Article 39’s monthly legal digest shares legal and human rights developments and highlights cases and judgments that we believe can help those on the frontline defend the rights of children and young people even more effectively.
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We dedicate the last 2020 issue of our children’s rights legal digest to our own case which reached the Court of Appeal in September – Article 39 v. Secretary of State for Education. The Court of Appeal found the Secretary of State for Education to have acted unlawfully in removing safeguards for children in care by failing to consult the Children’s Commissioner and other bodies representing the rights of children in care before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (known as Statutory Instrument 445).
In late October, a High Court judge granted permission for judicial review concerning the duties of local authorities towards unaccompanied children who are awaiting an age assessment. While the case won’t be heard until January 2021, this legal digest highlights the issues it raises around local authority duties towards unaccompanied children whose ages are in dispute. It looks at a similar case from 2017 which confirmed that local authorities should follow statutory guidance and accommodate a young person whose age is in doubt as a child until the outcome of an age assessment.
This month we take a closer look at the needs of children and young people in care in connection with their immigration status or nationality. It is estimated that there are over 200,000 undocumented children in the UK – children living without ‘leave’ (permission) to remain, many of whom were born here – and over 3,000 undocumented children who are looked after by local authorities in England. Being born in the UK does not make you automatically British. However, many professionals working with looked after children may assume that, because they may have lived in the UK or been in care for a long time, they must be legally entitled to stay here and local authorities may need to take action to identify and support children with unresolved immigration issues.
This month we share some of the key takeaways from a recent significant Court of Appeal judgment which confirmed that the principles set out in the Children Act 1989 continue to apply and must inform decisions about contact between children in care and their families during the Covid-19 pandemic. We also reference a couple of previous cases that have centred on children and young people’s right to family life to illustrate the interconnectedness between legal entitlements set out in the Children Act 1989 and the human rights protected under the European Convention on Human Rights.
A number of recent court judgments have highlighted the severe lack of secure accommodation in England and the growing trend of depriving children of their liberty in unregulated and unregistered settings. We covered one of these cases in the May issue of our legal digest. This month, we are looking at another such case and use it as an opportunity to explore the criteria that have to be met for a secure accommodation order (SAO) to be made. We also look at the use of inherent jurisdiction in deprivation of liberty applications.
With the Local Government and Social Care Ombudsman (LGO) resuming its work following temporary suspension during the pandemic, we dedicate this issue to the role of the LGO. We look at three decisions reached in response to complaints relating to children’s social care services, highlighting the role of the LGO as “the final point in the statutory complaints process”.
This issue examines the right to be protected from torture and inhuman or degrading treatment or punishment following a recent decision by the High Court which found the government’s ‘no recourse to public funds’ policy to be unlawful. We also look at the importance of intermediaries in supporting young people during criminal proceedings and ensuring their rights to participate effectively and receive a fair trial are effectively protected.
We look at the ‘public sector equality duty’ by referencing two recent cases where failure to adequately consider and monitor the impact of policies was challenges as discriminatory against people with protected characteristics. We also zoom in on a case which drew attention to the nationwide shortage of secure accommodation for children and young people.
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.
We dedicate this issue to the importance of international law in protecting human rights in the UK, looking at how ‘incorporation’ of international treaties makes them directly applicable here at home. We reference two examples of alleged breaches of human rights and how domestic and international mechanisms can be used to draw attention to suspected human rights violations.
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.