This is a post by Sarah Phillimore
No one shall be subjected to torture or inhuman or degrading treatment or punishment.
A number of commenters on the CPR site were recently discussing how Article 3 could or should apply to care proceedings. Family practitioners generally focus on Articles 6 and 8 of the ECHR – right to a fair trial and right to respect to family and private life. To a lesser extent Article 5 (right to liberty) may come into play when discussing for e.g. secure accommodation.
One reader commented:
Are Social Workers sub-human? Does the System treat Children worse than Animals?
It says above that the most relevant articles of the Human Rights Act relating to child-protection are 6 and 8. Parents may believe the main causes for complaint would be under Article 3. I certainly do!
Local Authority actions are inhumane and in contravention of Article 3 of the ECHR convention relating to torture and inhuman or degrading treatment of both children and families as a whole. The Local Authority is effectively causing inestimable, permanent, emotional and physical harm the full effects of which it is impossible to predict to the children and adults by mental torture, anguish and degradation.
– See more at: https://childprotectionresource.online/human-rights-act-1998/#comments
Are we lawyers missing a rather important trick in not looking more closely at what Article 3 demands and whether or not it applies to care proceedings?
Article 3 of the ECHR reads very simply
No one shall be subjected to torture or inhuman or degrading treatment or punishment.
There is no exception or qualification to this right. It is absolute.
But what does ‘torture’ or ‘inhuman or degrading treatment’ mean?
Article 3 is directed primarily to protect the physical integrity of a person but it has been found to apply to acts that cause severe mental suffering. Article 3 is ‘absolute’ so it applies regardless of either the conduct or circumstances of the victim or the threat he poses to the security of the State – so for e.g. Article 3 forbids torturing terrorists.
Article 1 of the 1984 UN Convention against Torture provides this definition of torture:
For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
I hope very much that it is vanishingly unlikely that ‘torture’ as so defined will ever play a role in care proceedings. So we need to focus on ‘inhuman or degrading treatment’. This ill treatment must meet a certain level of seriousness before Article 3 is engaged. See further the Manual for Lawyers produced by Interights, (an international legal human rights NGO which was established in 1982 but sadly closed down in 2014 due to lack of funding).
Ireland v United Kingdom (1978) found that ill-treatment must attain a minimum level of severity. The assessment of this minimum will depend on the circumstances of the particular case, such as how long the ill treatment lasted, what physical/mental effects did it have, the sex, age, and state of health of the victim of the ill treatment.
So what kinds of ill treatment meet the minimum standard?
Given all the relevant factors that need to be considered, it is not going to be easy to set out clear criteria to say if X or Y happens, then the necessary minimum standards will be met to show Article 3 is engaged.
Some cases will be very clear. For example, in Aydin v Turkey (1997), the applicant was a seventeen year old girl who was raped repeatedly by State officials. This was found to be a particularly abhorrent form of ill treatment.
Others will be less clear cut. For example, in Costello-Roberts v the UK (1993), minimum standards of ill treatment were not met by hitting a 7 year old three times on the buttocks with a gym shoe. But In Toteva v Bulgaria (2004), the applicant was 67 years old when she was detained and injured by police. Given her age, the court thought the injuries were serious enough to meet the required threshold for ‘ill treatment’ under Article 3.
As Interrights comment:
The Court is clear that the individual circumstances of the case, and especially factors pertaining to the victim, and sometimes his or her near relatives, must be taken into account. The question as to how much weight to attribute to such factors appears to depend on the nature of the allegations and other surrounding circumstances. Thus, a domestic court is bound to take all relevant factors into account, and engage in a delicate balancing act, in considering whether a person has been subjected to torture or one of the other prohibited forms of ill-treatment.
Children suffering inhuman and degrading treatment
There is no doubt that children have been able to successfully rely on Article 3 when complaining about LA action or inaction.
See Z and Others v the UK (2001). This case involved children who sued a LA for not removing them from their parents quickly enough, and this illustrates just how serious the ill treament must be to come within Article 3. At para 40 of their judgment the Court described the children’s circumstances thus:
All the applicants were seen by Dr Dora Black, a consultant child psychiatrist, in January 1993. Dr Black stated that the three older children were all showing signs of psychological disturbance. Z was exhibiting signs of serious depressive illness and had assumed responsibility for her family and for its breakdown. Her mother’s behaviour towards her was described as cruel and emotionally abusive. A and B, who suffered from nightmares, were both identified as showing signs of post-traumatic stress disorder and A was also chronically under-attached. Dr Black noted that all children had been deprived of affection and physical care. She described their experiences as “to put it bluntly, horrific”, and added that the case was the worst case of neglect and emotional abuse that she had seen in her professional career. In her opinion, social services had “leaned over backwards to avoid putting these children on the Child Protection Register and had delayed too long, leaving at least three of the children with serious psychological disturbance as a result”.
The Court were able to conclude at para 73 of their judgment, without hesitation, that the children’s Article 3 rights had been breached:
73. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998‑VI, p. 2699, § 22). These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII,
pp. 3159-60, § 116).
74. There is no dispute in the present case that the neglect and abuse suffered by the four applicant children reached the threshold of inhuman and degrading treatment (as recounted in paragraphs 11-36 above). This treatment was brought to the local authority’s attention, at the earliest in October 1987. It was under a statutory duty to protect the children and had a range of powers available to them, including the removal of the children from their home. These were, however, only taken into emergency care, at the insistence of the mother, on 30 April 1992. Over the intervening period of four and a half years, they had been subjected in their home to what the consultant child psychiatrist who examined them referred as horrific experiences (see paragraph 40 above). The Criminal Injuries Compensation Board had also found that the children had been subject to appalling neglect over an extended period and suffered physical and psychological injury directly attributable to a crime of violence (see paragraph 49 above). The Court acknowledges the difficult and sensitive decisions facing social services and the important countervailing principle of respecting and preserving family life. The present case, however, leaves no doubt as to the failure of the system to protect these applicant children from serious, long-term neglect and abuse.
EDIT – I am grateful to Suesspiciousminds for reminding me of the case of A & S (Children) v Lancashire County Council [2012] and for his confirmation that he isn’t aware of any case where Article 3 has been relied on with respect to parents.
In this case, the court found breaches of Articles 6, 8 and 3 by the LA and the IRO in the following 10 respects:
(1) Failed to provide A and S with a proper opportunity of securing a permanent adoptive placement and a settled and secure home life. (Art. 8)
(2) Failed to seek revocation of the orders freeing A and S for adoption, made on the 19 March 2001 pursuant to Section 18(1) Adoption Act 1976, which effectively deprived them of:
(a) The protection afforded to children under the Children Act 1989;
(b) Contact with their mother and/or other members of their family;
(c) Access to the Court and the procedural protection of a Guardian.
(Arts. 6 & 8)
(3) Permitted A and S to be subjected to degrading treatment and physical assault and failed adequately to protect their physical and sexual safety and their psychological health (Arts. 3 and 8).
(4) Failed to provide accurate information concerning A and S’s legal status to the Independent Reviewing Officers. (Art. 8)
(5) Failed to ensure that there were sufficient procedures in place to give effect to the recommendations of the Looked After Child Reviews. (Art 8.)
(6) Failed to promote the rights of A and S to independent legal advice. (Art. 6)
(7) Specifically, failed to act as the ‘responsible body’ to enable A and S to pursue any potential claims for criminal injuries compensation, tortious liability and/or breach of Human Rights arising from their treatment by their mother, or by the Hs or by Mrs B. (Art. 6)
The IRO:
(8) Failed to identify that A and S’s Human Rights had been and were being infringed. (Arts. 6 & 8)
(9) Failed to take effective action to ensure that LCC acted upon the recommendations of Looked After Child Reviews. (Art. 8)
(10) Failed to refer the circumstances of A and S to CAFCASS Legal. (Art. 8)
But what of parents in care proceedings?
I am not aware of Article 3 being relied upon by parents in any action against a LA for initiating or botching care proceedings, and would be very interested to hear if anyone knows differently.
The anguish and misery felt by many parents when their children are removed have been described eloquently and painfully on this blog and on others. If that anguish and misery is compounded for parents, not only by the loss of their child, but by indifference, rudeness or even worse from the professionals involved in that process, can we argue that Article 3 is engaged?
I suspect the difficulty here will be the surrounding circumstances which have lead to the parents feeling such anguish. LAs are under a legal obligation to protect children in their area. Their investigations and any subsequent removal of children sanctioned by the court are likely to be very distressing to parents but these are lawful acts carried out to achieve an aim of general public good; to protect children.
For example, in Kudla v Poland (2000) the applicant was detained in custody before his trial. He was found to be suffering from mental illness and transferred to a prison hospital. The Court examined the circumstances of his detention and held that to find a violation of Article 3, the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
But what if an LA is acting outside the law?
An interesting consideration arises if the actions of an LA bring about separation of a parent and child and the LA had in fact no lawful basis to intervene. Worrying examples of this can be seen in how section 20 has been misused over the years. The State could therefore not rely on any argument that the parents’ distress was simply the unfortunate by product of legitimate state action.
The courts have certainly seemed more keen recently to recognise and condemn LA for acting in breach of parents’ Article 6 and 8 rights and award them damages under the Human Rights Act 1998.
Is it possible that the State could be found to breach Article 3 if a parent suffers serious mental anguish as a result of care proceedings that should never have been started or were conducted improperly? I can’t think of any logical reason why not, but I would assume that the level of distress suffered would have to be very high and the failures of the State agents particularly egregious.
Conclusions
I find it frustrating when parent campaigners speak in terms of social workers being ‘Nazis’ or ‘like Stalin’ as it is difficult to see where any sensible discussion can go once it is hijacked by such unhelpful hyperbole. There can be no useful comparison between a system of child protection in a functioning democratic state and a totalitarian regime that led to the deaths of millions. I don’t want to waste my time going down that particular rabbit hole.
BUT. The one thing I never really thought about or engaged with much before becoming involved with the Child Protection Resource was the pain and misery of the parents. And it is real. And it provokes some legitimate questions about how the State should be operating to protect the most vulnerable members of society – and this group must be wider than just the children, but must include their parents too.
So I am not convinced that Article 3 is applicable to the vast majority of care proceedings, but I think there is certainly an argument to be made that it might be. And that is not something I would have even considered a year ago.
So I must give thanks to the commentators on this site for opening my eyes – we may not always agree with one another but hopefully if we can continue a constructive dialogue, we can continue to help each other develop insight and understanding into such a profoundly important process.
My barrister adviced on appeal using in between others Section 3
Section 3 of the HRA is not the same thing as Article 3 of the ECHR – parents have successfully used Articles 8 and 6 but it doesn’t look like they have succeeded with Article 3.
Article 3 HRA 1998 is a profoundly difficult point to argue on behalf of parents within the realms of the ECHR, I have been personally involved in two such cases in the ECHR namely KS v Untied Kingdom and RP v Untied Kingdom. From the very outset of their applications we forcefully pursued Art. 3, SK v UK being the case where I prepared the applications for the ECHR, unfortunately upon the instruction of Counsel we found that our arguments were not strong enough for the pursuant of Art. 3, we therefore “dropped” Art. 3.
To this day I still remain on the fence as to whether the Art 3 should have been dropped from the applications, there are, I feel strong arguments from both sides of the coin.
Having said that and with hindsight if I was to submit another ECHR application on the same footings as previous applications I would stick my neck out and pursue Article 3 for the matter to be determined by the ECHR themselves, as it stands, we are pressed to find a parents case heard the ECHR or other where such article was argued, in effect no proper determination has been carried out on whether Art.3 is in fact a principle point in Child Protection and Care Proceedings.
There is also the infamous P.C and S v UK – again Article 3 was not argued/pursued as it was difficult to assimilate to the case of Re.Z , slightly off tangent here the P.C and S v UK case is one where a final hearing being 20 days was found ghastly, however, a not relatively known principle of that Judgment was the ECHR found that having Care Orders and Freeing Orders [as they were then known] hearings held on the same day were in breech of Article 6, that very principle occurs more often than not these days in the courts obviously disregarding the findings made in the P.C and S judgment!
*Worth noting as well, P.C.and S v UK is the first ECHR case to reference breast feeding when children/babies are removed*
Art. 3 on the face of its terms one would almost certainly suggest that given what happens in care proceedings the removal of a child from a parent is manifestly torturing and degrading and likewise for any child removed from their parents is one of the same, in Re Z it was found that the failing of the state NOT remove was found in breech of Art. 3, a damned if you do/don’t scenario.
We have to approach Art.3 in its context as it was perceived upon its inception, Art.3 was mainly written for acts of war, prisoners of war and so forth, in recent times Art. 3 was profoundly argued in respect of “Water Boarding” along with other such atrocities carried out in Guantanamo Bay, could one argue that parents and children are within the same sort of context. hmm!
We have to understand that within Child Proceedings when a child is removed from their parents it is done so under the umbrella of protecting the child, because of that very nature Art.3 fails on the behalf of the parents, the interference by the state has to be and it is felt and is known that the removal is a necessity, failing to act accordingly results in the Re.Z scenario.
If we look over the history of some heinous cases where children were removed wrongfully from parents most notably in Cleveland and Rochdale [home of P.C and S] now in those such instances I would be certain that Article 3 would be engaged and the parents who’s children WERE deemed to have been removed wrongly could seek redress under Article 3.
In those such instances proving the children were wrongfully removed is key to where Article 3’s foundations lay, the picture painted by many on the infernal machine that is the world wide web, people tend to suggest that the Cleveland and Rochdale issues are still rife, in that Social Workers simply knock on the door and remove the children forthwith no questions asked, to my knowledge I can only count two such instances where that has happened in over 10 years.
When there is state involvement with families and children have been removed, rightly or wrongly the very principle to engage article 3 is two fold, was there any remote or minuscule reason that held a doubt in the states mind to the parents ability to care for their child/ren, is it a necessity to remove the child/ren from parents, if the answer is yes then Art.3 sadly cannot be argued.
If the child/ren were removed for absolutely no reason, absolute being I suppose a malicious referral or what is often said a Social Worker on a power trip, then yes Article 3 would be engaged if the applicant could PROVE that state intervention was NOT a necessity and removal was wrong, again that would be where the foundation would lay to engage Article 3.
For parents to argue in the ECHR or another place to engage article 3 and find a breech there cannot be any doubts, the applicants would have to be squeaky clean and cast no shadows, in recent times we do have the mantra “Nothing Else Will Do”, I do understand the principles however the state intervention is deemed necessary at the inception of Child Protection and/or care proceedings.
Article 3 is as I have said above profoundly difficult to argue and prove, and I am sure that those in the legal professions will agree with me here
Should we be focusing on the UNCRC – rather than HRA Art. 3 I suppose that would be worthy of another post!
Judgments to the above mentioned cases can be found on these links
KS v UK -http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-112315#{“itemid”:[“001-112315”]}
RP v UK – http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-113391#{“itemid”:[“001-113391”]}
P.C and S v UK – http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-60610#{“itemid”:[“001-60610”]}
Those three decisions are quite striking in that SK was dismissed by Majority, RP was dismissed Unanimously and P.C and S was found in favour of the applicant
Thanks, really helpful comment. Probably worth having a section/workshop on ECHR for #CPConf2016? Particularly as we may know more then about what the court is saying re HRA.
Just re-reading and this struck me
“When there is state involvement with families and children have been removed, rightly or wrongly the very principle to engage article 3 is two fold, was there any remote or minuscule reason that held a doubt in the states mind to the parents ability to care for their child/ren, is it a necessity to remove the child/ren from parents, if the answer is yes then Art.3 sadly cannot be argued.”
Is that from a decided case? Or is that your own view? I just wonder, because surely if a criminal was beaten up and tortured by the police, the fact that he was a criminal couldn’t justify the police behaviour. So even if a parent is a obviously a deficient parent and has caused harm to that child, couldn’t Article 3 still be argued, if the LA went about the care proceedings in such a way to cause that parent very serious mental suffering?
I think you are right, it would be worth sticking your neck out and having a go in the European Court!
The thoughts come from my own views and that of counsel in KS v UK, I understand the references of a Criminal, one could go further in saying when the police make an actual arrest and the “Criminal” is being resistant, “necessary” force is one that is debated far and wide, on a whole is it proportionate to use necessary force.
With Article 3 specifically in respect of parents we need to view it in the context of Proportionality as well, the state has to balance some god awful issues sometimes and they should not be restricted to do so by reference to article 3, If we widen the scope, should a child remain in the care of deficient parents to protect both of their Art.3 Rights, the deficiencies would have to be proportionate, going even wider is the forced adoption of children breech of Art. 3 of both parents and children?, stab in the dark I would say it could be.
I am certain in the original SK v UK application Art.3 the reason for the removal of Art.3 from the application was squarely focused on proportionality.
I do think there is real benefit for debating ECHR at CPConf2016, I do know there is a Judgment pending by Jackson J that goes right to the very heart of what is a “Family” and in respect of a Birth Parents right to Article 8 once an adoption order is made, that judgment itself Jackson J has indicated it could take up to 3 months to produce.
So indeed there will be even more merit to a Workshop/section on ECHR and the role it plays within the child protection system.
We are debating Article 3, please Miss can we slide in Article 14 as well 🙂
ARTICLE 14
“ The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, or other opinion, national or social origin, association with a national minority, property, birth or other status,”
It is right to say I think this is the only time I have ever come across any formal debate about Art. 3, we are forever more reading about Art. 8 and 6, for me, I welcome such debate like this.
Yes, excellent point about Article 14 – it needs more prominence.
What I hope wider debate about Article 3 will promote, is professionals thinking harder about what is best practice – I can see enormous practical difficulties, as you highlight, in pushing for Article 3 cases to be heard in context of care proceedings as I am sure there will inevitably be reluctance to make LA’s reluctant to issue care proceedings and if Article 3 is hanging over them it could have a chilling effect.
BUT they do need to think more carefully that arguments around Article 3 are NOT fanciful and it may well be that grossly insensitive or unlawful proceedings are going to meet the minimum standard required to prove ill treatment.
I am not sure how helpful my comment will be, but I will put it out there. I have witnessed situations where parents end up either physically or mentally ‘broken’ when dealing with children’s services. One of the main reasons is that the social worker claims there are problems and if the parents don’t agree, they are deemed ‘in denial’ or ‘unco-operative’. When the parents ask any questions regarding how the conclusion of ‘there is a problem’, they receive no answers.
By way of support; the LA requests an Initial Case Conference. No one else attends (police, GP, Health Visitors, school, probation, etc) The various ‘agencies’ don’t attend because either ‘We have no involvement with this family’ or ‘We have no concerns about this family.’ Parents then point out that the meeting can not go ahead because it is not quorate. (At least two other ‘agencies’ must attend or write to outline their concerns.)
Additionally, parents (and children) start to suffer with either mental anxiety or physical problems because they feel like their lives are under a microscope. Result? Problems that never existed before, begin to emerge. The Family is left to ‘stew’; Parents become anxious about any small cut or bruise, parents start to argue, child witnesses, parents might begin to self medicate, goes to GP…. child happens to mention it at school or at a friends house….The concerns now exist. Case can now proceed.
And so it begins.
*I have read and observed cases where parents have asked ‘What is it you want me to change?’ And no specific answer is given. I have asked/advised parents to request a PLO letter. It either never arrives or is so ‘vague’ that they can’t work out what has to change and by when.
*I have also seen parents ‘tortured’ by dealing with frontline staff who appear to have very poor communication skills, low level of competency and poor report writing skills, don’t reply to phone calls or letters, etc.
Your comments are helpful because, sadly, I think this is the reality in a lot of cases. The case of P, C and S that Jerry has linked is another interesting example of how the LA perceived the family to be uncooperative and that snowballed, which contributed to circumstances where the family’s Article 8 rights were breached.
I am not sure if Article 3 is the way to go, but certainly more of a light needs to be shone upon the unsatisfactory way a lot of these cases are allowed to proceed. I accept that deficiencies in practice and procedure appear to be often excused by the ‘child rescue narrative’ that is sometimes so pervasive.
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Speaking as a non lawyer I don’t know if I am going off at the wrong angle, but if so will hopefully add to the debate by getting someone to correct me if nothing else.Article 3 is engaged in the police complaints procedure. There has been a recent case in the Court of Appeal which was dismissed regarding this:http://rightsinfo.org/stories/the-black-cab-rapist where Article 3 was said to be infringed because of the police failure to record rape. I tried understanding the original judgement but it’s a bit beyond me. What I did grasp,at least I think I did , was that Article 3 can cover a broad spectrum from torture at the top end, which of course could be physical or psychological to minor errors at the bottom end.
Obviously the failure to record rape has a psychological outcome as well as the missed opportunity for closure due to lack of criminal proceedings. is rape on it’s own or is removal of children just as important? I would say that it is easily of equal significance with actually a potentially longer term impact. So is there any correlation in cases such as this:
http://www.lgo.org.uk/news/2015/jun/mother-baby-separated-due-council-s-disproportionate-arbitrary-actions/
I actually think there is, just as the police failed to record , the local authority failed to give her the right information ( that’s putting it politely). Both police and local authority made value judgements on vulnerable woman without having the full facts which had a long term impact on court proceedings. I see this as inhumane.
At the bottom end parents endlessly complain about procedures not being followed, no input into assessments,lies being written about them etc. This is actually what most parents post about on various forums. Is this significant enough to be classed as inhumane. Given the impact on the parent possible adoption or years of family separation I think it is.
Sam, I agree with you.Every member of a family are ‘tortured’ and subjected to inhumane levels of quite traumatic stress not fleeting ( as in a war situation) but long-term often permanently.
As a medical consultant explained to me, children and parents are often placed (inhumanely) into an impossible situation.They find themseves in a position which no amount of change on their part, no pleadings, reform or legal argument can get them out of.
This inevitably causes the slow destruction of faculties,misery, deterioration and eventually the demise of victims. They have no hope ( often sw’s drum that into them at the outset off the record).
Think of a person condemned to execution. At least he has the automatic right to a ( legally funded) appeal. Think of a lifer. At least he generally has a right to apply for parole and can expect a merciful sentence and can have some hope. The present system is simply inhumane by all normal standards. Is that why Public access to the ‘court proceedings’ are restricted? I guess so.
The mental torture and anguish suffered by families is real.Only victims will appreciate that fully and before lawyers can define it, they would need to study detailed analasise from psychologists,geneologists,divinity scholars, religious leaders et al.
The degradation is real and palpable also.Effectively,the authorities are creating an underclass.Children are treated as second-class citizens being discriminated against (a.14) when they come of age and have their own children.They are stigmatised throughout their lives for being or having been in care.Parents are often marked down on various blacklists and will find it difficult if not impossible even to get a job as a lollipop person.Lawyers please take heed.
There is nothing wrong with ‘social engineering’, in fact that is the main function of politicians, provided human rights laws are adhered to strictly.This is why we must make comparisons and draw parallels with past ‘totalitarian’ regimes. It is clear that most normal human-beings agree that natural families should not be torn asunder except when necessary in accordance with the law.
Parents will, of course, have a rather more simplistic view of the law than professionals which lawyers should respect.
I make the following points:
‘ No one shall be subjected to torture or inhuman or degrading treatment or punishment.
There is no exception or qualification to this right. It is absolute.’
—————————————————————-
‘It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions’.
—————————————————————-
I think that lawyers should ensure that proceedings are LAWFUL. If the statute is not followed scrupuously by the CS then, in the eyes of this parent at least, the sanctions are unlawful. Simplistic? Naïve? Maybe.
When the CS conduct cases wrongly, cases should be stopped in the tracks immediately. They have lost all credibility just as a Policeman who takes someone off the street without informing him of his rights.
I agree morally with Angelo’s last sentence absolutely. I am not sure whether legally it’s right but I am aware the correct process of presenting evidence is flawed with in criminal courts the case is thrown out.
Is it not time that local authorities cases have to be watertight at all stages, including pre proceedings . As it keep being said since the abolition of capital punishment this is the most drastic court action that can be taken against a person. One assumes when we had the death penalty the person who was charged had a solicitor at the time of arrest, yet parents frequently have their children taken away without legal advice under threats to cooperate or else.
On another point would it be possible to take a group action under either the Human Rights Act or as malfeasance . For instance those parents who did not have a chance to make an informed consent to section 20. Or even possibly taking particular local authorities to court over failure to provide services under section 17 not to particular individuals as that cannot be enforced but under their obligation to children in need in their area?
I agree with much of what is said – but the key difficulty is here “When the CS conduct cases wrongly, cases should be stopped in the tracks immediately. They have lost all credibility just as a Policeman who takes someone off the street without informing him of his rights”.
The obvious distinction between criminal and children proceedings is that even if the LA has behaved unlawfully, a child might still be at risk. It is an uncomfortable argument to say that a case should just stop dead once professional wrongdoing is uncovered. What then happens to the child?
There is always a danger of the pendulum swinging too far towards parents’ rights and away from children’s safety, just as I accept the reality that it has swung too far now in the direction of ‘child rescue’.
Children are most at risk of being killed and hurt by their adult carers – this is a fact, it is not rare and we need to address it.
I would like to see much more focus on robust provision of early intervention and support in order to avoid costly legal proceedings and massive human damage down the line. But it maybe that there needs to be consideration of Article 3 arguments in court in order to bring a proper focus back onto what should be happening.
If we have to brutalise parents to protect children then something is going very badly wrong.
The Local Authority always has the option to re-initiate the child-protection process. Obviously,second time around it would have to conduct the case correctly.
Surely it is important, though,that even if parents are guilty:-
a) article 3 is absolute,there are no exceptions. Are punishments and sanctions which part families permanently lawful in any situation.This question should be asked in the highest court.
b) The C.A. already states that families should be kept together.The problem is the Local Authorities which, for its own reasons,prefer to make permanence plans that impose separation.That is the unlawful aim,in my opinion. Lack of resources etc are not sufficient to justify it.Were the department to switch the finances from foster-care and children’s homes to support agencies and supervision and so on, the attitude of sw’s would change overnight.
Thanks for formalising this discussion, Sarah. I shall leave it for a while now to see how it develops..
Thanks to you and Sam for raising the issue and bringing about this debate. It will be interesting to see what the next few months bring – I am told via Twitter there is a Court of Appeal case in pipeline as we speak.
Sarah,
In Re A, S and Others v Lancashire 2012 http://www.bailii.org/ew/cases/EWHC/Fam/2012/1689.html the Court found that the LA and IRO had breached the children’s article 3 rights. That’s the only family case I can think of where an article 3 breach has been found.
Thanks SM, that is really helpful. I will put it in the body of the post.
Oh *facepalm moment* the A and S case, how could I forget, again though its a child centered case and not that of the parents Art 3 Rights,
In respect of the A and S case it was one that brought about the IRO rule book to be dusted down and prized open, sadly though there seems to be little change in IRO’s and the show still goes on, despite Jackson J’s overwhelming concerns for bringing L.A’s to book by IRO’s. it bore no fruit
Can someone please answer whether or not it is possible to take human rights group action or can individual authorities be held to account in general under section 17? I ask about the group action as way of getting around the LAA swallowing any damages awarded . Or is that just naive?
I don’t know I am afraid. I am pretty sure no one has ever tried it. I suspect that group actions have to stem from the same incident – for e.g. groups of people affected by asbestos in same factory. ‘Group’ actions from a number of disparate parents would be very tricky I assume as each parent would have potentially a very different set of circumstances. Maybe if a LA accepted breach of parents’ article 8 rights, they could band together and claim that this should have been recognised under Article 3? I honestly don’t know and think it is fraught with difficulty.
I may actually be partly answering my own question but I think this adds to it :
http://www.criminallawandjustice.co.uk/features/Rotherham-Victims-Suing-Authorities
In particular this paragraph.
” Civil Action Against Rotherham Council and South Yorkshire Police
Victims of the Rotherham child exploitation abuse are to conduct a class action, claiming damages for the suffering they experienced and the fact that the abuse has blighted their lives. At least 15 girls, who were aged 13 and 14 at the time of the abuse, are reported as seeking £100,000 each, but further claims are expected to follow in the wake of the report by Professor Jay. (See Daily Telegraph, August 27, 2014).
Victims can now bring an action under the HRA 1998, claiming that the authorities have failed in their duty, under art.3, to protect persons from inhuman and degrading acts carried out by third parties.
Alternatively, they can bring an action at common law, the domestic courts accepting that there is no longer any public policy reason to stop victims from bringing negligence claims against public authorities (D v. East Berkshire Community Health NHS Trust [2005] 2 All ER 443, modifying X v. Bedfordshire CC [1995] 3 All ER 353).
Whether such an action will succeed will depend on what the police and local authority knew or should have known about the allegations, and whether they conducted a proper investigation in all the circumstances.
The courts, both domestic and European, will provide the authorities with a certain amount of deference, accepting the difficulty of investigating such allegations and balancing their duty to protect people in their charge with factors such as finite physical and financial resources and the requirement to protect the civil rights of those facing allegations. However, despite that deference, it is clear now that the authorities can face legal actions, and that such actions are likely to succeed where there has been a systemic failure to follow procedures and fulfil duties.”
I know that a number of parents and children whose experience with childrens services is summed up as a systematic failure to follow procedures and fulfil duties. So can we take a class action under Article 3 or a claim for malfeasance ? I would still welcome someone with some legal knowledge to answer please.
Interesting. The boundaries will clearly be pushed further. I am still not convinced however that parents could band together in the same way that the children in Rotherham could. There is clear precedent for finding breach of Article 3 in cases involving children who were left to suffer inhuman and degrading treatment at the hands of adults.
Thanks Sarah . Maybe parents may or may not be able to under Article 3 but could there be possibilities with a free standing application because of the lack of informed consent to section 20? I would guestimate that a minimum of one third of all parents did not give informed consent. Not all section 20 cases of course go onto care proceedings but even so the local authority have to act in compliance with the HRA before proceedings anyway. I realise that it would definitely be articles 6 and 8 with only a slight chance of 3 .
I just wonder if a significant case going through would give local authorities a sufficient kick up the backside to start using section 20 and possibly even the pre proceedings process in a lawful way. Can we use the HRA before we lose it?
Quote: The obvious distinction between criminal and children proceedings is that even if the LA has behaved unlawfully, a child might still be at risk. It is an uncomfortable argument to say that a case should just stop dead once professional wrongdoing is uncovered. What then happens to the child?
There is always a danger of the pendulum swinging too far towards parents’ rights and away from children’s safety, just as I accept the reality that it has swung too far now in the direction of ‘child rescue’.
Children are most at risk of being killed and hurt by their adult carers – this is a fact, it is not rare and we need to address it.:Unquote
Forgive me but I suspect there is something in the above attitude which clashes with our general quest for justice. I am always keen to get to the heart of matters.If the balance has dipped too far in the direction of child rescue, then we should be asking how?
What is the first priority of family court lawyers,to protect children or to uphold the Law? The lawmakers, when they penned the Children’s Act, considered all the concerns above and ,to ensure a fair balance, they set strict rules of procedure. The aim was to prevent the pendulum swinging to far in one direction or another.
Because of what might then happen to a child you appear to be saying that a level of ‘unlawfulness’ on the part of the LA and wrongdoing by the CS is perhaps acceptable. Parents might disagree with that and, more importantly, the Law does; it calls for scrupulous fair process.
We have to realise that when the authorities deliberately ignore fair procedure, the likelihood is that they intend to pervert the course of justice . The child/ children are probably at no real risk. Likewise,if the procedures have been accidentally or inadvertently subverted, justice is compromised.
If allowed,the corollary is that some Local Authorities will persist in wrongdoing; they will, ignore fair procedures; flout explicit instructions given at directions hearings; fail to obey court orders on time or at all; indeed ultimately they will not even accept the legitimate findings of the ECHR.
Are they to be allowed to consistently violate the Article 3 rights of families unlawfully because children ‘may still be in danger’?
Statistics we might read in official documents may or may not be FACTS. (Especially when placed on computer).It depends on who has issued them. For example,if a Local Authority regularly perverts justice ( systematically or not) and presents unrealistic and misinformed appraisals in family proceedings, then it is highly likely that its figures are misleading too.If a Constabulary regularly prosecutes parents who abuse children as per its public duty but opts not to give the same level of attention to children who complain about institutional abuse, then the Police statistics will be misleading. Statistics have the potential to take us into cloud-cuckoo land.
My opinion,as a parent, is that there are many more cases of institutional, serious abuse of children reported by the press as coming before the criminal courts than those accusing parents.
However, natural justice demands that quantitative judgments are totally irrelevant in court. Each case is different.
Particularly, in a case where parents are complaining that a family’s article 3 rights have been abused, the LA cannot argue that most child-abuse is by family members.
I hope readers find this constructive.What we really need is openness and honesty on the part of the Local authorities.
Sam, Despite the clear precedents,how could parents band together when we are forbidden from publicising our cases,when restrictions are placed on the reporting of cases and when Children’s Legal Panel solicitors in general opt not to contest our cases against LA’s or apply for legal funding?
It might be possible in one particular area against a particular LA, like Rotherham, but only when a firm of solicitors sees and grasps the cast-iron opportunity to make huge profits. It will then advertise its interest and gather parents together.
Are these the difficulties Sarah alludes to?
I don’t think either of those objections holds up
Re parents banding together. The open Facebook Group UK Social Services (prime exponents of the lying evil SW trope) had 7.210 members when I last looked, five minutes ago. They are banding together just fine, sharing documents and photographs with apparently very little comeback.
Your views about the ‘huge profits’ available to legal aid firms are also now several decades out of date. Particularly since the impact of LASPO in 2013, many legal aid firms have simply gone under entirely or stopped taking on family work as they cannot make any kind of profit, let alone a ‘huge’ one.
90% of my income comes from publicly funded work. I make about £40K a year profit. Not a bad wage of course and I am very grateful for it – but it is hardly such an enormous figure that it will corrupt me or encourage me to seek out children to ‘snatch’.
“Forgive me but I suspect there is something in the above attitude which clashes with our general quest for justice. I am always keen to get to the heart of matters.If the balance has dipped too far in the direction of child rescue, then we should be asking how?”
I reject entirely any assertion that concern about extreme positions – at either end – ‘clashes’ with general quest for justice. On the contrary, it is entirely consistent with and necessary for the aim of promoting justice.
If we are led by the nose by media hysteria over Baby P then parents suffer as professionals become over cautious and afraid. If we take the view of campaigning groups like UK Social Services that children are only ‘snatched’ from loving homes for the massive bonus payments SW receive – then children suffer as the reality of their often very poor experiences at home are denied.
Angelo
I am talking about pre proceedings in particular lack of informed consent for section 20 . As far as I am aware it would be OK to talk about a case in order to obtain legal advice.
I would be willing to set up an email with an initial contact form to see if there is any interest in parents banding together, not to moan but to take hopefully constructive court action. I would not have a problem with a parent just setting up a specific email themselves or using a pseudonym to communicate with me. If there was then sufficient interest we could approach a lawyer , mckenzie friend or even if there was no legal aid the Bar Pro Bono Unit .
I think there is a consensus that it is pre proceedings that set the parent up to fail, by abusing the law before a parent has a lawyer on side. I would really like to make an attempt to redress the balance ,even if it doesn’t benefit me personally as I hate to see the depth of pain inflicted on vulnerable parents .
I agree with Sarah that the pendulum has swung too far against family rights and I am fairly well convinced that ‘there may be a danger to children’ falls into the former of her extremist camps. Viz. professionals being over- cautious and afraid.
It am concerne that right from the start of the process at the initial assessment,through cp conferences,Magistrates Court,County Court and even later at Complaints investigations,leave-for-appeal applications etc.etc. notwithstanding the validity of parent’s disagreements ,correctness of their evidence and ‘unlawfulness’ of LA actions and sw wrongdoing, removal is supported by decision-makers on the basis that ‘something must have happened to instigate concerns in the first place’. It seems illogical to me.Call it what you will. Excessive safety-first attitude or ‘No smoke without fire’ syndrome.
Sorry, I am going to have to disagree again.
The courts certainly don’t just sit back and accept poorly evidenced cases. These are just two examples.
http://www.familylawweek.co.uk/site.aspx?i=ed144592
http://www.familylawweek.co.uk/site.aspx?i=ed143924
If you are not happy with the case the LA are making you MUST engage with your lawyers and you must argue this in court. The courts will certainly take such arguments very seriously.
I am also very concerned about the legal funding issue. I find it almost incredible that a barrister should earn so little. Are you talking about part-time or full,Sarah?
I think the problem should be addressed post haste by the government and will sign any petition set up to lobby for it. In the interests of justice,they should calculate the amount of money spent by LA’s on legal fees in CA cases ,then make double that amount available to the funding of respondents. Lawyers may then show more interest in opposing LA’s. They would probably take care and attention to instructions too. Please note,Sarah,I aim no criticism at you.I can only praise you.
Parents are not stupid, though, and they can see straight away when a solicitor is not working for them, is flannelling them and is actually helping their opponents.They see the shoddy paperwork,spelling mistakes,wrongly completed forms and the quality of the junior office staff. This has to be the fault of the government which has a clear responsibility to protect citizens from Local Authority malpractice. They should supply the finance NOW!.
I am in court only 3-4 times a week, that is because there is less work available to barristers because solicitors are doing more of their own advocacy otherwise they will get no profit at all. So I am probably not full time, but that is not by choice.
I will get between £600-£1,000 a day on legal aid rates – which might sound good, but you must factor in preparation time (10 hours average), time discussing outside court (2 hours), travel (2 hours), actual time in court room (4-5 hours) drafting after court (2 hours) which equates to the princely sum of about £52 per hour on a rate of £1,000 per day, out of which i must pay chambers expenses (£1,500 pm), tax, national insurance and my own pension contributions.
And compared to most criminal legal aid barristers, I am fabulously well paid. They may end up getting paid nothing at all if a trial doesn’t go ahead – but they have already done many hours of preparation.
The fact that successive governments have spun so well the myth of the ‘fat cat barrister’ and thus made sure that no one sympathises with us and no one protests when legal aid is cut, is one of their finest triumphs. As the saying goes, you don’t know what you had till its gone.
I would not advise any young lawyer to specialise in either criminal or family legal aid work. Mainly because I don’t think it will be around after another few years.
I don’t actually think there is any money left in the public piggy bank! I also think that you will find that Sarah works more than 37 hours a week and would have been better off being a plumber or car mechanic. Or possibly one of those really useful NHS managers.
Yet there does still seem to be plenty of money around in some places. I mentioned tongue in cheek NHS managers, but I know for certain there is a culture of getting a manager in , normally on 60k upwards to start a project, it doesn’t work and someone else is appointed and they then go back to the original practice which worked in the first place. I suppose it’s political don’t attack the NHS or pensioners
We are not in relative terms a poor country , but we are an increasingly short-sighted and selfish one. A lot of the mental health problems are exacerbated by inequality of wealth hence the countries were there is less of an unfair society have better mental health rates.
I suppose if you take away the lawyers that are more likely to represent the poor , who are over represented in both family courts and criminal it achieves a purpose of keeping them quiet and unable to complain about injustice.
Re- engaging with solicitors.Generally, vulnerable families don’t have much idea how cases should be conducted and the solicitors advise them to go along with the CS and promised that the outcome will be a fair one. Reluctantly they follow the advice given.
Advocacy is defined in the dictionary as advice and active intervention ( on the behalf of a client). I feel it is the task of the solicitors to intervene when procedures are unfair. It is not for parents to instruct them how to do it.
Anyway, this thread is about articles 3 and 14. Look on the more general Human Rights Act 1998 thread and I am putting a parent’s view on fair trials there in a day or two.
Angelo, when I advise clients to co-operate with Children’s Services, this is because it is the best advice at that time. When parents present with clearly identified deficiencies to their parenting through drugs, violence, neglect etc, a failure to show insight into these difficulties and a failure to co-operate with what needs to change, will simply be added to the already long list of black marks being collected against them.
I know you operate from a different perspective – that of the parents who feeling unjustly accused and who don’t accept concerns raised. They may well be right.
But for the vast majority of parents in care proceedings, they have been suffering serious problems for years. If they then refuse to engage, they will lose their children. I am very, very concerned by the prevailing trend of ‘advice’ on the parents’ Facebook groups that you should simply refuse to co-operate and if your lawyer urges you to that means they are ‘rotten’ and up to no good.
I have been involved in cases at both sides of the spectrum.I do not present my views from one side only.
As a general rule, in the light of my experiences,I advise parents to co-operate with Social Services unless they fail to reciprocate the goodwill and Social Workers start to act unlawfully. For example,I would never advise them to accede to threats and sign an S20.
I feel there comes a time in every case when it becomes patently clear that the CS have no intention of conducting a case properly ( evidenced sometimes by a refusal to talk to parents). It is often at the earliest stages of the process.If a sw says to a mum that he intends to take away her children to be adopted before initiating the process at all then I would be very wary. Especially if he followed up by convening a non-quorate cp conference.
Having looked at many cases, I have noticed a tendency also for sw’s and Police to knock on doors and initiate emergency orders very late on a Friday. I suspect that is no coincidence. Of course, the misuse of emergency measures and the misuse of S20 agreements can be partly mitigated if a sw states that there was no opportunity to apply to court for an order.Even that is deceitful because they can apply at anytime even at weekends.
A Friday afternoon ‘home visit’ is the first sign to me of possible CS illegitimate aims!
‘I suspect this is no coincidence’
In some cases you may be right. In other cases, a late, panicked Friday application to the court may be made because the SW has been trying to sort the case out all week, has had very little time, has parents who won’t co-operate…
It’s not just a simple matter of making an application on a Saturday. I have been asked twice in 10 years to go to court on a Saturday. You are not going to find easy access to judges/lawyers over the weekend, which I think probably explains why so many emergency applications are rushed through on a Friday as it simply may not be safe to wait until Monday.
You say you are open minded and not presenting your comments from one side only but I disagree. There is a strong flavour in many of your comments that you will assume the worst from the outset about the motivations of SW. Of course parents need to be on their guard against unlawful practice, but to go into every interaction with a professional with the assumption that they are going to stitch you up, can be really unhelpful.
How about hoping for the best, but preparing for the worst? Assume that a SW is going to do a proper job, but the moment you have clear evidence that things are going wrong, act on that.
I think that is what I wrote.I would always advise parents to co-operate fully with sw’s and the system and I would hope that has a satisfactory outcome until it becomes clear sw’s are acting unlawfully; then I would still advise them to co-operate with legitimate court proceedings but to object strongly to malpractises. Surely parents are entitled to expect fair process to be followed when they are themselves doing everything to cooperate.
Firstly apologies to Angelo you were right about Sarah working part time. Thank you Sarah for being so honest . Being British we don’t talk about money normally but it is a very important point you raise.
And this is why the Government will be able to destroy legal aid. Because no one has put up a sensible counter argument to their ludicrous claims that legal aid lawyers are fleecing the system. We are all so reticent about discussing money, so it is partly our own fault. The criminal Bar have begun a fight back, but its far too little, far too late and public opinion has been set dead against us.
I will be interested to note how many people stop shouting ‘legal aid loser’ and start shouting ‘where is my legal aid lawyer?’ It’s already happening with private children law cases; instead of people complaining about the quality of their legal aid lawyer I now read posts from people desperate to get a legal aid lawyer but they now do not qualify for any help.
I would not call the long hours she puts into cases part-time by any stretch of imagination. I asked if she was full or part-time.
In my eyes 37 1/2 hrs is full-time and anything more overtime. Part-time is less than 25 hours per week. I know little about how chambers work but I assume barristers are on call for a set number of hours , some on 24 hour stand-by. That is certainly full-time.The only time they will get away with working part-time ,I suppose is if they have small children.
The point is that a nation cannot be a civilised one when each and every citizen does not have fair and equal access to justice. Is it section 11 which says they must have a remedy! The principle is a long-standing one. It especially applies in Public Law, I would guess because of the financial muscle which Public Authorities. As Sarah says it is incumbent upon the Government to redress the balance. Access to justice is one of the things we go to war and pay our taxes for. Haven’t we just celebrated the anniversary of Magna Carta?
It’s damned near impossible to negotiate you way through court without a lawyer especially since public counters all but closed as well. Not to blow my own trumpet, but my standard of literacy is reasonable, only possibly because I had as many books to read as I wished as a child as well as a fantastic English teacher .Despite that I struggled to understand the forms at first. A practice direction can be complete gobbledygook, I am well aware that there are others less fortunate than myself who would just give up.
The areas you are talking about criminal and family law are not minor issues, they go to the heart of a person’s life.
But as they don’t normally relate to any profit making activities, they are deemed worthless by our current system.
I completely agree – the law and procedural ‘guidance’ can often be gibberish, even to the highly qualified. I have just tried to wade my way through Kings Lynn and West Norfolk Council v Michelle Bunning [2013] and even the Judge had to give up trying to understand the Legal Aid Agency regulations.
If successive governments are so hell bent on getting rid of all of us fat cat lawyers, it is incumbent on them to produce a system of laws that is a) accessible and b) understandable for litigants in person.
I think they have failed and will continue to fail.
I agree .In an effort to get back to the topic, though very relevant diversion would putting a litigant in person who say lacks ability to cope with the requirements or is vulnerable through the court process count as infringement of Article 3 . It is certainly inhumane. With another slight diversion , does the inability of litigants in person to apply correctly for exceptional case funding, because of the complexity of the application process mean that their human right’s under 6 and 8 are in breached.
Yes,anon,it is unfair,but that is not the issue on this thread.We already know that these procedural failures occur and I think we all agree that appraisals can be unrealistic and misinformed as a result.
To be constructive, can we all agree that the permanent liquidation of families is a violation of our convention rights under Article 3 whether or not parents concerned have neglected their children? Are the rights absolute or not?
If we cannot agree on our answers to that question, can we at least agree that our rights are violated under Article 3 if the same action is taken as a result of UNLAWFUL sanctions?
To be constructive, we have to adopt a maieutic approach. We have to answer searching, uncomfortable questions and we have to come to an agreement on each issue in turn.
Its no use questioning one another’s motives or engaging in peritheral squabbles.
We have to answer the fundamental questions openly and honestly . Until we agree,we cannot begin to work together.
“to be constructive, can we all agree that the permanent liquidation of families is a violation of our convention rights under Article 3 whether or not parents concerned have neglected their children? Are the rights absolute or not?’
No, we can’t all agree that because there is absolutely no case law to suggest you could ever successfully argue that. That isn’t the evil that Article 3 is directed against because sometimes, I am afraid families do have to be ‘permanently liquidated’ for the safety of the children.
I am more interested in your second point – if state authorities act unlawfully and cause terrible suffering to families, could there be an Article 3 claim? I think there definitely could.
The problem will be finding a proper test case. At the moment I am afraid that the conspiracy theorists have taken hold, so too many arguments are put on behalf of parents about the corrupt and deliberately evil state which snatches babies for targets. Thus, anyone sensible switches off I am afraid and doesn’t listen. I am sure some valid arguments have got lost in all of this. Which is a real shame for all of us.
And btw what is a ‘maieutic approach’? Not familiar with that phrase.
A maietic approach is where everyone comes together ( from whatever direction they come) and endeavour to elicit truth upon or shed light upon a problem by asking and answering honest questions . It is a socratic method of solving a problem.
One does not concentrate on the refutation of all contrary arguments; with a maieutic approach such one aims to accept the concerns of others and to place a value upon all points of view.
I have not been on any of the ‘rabble-rousing’ sites you mention because I don’t believe their approach will get us anywhere but it is obvious you do, Sarah. You are concerned about their use of the phrase ‘ child-snatching’ by the Authorities.
I agree with you that it is an emotive term which it is better not to use.We agree on that. So what less emotive phrases can we use?
Can we all agree that children are sometimes expropriated by the Public Authorities with systematic violations of a family’s procedural and convention rights?
I agree that the maietic approach must be the right one. Instead of ‘child snatching’ can’t we simply talk about children being ‘removed’? ‘Snatching’ has an instantly pejorative flavour.
But I remain interested in your use of language. you say ‘Can we all agree that children are sometimes expropriated by the Public Authorities with systematic violations of a family’s procedural and convention rights?’
I think the word ‘expropriated’ is curious with regard to children. To me that suggests you are talking of property, not humans.
I would certainly agree with ‘sometimes state agencies act disproportionately and hence unlawfully by interfering in family lives without proper consideration of the necessary legal tests or proper exploration of what support is available to limit that interference’
And we need to agree how we reduce (I don’t think we can ever entirely eliminate) unlawful state action.
Or can anyone sum the truth up better?
To be honest, Carol,I wish someone would write to the Archbishop or even the Pope and ask them to give the church outlook on all this.
Indeed! I would welcome the Catholic Church’s perspective on Article 3 and degrading treatment of children, as that seems to be an area in which they have a lot of hands on practical experience.
i am being sarcastic by the way, I know tone doesn’t travel very well on the internet. Any representative of the Catholic Church is surely the last person you would want commenting on how we treat the vulnerable?
I don’t agree this is a Christian country and even it it is, I and many others are not Christians, so not a particularly helpful point.
Her Majesty,whose emblem is cast in stone on the exterior of every court of justice in the country ,who we all swear allegiance to and whose justice lawyers are supposed to serve and uphold is certainly a Christian!
Also we all swear on oath on the Holy Bible before giving evidence,don’t we?
Please don’t hit below the belt Sarah. Everyone’s views are welcome here,even the Pope’s! This is still a Christian nation even if most of us don’t go to church.
No we don’t all swear on the Bible, what nonsense. You can swear on whatever book of superstitions floats your boat or you can simply chose to affirm – as I would as an atheist.
Sorry you feel that recognition of the widespread child sexual abuse over many decades which the Catholic Church just sat back and allowed to continue is ‘hitting below the belt’. You will not be surprised that I don’t agree with that criticism.
To get back on track a direct quote from a link from the original article “The Midwife came in to the private postnatal room that had been our home for the previous few days.
“Is it time?” I said, quietly.
“It’s time”, she said, not meeting my eye.
The foster carers were in the next room with the Social Worker, waiting to take my newborn baby away after an Interim Care Order had been issued hours earlier on a “future risk of emotional harm”. I had left my hospital bed, still bleeding heavily, leaking breast milk and taken the witness stand for an hour and made to fight. I hadn’t done anything to this child, the LA had stated there was no immediate risk of harm and that I was a “good enough” parent.
It wasn’t enough.”
I cried when I read this. I have had my children removed but not at birth. I do know the aftermath of giving birth and milk coming in. No mother should be dragged through court , at such a delicate stage unless they are a really acute risk to their child. Could it not have been a telephone hearing if one was needed urgently ?
The article goes on to explain how Mum spent her time expressing yet the local authority put the baby onto formula. I no way wish to degrade mothers who do feed formula, there is quite enough pressure on parents already. However speaking as a Mum who was determined to breastfeed, did so for 6+ months for all my children, as it was part of doing the best I could , I know how important it is if you have made that decision to be able follow it through. Where the hell was the child’s best interests put first here , when we have been told for years to breastfeed as it’s in the long term welfare of the child. The mother’s best interests certainly were completely disregarded.
There is far more in the article, and I urge you to read it if you haven’t already she is an immensely brave woman . Article 3 I should say so.
Do you agree with me that, in the case Sam is referring to, both mother and baby’s Article 3 rights were violated? Both of them suffered degradation and mum ,in particular had mental torture imposed on her. To detach a baby from the bosom of its natural mother shortly after birth , when there was no imminent risk was disproportionate hence unlawful.
One assumes whoever issued the order decided it was proportionate.Why?
Two more important questions: Do the LA always present an in-depth core assessment at such application hearings? Sarah, is it possible for a magistrate to issue an ICO and for a Guardian to recommend one on a basis of safety-first without realising that the CS plan immediate removal when they get it?
I am concerned also that even if mum were a criminal, the baby would be allowed to remain with her in prison for at least the first six months of life on humanitarian grounds.
Is a care-plan always presented?
As far as the breast-milk issue is concerned,as you suggest Sam,my view is that will have caused actual physioogical (bodily) harm to the baby against his or her welfare interests.Also removal from natural mum will cause actual physiological and emotional harm to both mother and the child’s secure attachment and bonding. The baby will have been put on auto-pilot as it were without a natural loving mother with adverse consequences on speech,language and learning effects. Indeed autism may arise from separation at such a crucial stage in development.
Was a child-development specialist or the mother’s paediatric consultant involved in the decision?
The guardian would be involved – he/she is the ‘expert’ in the needs of the child who assists the court. The court has to weigh in the balance the harm caused to the child by removal against harm caused by not removing.
Where there is going to be room for argument I think is that the CA1989 puts clear paramountcy on the welfare of the child and is interested in the parents’ emotional well being only insofar as it impacts on the child. I think the pendulum has swung too far in that direction, leading to the parents’ rights actually being ignored in some cases, under the umbrella of ‘best interests of the child’.
this is seeing the child as apart from his/her ties to family and community and a number of commentators have recognised that this is not a good thing.
I agree Sarah. Would anyone support my contention that both parent and the child suffer degradation by virtue of having a Guardian and solicitors appointed before any order has even been issued.
The child’s rights to protection by its own natural family are removed prematurely.
I suppose it depends whether the ECHR would call that degrading. Is it degradation to have ones rights removed without correct legal process?
Not necessarily. I think the threshold for ‘degradation’ is set very high. It may depend a lot on reasons WHY there was not correct legal process. As I have said, I think the reasons why would need to fall on the ‘malice’ end of the scale.
They decided it was proportionate because they weighed up the different harms.
No ICO can be issued without consideration of the care plan – the LA will have to state at the outset if they plan to remove. This is a very serious issue, with a specific legal test – have a look at the post on here about Interim Removals and Emergency Protection Orders
So, not is is not lawful for an LA to ambush anyone by last minute change to care plan – if they did it would be instantly appealable because the court would not have been applying the correct test.
I am not aware that mothers are ALWAYS entitled to have their babies in prison for the first six months – from what I know this is certainly desirable but there may not be the facilities. But I could be wrong, I don’t know much about prisons and how they operate.
I am sorry Sam but I don’t agree that this would cross threshold into Article 3 and that is because of how the European Court has defined the ambit of Article 3 -to find a violation of Article 3, the suffering and humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
I think you are quoting from Surviving Safeguarding? The difficulty with using this as an example of Article 3 treatment is that she accepts the LA were right to intervene in her family life. The removal of her baby was obviously a horrific and distressing experience for her but it was a removal that was lawful. The Children Act 1989 has been challenged in the European Court but held to be compatible with the Convention.
So I think the necessary ingredients for a successful Article 3 claim would have to be – significant mental distress caused to parents by the removal of their children which was not lawful and that unalwfulness would probably have to be accompanied by something approaching deliberate malice on the part of the State agents, not simply carelessness.
that is only my view – I may be wrong, but unless/until we have a test case I don’t think anyone can offer a definitive view.
Yes,I agree with you Sarah,we cannot give a definitive view. My view is that we would have to see the case papers and all the evidence presented to the decision-maker.
If the evidence was shoddily prepared, that is shallow, brief and/ or based on box-ticking and not a genuine in-depth examination of the true facts in accordance with guidelines , would that be unlawful in your eyes?
Additionally, if no evidence contradictory to the case for removal was presented and all the less invasive alternatives ( such as mother and baby units), supervision by grandmother etc. not considered and reasons given for their rejection entered into proceedings,would that be unlawful in your eyes?
I may be wrong but it seems to me the LA had decided there was no immediate danger and mum was capable of providing good enough care to the child contemporaneously to its lawyers asking for immediate removal removal on the spectre of ‘future RISK of emotional abuse. Clearly I may be wrong but I don’t see how that could be proportionate.It certainly suggests bad liaison and co-ordination between the CS and its legal section.
If the judge was prevented from considering the proportionality of any removal, whether that was due to deliberate malice or sloppy case presentation, matters not – then yes, this has potential to be an unlawful removal. A key component of assessing proportionality is of course an anlysis of the alternative and less draconian interventions in family life – such as placement with family.
Removal on ‘future risk of emotional abuse’ would certainly be unlawful as that is not the test at section 31 of the CA. A child can only be removed if he/she has suffered or is at risk of suffering significant harm. ‘Emotional abuse’ with no other explanation is not sufficient.
Thank you both. It appears that a female prisoner can have their child with them up until 18 months. A bit ironic really when a number of mothers get their newborns removed when they have not committed a criminal act.https://www.gov.uk/life-in-prison/pregnancy-and-childcare-in-prison
Perhaps better to commit a crime if threatened with new born removal!
Crikey! That’s a lot better than I thought.
Ah, I see this only applies if your child is BORN in prison, otherwise you have to ‘apply’ for your child aged under 18 months to live with you in prison. I wonder how many children this actually applies to?
I wonder on what is the reasoning behind babies being are kept with their Mum’s in prison. If it is actually for the child’s welfare/attachment should not the same apply in the outside world. I am guessing it’s not for the mother’s benefit, who are there after all to be punished. Before someone shouts at me I am not being judgemental I am well aware a high proportion of female prisoners have been victims themselves, and a significant number will be care leavers.
Your opinions are enlightening, Sarah, Can we agree that the CS and the Children’s Act exist for the welfare of children ( not to dish out compulsory forms of legitimate treatment,therapy or punishments of any kind)?
Also, my view is that no court which is set up to punish or send folk on courses of legitimate treatment would liquidate a family or part a person convicted of criminal neglect permanently from his family.So I think lawyers might be able to argue an article 3 case because the suffering and humiliation goes beyond the essential element which might be imposed as legitimate punishment.However.I am not the lawyer so your view holds sway here.
By the way, does anyone agree that the necessary ingredients for a successful Article 3 claim should also be those necessary to satisfy the threshold for significant emotional harm and risk of abuse by parents? I think any unlawful behaviour or neglect proven which may give rise to a level of future risk should have to be accompanied by something approaching deliberate malice on the part of the parents toward the children before families are liquidated.I think the principle would transpose well.
It could be used as a line in the sand,so to speak.Do other readers think it suitable?
In the case which we have been discussing,I doubt if the line would have been crossed.
*Proverbial penny has dropped and light bulb moment rolled into one*
Without intending to stop the flow of what has been a very interesting debate above, I would just like to touch on a point above in respect of Mothers in prison having to apply for their babies to be with them while in prison unless their baby is born in prison.
I think that would raise a very interesting Art. 3 argument, a case I am well aware of and played a part in, also a case that made legal history, and one where I did actually attempt such HRA applications, not quite Art 3 mind, we have to love hindsight hey!.
In or around 2009, sorry I am getting on a bit so don’t remember the exact year, Mr Anthony Hayden QC applied for an EPO order on behalf of Bury MBC against a mother who was incarcerated, to have her child removed when born, not only the point of removal but to also NOT inform the mother of the plans by the L.A which was permanent removal and adoption of the child. [L.A and Counsel were named in judgment]
What made the legal world aghast at the time was the mother was not aware of the court proceedings afoot, as well as she was in labour at the time the out of hours application was being made, the orders requested were granted as a “one off” never to be heard again type of application, however I do know a few years later Mr Hayden QC did just that on another case he was sitting as a judge at the time. again that case eludes me sorry.
Don’t quote me here but I am sure the case was heard by Lord Justice Munby as he then was, off hand it was Re.D a child, I will look for the case judgment when the larks stop chirping.
Anyways back to my initial point, I was asked by the mothers MP to try and mount a challenge to the order after he read about the case in the local rag, obviously there is very little to go on with a simple news clipping and well, the tinterweb back then was not as it is today, after a bit of digging around I realised I knew the mother and case in general.
I did manage to see the mother in prison with her MP and we did try to set about the usual Habeas Corpus applications as well as a part 8 claim, sadly they were never to bear fruit as mothers situation it transpired was very grave indeed.
Having said that, when we took to the initial applications we were not aware of the intricate knowledge for mothers to apply for their children to be with them until long after the event had occurred.
I will stress here that this case is one where the child was adopted and mother played no part at all in the proceedings, AFAIK never put so much as a statement in, despite best efforts by me and several others to have mother engage it simply was not to be, a few years on I last heard that the mother held another L.A office hostage which was mirrored in instigating the initial EPO application by Mr Hayden QC.
Going back to the outset of this case I am almost certain that had we applied through Article 3 at the time, mind again playing tricks I am sure Mother was only initially on remand in jail awaiting criminal trial, I am certain we would have made some headway, no punishment without a crime would have been key, I will stress AT THAT TIME, so while it would have been a pickle of a case to present, I feel Article 3 would have been key to the proceedings, given what we know now, or those reading this will if you read the judgment, despite the foibles of the mother she would have stood a good chance of having her child with her, it may not have altered the course of history though.
Despite what I know now about the case and what happened afterwards I would have to say that it was cause and effect, mother lost her child from point of birth never to be seen again, no contact et al took place, a determination of an Art 3 application would have stopped the end from happening I am almost certain of it, mother went of the rails following the loss of her first child, sorry for using that analogy sadly having witnessed it all unfold it was quite inevitable the outcome is what it was.
So I would have to say that an Article 3 Case could have some real merit if it can be presented in the best light, I say this having remembered the case from back in 2009, had we managed to stop the current process the means to an end could have been entirely different.
I have now found the Judgment of this particular case, unfortunately no other judgments were produced after the EPO application was granted.
The judgment from Munby J also references one of his previous cases, the infamous Re. G v Nottingham 2008, I have not dissected the Re. G for a number of years I only know it from breech of Article 8 rights, there could be ref to Article 3 contained within that one, Munby also quite rightly references P.C and S v UK I mentioned in my above post.
http://www.familylawweek.co.uk/site.aspx?i=ed33864
Yes, a very interesting point. A test case on this issue would involve serious grappling with a number of competing rights and would shine a light on the impact lack of resources is having on recognising and protecting rights.
Jerry I am glad something pinged. I remember reading this case before. What stands out for me is the last paragraph ” I am conscious that the mother has not been served with these proceedings and that, in consequence, there may be a very real question as to whether she can in any way be bound by the declaration I have granted. But the very nature of the risk which she presents, and against which the local authority appropriately wishes to protect her unborn child, means that she cannot be alerted to the application, for that would be to frustrate the very order which the local authority seeks. The local authority, if I may say so, has acted entirely properly in bringing the matter to court rather than merely proceeding on its own way. It is entitled to seek the sanction of the court for the unusual step it is proposing to take. And it is, in my judgment, proper for the court in such circumstances to make an order of this kind, even in the absence of the respondent.”
The observation that the local authority did right in taking the matter to court rather than proceeding on it’s own way. Everyone is now aware , even from a number of parents posting on this site in their panic that local authorities are quite often bypassing court. Sarah wrote that for article 3 to be infringed in her opinion , it would have to be a deliberate act on the part of the public authority. I cannot see how taking a child without informing the parent of their rights to consult a solicitor or say no etc is not a deliberate act . Social work managers would know it is wrong, they are aware of the law and that it would cause a great deal of distress to a parent.
For my part , and I probably am repeating myself as I feel very strongly , it is about time that child protection and family assistance were split. The child protection being regulated by the equivalent of PACE ie everything recorded, time limited investigations and legal help at the outset of an investigation.
The issue for me is one of ‘malice’. Of course, taking a child without going to court is a deliberate action but I think motive really matters here. If it was a panicked reaction to a situation getting out of hand – real risk to child, mother not co-operating etc – then I would expect the judicial response to be very different than it would be to a situation where a SW deliberately chose not to let a parent know what was going on for no good reason other than spite or dislike of those parents.
I disagree . In my albeit limited experience it’s nothing what so ever to do with the parent not cooperating . The crux of the matter is that some local authorities just take absolutely no notice of a parent’s parental responsibility and simply override it telling them that’s what has to happen. Is not taking a child by lying not malicious actually I am sure a layman would call it fraudulent .
The problem Sam is that bad things happen for a huge variety of reasons. I have had many cases where it was quite clear that it was parental non co-operation that was the driving problem – not that this was deliberate or malicious by the parent either, often due to mental health difficulties, they just couldn’t engage.
Equally there are many cases – some reported quite recently – that show a contempt for the legal process that certainly borders on malicious.
I do not think this debate is served by trying to insist that LA behaviour always or most often falls into one particular box or another. I think the reasons why the system is in crisis are many and varied and the reasons why LA AND parents stuff it up are equally many and varied.
I think the focus should be on solutions rather than attributing blame, but of course I do accept we have to recognise and root out bad practice.
Carol, I will never underestimate the intensity of feelings and outrage of those who have had their human rights infringed PARTICULARLY those who have not had their voices ‘heard’. Not only that, in your case, you were gagged unlawfully by your own supposed representatives.
Your contributions to this thread are helpful because they may get it over to all readers that, for victims of the system,this is not a job or a debate or even a campaign.IT IS A LIFE OR DEATH MATTER.
I agree with you Sarah.As you have already said,no-one can offer a definitive view.
This is all academic anyway,do we agree?
You await a test-case.I assume that now all a parent has to do is eitherpersuade a solicitor to apply for legal funding to bring an application under Article 3 or raise their own funding and instruct the solicitor to do so.. Then instruct the solicitor to engage you.
I think all parents will agree that neither of those courses of action are very easy.Do you agree,Sam?
Whilst I understand that barristers cannot pick and choose cases; they have to take on each case referred to them and do their very best for the client, most Children’s Legal Panel Solicitors appear highly reluctant to take on cases against Local Authorities.
That is a massive hurdle for parents.
I know of one specific case which will be a perfect test for an application under Article 3.
However, no solicitor will even look at the case. Applicants cannot approach a barrister independently for advice; neither can they approach the legal funding commission without a solicitor.The Local Authorities appear mostly to target vulnerable families on benefits ( perhaps a natural consequence of their work ) so most applicants cannot afford to pay out of their own pockets.
So there seems to be no remedy.How do prospective applicants surmount all these barriers? The longer it takes the longer children and adults suffer.
Is that a question for this thread or another one entitled Article 11 and access to Justice?
Sarah,if someone were to bring a case would it be in our domestic courts? In the test case I have in mind,the CS have parted a family ( forced a father to leave home) for almost two years now with a contract of expectations without bringing any court proceedings.
I reckon he has a case relevant to Articles 3 and 8 .
Sam,don’t forget that, in cases brought retrospectively, the barriers are even higher.Lawyers generally simply do not DO APPEALS. Unless they have a cast-iron case,they will not apply for legal funding.As time passes, even if an applicant proved his case, a judge is not going to return children home anyway.The LA will say it is in their interests to stay with foster carers after so long and ,of course, adoption is final anyway under the current Law.
Do you agree that a group action could only be against one particular LA? You would have to gather people together in one particular area and go for it.
“Applicants cannot approach a barrister independently for advice; – See more at: https://childprotectionresource.online/article-3-echr-and-care-proceedings/#comment-44197”
Angelo is is not right. You can contact directly ANY barrister registered to do Direct Access Work. Of course, it is very difficult for a barrister to take on a complex case with lots of documents as we just don’t have the admin infrastructure to make our lives easy and we compare badly to solicitors in that regard.
But it might be worth a try, getting a preliminary advice at least as to merits. The Bar Council has a directory of all direct access barristers – check out the post ‘what if I don’t have a lawyer’ on this site for the link.
Also btw it is not true to say lawyers don’t do appeals – not in my experience at least. I have done two this year – which is a lot for me. Generally there are not grounds for appeal but when I find grounds, I ask my solicitors to make the application. One I had to do pro bono as funding would have taken so long to sort out.
but you will find there are many lawyers out there who feel strongly about certain cases and will do what it takes. As lawyers we value the rule of law.
I think the problem is that there are very much fewer cases that merit an appeal than some people argue. You have to be able to show the judge got it wrong. And this is not always easy to do when cases are a muddle of parenting deficits and LA cock ups.
Sarah, would a letter from an MP supporting an applicant or a letter from a medic that children are suffering, if sent to the LFC, swing an application?
Sorry, almost certainly not.
Sarah, one for the next conference.When one requires medical treatment,one can get it free under the National Insurance Scheme.Legal Cover is provided in serious motoring cases under compulsory motor insurance schemes.Also the cost of legal advocacy can be covered under club insurance schemes by sports clubs,trades unions and groups like the RAC.
Could something like that be feasible for Family Public Law cases? As these cases are relevant to the health of families perhaps an increase in National Insurance contributions across the entire population could cover legal fees and court costs etc. without any means test either.Everyone would pay thus all would be covered.
Another possibility,could legal fees (for Public Law cases) be included in home insurance policies? Alternatively could there be a compulsory legal insurance requirement as with motors or a club cover for all parents organised by parents-teachers associations associations?
Do we all agree that when funds are available freely rather than on the merit of a case, solicitors are likely to be more proactive?
Eh? Parties to care proceedings already get non means non merits tested legal aid.
the problems are arising for people like grandparents who may not be parties but who have things they want to say in court .They then are unlikely to qualify for legal aid and end up being Litigants in person which can be very unfair if they are applying for something like an SGO for eg.
Ah, sorry being dense, do you mean for applications AFTER the care proceedings? I accept that a lot of people will then fall on the merits hurdle.
I suspect what you are going to need to do is find barrister/solicitors who will do a test case pro bono. If your test case is good quality (i.e. NOT conspiraloon rantings) I am sure you would find people very willing to give it a go as it is interesting (and if I may be cynical for a moment) a chance for some positive publicity.
Sarah I do see there is a bigger picture and collective responsibility, to explore avenues to change. Angelo I like you funding ideas , I don’t have a clue if they are workable though.
Sarah, I know respondents get legal funding now in cases but isn’t it limited to about 5K. That’s hardly enough to pay solicitors let alone pay for a good barrister.Barristers in commercial cases can get much more than that in their own fees!
Plus the cutbacks have made it almost impossible to get an appeal. It is COMMON KNOWLEDGE amongst educated parents that the CS rely to a large extent on the fact it is next to impossible to get funding for appeal and a Social Worker sniggered when he told one parent that. In the real world also solicitors will not act for a parent in cases before litigation begins which is how the CS gets away with so many out of court malpractices.I believe an insurance scheme run by school perhaps would provide funding up to something like 100K and make things much easier for victims.More lawyers would be attracted to family law and they would be more eager to appeal too.
Re- getting a pro-bono lawyer– You would not believe how many victims have tried unsuccessfully to do that.Anyway why should lawyers have to work pro bono? I doubt if you get very good pay from the pro bono unit.
An insurance scheme is a wonderful idea and the insurance companies would love it too, I imagine..
I don’t think it’s that difficult getting help pro bono if you have an interesting case though applications to the Bar Pro Bono Unit are up considerably. I have also had help from my local university law school, who run a free law clinic. I was extremely impressed with how the students dealt with me coming in with a very non run of the mill application. The barrister who jointly oversees the law clinic then checked the application for me in the holidays in order to meet a deadline, which was over and above what he what he needed to do.
As well as the legal professionals that let people down, I had one initially who made a major mistake , there is also a great deal of kindness and understanding.
The main problem I have found , for something outside but linked to my case is finding a specialist solicitor who is not overwhelmed with clients.
i also must add I have in the past been helped by a retired children services manager who actually accompanied me to a stage three complaints panel run by his previous employers. There are some good people out there who care.
Sam,Had you been advised by the CS of your rights to an advocacy service right at the beginning in accordance with the frameworks of the Children’s Act and if you had had free ,unfettered and immediate access to a pro-active advocate right at the beginning , you would probably not have any cause to complain.
Your children might not have been removed. Had the CS involved you in a core-assessment and asked questions of you and others involved then the sw might not have been so concerned and would have been able to establish more reliable facts.
To all readers- To be more constructive,I really do think we have to return to fundamentals,ask ourselves questions like this and answer them honestly. I would welcome support on the ‘correct procedure’ issue.
How can a judge get it right when he has been misled as a result of flawed enquiries?
‘But it might be worth a try, getting a preliminary advice at least as to merits. The Bar Council has a directory of all direct access barristers – check out the post ‘what if I don’t have a lawyer’ on this site for the link. ‘
In my experience – all direct access barristers want a contract and payment up front. Generally, quite a lot of payment.
All? Really? ‘All’? In light of the many hours I have spent providing you and others with free direct access advice, I would be grateful if you withdraw that ‘all’.
We all appreciate your direct advice Sarah and I dare say it was a mere slip when ‘C’ used the word ‘all’.
You may remember that I mentioned a letter from Parliament which advised parents about the ‘only remedy’ when a case is wrongly conducted.
The same letter talked about the legal frameworks and how the CS had an obligation to inform parents of advocacy services and of their right to support. It also stated clearly that the Government provides funds to the FRG to provide such free advocacy.
When Parliament talks about advocacy , it isn’t actually talking about lawyers. It means a professional support worker experienced in child-protection work who will advise and intervene actively on the behalf of vulnerable parents from the outset.Were such a service available,then the CS might be forced to follow procedures closely.
In actual fact, I am afraid to say that the FRG do not provide a nationwide advocacy service as the Government seems to think; it provides a limited service in the London area only and that service relies on funding from the Local
Authority (GLC) involved in a case. The FRG doesn’t have the funds to function nationwide and fulfil the Government’s wishes.
That is a problem which we can do little about but I hope we all understand that legal representatives become involved at a later stage when proceedings commence.By that time, it is often too late for families because fundamental ‘mistakes’ and lapses in procedure have poisoned the enquiry. The CS have already concocted a ‘cut and dried’ but flawed case. You have commented yourself that 80-90 per cent of your cases are fairly clear-cut at first reading.
Any suggestions or comments on this anyone?
Of course, I am not criticising the FRG . It is true that they do provide an excellent service nationwide in respect of guidelines,issue advice sheets and also they operate a telephone helpline.
Sarah I am sure I speak for a number of others when I say thank you for all the time and effort you have put in. I know we can be difficult to deal with sometimes and you have kept an open mind , for instance starting this topic after listening to Angelo and myself.
I am sure when you decided to make a career in law it was the last thing on your mind that you would end up sticking your head above the parapet to be shot at by people such as us. I can’t say what has happened to my family was in my life plan either, but they have been some unexpected pluses. I came across a concept that clicked the other day Karass http://www.urbandictionary.com/define.php?term=karass. It may be too spiritual for you and others , but I certainly felt it at the Child Protection Conference and on this site.
Thanks Sam, it will certainly help to think more of the ‘cosmic significance’ of my actions, rather than riding off on my high horse…
However the problem is that I don’t think it was a ‘slip’ to say ‘all lawyers’ – I think this is reflection of how some see the system. I have also found this reflected in some of Angelo’s languagage.
I think we have to be really careful with the language we use because it moulds our responses and the way we think about things.
Anyway. I take on board the comments made about the FRG. They cannot be a substitute for robust legal help, but they could be a very good complement to it. Sadly the Government sees fit to cut their funding so their already limited advice service is about to contract even further.
I wonder whether the problem is this. As 80-90% of cases are very clearly about identifiable parenting deficits, I can understand impatience with the idea that these types of cases then spend six months meandering through the courts. But the answer to this is NOT to then deny these parents any kind of access to help and support. Because then you will get cases horribly mismanaged, parents sense of injustice will increase and respect for the system continues to disappear.
I have been saying for many years we need to triage these cases. ‘Fast track’ cases will be those involving long term substance abuse, violence or neglect. By long term I mean for at least a year. Parents will then have a clear cut route – attending detox, leaving violent partners, cleaning up the house etc. If they don’t, that is an end to the proceedings and children are removed.
Injuries cases involve parents who often have had no other involvement with CS and in every other way are exemplary parents. These need to be pushed to quick hearing with full exploration of medical evidence.
Other cases involving worries about what might happen in the future, particularly when no harm has happened to date are the most difficult and require the most attention.
But of course, what is underpinning all of this is access to help and services for parents, particularly for issues of substance abuse and mental health concerns. And that we just don’t have.
So I don’t know what the answer is to that.
To summarise what we have learnt so far on this thread.Anyone is welcome to correct me if I am wrong.
Article 3 is an absolute right except when the mental torture and degradation suffered does not exceed the essential element suffered as a result of a legitimate form of treatment or punishment.
Only capital punishment or detention for life in a secure mental hospital would satisfy that exemption clause.
Thus the permanent removal of a child from natural family ( even with contact rights) DOES merit an appeal under Article 3 alone. It seems to rule out forcible adoption and/or any form of plan for permanence.
Despite the Article being absolute,Sarah has expressed a view (whilst emphasising it isn’t definitive) that she feels it would have to be shown at appeal that the illegitimate torture and degradation was a result of actions taken consequent to something approaching malice.
That begs the question how do we show ‘something approaching malice’?
Can we agree that the malice (intention to do harm) may be inferred if either of Articles 14,6,8 are also violated (perhaps the CS have not conducted the case properly).Also can it be inferred if a care-plan is the direct antithesis to the Children’s Act which states that children’s welfare is best served by their natural family with support and monitoring where necessary?
“Article 3 is an absolute right except when the mental torture and degradation suffered does not exceed the essential element suffered as a result of a legitimate form of treatment or punishment” I would put it slightly differently. Article 3 is an absolute right BUT the threshold for what is degrading or inhuman treatment is set high; you cannot argue you have suffered degrading or inhuman treatment if it is simply a likely outcome of a legitimate form of treatment or punishment by the State. Thus in such examples, Article 3 is simply not engaged, rather than saying there is an ‘exception’ to Article 3. Sorry, this might be an unnecessarily picky point but I think it can sometimes cause confusion.
‘Only capital punishment or detention for life in a secure mental hospital would satisfy that exemption clause’ – not sure I understand this point. I don’t agree it is right to call it ‘an exemption clause’. As I discussion above, it is not that this treatment is exempt, it is rather that Article 3 is not engaged. Nor do I understand the authorities to be limiting it to capital punishment or custodial life sentences. I am quite sure that it extends to care proceedings – and will extend to any State action that is carried out for legitimate and lawful aims.
“Thus the permanent removal of a child from natural family ( even with contact rights) DOES merit an appeal under Article 3 alone. It seems to rule out forcible adoption and/or any form of plan for permanence” – no, for reasons I have explained. The parents may be very, very distressed by removal of their children but if this removal was lawful and carried out to protect their children, they are going to have difficulties arguing breach of Article 3 on the law as I understand it.
“Despite the Article being absolute,Sarah has expressed a view (whilst emphasising it isn’t definitive) that she feels it would have to be shown at appeal that the illegitimate torture and degradation was a result of actions taken consequent to something approaching malice” – this is because the test for what makes inhuman or degrading treatment is set so high, if the parent suffers as a consequence of care proceedings I am pretty sure you are going to have to prove that those care proceedings were unlawful, motivated by spite, malice or some kind of deliberate and wilful refusal to obey law/procedure/good practice.
“That begs the question how do we show ‘something approaching malice’?” – I think that would be quite easy to identify (but I accept not always easy to prove)- obvious lies (as in the recent Medway foster carer case where the mother had recorded the foster carer abusing her and she lied about it), deliberate destruction of or failure to record evidence etc.
“Can we agree that the malice (intention to do harm) may be inferred if either of Articles 14,6,8 are also violated (perhaps the CS have not conducted the case properly).Also can it be inferred if a care-plan is the direct antithesis to the Children’s Act which states that children’s welfare is best served by their natural family with support and monitoring where necessary?” – I think we would need to be careful to identify the reasons WHY the mistakes were made, i.e, deliberate malice as opposed to stressed out overworked social worker.
I am probably going sideways again but I clicked onto this http://theforgivenessproject.com/stories/ray-minniecon-australia/ and I could certainly relate to the sentiment expressed.
This line struck me
If I didn’t forgive then the past would always be present.
Nobody should apologise for being ‘picky’ in a discussion like this.We are examining the word of Law and its meaning.We are bound to have different outlooks when we come from different directions.To be constructive,we have to look at all opinions, be open and honest and we must be able to adapt or even change our own.
Article 3 is an absolute right directed primarily to protect the physical integrity of a person but it has been found to apply to acts that cause severe mental suffering. It applies regardless of either the conduct or circumstances of the victim or the threat he poses to the security of the State – so for example, Article 3 forbids torturing terrorists or the infliction of mental torture and/or degradation upon criminal,deviant,sick or otherwise disadvantaged members of society.
Article 1 of the 1984 UN Convention against Torture provides a definition of torture. We have all read it because Sarah included it in her blog at the head of this thread.
I quote the final paragraph:
‘It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions’.
This appears to say that torture isn’t torture if the pain and suffering is inherent ( an essential part) of lawful punishment or if it is the inevitable result of ,for example,a lawful child-protection order and care-plan.
Sadly, it is the opinion of many that ‘torture’ as so defined does,without a doubt,play a role in care proceedings both pre-court and post care-order. So we need to focus on whether or not ‘it the inevitable result of a lawful child-protection order and care-plan’.
I am not wholly convinced that Article 3 is only engaged in regard to inhuman or degrading treatment although I do agree that it is absolute for degradation just as for torture.
Lawyer’s manuals appear to say that the ill treatment must meet a certain level of seriousness before Article 3 is engaged.Does such a view impinge upon our absolute human right not to be so ill-treated?
Also,i am unsure that the apparent discretion as to seriousness of ill-treatment extends to ‘unlawful’ care proceedings – it will extend only to any State action that is carried out for legitimate and lawful aims.The legitimate aim of the CA is to provide support to families enabling them to remain together.
I still think the permanent removal of a child from natural family ( even with contact rights) merits an appeal under Article 3 alone. It seems to rule out forcible adoption and/or any form of plan for permanence – because such action does in reality inflict mental torture and degradation upon CHILDREN and parents for reasons I have attempted to explain.
I don’t see how it will be too difficult to argue that removal is disproportionate thus unlawful because it inflicts real and concrete harm on CHILDREN.Parents also.
If families suffers torture and degradation as a consequence of care proceedings,we cannot simply show the medical evidence of the harm,we also have to prove that those care proceedings were unlawful.
I agree with Sarah that it would be quite easy to identify obvious unlawful evidence submitted under oath.
I think we need to adhere carefully to the precise wording of the convention and to the purpose of it.The Convention is designed to protect citizens of Europe from the tyranny and authoritarianism ( inhumane practises)which any state may wish to impose. I believe that does include ill-treament dealt out to HUMAN BEINGS by supremacist CS departments,lawyers and other child-protection professionals.The attacks are generally made on the most vulnerable members of society,pregnant women,new-born babies,refugees from war-torn countries,Immigrants from other European states,mothers and children traumatised by domestic violence etc. I think Article 14 is engaged also in many cases.
Thank you Sarah for your open and honest view that the reasons why mistakes were made are important.Once again, I believe that attitude brings us to the very heart of the matter. Is it probable that injustices occur in our domestic courts because of the vast amount of discretion which lawyers are only too happy to show towards social workers? The pretence that all they do may be excused because it is done for the ‘good of children’ is a confidence trick.If they want to act for the welfare of children,they should follow all laws including Article 3 scrupulously.Or they are acting against children’s interests.
The ECHR overrules the domestic system and the attitude that inhuman actions can be excused because they are for the ‘good of society’.
All comments and disagreements welcome as always.
I agree Sarah that forgiveness is the gold standard. It is very much a process , the best selling book in the world suggests 70×7. It is very difficult to forgive grievous harms and removal of children, without a fair trial has to be counted as that. The process is helped if those who have harmed you say sorry unfortunately public services rarely do this today. I have forgiven some people, I am still working on others 387,388,389…..
On another matter I haven’t been able to upload a scanned document which I have a legal right to share. It will be my lack of technical ability . Can anyone help me please?
Sam, I’m not absolutely sure about computers myself but I believe one has to submit documents to a specialist document facility first.You upload it to them and they provide you with a link which you will then upload to this site.So google document storage companies..
Apologies if I’m wrong.
Or could you not simply copy and paste the scanned document in full?
Thanks Angelo It’s just beyond me
I am concerned at remarks that 80-90 percent of cases are about clearly identifiable parenting deficits.
It is also said that in 80-90per cent of cases the outcome becomes fairly clear within ten minutes of a barrister seeing case papers.
I cannot help thinking,with respect to Children’s Legal Panel solicitors, that if they approach cases with the attitude that CS files,notes,statements and ‘papers’ are pukka then they are often making a grave mistake.
Many CS departments, for well-known reasons, are DYSFUNCTIONAL and unfit for purpose.This is a FACT which most of us find uncomfortable and which sw’s themselves are loth to admit.
Solicitors should approach cases with much more caution on behalf of their clients!
To talk in terms of categorising cases and ‘triage’ suggests there is an element of prejudgment in their minds which I question.Solicitors are involved in child-protection work, yes, but primarily they are lawyers not social workers.Those who work for parents should do so!
Documents, statements,chronologies and so on are often ‘poisoned’ at the earliest stages of an enquiry for a variety of reasons;the flouting of guidelines;the lack of objectivity;caprice based on false allegations; hearsay and other flawed information held in archives; irrational fears that they may have a Victoria Climbie case on their hands;discrimination,malice aforethought etc.
Respondent solicitors should concentrate at the early stages on checking whether legal process has been adhered to scrupuously or not.If not then they should check rigidly all the CS evidence.
Sarah,when the case papers are sent to you for your advice ( at a later stage), if there was a letter from the solicitor informing you that the CS evidence was based entirely on incorrect process,pointing out to you particular inconsistencies with the facts and of the lack of fairness,I suspect you would look at the case differently.
We have to remember that miscarriages of justice are not new! They have been happening for years.The sw’s aren’t capable of stopping.They just can’t help themselves.They will continue to ‘ cross the line’ of acceptable practice thus impose pain and harm to families for as long as they suffer from the delusion they are doing right!
Parents rely on solicitors to stop them, to ensure they act correctly not to side with them just in case a child may be in danger! We have a population of 64 million and perhaps 28 million families.I am no statistician but even if there are 100,000 serious cases of child abuse per year (which I doubt very much) then that percentage- wise means that incidents of child-abuse by natural family are extremely rare.
Children are in more danger from the CS department involved if it has acted incorrectly. Solicitors should bear that in mind at all times and give families the benefit of any doubt which is going not the L.A.
When I say 80-90% are clear from the outset, I mean what I say. There is often a very long and depressing history of neglect, violence, drugs etc that leaves one in little doubt that the bedrock of the case against the parents has a very firm foundation. The evidence of significant parenting deficits is often coming from a variety of different agencies and individuals, independently of each other – thus reassuring me that the information is much less likely to be the product of collusion and/or error.
Of course, that does not mean you just give up – it is essential to explore your client’s insight, willingness to engage with support offer, finding out what friends and family can do to help etc, etc.
But my worry is that some parents will divert their energies into a refusal to accept the primary case against them. And that is simply a waste of their time.