Care Proceedings, Article 8 and the Rule of Law.

I posted recently about the policy paper from the Department of Education setting out the government’s vision for how adoption will develop over the next four years. I was both angry and annoyed that there was no consideration at all about the demands of Article 8; recent decisions of the ECtHR have made it very clear that the State has a positive duty to help families stay together. The policy paper appeared to be simply another part of a clear agenda to consider child protection as involving only child ‘rescue’ (i.e. removal from birth families).

Obviously, I am a lawyer. Law is what I know. Law is what I think is important. But I confess I simply assumed that my concerns would be echoed by many others of different disciplines. However, it became clear from some exchanges via Twitter that others were not similarly exercised by this worrying failure to be alive to the implications of Article 8.

I responded by highlighting the recent decision of Soares De Melo, a particularly interesting case  for the comments from Judge Sajo:

Thus, the rights of parents must be taken into account. The best interests of the child comes into play when the obligations inherent in parental rights are not observed by the parent or that it uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to “be together” (see in this regard the judgment Gnahoré cited above).

Reference to this decision did not seem to spark interest from a Lecturer in Social Work

What was most interesting for me – the lawyer who considered the law fundamental to the consideration of removing children from their birth families – was that the social work professionals saw the law instead as ‘an aspect’ of what went into making these decisions. An important and fundamental aspect granted, but one of many including, theory, policy, guidance and multi agency working.

This was an interesting exchange for me and underscores the value of social media such as Twitter – in no other arena could I gain exposure to the thinking of others outside my immediate professional circle.

However, after some thought I was confident to stick with my original position. The law could not be ‘an aspect’ even if you described it as a ‘fundamental’ or ‘important’ aspect. The law is the bedrock to the whole issue of removing children from their families. Without adherence to the law, care proceedings cannot be legitimate. If we want to drive a car, it doesn’t matter how fancy a car you drive or how good a driver you are – if you don’t have a road to drive on, you are going nowhere.

So it does remain disturbing to me that understanding of the law seems to be shaky for the non lawyers. It certainly brings into sharper focus WHY so many care cases have gone so wrong by the time they get to court.

Lack of either appreciation or understanding of the demands of the law, runs the risk of creating a parlous situation.

This really matters. Why do we have the ECHR? It was drafted primarily by British lawyers in the aftermath of the Second World War after we saw how easy it was to identify people as ‘untermensch’ by virtue of their religion, sexuality or disability – and kill them.

The courts have continued to warn against the dangers of social engineering because as a species we seem curiously willing, even eager, to go on making the same mistakes time after time; to judge others as ‘less worthy’  – of support, of help, of respect, or even the right to be alive.

Even cuddly Cananda, as recently as 1972 inflicted compulsory sterilisation on ‘defective individuals’ ; this has an uncomfortable echo with the Soares de Melo case where the Portuguese social workers expected the mother to undergo tubal ligation.

Therefore I profoundly disagree that it is ever right to call respect for Article 8 of the ECHR an ‘aspect’ of non consensual adoption. And I remain very concerned that this government’s ‘vision for adoption’ is apparently blind to the rights of families.

11 thoughts on “Care Proceedings, Article 8 and the Rule of Law.”

  1. Angelo Granda

    QUOTE:The law could not be ‘an aspect’ even if you described it as a ‘fundamental’ or ‘important’ aspect. The law is the bedrock to the whole issue of removing children from their families. Without adherence to the law, care proceedings cannot be legitimate: UNQUOTE

    I agree with you ,Sarah. I have waited a fair amount of time before commenting on this thread in the hope that a social worker or another lawyer would come on and give a response to your assertion. No sign ,so far.

    So it is left to a parent. In my view, the law must be adhered to scrupulously.It forms the essence of family rights. When care proceedings are not conducted legitimately,an appeal to a higher court on that basis is the only remedy.

    1. Sarah Phillimore Post author

      Thank you.
      I trust you can now understand why it is so frustrating for me to be accused of propping up a system because I work in it. I don’t think I can be any clearer about what I recognise are the deficiencies in the system we currently have. Being a part of something does not necessarily make one blind to what needs to change – but I accept, it can do.

      Hence, all responsible people take time and trouble to reflect and think and welcome discussions with others. I have the luxury of that time and space due to the nature of my work – very often I will spend at least 2 hours a day on a train for e.g. I can see that many SW do not have that luxury owing to the pressures of that work, and I think that is part of the problem.

  3. HelenSparkles

    Afraid I didn’t read this at the time but did see it on Twitter and think I commented that I was quite take aback. How anyone has missed Re B-S is beyond me because of its significance. I also think that since (going back to the basics) the principal of The CA 1989 is that children are better at home with their families if they can be free from significant harm or risk of same. That means SW having to do everything they can to support any change which needs to be effected for a child to be free of that risk/harm. The risk/harm would be what takes it to a child protection conference in the first place. I have been to conference and the intent to issue meeting was straight afterwards, but that is rare. It is challenging at a time that resources are cut and services are limited, but I would expect to be criticised in court if that wasn’t the case. I can’t comment as widely as a lawyer who travels and represents both LAs and families.

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