The protection of your human rights is vital in all aspects of the law. It is natural to wonder how these rights are maintained in Care Proceedings for parents, especially where the Local Authority are applying for a Care Order?
A Care Order allows the Local Authority to share parental responsibility for a child and makes them overall responsible for their safety, wellbeing and arrangements. Upon first glance, this does not seem to respect a parent’s right to private and family life under Article 8 of the Human Rights Act 1998. However, Article 8(2) 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. This is why the threshold for the making of an Interim or Full Care Order is so high as the safety of the child/children must warrant the deprivation of a parent’s right to private and family life.
Furthermore, Article 3 of the Human Rights Act 1998 prohibits the torture, inhuman or degrading treatment of a person. This article protects children to ensure there is no delay by the Local Authority in removing children who are suffering significant harm or at immediate risk of suffering significant harm. The Local Authority have a legal obligation to protect children from any harm. In instances where a child is being tortured or suffering inhuman or degrading treatment, maybe by way of physical chastisement or neglect by their parents, the Court must restrict a parent’s right under Article 8 to protect the child’s rights under Article 3.
Article 6 of the Human Rights Act gives a person the right to a fair trial. Parents have the right to their own free and independent 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. 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.
On first viewing, the making of a Care Order may seem to violate Article 8 of the Human Rights Act 1998, however, 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. Very often the Court will prioritise the child’s human rights above those of the parents, when it does this , the Court needs to set out in its judgment that consideration has been given to both the parents and the child’s human rights.
How can we help?
If your child or children have been made subject to a Child Protection Plan, Pre-Proceedings or Care Proceedings, we understand that this can be very stressful and that is why we are here to help and provide advice. We have experience in assisting parents at all stages of Local Authority involvement. Please contact Johnson Astills at either our Leicester office on 0116 255 4855 or our Loughborough office on 01509 610 312 and ask or a member of the Care Team. Alternatively you contact us through our free online enquiry form or email us at careteam@johnsonastills.com and a member of our team will be happy to assist you.
