Children


Analysis: Children’s “best interests” and the problem of balance

2 February 2011 by

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment

This case (see yesterday’s summary) is illustrative of two misconceptions about rights that we are all in thrall to from time to time.

One is that there is a fundamental hierarchy of human rights which allows certain interests to prevail over others in all situations; the other is that this hierarchy is determined by considerations that are morally and politically neutral. A prime example of this kind of principle is the idea of the “overriding rights of the child”, a consideration with a perfectly orthodox role in family law, but one whose application to human rights as a whole is questionable.
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Supreme Court bolsters rights of children in deportation cases

1 February 2011 by

Updated | ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) – Read judgment / press summary / our analysis

The Supreme Court has unanimously ruled that in cases where a parent is threatened with deportation, the best interests of their child or children must be taken into account, particularly when the children are citizens by virtue of being born in this country.

Following her leading judgment in last week’s domestic violence case, for which she has been dubbed the “Brilliant Baroness”, Baroness Hale has delivered another wide-ranging, principled judgment which will bring immigration courts into line with current thinking on child welfare and article 8 of the European Convention on Human Rights (the right to family life). The basic point is that children’s views must be taken into account, and this should include asking them what they think.

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Fathers’ rights on the agenda for upcoming family justice reform

26 September 2010 by

Last week I posted on a speech given by Sir Nicholas Wall on family justice reform. The speech has been widely reported: see the BBC, Zoe Williams’ challenge to Sir Nicholas’ point that intelligent parents made worse litigants, and this thorough analysis from Marylin Stowe.

It should not be forgotten, however, that Sir Nicholas’ speech was to Families Need Fathers (FNF), a fathers’ rights lobby group – see the Wikipedia entry on the movement’s history.

There are two interesting articles on fathers’ rights in this morning’s Observer, the second of which comments on the speech. FNF is, according to the Observer, “at the forefront of a shift in tone in fathers’ rights – away from the notorious stunts of Fathers 4 Justice, which involved grown men dressed as superheroes unfurling banners on public monuments, towards a professional lobbying approach, deploying reasoned argument and concern for the child.”


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Top judge says legal aid in family cases may disappear

21 September 2010 by

Update The president of the family courts, Sir Nicholas Wall, has given a wide-ranging speech to Families Needs Fathers. In it he outlined his own vision for change and also sounded a warning that legal aid in family cases may soon be abolished.

On legal aid, he said “you do not need a crystal ball to see that legal aid for private law proceedings is likely to be further diminished if not abolished“. This may not come as a surprise to those who have been following the family legal aid tender debacle. But the practical outcome of a reduction or abolition of Legal Aid will be that when cases do come to court, more will have to be accomplished, and faster, before the money runs out. Sir Nicholas suggests some ways of achieving this.

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Contraception, capacity and coercion: when does a woman lack capacity to decide whether to use contraceptive treatment?

25 August 2010 by

A Local Authority v Mrs A, by her Litigation Friend, the Official Solicitor, and Mr A [2010] EWHC 1549 (Fam) – Read judgment

In the first case of its kind, the court was asked to consider whether a young married woman lacks capacity to decide whether to use contraception, and whether it would be in her interests to be required to receive it.

Mrs A was a 29-year-old woman who suffered from serious learning difficulties, which put her intellectual functioning at approximately 0.1% of adults her age. In 2004 she gave birth to a daughter, and in 2005 she had a son. Both children were removed from her at birth because she did not have the capacity to take care of them.

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Age matters in asylum cases

16 August 2010 by

Updated 12/9/10 | PM, R (on the application of) v Hertfordshire County Council [2010] EWHC 2056 (Admin) (04 August 2010) – Read judgment

Some people get to a certain age and stop counting. For them, the exposure of their true age to friends or colleagues might cause embarrassment. But for asylum seekers, proving their true age can alter the direction of their lives.

The recent High Court case of an Afghan asylum-seeker has highlighted the different, and often better, treatment which child asylum seekers received compared to their adult equivalents. It has also brought into focus the importance of a court’s initial, and often difficult, assessment of an asylum-seeker’s age, and the duty on local authorities to make up their own minds.

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ContactPoint switched off but child welfare concerns remain

6 August 2010 by

In happier days

A database which was to hold the details of every child in England will be switched off at noon today, but the uneasy relationship between social services, the government and the courts in child protection matters still remains.

The closure of the £224 million scheme marks a victory for human rights and privacy campaigners as well as the fulfilment of a longstanding promise by the coalition partners.

The ContactPoint Database was set up in the wake of Lord Laming’s 2003 Victoria Climbié Public Inquiry, which recommended, amongst other major changes in child protection policy, that the government should investigate the setting up of “a national children’s database on all children under the age of 16.” Victoria Climbié died in 2000 at age 8 after being abused by her guardians. In the trial of her guardians which followed her death, the judge described the response of local authorities as “blinding incompetence”.


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European Court to discipline UK for smacking children [updated]

27 April 2010 by

ban on children being smacked human rightsA number of newspapers reported yesterday that the Council of Europe, is to criticise the UK for failing to introduce a total ban on smacking children. The coverage splits along predictable lines, with the Daily Express and The Star both referring to “meddling” bureaucrats telling British parents what to do with their children.

The foreshadowed comments will apparently come in a debate to be held later today on “The smacking ban 30 years on: international debate“, where advocates against the corporal punishment of children will take stock of how far the smacking debate has come since Sweden banned corporal punishment 30 years ago, becoming the first country to forbid all forms of violence against children, including at home.

The Council of Europe, which monitors States’ compliance with the European Convention, have recommended that all states should secure to everyone within their jurisdiction, including children, the right to be protected from torture and inhuman or degrading treatment or punishment (Article 3 ECHR), the right to liberty and security (Article 5), and the right to a fair trial (Article 6).

The Independent sums up the position in the UK, where smacking in most schools but not at home is banned:

Though we have a partial ban in place and are about to close an eccentric loophole in that law which allows private tutors to whack their pupils (“reasonably”) our right to cuff our own children is still protected. Sir Roger Singleton, the Government’s independent adviser on child safety, recently published a report – Physical Punishment: Improving Consistency and Protection – which essentially recommended that smacking should be banned everywhere except in the home, by parents and those in loco parentis.

Read more:

  • Council of Europe Integrated Strategy against Violence
  • Independent report by Sir Roger Singleton, Chief Adviser on the Safety of Children
  • Update 30/04/10 – Libby Brooks writing in The Guardian: “Only the Liberal Democrats have committed in their manifesto to incorporating the UN convention into British law, which is probably about as hopeless a daydream as proportional representation. But, in the meantime, we cannot rely on benign self-regulation by parents alone. Smacking is assault, however you dress it up. It brings with it all the guilt, shame and assumptions of weakness and power that come with any attack on another human.

Judges should consider parents’ interests under Article 8 of the Convention before granting care orders

20 April 2010 by

EH v London Borough of Greenwich and AA and REA and RHA (through their guardian), A (children) [2010] EWCA Civ 344

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This was an appeal against the decision of the judge at first instance granting the local authority a full care order and placement order in respect of the appellant mother’s children. One of the children had been admitted to hospital as a baby with a fracture injury that was diagnosed as being non-accidental, following which both children were immediately taken from their parents’ care and placed with their maternal grandmother.

A later fact finding hearing determined that the baby’s injury had probably been caused by her father and that the mother had failed to protect the baby, although the judge did find that the mother had very many good qualities and her parenting abilities, per se, were not in issue, and that apart from the fracture injury there was no evidence that the children had suffered any harm.

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New head of Family Court says social workers perceived as “arrogant and enthusiastic removers of children”

13 April 2010 by

Sir Nicholas Wall, the new head of the Family Division, is being sworn in today. The Times reports this morning on comments he made in a recent judgment in the case of EH v London Borough of Greenwich & Ors [2010] EWCA Civ 344.

He said of social workers:

What social workers do not appear to understand is that the public perception of their role in care proceedings is not a happy one. They are perceived by many as the arrogant and enthusiastic removers of children from their parents into an unsatisfactory care system, and as trampling on the rights of parents and children in the process. This case will do little to dispel that perception. (paragraph 109)

A profile of Sir Nicholas in The Times suggests that he arrives at his new post with a reputation as a forthright critic of social services, local council, social workers and politicians. Indeed, it has been suggested that the Justice Minister Jack Straw may have been trying to block the appointment of Sir Nicholas for that very reason.

We posted earlier this week on the issues regarding child protection and the duty of care of local authorities. The courts are often finding themselves having to balance the competing rights of children, who must be protected against abuse, and parents, who are sometimes themselves the victims of overzealous prosecutions by local authorities. It would appear that the pressure on public authorities will only increase once the new Family Division head is in post.

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