1.1 The Human Rights Act 1998 requires everybody and specifically 'public authorities' to act towards all citizens in accordance with certain internationally - recognised standards. These standards were set out in the European Convention on Human Rights and for convenience are known as the Convention Rights.
1.2 It is unlawful for public bodies, which include local authorities to act in a way that is incompatible with those rights and freedoms. The definition of 'public authority' includes Courts and tribunals and 'any person certain of whose functions are functions of a public nature'. This includes Local Authorities, Health Authorities and Trusts and may include charities and private bodies, which are contracting with the Local Authorities to carry out some of their functions.
1.3 The Convention on Human Rights contains twelve fundamental rights and freedoms. A further five are added by the first and sixth protocols.
1.4 Some convention rights are 'unqualified rights' which means they are absolute. There is no need for the Court to consider whether the action of the body making the decision was reasonable. It only has to look at whether a Convention Right was violated
1.5 Some of the rights are qualified rights and these only apply so long as there is no conflict with some other, equally weighty, rights or interests.
2.1 The 'Unqualified Rights' are:
3.1 The 'Qualified Rights' are:
4.1 It is unlawful for public authorities to act in ways that are not compatible with the Convention Rights. If they do they can be challenged. Whenever a statutory or local authority exercises its discretion it is potentially interfering with someone's Convention Rights. If a victim alleges that their Convention Rights have been violated, and brings judicial proceedings it will be for the Courts to establish, once prima facie interference with a right has been shown, that the public body can justify its actions.
4.2 A public body must therefore be able to show that:
Article 6 (Right to a fair trial) and Article 8 (Right to respect for a private family life)
5.1 Article 6 - Right to a fair trial:
This is likely to affect the following procedures;
5.2 It is important to identify at which stage in the investigative / care planning process a determination of a civil right is made and by whom. For example any Initial Child Protection conference brings together family members, the child where appropriate and those professionals most involved with the child and family for the purposes of bringing together information, making judgements about significant harm and deciding future action. Compliance with the fair procedure requirements coupled with an appeal to an independent and impartial tribunal should be sufficient to comply with the article.
5.3 Decision to remove children needs to be taken in a formal Case Conference if possible, the parents invited to make any representation, the decision to remove explained to the parents in detail, clearly stated reasons why a decision has been made and confirmed in writing and where the removal is not justified as an emergency the parents should be allowed sufficient time to issue whatever application they are advised to make.
5.4 Where an Emergency Protection Order (EPO) is required, where possible, parents need to be given sufficient information to seek legal representation, have access to all relevant information whether it is filed with the Court or not, and where the application is ex-parte, inform the parents as soon as possible.
5.5 Where a child has been fostered for some considerable time it may be said that the foster parent and the child have established 'family life'. Article 6 considerations arise with regard to any decision to terminate for example the foster placement.
5.6 Article 8 - The right to respect for his private and family life, his home and correspondence. There is no definition of family life and this will develop over time.
5.7 There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of:
5.8 Disclosure of information without consent might give rise to an issue under Article 8. Disclosure of information to safeguard children will usually be for the:
5.9 Disclosure should be appropriate for the purpose and only to the extent necessary to achieve that purpose.
5.10 It is therefore imperative that the Convention of Rights is kept in mind throughout the processes involved in the protection of children and in working with their families.