VIEWS: 12 PAGES: 4 POSTED ON: 1/31/2010
My clients are parents with learning disabilities, whose children have been taken into care on the basis of the parents’ learning difficulties. Does the Human Rights Act apply in this situation? Article 8 of the European Convention on Human Rights 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 8 guarantees respect for four things: a person‟s private life, family life, home and correspondence. In the situation outlined above, family life is the most relevant. This right was incorporated into domestic law by the Human Rights Act 1998, which came into force on 2 October 2000 and has no retrospective effect. In considering whether the parents and children affected have suffered a violation of their Article 8 right, it is necessary to analyse: Whether Article 8 is in fact engaged? Is there an interference with Article 8? Is the interference „in accordance with the law‟? Is the interference in pursuit of a legitimate aim listed in Article 8(2)? Is the interference „necessary in a democratic society‟? I address these in turn below. It is also necessary to bear in mind that Article 8 not only prevents unjustified infringements of the right to a family life by the State (a negative duty), but also imposes positive obligations on the State to respect family life. Of particular relevance here is the positive duty affirmed by the European Court of Human Rights in Kutzner v Germany (2002) (Application no.46544/99), where the Court stated: “Where existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited.” Is Article 8 engaged? As a general rule, “family life” for the purposes of Article 8 will always embrace the tie between parent and child, even where the parents are not married and do not live together (Kroon v Netherlands (1995) 19 EHRR 263). Further, the mutual enjoyment by a parent and child of each other‟s company constitutes a fundamental element of family life (see W., B. and R. v UK). In the circumstances you have asked us to advise on, it is very likely that the parents‟ and the child‟s Article 8 rights will be engaged, and I think it is unlikely that the State would not acknowledge this. However, please be aware that a blood relationship is not sufficient to claim “family life”, there must be an actual family life, with contact and social ties (Fawad Ahmadi & Anor v Secretary of State for the Home Department  EWHC 687). Is there an interference with Article 8? The essential ingredient of the right to family life is the right to develop normal family relationships. A decision to remove a child from his/her parent(s) and place them in care inevitable infringes the right to a family life. In Olsson v Sweden (No.1) (1989) 11 EHRR 259 the European Court of Human Rights stressed that: “it is an interference of a very serious order to split up a family.” Again, it is likely the State will accept that removal of a child constitutes an interference with the right to family life. Is the interference „in accordance with the law‟? An interference will only be „in accordance with the law‟ if: 1) there is a legal basis in domestic law; 2) the law or rule in question is accessible; and 3) the law or rule in question is formulated with sufficient clarity to enable those likely to be affected by it to understand it and to regulate their conduct so as to avoid breaking the law (see Sunday Times v UK 1979-1980 2 EHRR 245). Advice should be obtained from a solicitor with expertise in care proceedings to ensure that Social Services are acting in accordance with the relevant law and policy. Is the interference in pursuit of a legitimate aim listed in Article 8(2)? A decision to place a child in care must be justified under Article 8(2). The usual justification advanced is „to protect the rights and freedoms of others‟ (the child). This justification is likely to be accepted by the Court as the legitimate aim of taking children into care. Is the interference „necessary in a democratic society‟? This is likely to be the crucial question. This question was looked at in the similar case of Kutzner v Germany (above). In that case the applicants had mild learning disabilities, and the State removed their parental responsibility for their two daughters and placed the children in foster homes. The State further restricted the applicants‟ rights to visit their children. There were no allegations of neglect or ill-treatment of the children, and family doctors and other professionals opined that the children should be returned to the applicants, who they believed were entirely fit to bring up their children, both intellectually and emotionally. In this case the European Court of Human rights found a violation on the basis that the reasons relied upon by the State were insufficient to justify such a serious interference with family life. In reaching this decision, the Court stated that: “in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph (2) of Article 8…..It will also have regard to the obligation which the State has in principal to enable ties between parents and their children to be preserved.” It has further been recognised in many family cases before the European Court, and indeed in domestic courts, that of paramount importance is the best interest of the child (TP and KM v UK (2002) 34 EHRR 2). In the above case, the Court attached weight to the opinion of professionals and the family doctors, who opposed the children‟s removal from their parents. In K and T v Finland 151 ECHR 2001 it was held that it was not enough for the State to argue that the child could be placed in a more beneficial environment for their upbringing, the Court required other circumstances to exist, pointing to the “necessity” for such an interference with the parents‟ right under Article 8. Further the State is also under a duty to give sufficient consideration to additional measures of support as an alternative to the “most extreme measure, namely separating the children from their parents.” (Kutzner above). If a parent or parents have their child taken into care, and the only reason advanced is the learning disabilities of the parent(s), this may be considered an unjustified interference. The extent to which other professionals agree with the removal of the children, evidence of the effect on the children‟s welfare and whether other alternatives have been considered will all be relevant in determining whether a claim for violating Article 8 would be successful. Conclusion Article 8 is without doubt engaged where children are removed from the care of their parents and in this situation, both the parents and the children will have suffered an interference with their right. Whether the interference was in accordance with the law, will depend on the exact powers the care proceedings were brought under and whether these were exercised in accordance with domestic law and policy. Please be aware that human rights arguments should be raised by the parents in any care proceedings that take place. If the care proceedings have already taken place, it may be possible to bring a judicial review of the decision or a free standing human rights claim. Time limits do apply, and this should be considered on a case by case basis.
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