
now and suspected then, mostly an empty threat. But not entirely. Courts these
days, when announcing reasons or judgement, are in the habit of routinely
taking into account whether or not a particular interference by a local
authority for the sake of a child’s well-being is “necessary” and
“proportionate”. Some judges are said to be acquiring a reputation as “human
rights judges”.

The real impact so
far of the Human Rights Act in UK children law, seems to be on local authority
decision-making and notification processes, rather than on human rights
failures in UK law itself. This is because the Children Act 1989 is said to
have been drafted so that it would be compatible with the European Convention
on Human Rights, and it has, on the whole, stood the test of human rights
friendliness. Even the Adoption Act 1976 has not yet got into serious trouble
with the act.

Ordinary legal
practitioners, myself included, had speculated about how far applications based
on the Human Rights Act would rely on existing judicial review procedures.
Judicial review applications are normally founded on an alleged failure in
decision-making. Sometimes a decision is outside powers given by statute. For
example, a decision that a child be cared for under a secure accommodation
regime or something close to it without a secure accommodation order, would be
open to challenge. Sometimes a decision made, for example, not to accommodate a
child, may fly in the face of a Children Act duty. Sometimes a commitment given
on behalf of a local authority, for example, to pay a specific level of
fostering allowance, is not subsequently honoured. All such actions have been
susceptible to judicial review, and at least the first two examples given may
be said to have a human rights dimension.

Legal practitioners
have wondered how far human rights claims in relation to decision-making
concerning children would ride the judicial review train in the administrative
court or would be launched as a “free-standing” human rights application, as
allowed by section 7 of the act. The latter can be heard in either the county
or the high court until court rules say different.

One of the most
influential decisions to date may be the case involving Cornwall Council of Re
M (Family Division) [2001] Family Law Reports 1300. Here it was held by a high
court judge in a free-standing Human Rights Act application, that a decision at
a permanency planning meeting that altered the long-term care plan for a child
in a way adverse to parents but without their presence at the meeting was
unlawful under the Human Rights Act. In particular, the way the decision was
made was held incompatible with the parents’ right to respect for their family
life under article 8 and was therefore unlawful by virtue of article 6 (right
to fair trial).

The decision was
unlawful because the parents were not involved enough in the decision-making
process. The presiding  judge, Mr
Justice Holman, did not suggest that parents had to be present, or had to be
invited to be present, at every part of the local authority’s consideration of
care plans and care plan changes. He agreed that it was fair and lawful for a
local authority, at a meeting attended by parents, to go into private session
after hearing from the parents.

Of course it would
have been unacceptable not to involve parents at all. What was specifically
unacceptable in this case was that the only meeting that the parents attended,
at a critical care planning stage, was not given over to identifying possible
decisions adverse to them, let alone to discussion of such decisions.

In Re M, the written
care plan for the child at the time of the care order (when the child, a little
girl, was nine months old) was for her to remain in her mother’s care, and if
this arrangement broke down irretrievably, the father, who was separated from
the mother, would be assessed as a carer before other options were pursued.

The child, at 14
months, was later deemed at risk and removed from the mother, and was placed in
short-term foster care. The parents were then invited to a “looked-after
children’s review” at which the father confirmed his wish to be a carer of the
child. This offer was made against the background that there were new reasons
for concern about the father’s ability to offer care of the child in his own

No decisions or
recommendations were made at this review other than that there would be a
“permanency planning meeting” a few days later, for professionals only. At this
second meeting (with a different chairperson and other personnel changes, so
that the meeting could not be reasonably considered a continuation of the first
meeting) the decision was made to rule out the child’s placement with either

Mr Justice Holman
quoted with approval a passage about the approach to article 8 taken by the
European Court of Human Rights in R v The United Kingdom [1988] Family Law
Reports 445: “…what therefore has to be determined is whether, having regard
to the particular circumstances of the case and notably the serious nature of
the decisions to be taken, the parents have been involved in the
decision-making process, seen as a whole, to a degree sufficient to provide
them with the requisite protection of their interests.”

So it was, without
imputing the slightest suspicion of bad practice to Cornwall Council, that the
court quashed the decision of the permanency planning meeting, compelling the
local authority to reconsider the child’s care plan.

It seems to me,
following the principles underlying the Cornwall decision, that if a care plan
is changed from a plan which includes parents to one which excludes them, it
must be only fair to ensure that the parents are not only able to discuss the
possible decisions with the professionals, but have a real opportunity to
address, question and comment on “the social work perception” of whatever
developments were supposed to have led to the change.

In the wake of the
Cornwall case the subdued warning chants of “article 8” are again being heard
more frequently in the outlying areas of the courts and local authorities must
be endeavouring to make their procedures safer from applications based on the
Human Rights Act.

John Ellison is a
lawyer and a member of the Law Society’s children panel.

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