Children’s rights legal digest – April 2020

Focusing on the added vulnerability created by the COVID-19 pandemic for some groups of children and young people, we look at how the Human Rights Act 1998 and the Equality Act 2010 have been recently used to successfully challenge national level guidance. We also share a recent Court of Appeal judgment which found that children in foster care enjoy the same right to family life as children cared for by their birth families. 

Children in foster care enjoy the same right to family life as children living with birth families, says Court of Appeal  

This immigration case in the Court of Appeal involved a young national of Bangladesh, now aged 20, who, following mistreatment by his parents, was brought to the UK and  “abandoned on the streets of London at the age of 13 with no known family”. He was placed in foster care and his subsequent pathway plan provided for him to live with his committed and supportive foster family until at least the age of 21. After his claim for asylum had been rejected, he was granted temporary leave (permission) to remain until the age of 17½. In this case, the court looked at whether the boy had a right to stay in the UK, after that leave ran out, on the basis of the relationship with his foster family and his rights under Article 8 of the European Convention on Human Rights (right to respect for private and family life).  

During the hearings in the First Tier Tribunal and Upper Tribunal, which is where immigration and asylum cases are heard, the judges decided that the boy had not shown he had a ‘family life’ with his foster carers. This was in part because he was not ‘exceptionally’ dependent on them beyond normal emotional ties and because the foster carers were paid by the local authority. The government argued that foster care is a ‘special category’ for which family life had to be proved in a way that was not necessary in a birth family. 

The Court of Appeal did not accept the government’s claim. It found that there is no legal basis when considering Article 8 rights to treat children who are placed with and cared for by foster carers differently from children who are cared for by their birth families. For a child to have a ‘family life’ under Article 8 it must be shown that they receive “effective, real or committed support” but there is no need to  evidence that they are dependent on their family in an ‘exceptional’ way. Also, a child enjoying a family life does not suddenly cease to have a family life as he turns 18 years of age. 

You can read the full judgment here.  

Government guidance issued in response to the COVID-19 pandemic which said that people are only permitted to leave the house for exercise once a day has been successfully challenged by two families of children with autistic spectrum disorders. The families objected to the government’s blanket policy and failure to consider the specific well-being needs of those who, due to disabilities and other health needs, require more frequent exercise or daily travel outside their local area.  

Lawyers acting on the families’ behalf pointed to the disproportionate impact of such a policy on disabled children and adults. The specific laws that were said to be breached by the guidance were the Human Rights Act 1998 and the Equality Act 2010. Moreover, lawyers pointed out that restrictions prescribed in the policy were not supported by corresponding legislation that set out the specifics on restrictions to movement.   

The guidance has now been amended to say: “You can leave your home for medical need. If you (or a person in your care) have a specific health condition that requires you to leave the home to maintain your health – including if that involves travel beyond your local area – then you can do so. This could, for example, include where individuals with learning disabilities or autism require specific exercise in an open space two or three times each day – ideally in line with a care plan agreed with a medical professional”.  

One of the families behind the challenge said: “The coronavirus pandemic is a crisis for everyone, but humanity and compassion, as well as our basic rights, must still prevail”. 

You can access the updated guidance here and learn more about the challenge and its successful outcome here and here.  

National ‘critical care during COVID-19′ guidance legally challenged as discriminatory against people with disabilities 

‘COVID-19 rapid guideline: critical care in adults’ was published by the National Institute for Health and Care Excellence (NICE) to “maximise the safety of patients who need critical care during the COVID-19 pandemic, while protecting staff from infection” and to “enable services to make the best use of NHS resources”. 

The original version of the guidance provided instructions on assessing every adult patient’s frailty based on a scoring system called the Clinical Frailty Scale. The guidance suggested that it may not be appropriate to provide those scoring 5 or more with hospital treatment. Many healthy adults with autism and learning difficulties, as well as adults with physical impairments dependent on personal care, would likely score 6 or 7 on the said scale. This, understandably, led to serious concerns about disabled people being denied critical health care during the coronavirus pandemic.  

Lawyers acting on behalf of a client who would be impacted by the guidance claimed that it breached the public sector equality duty in Section 149 of the Equality Act 2010. Section 149 requires public bodies to have ‘due regard’ to the need to eliminate discrimination and advance equality of opportunity for disabled people. They also claimed NICE acted unlawfully by failing to consult with disabled people or their representative organisations.  

As a result of the challenge, the guidance was amended and now excludes younger people, people with stable long-term impairments, learning disabilities, autism or cerebral palsy from the scoring scale. Instead, individualised assessments are recommended.  

The law firm involved in this case said: “Disabled people […] are particularly at risk of poor health outcomes and discriminatory treatment by health services and NICE’s (original) COVID-19 guideline for clinical care reinforced this. […] We strongly urge doctors to ensure that they comply with all relevant equality and human rights standards when they are taking decisions around prioritisation of treatment throughout the COVID-19 pandemic”.  Learn more about the challenge here. For the updated critical care guidance, visit the NICE website.  

Using the law during the COVID-19 pandemic

With the passing of the Coronavirus Act 2020, a number of rights and protections, including those directly impacting on children, have been temporarily eroded (our Director has summarised the main changes here).
However, it is paramount to keep in mind that, for the most part, the legal framework safeguarding children’s rights and well-being remains unchanged, as does the UK’s equality and human rights legislation. Importantly, with no legal basis, there can be no change to practice, including at the local authority level, which would lead to the removal of rights and protections for children and young people. For example, taking a blanket approach and suspending the children’s social care statutory representation complaints procedure due to COVID-19 is likely to be unlawful, as it would be in breach of the Children Act 1989 (Section 26(3)). Or, if a specific group of children were to be excluded from access to local authority services during this time, whether directly or indirectly, this could be in breach of the Equality Act 2010 (see for example Section 149) and/or the Human Rights Act 1998 (see for example Article 8 and Article 14).