Sunday 28 October 2012
After the Savile scandal, a revolution in child protection
A revolution in child protection which would see elite graduates fast-tracked into social work has been given the go-ahead by Michael Gove,The Independent on Sunday can reveal.
The programme, called Frontline, is modelled on Teach First and would create a new movement of social workers to bring leadership, prestige and a sense of "social mission" to one of the least appealing and most widely criticised professions.
The Education Secretary gave the green light to the plan amid growing concern about child protection in the wake of the Jimmy Savile scandal. The revelations have once again highlighted widespread problems with the protection of children and the state of social work in Britain, which has been described as a "national scandal" by Lord Adonis, the former education minister.
Social workers were criticised for failing to act on signs of abuse in the shocking cases of Baby Peter and Victoria Climbié, and research has shown that those working in the profession often lack the assertiveness to challenge parents in problem cases. Earlier this month, Birmingham Social Services was criticised by Ofsted for continuing "inadequate" protection of children, despite improvements made following the death of Khyra Ishaq in the city in 2008.
The profession is in a state of crisis, say experts, with social workers struggling with increasing workloads, spending cuts by local authorities, and dwindling morale following high-profile cases. Last year there were 1,350 vacancies for social workers, while only 5 per cent of people who started training in this field last year had been to one of the Russell Group of leading universities. At the same time, calls relating to child abuse to the NSPCC helpline have more than doubled in the past two years, with nearly three-quarters of those calls referred to the authorities.
The Frontline idea was developed by Josh MacAlister, who underwent the Teach First programme and is a head of department at a secondary school in Greater Manchester. Mr MacAlister first suggested the "Teach First for social work" in 2010, when it was reported by The IoS. Lord Adonis, the former schools minister and ex-adviser on education to Tony Blair, helped to develop the idea. Last week Lord Adonis and Mr MacAlister held talks with Mr Gove, who ordered a business plan to implement Frontline.
Like Teach First, the Frontline programme would involve two-year in-work training for graduates, who would need to show qualities needed for social work before starting the course, including compassion, leadership and a confidence to challenge and use authority. Individuals would start with an intensive summer school of training before being placed in a frontline working role, where they would complete academic study and social work training in the first year, leading to a recognised social-work qualification.
The second year would involve continued in-job training at the same local authority. Graduates would have their salaries in the first year paid by Frontline, which would be established as a social enterprise, independent of government and local authorities. The second year would be funded by local authorities.
Similar to Teach First, Frontline participants would be committed to only two years, and would then be free to leave the profession. But Mr MacAlister argues that because of the rewarding nature of the "social mission" involved in jobs such as teaching and social work, individuals would feel motivated to stay on.
While social work already requires a degree qualification, there has been criticism that the training is poorly suited to the practical realities of the profession.
A report putting the case for Frontline by Mr MacAlister, for the IPPR think tank, found that of 2,765 people who started a degree in social work last year, only five individuals had been to Oxford or Cambridge, suggesting that social work is not regarded as a high-status profession. Two-thirds of social work students pass their degree the first time round, while only 12 per cent of applicants have three grade As at A-level or equivalent.
The idea could be met with resistance by some in the field, especially as being a high-flying graduate would not necessarily equip an individual with the life experience needed to spot abuse or neglect in children. But Mr MacAlister argues that Frontline would be also open to older, more experienced graduates who wanted to switch career.
Local authorities experience such a high turnover of staff that they frequently have to rely on agency staff to fill gaps. As a result, vulnerable children can be seen by several different social workers in one year, which can lead to oversights in their care. Council budgets have been cut by an average of 10 per cent this year, further putting the lives of vulnerable children at risk, said the IPPR report.
The report, published this month, said: "Children's social work is under enormous strain. Chronic funding pressures, a ballooning workload and a poorly trained and supported workforce have all combined to put vulnerable children's lives at risk.
"Despite the importance of an effective workforce, social work has struggled to recruit and train enough high-calibre staff; it has suffered from a perception of low prestige, and been criticised for offering degree courses that provide inadequate training."
Earlier this month, Lord Adonis, who was in care as a child, wrote: "The status of the social work profession is frankly a national scandal. The status quo is similar to comprehensive school teaching a decade ago: high vacancy rates and far too few good young graduates with burning motivation or excellent training and support. For tens of thousands of children each year social workers not only make a profound difference to their life chances; they are often the difference between danger and safety in a child's life."
Teach First, which was implemented by Lord Adonis as Mr Blair's adviser in 2002 to improve teaching in "challenging" comprehensives, has attracted more than 3,000 elite graduates to the teaching profession over the past decade and is regarded as a success. Although the graduates are committed to only two years of teaching, more than half have remained in the profession.
'It used to be more about the person. Now it's about figures and time and budgets'
Sonia Simpson has been on the front-line of social work for the past 10 years.
Yesterday she welcomed government moves to bring in a Teach First-style scheme for social workers. "I think it's a good thing that the Government is trying to raise standards," Ms Simpson said. "At least it is trying to communicate to people that social work isn't the easy option."
Ms Simpson, 50, said the move was in contrast to what often appeared to be a complete lack of government interest in the increasing pressure being put on social workers.
She added that in recent years morale among many of her colleagues has plummeted, as budget cuts and public criticism take their toll: "It has become all about doing more with less. It used to be more about the person and now it's about figures and time and budgets.
"As soon as you mention the word social worker, the perception is negative. They think you're either putting old people in homes or you're putting people in care."
Ms Simpson admitted that she did have reservation about the scheme. "It could mean that we go back to what it was in the 1970s, when a lot of social workers were white middle-class do-gooders," she said.
"It's great to be academic, but does that mean you'll be a good practising social worker, and will know how to deal with people whose lives are in crisis?"
Sanchez Manning
The cases that went wrong
Peter Connelly
Baby P died aged 17 months in August 2007 at the hands of his mother, Tracey Connelly, her abusive boyfriend and their lodger. The toddler, who suffered more than 50 injuries, was on the at-risk register and was visited 60 times by social workers, doctors and police.
Victoria Climbie
Tortured to death by her great-aunt, Marie-Therese Kouao, and Kouao's lover, Carl Manning, in 2000, eight-year-old Victoria, could have been saved if had it not been for a lack of communication between social workers, nurses, doctors and police officers.
Khyra Ishaq
The seven-year-old from Handsworth, Birmingham, died weighing 2st 9lb in 2008 after mistreatment at the hands of her stepfather Junaid Abuhamza and mother Angela Gordon. A serious case review found social workers failed to listen to people's concerns.
Rochdale
Social workers placed 20 children from six families into care in 1990 after becoming convinced they were suffering from satanic abuse by their parents. The investiagtion was triggered when Daniel Wilson then six, told teachers he had had nightmares about ghosts. No evidence of abuse was found.
Orkney
Nine children were taken from their beds in South Ronaldsay by police because social workers believed they were being abused by a satanic paedophile ring. The alarm was triggered by Morris MacKenzie. The children were held in care for five weeks on the mainland before being returned after no evidence was found.
Harrison Garland
Amy Garland and Paul Crummey were accused by social workers in South Gloucestershire of child abuse after doctors failed to spot that their six-week-old son Harrison's "injuries" to his legs were caused by a rare genetic bone disease Osteogenesis imperfecta. When the doctors realised their mistake, the case was dropped.
Impact of the Human Rights Act on P ublic Law Children Act proceedings:
The Impact of the Human Rights Act on P ublic Law Children Act proceedings: An overview of the first decade
Deirdre Fottrell, Barrister, of Coram Chambers and Lecturer in Law at the Human Rights Centre, University of Essex, reviews the impact of the Human Rights Act in the field of Public Law Children Act proceedings
Deirdre Fottrell, Barrister, of Coram Chambers and Lecturer in Law at the Human Rights Centre, University of Essex
Introduction The Human Rights 1998 came into force on 2nd October 2000. This article provides an overview of the first ten years of the HRA and considers its impact on public law Children Act proceedings in this jurisdiction.
On any analysis the impact of the HRA on family law generally has been limited. This is striking given that the HRA introduced into UK law the right to respect for family life, which had not previously existed in actionable terms. On one level the HRA has manifested itself in the expansion of the concept of the family life and the parameters of family life have been considered by the Courts. Thus for example in Re J ( Leave to Issue an Application for a Residence Order) CA [2003]1 FLR 114 Thorpe LJ decided that the Article 6 and 8 rights of a grandmother required the court to conduct an appropriate inquiry into her application for leave and a failure to do so could be contrary to Article 8. Similarly in Singh v Entry Clearance Officer [2005] 2 WLR 325 family life was found to exist between a seeking entry clearance to join his adoptive parents in the UK. However in C v XYZ Council [2007] EWCA 1206, the Court of Appeal concluded that Article 8(1) did not impose a duty to inform a child's father of a proposed adoption if the father had no pre-existing relationship with the child.
Where the HRA has impacted most positively is in the development of procedural aspects of the right to family life and there has been a recognition of the importance of transparency and the participation of family members in the decision-making processes of public authorities which may interfere with their family life.
A rights based approach? There is an inherent tension between the provisions of the European Convention on Human Rights and its interpretation by the European Court of Human Rights, and the provisions of the Children Act 1989. In particular s.(1) (3) of the CA 1989 and the 'paramountcy principle' have resulted in an hierarchal approach to the rights of the family members with the rights of parents being subordinated to those of the child. The approach of the English courts has been shaped by the fact that the welfare of the child is treated as the sole and decisive consideration; thus for example in Re O (Contact; Imposition of Conditions) [1995] CA 1 FLR 124 Bingham MR noted:
"It cannot be emphasised too strongly that the court is concerned with the interests of the mother and the father only in so far as they bear on the welfare of the child."
The Convention is more nuanced and it recognises all members of the family unit as rights holders and advocates a balancing of the competing rights subject to the principles of 'necessity' and 'proportionality'. So for example it was said in Johansen v Norway [1996] 23 EHRR 33 "in carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child which depending on their nature and seriousness, may override those of the parents'. However, the European Court of Human Rights did recognise in Yousef v Netherlands [2003] 1 FLR 210 that, all things being equal in the balancing act between competing interests of the parents and the child, the best interests of the child can trump the rights of parents.
'Business as usual'? Prior to the HRA coming into force there were concerns that the courts would encounter difficulties reconciling the CA 1989 with the provisions of Article 8 (2) in the context of both public and private law proceedings. The initial decisions of the courts sought to close down any arguments around incompatibility and determined that the HRA did not require a revision or change of approach. Thus in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR the then president Butler Sloss stated:
'Business as usual'? Prior to the HRA coming into force there were concerns that the courts would encounter difficulties reconciling the CA 1989 with the provisions of Article 8 (2) in the context of both public and private law proceedings. The initial decisions of the courts sought to close down any arguments around incompatibility and determined that the HRA did not require a revision or change of approach. Thus in Payne v Payne [2001] EWCA Civ 166, [2001] 1 FLR the then president Butler Sloss stated:
"The HRA requires some revision of the judicial approach to safeguard the parent's rights under the ECHR, it required no re-evaluation of the judge's primary task which was to evaluate and uphold the welfare of the child as the paramount consideration despite its inevitable conflict with the adult rights.'
This was reiterated in Re B (A Minor) (Respondent) [2001] UKHL 70 by Lord Nicolls of Birkenhead who considered the approach to be taken in HRA cases and stated:
"There is no need to have recourse to s.3 of the HRA 1998…the balancing exercise required by Article 8 does not differ in substance from the like balancing exercise undertaken by a court when deciding whether, in the conventional phraseology of English law, an adoption would be in the best interests of the child. The like considerations fall to be taken into account. Although the phraseology is different, the criteria to be applied in deciding whether an adoption order is justified under Article 8 (2) lead to the same result as conventional test applied by English law.'
The determination that the HRA and the CA advocate a similar approach to the resolution of disputes is questionable and in particular it is arguable that such an approach is not compliant with ss.2 and 3 of the HRA. In particular, does Payne avoid confronting the compatibility of s.1(3) of the CA with the ECHR. It is frustrating that by taking such an approach, the family courts avoid any examination of competing rights and largely ignore the principles of interpretation of the Convention rights developed by the European Court. Compare the approach in Re B (above) to that of Lord Hope of Craighead in R v Shayler [2002] 2 WLR 754 when considering what principles should be followed to analyse the proportionality of an interference with a Convention right:
"The first is whether the objective which is sought to be achieved—the pressing social need—is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used impair the right as minimally as is reasonably possible. As these propositions indicate, it is not enough to assert that the decision that was taken was a reasonable one. A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them." (par 60 and 61)
Academic commentators express concerns that the approach of the family courts to the HRA has in effect watered down the principles of the ECHR and subsumes them to the CA 1989. It is remarkable that there is an absence of rights based reasoning in the family jurisdiction which confines the HRA largely to issues of procedure and process. This can to an extent be explained by courts' recognition that sensitive issues of public policy, such as the legal regulation of family life, are perceived as a matter for determination by parliament rather than the courts.
HRA in care proceedings Notwithstanding the issues outlined above, the HRA has resulted in positive developments in five main areas which are examined below.
1) The procedural requirements of Article 8 There is a body of case law in which the HRA and Article 8 in particular have been interpreted as imposing strict procedural obligations on local authorities. In the landmark decision of Re G (Care; Challenge to the Local Authority's Decision) [2003] EWHC 551, [2003] 2 FLR 42, Munby J considered that the actions of a local authority in care orders were made with a plan for rehabilitation of the children to the parents. A decision was taken at a meeting at which the parents were neither present nor represented to remove the children from the parents due to concerns about their care. They subsequently experienced difficulties obtaining copies of the minutes of the meeting. Munby J noted:
HRA in care proceedings Notwithstanding the issues outlined above, the HRA has resulted in positive developments in five main areas which are examined below.
1) The procedural requirements of Article 8 There is a body of case law in which the HRA and Article 8 in particular have been interpreted as imposing strict procedural obligations on local authorities. In the landmark decision of Re G (Care; Challenge to the Local Authority's Decision) [2003] EWHC 551, [2003] 2 FLR 42, Munby J considered that the actions of a local authority in care orders were made with a plan for rehabilitation of the children to the parents. A decision was taken at a meeting at which the parents were neither present nor represented to remove the children from the parents due to concerns about their care. They subsequently experienced difficulties obtaining copies of the minutes of the meeting. Munby J noted:
"The procedural protection offered by Article 8 was not confined to the trial process but extended to all stages of the decision making process in child protection proceedings….the facts reveal what I can only call a 'mindset' and a 'culture' so seemingly oblivious to the imperative requirements of Article 8… and so unwittingly careless of the need to treat parents with fairness, that I cannot let the latter pass without comment"1.
He went on to state:
"This as it seems to me is a classic example of the kind of case where, whatever may have been the case previously, the Human Rights Act 1998 gives parents treated as badly as the parents in this case appear to have been…effective remedies for breach by a local authority of either the substantive or procedural requirements of Article 8."
In Re G, Munby J elaborated on the nature of the local authority's duty to provide a full and frank disclosure of documents, including notes and minutes of conversations and meetings, and listed the following as important:
- Informing the parents promptly of its plans
- Giving factual reasons
- Giving an opportunity for parents to answer allegation
- Providing an opportunity to make representations
- Allowing the parents the opportunity to attend and address any crucial meetings.
A similar approach was taken by Holman J in Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 in which he found that a decision taken after a care order was made, to place children for adoption when the care plan had been for rehabilitation, was contrary to Article 8 primarily because the parents had not been present or represented at the meeting at which the decision was made. In Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 Munby J noted that the positive duty of disclosure on the local authority under Article 8 applied at all stages of the proceedings and imposed a wide obligation to adhere to the principles of procedural fairness. However, when considering whether a failure to disclose information or to include parents in a meeting would breach Articles 6 and 8 such that the whole proceedings were flawed, he took the view, following ECHR case law, that the court had to look at the proceedings "as a whole" and that exclusion from a meeting may not render the entire proceedings unfair.
In Re V (A Child) (Care Proceedings; Human Rights Claims) CA [2004] EWCA Civ 54, [2004] 1 FCR 338 the Court of Appeal gave clear guidance as to the manner in which HRA issues are to be raised in care proceedings and in particular noted that a failure or absence of procedural fairness did not give rise to a breach of the Convention in all cases and in any event a breach of the Convention did not render the entire proceedings unfair. Applications as regards breaches of s.6 (1) of the HRA should be raised in accordance with s.7 (1)(b) before the relevant tribunal seised of the matter and do not justify transfer up.2 In Re J (Care; Assessment; Fair Trial) [2006] EWCA Civ 545, [2006] 2 FCR 107 the court considered whether a failure to follow the precepts of procedural fairness would constitute a breach of Article 8 and in particular the status of the precepts of laid down by Munby J in Re L (above). The Court of Appeal broadly approved that approach while cautioning against imposing guidelines without any margin in the context of CA 1989 cases. In particular Wall LJ stated:
In Re V (A Child) (Care Proceedings; Human Rights Claims) CA [2004] EWCA Civ 54, [2004] 1 FCR 338 the Court of Appeal gave clear guidance as to the manner in which HRA issues are to be raised in care proceedings and in particular noted that a failure or absence of procedural fairness did not give rise to a breach of the Convention in all cases and in any event a breach of the Convention did not render the entire proceedings unfair. Applications as regards breaches of s.6 (1) of the HRA should be raised in accordance with s.7 (1)(b) before the relevant tribunal seised of the matter and do not justify transfer up.2 In Re J (Care; Assessment; Fair Trial) [2006] EWCA Civ 545, [2006] 2 FCR 107 the court considered whether a failure to follow the precepts of procedural fairness would constitute a breach of Article 8 and in particular the status of the precepts of laid down by Munby J in Re L (above). The Court of Appeal broadly approved that approach while cautioning against imposing guidelines without any margin in the context of CA 1989 cases. In particular Wall LJ stated:
"Any actual infringement of parental human rights in the course of care proceedings, far from being brushed under the carpet, must in court be rooted out and exposed, the precepts must not be used as a bandwagon, to be drawn across the tracks of the case and to de-rail the proceedings from their prompt travel towards the necessary conclusions referable to, and in the interests of, the child….we here will support those who deal robustly with suggestions that of such minor non-compliance with the precepts commended by Munby J as could never sensibly be translated into an infringement of human rights."
2) Removal of children A second area in which the HRA has had a particular impact on cases is where the court considers the removal of children from parents. For example in Re H ( A Child) (Interim Care Order) CA [2002] EWCA Civ 1932, [2003] 1 FCR 350 Thorpe LJ cautioned against removal at interim hearings and reiterated the importance of Article 6 and Article 8 and the need to avoid a premature determination of the case, prior to a final hearing.3 In Re M (Care Proceedings) (Judicial Review) [2003] 2 FLR 571, Munby J noted obiter that care proceedings brought with the intention of removal of a newborn from its mother was a 'draconian and extremely harsh measure which demands an extraordinarily compelling justification' following the ECHR precedents in K and T v Finland [2001].
In R (on the application of G) v Nottingham City Council [2008] EWHC 400 (Admin) Munby J considered removal of a child from a mother without either court order or consent under s.20 of the CA 1989. In finding that removal to be unlawful the Court relied on Article 8 of the HRA and concluded that the interference with the family life was not justifiable under Article 8(2) as a result.
3) Use of emergency protection orders The general obligation for procedural fairness, which has been enhanced by the HRA provisions, has impacted considerably on the use of EPOs.
In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342 Munby J reiterated the stringent nature of the obligation on the local authority when considering protective measures to comply with the obligation for procedural fairness and to respect the Article 8 right of the family generally and the parents in particular. It was noted that ex parte applications for removal should be used only in the most urgent cases where no other steps could be taken to protect the child.4
In Langley v Liverpool City Council and Another CA [2005] EWCA Civ 1173, [2005] 1 FLR 342 the Court of Appeal found that removal under PPO when an EPO was in place was unlawful. A court could not therefore justify the removal under the PPO under Article 8 (2) as being proportionate because it was not 'in accordance with the law'.
4) Actions of the local authority post-care order There are continuing difficulties as to the inability of the courts to supervise local authorities in their implementation of care plans once a full care order has been granted. Thus in Re S [2002] UKHL, 2 WLR 720, the House of Lord stated that where a local authority failed to discharge its parental responsibilities properly and as a result the rights of parents were violated 'the parents may as a longstop bring proceedings against the authority under s.7 of the HRA….in this type of case the Article 8 rights of a young child may be violated by a local authority without anyone outside the local authority becoming aware of the violation. In practice, such a child may not always have an effective remedy'. In Re W (Children) CA [2005] 2 FLR 1022, Thorpe LJ noted that there may be circumstances in which an injunction could be granted under s.8 of the HRA to prevent removal of children from parents or family post-care order if this was shown to be contrary to Article 8 and in particular neither necessary. The court did note also that to use s.7(1)(a) effectively an application should be made before, rather than after, removal. However there are difficulties obtaining funding for such applications which often results in an application to discharge the care order.
5) Remedies for breach The HRA envisages a compensatory regime based on the concept of 'just satisfaction' which exists under the Convention. Remedying the violation in and of itself is generally considered sufficient. In P v South Gloucestershire Council [2007] EWCA Civ 2, [2007] Fam Law 393 the Court of Appeal found that an award for declaratory relief for breach of art 8 does not mean that damages will necessarily be given. In the case ofAnufrijeva v Southwark LBC [2004] 1 ALL ER 833 the Court of Appeal gave guidance about the awarding of damages in HRA claims. While it is generally expected that the Claimant should be able to demonstrate pecuniary loss, awards may be made for non-pecuniary loss if the consequences of breach are sufficiently serious and the damage is more than mere distress and frustration.
Following the guidelines in this case it is unusual for damages to be awarded in cases although an unlawful removal of a child from her parents could conceivably give rise to an award of damages in some circumstances.
Conclusion In assessing the impact of the HRA on public law Children Act proceedings it is clear that while the courts' approaches have been reductive there have been significant developments in the areas considered in this article. There remains however a sense that the potential of the HRA is sometimes overlooked. In its first decade the HRA did not result in the anticipated rights based revolution, but it has incrementally expanded the parameters of rights protection in family law which must in itself be considered cause for optimism as we embark on the second decade of the HRA.
_____________________________
Footnotes1 See further the decision of McMichael v UK [1995] 20 EHRR 205 at para 87 when the Court noted "Whilst Article 8 contains no explicit procedural requirements, the decision making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8."
2 See further C v Bury Metropolitan Borough Council [2003] 2 FLR 868, in which procedural irregularities were found but no remedy was granted to the mother because the court concluded that even if the mother had been adequately informed and involved the local authority would have reached the same decision.
3 See also Re B (A Child) (Interim Care Order) CA [2002] 1 FLR 545.
4 See also Re X (Emergency Protection Orders) [2006] EWHC 510.
In R (on the application of G) v Nottingham City Council [2008] EWHC 400 (Admin) Munby J considered removal of a child from a mother without either court order or consent under s.20 of the CA 1989. In finding that removal to be unlawful the Court relied on Article 8 of the HRA and concluded that the interference with the family life was not justifiable under Article 8(2) as a result.
3) Use of emergency protection orders The general obligation for procedural fairness, which has been enhanced by the HRA provisions, has impacted considerably on the use of EPOs.
In X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 342 Munby J reiterated the stringent nature of the obligation on the local authority when considering protective measures to comply with the obligation for procedural fairness and to respect the Article 8 right of the family generally and the parents in particular. It was noted that ex parte applications for removal should be used only in the most urgent cases where no other steps could be taken to protect the child.4
In Langley v Liverpool City Council and Another CA [2005] EWCA Civ 1173, [2005] 1 FLR 342 the Court of Appeal found that removal under PPO when an EPO was in place was unlawful. A court could not therefore justify the removal under the PPO under Article 8 (2) as being proportionate because it was not 'in accordance with the law'.
4) Actions of the local authority post-care order There are continuing difficulties as to the inability of the courts to supervise local authorities in their implementation of care plans once a full care order has been granted. Thus in Re S [2002] UKHL, 2 WLR 720, the House of Lord stated that where a local authority failed to discharge its parental responsibilities properly and as a result the rights of parents were violated 'the parents may as a longstop bring proceedings against the authority under s.7 of the HRA….in this type of case the Article 8 rights of a young child may be violated by a local authority without anyone outside the local authority becoming aware of the violation. In practice, such a child may not always have an effective remedy'. In Re W (Children) CA [2005] 2 FLR 1022, Thorpe LJ noted that there may be circumstances in which an injunction could be granted under s.8 of the HRA to prevent removal of children from parents or family post-care order if this was shown to be contrary to Article 8 and in particular neither necessary. The court did note also that to use s.7(1)(a) effectively an application should be made before, rather than after, removal. However there are difficulties obtaining funding for such applications which often results in an application to discharge the care order.
5) Remedies for breach The HRA envisages a compensatory regime based on the concept of 'just satisfaction' which exists under the Convention. Remedying the violation in and of itself is generally considered sufficient. In P v South Gloucestershire Council [2007] EWCA Civ 2, [2007] Fam Law 393 the Court of Appeal found that an award for declaratory relief for breach of art 8 does not mean that damages will necessarily be given. In the case ofAnufrijeva v Southwark LBC [2004] 1 ALL ER 833 the Court of Appeal gave guidance about the awarding of damages in HRA claims. While it is generally expected that the Claimant should be able to demonstrate pecuniary loss, awards may be made for non-pecuniary loss if the consequences of breach are sufficiently serious and the damage is more than mere distress and frustration.
Following the guidelines in this case it is unusual for damages to be awarded in cases although an unlawful removal of a child from her parents could conceivably give rise to an award of damages in some circumstances.
Conclusion In assessing the impact of the HRA on public law Children Act proceedings it is clear that while the courts' approaches have been reductive there have been significant developments in the areas considered in this article. There remains however a sense that the potential of the HRA is sometimes overlooked. In its first decade the HRA did not result in the anticipated rights based revolution, but it has incrementally expanded the parameters of rights protection in family law which must in itself be considered cause for optimism as we embark on the second decade of the HRA.
_____________________________
Footnotes1 See further the decision of McMichael v UK [1995] 20 EHRR 205 at para 87 when the Court noted "Whilst Article 8 contains no explicit procedural requirements, the decision making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8."
2 See further C v Bury Metropolitan Borough Council [2003] 2 FLR 868, in which procedural irregularities were found but no remedy was granted to the mother because the court concluded that even if the mother had been adequately informed and involved the local authority would have reached the same decision.
3 See also Re B (A Child) (Interim Care Order) CA [2002] 1 FLR 545.
4 See also Re X (Emergency Protection Orders) [2006] EWHC 510.
White foreign children targeted for forced adoption, says UK MP
http://ruvr.co.uk/2012_10_27/92563999/
Social services are targeting white children from Eastern European families because they are more likely to be adopted by white British families. That’s the claim by Liberal Democrat MP for Birmingham Yardley, John Hemming. It’s a serious allegation denied by social workers.
But foreign embassies in the UK say they are worried about reports of forced adoption, turning a domestic issue into a potential diplomatic row.
Rebecca Burns reports on the latest scandal to hit social services in England and Wales.
Thursday 25 October 2012
AFTER THE APPEAL ??? WE AWAIT JUDGEMENT
so we went to the royal courts of justice yesterday. What a great experience, really enjoyed seeing Lord Jusitce Macfarlane, Lord Justice Sullivan and master of the rolls Lord Justice Dyson getting a grip not only on the case itself but also on the attempts by the other parties to re-step old ground.
There were some worried professionals in that court yesterday and so there should have been, after a 6 year battle, but specifically for the sake of the appeal the past 2 years, it was a positive hearing for us.
the guardians solicitor showed a complete professional integrity and out of line with his clients wishes he pointed out to the appeal court the wrongful actions of HHJ Tyzack. In fact he made our case for us. Mr Piers Pressde Qc, we thanked him in the court for being honest and we meant those thanks with sincerity.
Shame we can not say the same for the counsel for Leicestershire County Council whom after stating to us for so long the lower court judge was wrong, 18 months on they tell the appeal court the judge was right to do what he did!!
so a complete turnaround by both parties, at least one turn was due to the integrity of a QC who put justice at the forefront. Instead of the Leicestershire CC Counsel who transparently was seeking to avoid the inevitable civil claim for damages against the local authority for the wrongful removal of the child .. should the judgement come as we expect ... appeal upheld.
we haven't had the draft judgement at this point so we can not say with certainty we won the appeal but we are quite sure we have.
Unfortunately the reaction by the special guardians ( who may not be special guardians within a number of days ) was to remove the child's mobile phone and ban our home phone number from calling theirs, and refusing our telephone contact with the child. While we understand their upset at the outcome (even though not known yet) it is hard to see how stopping the child's contact with us can be fair on the child.
next step?? well, at the moment we wait for the draft judgement, then its full steam ahead to get the child home. As long as the has been upheld
It was a really good experience, for a couple that have self represented in their own case for so long it has been physically and mentally exhausting, especially for mrs baggaley who found the experience yesterday to be a number of different emotions, Mr Baggaley, loving the subject of law as he does simply enjoyed the moment, seeing the law in action at that level.
Our outstanding memory will be the look on the faces of a few professionals at the end of the day, priceless win or lose it was worth it,
There were some worried professionals in that court yesterday and so there should have been, after a 6 year battle, but specifically for the sake of the appeal the past 2 years, it was a positive hearing for us.
the guardians solicitor showed a complete professional integrity and out of line with his clients wishes he pointed out to the appeal court the wrongful actions of HHJ Tyzack. In fact he made our case for us. Mr Piers Pressde Qc, we thanked him in the court for being honest and we meant those thanks with sincerity.
Shame we can not say the same for the counsel for Leicestershire County Council whom after stating to us for so long the lower court judge was wrong, 18 months on they tell the appeal court the judge was right to do what he did!!
so a complete turnaround by both parties, at least one turn was due to the integrity of a QC who put justice at the forefront. Instead of the Leicestershire CC Counsel who transparently was seeking to avoid the inevitable civil claim for damages against the local authority for the wrongful removal of the child .. should the judgement come as we expect ... appeal upheld.
we haven't had the draft judgement at this point so we can not say with certainty we won the appeal but we are quite sure we have.
Unfortunately the reaction by the special guardians ( who may not be special guardians within a number of days ) was to remove the child's mobile phone and ban our home phone number from calling theirs, and refusing our telephone contact with the child. While we understand their upset at the outcome (even though not known yet) it is hard to see how stopping the child's contact with us can be fair on the child.
next step?? well, at the moment we wait for the draft judgement, then its full steam ahead to get the child home. As long as the has been upheld
It was a really good experience, for a couple that have self represented in their own case for so long it has been physically and mentally exhausting, especially for mrs baggaley who found the experience yesterday to be a number of different emotions, Mr Baggaley, loving the subject of law as he does simply enjoyed the moment, seeing the law in action at that level.
Our outstanding memory will be the look on the faces of a few professionals at the end of the day, priceless win or lose it was worth it,
Tuesday 23 October 2012
OUR APPEAL IN THE RCJ IS TOMORROW.. LOOKING GOOD
WE WILL UPDATE THE BLOG TOMORROW. WE EXPECT A GOOD GO AT THE APPEAL. EITHER WAY ITS 6 YEARS OVER AND DONE WITH.
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