Practical Child Law for Social Workers

Clare Seymour, Richard Seymour, SAGE Publications Ltd

• Publisher: Learning Matters
• Year: 2013
• Print ISBN: 9781446266533, 9781446266526
• eBook ISBN: 9781446281277
• Edition: 1
• Topic: Social Sciences
• Subtopic: Social Work
• Index: Social Sciences

The English legal system in the area of social work with children and families can be bewildering and complex and it is vital therefore that any textbook on the subject uses case law, case studies and research to critically-engage social workers and students alike. This book does just that - by examining, and putting into clear practical context, the current law and policy relating to social work with children and families. A guide for both students on placement as well as Newly Qualified Social Workers (NQSWs) entering their first roles within children and families teams, Practical Child Law for Social Workers is essential reading for a fast-paced and complex area of social work.

Chapter 1

Rights

CHAPTER OBJECTIVES

The aim of this chapter is to support the Professional Capabilities Framework (PCF) requirements by exploring how the principles of human rights and equality are protected within international conventions, English law and policy. We particularly consider how the concept of children’s rights is reflected in practice and encourage you to engage with the intellectual debates, ethical dilemmas and apparent inconsistencies you encounter in the course of your work, so that your judgements and decision-making are firmly and confidently set within a rights-based framework, shaped by your legal powers and duties.

Introduction

The law continues to lurch unevenly between protecting children from harm and protecting family privacy.

(Fortin, 2009, p555)

The twin concepts of rights and justice underpin almost every social work activity, whether in formal settings such as courts or reviews, or in daily tasks such as interviews or home visits. Social work is committed to individual rights and to the philosophy that people who have experienced unfair or discriminatory treatment should be helped and enabled to reduce the nature and effects of the inequalities they have faced. In many circumstances, this does not require you to resort to the authority or provisions of the law; rather, it is a natural reflection of your commitment to the values and ethical framework of social work. However, in addition to circumstances in which rights might have been overlooked, or even on occasions deliberately denied, situations in which there appear to exist conflicting rights, or where the concepts of rights and justice do not seem to coincide, are becoming increasingly common. If it were simply a question of respecting a person’s right to privacy if they refuse entry to their home, no particular dilemma arises. However, if you are responding to a referral which suggests that a child might not be receiving good enough care, you have a legal duty to ensure that you are admitted. But how far does that duty go? If you can detect nothing amiss in that first visit, but you consider that the referral came from a reliable source, how much further should you interfere with their right to privacy? If you were the parents (or even the child) concerned, at what point would you consider that your right to respect for your family life was being infringed? If you are subsequently invited to a meeting about the matter, how would you expect to see justice being done and what would persuade you that you had had the equivalent of a fair trial? No book can tell you the answers to such questions and our understanding of rights and justice is made more complex by the fact that they tend to be subjective, rather than objective, concepts, as the first activity will show.

ACTIVITY 1.1

What thoughts and feelings do you associate with the concept of ‘rights’? First, identify your instinctive reactions to these news headlines.

• Government to stop human rights law ‘exploitation’.
• PM defies rights court over prisoner voting rights.
• Bombers ask human rights court to quash their convictions.
• Killers use human rights to stay in the UK.
• Satellite dish a ‘human right’.
• Firefighter wins £80,000 for breach of human rights over complaint about chair.
• Christians ‘have no right’ to wear crucifix at work.
• Judge criticises CPS for putting stalker’s rights before victim.

(Source: www.thetimes.co.uk)

Now consider how you might express your views in a professional arena. Are there any differences, however subtle, between your private and public views? What effect might this have on your professional role and responsibilities or the experience of service users?

This activity should show that our understanding of, and attitudes towards, the concept of rights represent a complex mix of values, knowledge, experience and political ideology, and, as such, are difficult to present or exercise with the level of objectivity we normally seek to achieve as a professional. It also highlights the limitations, and potential contradictions, of the law’s role in reflecting the views and values of the society it seeks to regulate.

What is a right?

Politicians sometimes like to contrast the concept of rights with that of responsibilities when considering how society should be organised and how citizens should conduct themselves. The legal concept of a right, however, needs to be distinguished from the rather imprecise references to rights that can arise in general conversation. No legal right can exist in a vacuum. The idea, for example, of a person living alone on a desert island having a right to respect for their family life is meaningless, for there is no family. The concept does not necessarily acquire any more substance if the desert island supports a traditional family unit of parents and children, for although each member can enjoy family life, no external factor is likely to interfere with that enjoyment. Consequently it is an important feature of a legal right that it has an impact on others.

Broadly, that impact on others can operate either at a personal level or in relation to society as a whole. At a personal level a right stems from values and ethical principles and can confer an entitlement on a person to do something or to be treated in a particular way, which might affect other people and with which those people might otherwise wish to interfere. Therefore, a right of freedom of speech allows you, subject to any legal constraints, to express opinions with which others might not agree. A right not to be discriminated against inhibits those inclined to discriminate from doing so. A right can be either positive or negative. For example, the right to be paid a state retirement pension is positive in that a person receives the benefit by virtue of their right to it. However, a right not to be imprisoned unlawfully is negative in that it inhibits the powers of the state to act arbitrarily. Without rights of this type those holding power could disregard the interests of those who do not.

A right might arise from a duty imposed by statute but Parliament also gives local authorities powers, which are essentially discretionary rather than compulsory and usually identified within legislation by use of the word may. No one can claim a right to a service which a public body has only a power to provide. However, public bodies must exercise their powers rationally, reasonably and fairly and it is possible to challenge a decision on the grounds of procedural unfairness, even though the only possible successful outcome would be that the public body is ordered to go through the decision-making process again, offering no guarantee that the requested service ultimately would be forthcoming. What public bodies cannot do is to decide never to use a particular power, or to decide only to use it in a specific way. If a public body holds a power, then each time the opportunity arises when it could be exercised, it must consider whether or not to do so. This clearly has implications in the context of referral and eligibility criteria, for example.

What are human rights?

Inherent in the whole of the Convention is a search for the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s human rights.

(Soering v UK [1989] 11 EHRR 439)

Other than in a philosophical sense, all so-called human rights are created by statutory enactment, which can be of a constitutional nature. For example, some provisions of the Constitution of the United States of America are expressed in terms of rights to which all those within its jurisdiction are entitled. A variation on a constitutional enactment is the making of an international treaty, such as the European Convention on Human Rights (ECHR), agreed by the Council of Europe in 1950 and ratified by the UK in 1951. However this was only binding on the government, not the courts. As the United Kingdom has no written constitution, one of the motivations for adopting the ECHR was a desire to incorporate and nurture within legal systems in which they had not been formally established, rights and freedoms considered essential for the maintenance of democracy in the aftermath of the Second World War. The ECHR was largely written by English lawyers and intended to embody what were considered to be the rights and freedoms actually enjoyed in England and Wales at that time. Consequently, as it was considered to represent the law as it already existed, it was not then incorporated into English law by statute. In 1965 the UK agreed to the citizen’s right of direct petition to the European Court of Human Rights (ECtHR) in Strasbourg but although the ECHR has been interpreted by the ECtHR when hearing cases, its decisions were of limited significance in England until the enactment of the Human Rights Act 1998. Thereafter there was incorporated into English law not only the provisions of the ECHR, but also the ECtHR interpretations of those provisions by judges, most of whom came from legal backgrounds different from those of English lawyers, arising from political, economic and social circumstances different from those prevailing in England and Wales.

A consequence of the source of human rights having to be some enactment is that each so-called right has to be formulated in writing, often using uncontroversial and, consequently, rather imprecise language. However, legislative language must then be interpreted in order to produce effects, otherwise it is no more than the expression of pious hopes. For example, most people would declare themselves to be opposed to sin. However, what behaviour is included within this description? There are respectable Christian groups which contend that divorce, or homosexuality, amounts to sin, but many would disagree. It is at the point at which the language is interpreted that what initially appears uncontroversial can become controversial and subject to dispute. The interpretation of language critically depends on the values of those engaged in the interpretation. The less specific the language in the document being interpreted, the greater the scope for manipulating it in order to produce what is considered to be a desirable result, as we shall see in later chapters.

The purpose of the HRA is to require all public authorities to act in accordance with the ECHR’s requirements, to permit alleged breaches to be tried in English courts and to ensure that English courts take account of previous decisions of the ECtHR. It gives rights to individuals to challenge decisions made by public bodies, such as local authorities, government departments and the National Health Service. Although courts may overrule secondary legislation if it is found to be incompatible with the HRA, they may not overrule an Act of Parliament: if a court cannot interpret or apply a particular Act of Parliament in a way that respects or fits ECHR rights, all it can do is make a declaration of incompatibility. The government and Parliament then have to decide if the law should be changed.

It is necessary to distinguish between rights that are absolute, those that are limited and those that are qualified, in which a balance may need to be struck between the competing interests of the individual and society. Understandably, the Articles which most often require interpretation are those that are not absolute. In such situations the key concept is that of proportionality, meaning that interference with the right in question may be justified if there is a legitimate aim and the interference is proportionate to the achievement of that aim. Thus, for example, the right to respect for private and family life potentially can be interfered with if it appears that forcibly removing a child from its family is the only way by which to ensure the child’s safety and welfare.

The HRA has brought changes to the culture of policy-formation and decision-making in local authorities and other public bodies. In particular:

• it made discretionary policies and decisions challengeable on the basis of an alleged breach of human rights and provided a new ground for judicial review in addition to unreasonableness, illegality or procedural unfairness;
• in introducing a new test for judicial intervention, that of proportionality, public bodies must be able to justify de...

Table of contents

• Cover Page
• Title
• Copyright
• Contents
• Table of cases
• Table of international treaties
• Table of statutes
• Table of statutory instruments
• About the authors
• Acknowledgements
• Introduction
• 1 Rights
• 2 Responsibilities
• 3 Relationships
• 4 Participation
• 5 Support
• 6 Protection
• 7 Substitute care
• 8 Permanence
• 9 Independence
• 10 Cooperation
• Conclusion
• Appendix: Professional Capabilities Framework
• References
• Index