Monthly children’s rights legal digest – February 2020

This issue zooms in on two recent judgments highlighting the right to family life. The first case relates to two sisters separated during care proceedings and the failure of the local authority to ensure access to advocacy as a means of supporting the older sister to challenge the separation. The second case looks at the right to family and private life as enshrined in the European Convention on Human Rights.

Local authority’s failure to consider advocacy support for separated siblings

An anonymised judgment has been published as a “cautionary tale” for childcare professionals in an attempt to promote good practice in public law care proceedings.

The judgment concerns a decision by a local authority to separate two sisters despite a court-approved care plan according to which a joint adoptive or long-term foster care placement would be pursued for both girls. As a direct result of this decision, and a chain of ensuing decisions and actions, the local authority caused disruption to the sisters’ family life and failed to promote their welfare. 

While the court highlighted a whole series of errors by the local authority and various professionals acting on its behalf, we think it is particularly noteworthy to point out that the court explicitly criticised the independent reviewing officer’s:
   –   failure to consider identifying an advocate for the older sister to assist her in applying to the court to have her (original) placement revoked, and
   –   failure to make a referral to Cafcass in relation to breach of the girl’s human rights.

The court said: “It is important to state that the IRO plays a vital role in the protection of children within the care system and it is essential that IROs robustly challenge the local authority in their care planning”.

You can access the judgment here.

Landmark judgment highlights the importance of equality impact assessments and the need to have regard to the best interests of children

This Court of Appeal judgment concerned a refusal by the High Court to issue an injunction that would effectively prevent the Gypsy and Traveller community from occupying (in the form of encampment) all accessible public spaces in the local area. The court felt that issuing such an injunction would prevent this community from exercising their right to pursue their traditional nomadic lifestyle. Traditional lifestyle and, connected to it, sense of identity, is protected in UK equalities and human rights legislation. 

The Gypsy and Traveller communities are distinct ethnic groups protected as minorities under the Equality Act 2010 while Article 8 of the European Convention on Human Rights (ECHR) protects the right to private and family life. Moreover, the European Court of Human Rights has previously highlighted the obligations of states to not only recognise the special needs of minority communities but also protect their security, identity, and lifestyle.  

In this judgment, the court concluded that the local authority failed to comply with its Public Sector Equality Duty (PSED) and failed to carry out an Equality Impact Assessment. Additionally, the court highlighted the importance of considering the best interests of the child, as enshrined in Article 3 of the Convention on the Rights of the Child, in proportionality assessments under Article 8 of the ECHR. A proportionality analysis (or exercise) is carried out to consider whether what is being proposed is proportionate and that it aims to achieve a fair balance between the rights of individuals set out in the ECHR and the rights of the wider community, especially where tensions or conflicts arise.   

The court also issued high-level guidance for local authorities on how such cases might be addressed in the future. The guidance included the following: “There should be a proper engagement with the Gypsy and Traveller community and an assessment of the impact an injunction might have, taking into account their specific needs, vulnerabilities and different lifestyle. To this end, the carrying out of an equality impact assessment […] should be considered good practice, as is the carrying out of welfare assessments of individual members of the community (especially children)”.

You can access the full judgment here.

Key takeaways and learning points from this issue

RIGHT TO FAMILY LIFE

Article 8 of the European Convention on Human Rights (ECHR) guarantees everyone’s right to respect for private and family life, home and correspondence. This is a right that all children and young people enjoy, regardless of their circumstances, and it can be directly called on when advocating on their behalf. The Human Rights Act 1998 places a duty on local authorities and others to act compatibly with the rights in the ECHR.

Article 8 could be most relevant when supporting children and young people who live away from home to maintain contact with their siblings, parents or other family members. It can be used, for instance, to support children and young people who object to being placed far away from home or those who do not enjoy regular contact with their family because of administrative delays or inaction, as well as those who wish to return home to their families (or do not want to be separated from them in the first place).