Local government’s power to make orders relating to children, orders which can include removing a child from their parents, are extraordinarily powerful and can have lasting ramifications on the lives of everyone in the family. In this article, we explain the basics of care orders and how social services must be mindful of your human rights when exercising their powers.
How and when care orders relating to children can be made
The Children Act 1989 provides that local authorities are responsible for making sure children are safe and cared for appropriately by parents or those looking after them. This function is designated to social services departments.
Social services may begin an investigation on a child for one of the following reasons:
- the court directs them to do so
- the child fails to comply with an education order
- there are suspicions a child in the area is suffering or is likely to suffer significant harm
- the child is in police protection
- a child assessment order has been made
- an emergency protection order has been made
If social services become involved in the welfare of a child in their area, they will work with the family and other professionals to protect the welfare of the child deemed at risk.
Once care proceedings have been started, the court has the power to make the following orders:
- a supervision order—requiring a child to be supervised by a social worker for up to a year. The child usually resides with parents rather than in local authority care
- a child arrangements order—stating with whom the child should live
- a contact order—detailing whom the child has contact with, with or without conditions
- a care order – this allows for parental responsibility to be shared between the child’s parents and the local authority
Human rights considerations and care orders
There are many factors which must be taken into consideration when the court makes a child subject to a care order, one of these being human rights.
Article 8 of the European Convention on Human Rights (ECHR) reads as follows:
Article 8 – Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
When a child is made subject to a care order, the local authority is granted parental responsibility and shares it with the parents (or anyone else who has parental responsibility). But, in order to safeguard the child, the local authority’s parental responsibility can override that of the parents.
So how does this work in relation to Article 8? The key factor is that unlike other articles in the ECHR such as art. 3, which prohibits torture, and inhuman or degrading treatment or punishment, art. 8 is not an absolute right. This means that the State can interfere with a citizen’s right to private and/or family life if it is in the public interest or the interests of the country to do so. This is what allows governments to have an immigration policy which can deport people, restrict the liberty of suspected terrorists under the Terrorism Prevention and Investigation Measures and take children from their parents if it is deemed doing so is in the best interests of those children.
The court must always consider the art. 8 rights of not only the child but the adults in the family when making a care order. However, as in all family law proceedings, it is the rights of the child that will prevail above all others.
The drive to reunification
Care orders are seldom designed to be permanent. They are a temporary measure, meant to be discontinued as soon as circumstances allow. There is a positive duty on the local authority and the court to pursue family reunification, and this pressure will increase as time passes. However, the goal of family reunification must always be balanced against the best interests of the child, and as time passes, the interests of the child may be best served by not having the care arrangements changed.
In KA v Finland  ECHR 27751/95,  1 FLR 696, the court held that as a minimum, local authorities need to periodically review the family situation to see if there are any improvements to facilitate reunification.
The courts have stated that far stricter scrutiny needs to be applied to restricting parental contact of a child taken into care. Not allowing a parent and child to see each other effectively ends any chance of reunification occurring.
Having social services involved with your family is an incredibly frightening and stressful experience. It is crucial that social services have regard to your art. 8 rights when making any decisions relating to your family. If you believe your rights have been infringed, contact an experienced family law solicitor for advice and representation.
Rosie Bracher is a specialist family law solicitors based in Barnstaple. We have the knowledge and expertise to advise you on all matters involving children and family law. Please contact our office on 01271 314 904 and arrange to speak to one of our team.