Towards the end of last year I attended a fascinating conference organised by the Separation and Reunion Forum which posed the question – is childhood attachment a need or a human right? It got me thinking about the value of the Human Rights Act, and in particular the right to respect for private and family life together with the UN Convention on the rights of the child. I think that the family and children’s sector do not make the HRA and the Convention visible enough in the work that we do, and I wonder whether legal representatives of the families we work with are doing enough to draw on the human rights framework in the cases they represent? And does the Human Rights lobby sometimes overlook this important, potentially unifying part of the Human Rights Act?
So let’s remind ourselves what article 8 says:
Right to respect for private and family life
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.
The UN Convention on the rights of the child also focuses on the best interests of the child being the primary concern (Article 3); that governments should respect the rights and responsibilities of families to direct and guide their children, placing on governments the responsibility to protect and assist families in fulfilling their role as nurturers of children (Articles 5 and 18); that the child has a right to the preservation of identity (Article 8), including family ties.
Yet we have a state that is arguably adopting a more interventionist approach than that set out in the UN framework and which does not consistently respect the child’s right for private and family life. I should say clearly here that where a child needs to be removed from their immediate family for child protection reasons then that is clearly in their best interests (and also consistent with the Convention). But there are many cases that we see where children could remain within their wider family network rather than be placed with stranger carers but either potential carers are not considered or consulted or a decision is taken that they are unsuitable but in fact, when challenged, it subsequently turns out that they are suitable carers for that child.
I am particularly thinking of children who are either in the care system or on the edge of that system. The state, in the form of local authority children’s services, is faced with the decision of whether to support children to remain within their families or to remove them into stranger care, either temporarily or permanently. My charity, Grandparents Plus, works with grandparents and family (kinship) carers who step in to raise children who can not live with their parents. There are thought to be 200,000 raising up to 300,000 children across the UK. Evidence shows that children brought up within their wider family tend to do well and certainly better than those in foster care. So it follows that if we are going to act in the best interests of the child we must consider the wider family first before placing a child elsewhere. Yet the government, in the Children and Families Bill, is currently legislating to speed up the care process and creating a fast track to adoption via foster to adopt. In practice this will make it more difficult for family members to be considered as potential carers of children as they will have to come forward much earlier in the process. If a local authority does its job well and looks for potential family carers before care proceedings start then this will help to mitigate this risk. But we know that many will not invest the time, either through lack of resources, a lack of expertise, or because it can simply be difficult, time consuming work to find and assess potential family carers. Families in turn may be reluctant to step forward in the first week or so, holding back to see if the parents will be able to resume caring for their children, or they may be simply struggling to process what it would mean for their own lives and families. Do we have enough room? Can I keep working or will I have to give up my job? What do I say to the child? How long will this arrangement last, will it be temporary or permanent?
Underlying all of this is the basic (often unstated) assumption that if the parents are unable to raise their children then the wider family must be part of the problem rather than the solution – “the apple doesn’t fall far from the tree”. So families are not always given a fair hearing by those standing in judgement on them. In practice it can often be the courts who will rule in favour of a grandparent or family carer, against the recommendation of the local authority.
A recent judgment (Re B-S) in the court of appeal has been particularly significant in challenging the use of adoption against the wishes of the parents. Article 8 was central to the judgement which also referred to the UK’s system being unusual in Europe in permitting the total severance of family ties without parental consent. Building on other cases, the judgement also makes clear that adoption should be regarded as a last resort and that in repeated cases local authorities were presenting inadequate reasoning supporting a case for adoption. The government’s focus on increasing adoption rates is perhaps a factor in this? The intention is to reduce the number of children in the care system who are waiting to be adopted. But the consequence of the approach is that local authorities are in some cases progressing too readily towards adoption at the expense of other permanency options, including placing the child with their grandparents or wider family. In practice it is the courts and the Human Rights Act which may be families’ and children’s last line of defence