Article 8 of the Human Rights Act 1998 provides that "everyone has the right to respect for private and family life". How is this right maintained when the state intervenes and a care order in respect of the child of a family is made?
A care order under Children Act 1989 allows the local authority to interfere and take parental responsibility for a child. Such intervention appears to be anything but respecting a person’s right to respect for private and family life. A care order may last until the child’s 18th birthday.
Care orders are implemented for the safety and welfare of the children involved to ensure they are protected from significant harm. Whilst this is clearly a child-centric approach, what about the rights of the parents?
Article 8(2) of the Human Rights Act addresses this issue and states that any breach of the right to private and family life must be necessary and lawful. The court making a care order has to balance the rights of the children alongside the rights of the parents. Parents have the opportunity to be involved in these incredibly important and life changing cases. Parents have the right to their own free legal representation. Case law over recent years has seen more emphasis placed on the rights of the parents to both ensure proportionality as well as ensuring that the rights of the parents are respected. Further to this and perhaps most importantly, it is important to recognise that a care order is only ever intended as a temporary measure proportionate to the needs of the children, with the ultimate aim of reuniting the children with their parents if it is safe and appropriate to do so.
It may therefore be said that whilst on first viewing, the making of a care order may be seen to violate article 8 of the Human Rights Act 1998, the reality of the situation is that this is not the case and parents’ rights are now protected far more than ever before.
By Andrew Mountain and Benjamin Armstrong in the family law department