What obligations does the State accept under Article 8 of the ECHR?
This is a post by Sarah Phillimore
No one has the right to expect the State to make them better parents
The high water mark of judicial denial of any ‘right’ to ask the state to pay for you to be a better parent, is found in Kent County Council v G & others  UKHL 68. In this case, the House of Lords – as they then were – refused to accept that a therapeutic placement for the mother could legitimately fit within the ambit of section 38(6) of the Children Act. In this case, the mother wanted an assessment of her response to proposed psychotherapeutic treatment. Such an ‘assessment’ was in reality ‘treatment’ for the mother and no matter how valuable the information might be for the purposes of the eventual final decision in the care proceedings, it could not be brought within section 38(6) which focused rather upon the benefits of an assessment of the child.
However, the judgement in Kent, explicitly identifies something much more fundamental in human rights terms, than merely a wish to rescue the statutory interpretation of section 38(6). Rather, there is a clear rejection of the notion that parents have any right to seek assistance from the state to be better parents.
This is clearly set out in paragraph 24 of Lord Scott’s judgement where he grapples with that issue head on:
There is no dispute but that both Ellie and her parents have the right under article 8 of the Convention to “respect” for their “family life”. Mr Cohen QC submitted, as I understood it, that this right placed the state, and the County Council as an emanation of the state, under a positive obligation to provide for Ellie’s mother to have the benefit of the proposed therapeutic and assessment programme at the Cassel Hospital in order to provide Ellie and her family with the optimum chance of being able to live together as a family. He submitted that if section 38(6) were to be given a scope that did not extend to a direction that that programme be offered it would have deprived Ellie’s parents, and would deprive other parents in a similar position, of the chance to demonstrate that fundamental changes could be made within the necessary timescale so that it would be safe for them to parent their child. That may be so but the proposition that the refusal of the court to make that direction, or the unwillingness of the Council, or, for that matter, the NHS Trust or the legal aid authorities, to fund its implementation, would have constituted a breach of Ellie’s or the parents’ article 8 rights cannot, in my opinion, be accepted. There is no article 8 right to be made a better parent at public expense”
The funding implications are stark. The family in the Kent case ended up getting their lengthy treatment funded by the LA; they benefitted enormously and ended up back in the community with no orders made and the family intact. However, this came at a cost of more than £200,000 which caused the LA to appeal to the House of Lords after the fact, as a matter of principle.
The Children Act 1989 does not identify on whom the cost of compliance with its directions is to fall. It can’t compel the LA to fund treatment which is outside the scope of section 38(6) of the Children Act. Medical or psychiatric treatment of a parent would ordinarily be funded by the local NHS Trust. The court has no powers in care proceedings to compel the NHS to fund anything. The Legal Services Commission confirmed in Kent that they would not fund any element of therapy or treatment.
What’s the cost/benefit analysis?
But who is doing the cost benefit analysis here? £200,000 for one family in one placement seems an enormous sum. But compare that to the likely costs of a family which had been left without that therapeutic intervention, who would have gone on to have more children, got involved in more care proceedings, required foster carers to be found etc, etc.
Research from the University of Bristol in 2011 said this:
Bringing care proceedings is a costly and time consuming business for local authorities. It has been estimated that each care case takes up 20 per cent of a full-time social worker’s working hours for a year (Plowden 2009). In addition, the local authority will have to contribute towards independent assessments ordered by the court and may need to instruct barristers (counsel) to represent it at court. order to remove or detain a child in an emergency (Masson et al 2007; DCSF 2008, para 3.3).
When interviewed by Commuity Care in December 2014 about the likely costs to Birmingham’s children’s social care services of dealing with the children getting less than good enough parenting, Lord Warner said:
The work undertaken suggests that the extra costs of safeguarding and looking after more children over the next three years may well cost an additional £140m over three years and reach an annual cost of nearly £50m by 2017/18.
It appears that to focus on the immediate high costs of a therapeutic placement is to lose sight of the amounts that could be saved if troubled families are diverted out of the care system.
And there is a more immediate point of concern for those care proceedings which involve lesser levels of dysfunction and human misery. What about those cases (probably most of them) where a full on residential therapeutic placement isn’t needed but so much positive could be achieved with – for example – a short course of cognitive behavioural therapy or other counselling. But the parents inevitably can’t afford to pay, the LA inevitably won’t offer any assistance and the only outcome is to wait for NHS therapy to become available which is often many months outside the 26 week timeframe.
It seems that the stark words of the House of Lords linger still ‘there is no article 8 right to be a better parent at public expense’.
But what about our Article 8 obligations?
But how do we square that with our Article 8 obligations? What about Re B-S which set out clearly that the starting point must be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together. See para 18 of the judgment:
To this we need only add what the Strasbourg court said in YC v United Kingdom (2012) 55 EHRR 967, para 134:
“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”
How do we square that circle? What are we saying to vulnerable parents who are unable to access support with their mental health difficulties and/or drug abuse, who are thrown into the ring of deeply stressful care proceedings and expected to engage constructively with professionals picking apart every aspect of their lives?
Do they have a right to expect help or not? If the help just isn’t out there, because no one has any money to fund it, what are the Court of Appeal expecting us to do with the requirement that we must ‘rebuild’ the family where ever ‘appropriate’ ? There are charities and local initiatives trying to plug the gap but can the State realistically ever claim its obligations under Article 8 are satisfied in this way?
I don’t have any answers to those questions. But somebody rather higher up the political/legal food chain than me needs to be asking them. Otherwise care proceedings will continue to be an increasingly expensive and cruel farce.
Louise Tickle’s article in the Guardian in April 2015 – Are we failing parents whose children are taking into care?