Andrea Hopkins from the Family Rights Group writes on how the Human Rights Act has aided the organisations work:

Established in 1974, Family Rights Group is the charity that works with parents in England and Wales whose children are in need, at risk or are in the care system. We also support relatives and friends to be assessed as potential carers and get help to raise children who cannot remain at home. Many of our clients are frightened and overwhelmed, have had poor previous experiences with social workers and therefore struggle to work with them.

 Our expert advisers provide advice to over 6000 families a year via our free and confidential telephone and digital advice service. We help them to get support to prevent problems escalating, face up to any child protection concerns, understand their legal rights and options in order to make informed decisions about the children, and challenge local authority plans where necessary.

 Since the introduction of the Human Rights Act ten years ago, the courts have made a number of decisions which show how human rights, particularly the right to respect for family life (Article 8 of the European Convention on Human Rights) and the right to a fair trial (Article 6 of the European Convention on Human Rights) apply in family cases. These rights are very important to families who are at risk of having their children taken into care: not only must a court be satisfied that removal of children from the home is justified, but also the process is fair and transparent. Such rights apply equally to decisions made by courts and to local authority procedures.

 When we come across cases at Family Rights Group that appear to be breach these human rights, we refer to the Human Rights Act and these decisions, to help families challenge poor local authority practice and consider legal remedies.

 It would be impossible to set out all the influential cases decided under the Human Rights Act in a short blog like this. But one of the best examples in recent years is in relation to adoption. In 2012 the European Court of Human Rights said in a case called Y v UK that “measures which deprive biological parents of the parental responsibilities and authorise adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the child's best interests

 This was followed by the Supreme Court in 2013, in a very important case, known as ‘Re B’. The Supreme Court set out the test for when an adoption order can be made. The judges relied on this and others cases from the European Court of Human Rights, to help them understand the meaning of the right to respect for family life, as it applies to non-consensual adoption (where the parents don’t agree that their child should be adopted). The Supreme Court decided that an adoption order can only be made when all other realistic options for the long term care of the child– which might include being raised by extended family members- have been considered and excluded.  In other words, an adoption order, which ends the child’s legal ties with their birth family, should only be made when “nothing else will do”. In a later case, decided shortly afterwards, the Court of Appeal said that social workers must be able to show the court that they have investigated all the realistic options for the long term care of the child, and provide that evidence to the court so that the judge can consider the pros and cons of each option before making a decision. The Court of Appeal said that this was important if the child and families’ right to fair process, as well as the right to respect for family life, was to be protected. 

 Just a few weeks ago the Court of Appeal dealt with a case where foster carers wanted to take part in the care proceedings about a child they were looking after, and to apply to adopt that child even though the local authority no longer thought adoption was the right future for this child because the child’s paternal grandparents had been positively assessed to care for the child (Re T (a child: Early Permanence Placement) 2015). The Court of Appeal said very strongly that adoption was not about deciding between different families – which one could offer the ‘better’ home – but about first deciding whether it was possible for a child to remain at home, or to live otherwise within their family. To do otherwise would amount to ‘social engineering’ and be a breach of the right to respect for family life.

 These decisions have spurred on Family Rights Group’s campaign for local authority children’s services to explore, much earlier in the day, whether there are suitable extended family members or friends, including those with whom the child may already have a loving bond, who could raise the children if they cannot remain at home. We have succeeded in influencing recent Government guidance that now says that social workers should try to identify extended family members who may be able to raise a child, before they consider applying to court to take the child into care.

 At the moment there is a lot of inconsistency in how and whether extended family members are assessed as suitable carers for a child – in some cases relatives have been ruled out based upon just a short phone call with a social worker. We are also using these court decisions to support out campaign for minimum standards for assessment. We believe that a standard assessment model would make it a much fairer process, in line with Article 6 right to fair trial/process. 

 These are just a couple of examples of how Family Rights Group uses human rights in our work. Overall we think that the Human Rights Act has really strengthened child welfare law by putting the child’s right to respect for their family life at the very centre of all decision making.