The Social Worker's Guide to Children and Families Law

Second Edition

Lynn Davis

• Publisher: Jessica Kingsley Publishers
• Year: 2014
• Print ISBN: 9781849054409
• eBook ISBN: 9780857008145
• Edition: 2
• Topic: Social Sciences
• Subtopic: Social Work
• Index: Social Sciences

Now fully updated and with up-to-the-minute guidance, this is the only book you will need to make sense of the key elements of law involved in social work with children and families in England and Wales.

Accessible and jargon-free, this everyday reference explains the fundamental concepts of parental responsibility and human rights, and the provisions of private and public law, including care proceedings and adoption. This second edition incorporates recent changes including the Working Together to Safeguard Children guidance for inter-agency working, the Children and Families Act 2014 and the Crime and Courts Act 2013 as well as the latest case law. Checklists, charts and highlighted points allow for easy reference, and illustrative case scenarios put the law into context.

This comprehensive and easy-to-use guide will be an invaluable resource for practising social workers, as well as trainees, students and those studying for post-qualifying awards.

Part 1

Fundamentals

Chapter 1

Human Rights

Why start here? Quite simply, because every aspect of the law and every action you take (or decide not to take) as a social worker is subject the Human Rights Act 1998 (HRA).1 All the remaining chapters of the book must be read with this one in mind.

What are human rights?

There are many definitions of human rights but, for our purposes, the term ‘human rights’ means those contained in the European Convention on Human Rights and Fundamental Freedoms 1950 (the Convention) because those are the rights incorporated into UK law by the HRA. The Convention is not linked to the European Union, membership being much wider.2

The Articles

The full text of each of the Convention Articles is set out in the HRA, but they are commonly referred to by their shorthand titles. The most important are:

Article 2Right to life

Article 3Prohibition of torture and inhuman or degrading treatment or punishment

Article 4Prohibition of slavery and forced labour

Article 5Right to liberty and security of person

Article 6Right to a fair trial

Article 8Right to respect for private and family life, home and correspondence

Article 9Freedom of thought, conscience and religion

Article 10Freedom of expression

Article 12Right to marry and found a family

Article 13Right to an effective remedy

Article 14Freedom from discrimination in the delivery of rights under the Convention

First Protocol

Article 2Right to education

Human rights in UK law

The HRA aims to ensure that UK law respects human rights. All new legislation must be drafted and all pre-existing law interpreted in a way which is compatible with the Convention; everything is viewed through the lens of human rights.

Courts try to make the existing law fit with the Convention; this sometimes demands some mental dexterity. For example, Article 5 guarantees the right to liberty, subject to exceptions when deprivation of liberty is justified (such as imprisoning criminals). The only exception specifically about children allows detention for ‘educational supervision’. But s25 Children Act 1989 (CA89), dealing with secure accommodation, does not mention education at all – it is concerned with children who place themselves or others at serious risk. Is s25 compatible? This was considered by the Court of Appeal,3 which focused on the word ‘education’. If it just means schooling, s25 CA89 is incompatible. However, the court found that ‘education’ is a far broader concept, including social and emotional learning and development, and is sufficiently wide to allow s25 CA89 to fit with the HRA.

If, despite mental gymnastics and verbal contortions, a statute cannot fit with the HRA, the higher courts can declare the legislation ‘incompatible’. This does not make the statute invalid; if it did, there would then simply be a gap in the law. Instead, it triggers an obligation to amend the law using a fast-track Parliamentary process.

Public authorities

All public authorities (including central government, the police, courts, health authorities and local authorities) have a duty not to infringe an individual’s human rights.4 Local authorities must therefore consider the human rights implications of every decision, including those taken by social workers. The HRA impacts on every aspect of your work.

Any UK court can hear human rights arguments. Someone whose human rights are breached or threatened by a public authority’s actions can bring a free-standing human rights case5 or plead human rights in a case which is primarily about something else; in care proceedings a mother might argue that a care order would breach her Article 8 right to a family life.

If rights are breached, the court can choose any remedy in its jurisdiction to suit the case, including awarding compensation or refusing an order. To prevent a breach occurring, the court can issue an injunction. This happened in a case6 where a local authority proposed to remove a baby placed for adoption because the prospective adopter had gone blind following an emergency brain operation just after the baby was placed. The High Court found a breach of the prospective adopter’s rights to a family life and to a fair procedure. It made an injunction to stop the baby being removed, allowing a properly considered decision to be made; fortunately so, given that ultimately, following further assessments and glowing reports, an adoption order was made with the local authority’s support.7

When all domestic remedies are exhausted, there may be a further appeal to the European Court of Human Rights (ECtHR) in Strasbourg. The supervision of government action by a supra-national court can sometimes give rise to political antagonism but is an important safeguard.

Human rights breaches by individuals

The HRA only protects against actions by public authorities, not individuals. However, sometimes authorities can in effect be held responsible for the actions of individuals. For example, in A v. UK,8 a boy was beaten with a cane by his stepfather who was prosecuted but acquitted on the defence of ‘reasonable chastisement’.9 The ECtHR found that the UK system had failed the child. The court said that States must:

… take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals. Children and other vulnerable individuals, in particular, are entitled to State protection in the form of effective deterrence against such serious breaches of personal integrity.10

There are obvious and significant implications for child protection authorities. The abuser may be an individual, but a public authority has a positive duty to step in and protect. If it fails to do so, it is the public authority which is responsible for the breach of the child’s human rights. This should be in the forefront of your mind in all child protection cases.

Understanding human rights – The ‘living instrument’

To interpret human rights, we look to case law from the ECtHR as well as our own courts. The Convention is known as a ‘living instrument’. Its meaning is not set in stone; instead its interpretation ca...

Table of contents

• Cover
• By the Same Author
• Title Page
• Copyright
• Contents
• Acknowledgements
• Preface
• Introduction
• Part 1 Fundamentals
• Part 2 Private Law
• Part 3 The Local Authority’s Support Role
• Part 4 Child Protection
• Part 5 Care Proceedings
• Appendix 1A: Children Act 1989 Key Sections By Number
• Appendix 2: Order For Residence, Special Guardianship And Adoption At A Glance
• Appendix 3: Contact Aide-Memoire
• Appendix 4: Care And Accommodation At A Glance
• Appendix 5: Summary Of Duties To ‘Looked After’ Children
• Appendix 6: Emergency Protection Order Aide-Memoire
• Appendix 7: Care And Supervision Orders At A Glance
• List of Statutes
• List of Cases
• Index
• Also available