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Does the Human Rights Act 1998 protect parents in Care Proceedings

View profile for Chelsea  Harris
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The protection of your Human Rights is vital in all aspects of the Law. Article 8 of the Human Rights Act provides that everyone has the right to respect for private and family life. How is this right maintained in Care Proceedings for parents where the Local Authority are applying for a Care Order?

A Care Order allows the Local Authority to intervene and gives them parental responsibility for a child. At first glance this does not seem to respect a person’s right to private and family life, however, Article 8(2) of the Human Rights Act states that a breach of a person’s right to respect for private and family life must be necessary and lawful. When the Court decides to make a Care Order they must balance the rights of the children alongside the rights of the parents.

Article 3 of the Human Rights Act prohibits torture and inhuman or degrading treatment. This article protects children to ensure there is no delay by the Local Authority in removing children who are at significant harm or at immediate risk of significant harm. The Local Authority have a legal obligation to protect children from any harm.

Article 6 of the Human Rights Act gives you the right to a fair trial, parents have the right to their own free legal representation in Care Proceedings and the Court must ensure that they are involved in the decision-making process and properly consulted. This right also ensures that all evidence and relevant documents are disclosed to parents and they can respond to these and consider the evidence against them.

The children in the case will also be appointed a legal representative through their Children’s Guardian. For more information regarding the role of a Children’s Guardian, please click here. There will also be regular Looked After Child Reviews if a child is taken into Local Authority care and resides with a foster carer. Parents and professionals involved with the child will be invited to these reviews and an Independent Reviewing Officer is appointed to the case to ensure that 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. For more information regarding keeping in touch with your children when they are ‘Looked After’ please click here.

On first viewing, the making of a Care Order may seem to violate Article 8 of the Human Rights Act 1998, however, in reality this is not the case and any removal of a child from their family’s care must be considered by the Court as necessary and justified in the short term and long term.

The Human Rights Act 1998 imposes a duty on Local Authorities not to breach the human rights of parents or children. It is evident that both parents and children are protected by these rights throughout Care Proceedings and the child’s welfare is the centre of this process. It is ultimately the Judge who makes the final decision for a child and they must consider if the child and parent’s rights have been upheld and protected before reaching a conclusion.

Johnson Astills have a specialist care department comprising of experts in childcare law who can advise, assist and represent you throughout your involvement with Social Services. If your children are subject to a Child Protection Plan, Pre-Proceedings or Proceedings and you would like to speak to one of our specialist solicitors within the Care Department at Johnson Astills, please do not hesitate to call us on 0116 255 4855 or email us at legal@johnsonastills.com.