The Human Rights Act has been under the spotlight recently with the newly elected Conservative government and certain newspapers arguing that its scope and reach has gone too far. As a solicitor specialising in child abuse claims, I’ve seen how human rights legislation has helped to protect the rights of vulnerable children.
Proposals by the newly elected government to replace the Human Rights act with a Bill of Rights have been well documented and debated in the British press. Some argue that the Act has helped alleged terrorists fight extradition and been used by failed asylum seekers to avoid deportation.
We must not forget the value of the Human Rights Act, however, especially when it has done so much to protect some of the most vulnerable members of our society.
Failure to Remove Litigation
The Human Rights Act has helped children suffering abuse to pursue claims against local authorities in what is known as failure to remove litigation – i.e. where a local authority has been negligent in failing to protect a child by failing to remove them from a situation where they are suffering abuse.
Previously, local authorities had a ‘blanket immunity’ from such legislation following a House of Lords judgement in a 1995 ruling that, where a local authority was engaged in their statutory duty to protect children, a child could not bring a claim against the authority for a breach of that duty.
Following the implementation of the European Convention on Human Rights (ECHR) into our domestic law in October 2000 with the Human Rights Act, a succession of court decisions has gradually eroded this blanket immunity. Courts have ruled that such a blanket immunity breaches a child’s human rights under Article 6 (right to a fair hearing) and that local authorities owe children a common law duty of care when exercising their statutory responsibilities in relation to children in their care.
In 2000, the Court of Appeal ruled that children abused by their foster carers could sue the local authority for negligence in selecting carers. A year later, in a European Court of Human Rights case, the UK government admitted breaches of the ECHR because state officials had failed to protect children from inhuman or degrading treatment (Article 3) and that a failure to provide children with an effective remedy against the state breaches their human rights (Article 13).
A landmark decision in 2005 by the Court of Appeal – in what is commonly referred to as the JD Decision – finally triumphed over the blanket immunity that local authorities once had. In his judgement in three conjoined appeals, Lord Philips said, “Where child abuse is suspected, the interests of the child are paramount” and that a local authority’s duty of care to protect children “should not have a significantly adverse effect” on the manner in which they perform their statutory duties.
Child Sexual Exploitation
In recent years, we have seen horrific cases of child sexual exploitation and grooming around the country, and successful litigation against local authorities such as those in Rotherham and Rochdale for failing to protect vulnerable young people from abuse.
Without the JD decision, such litigation would not have been possible – a powerful reminder of how our law continues to be shaped and developed by the Human Rights Act which had helped to ensure that the most vulnerable members of our society can seek justice in the civil courts for abuse that they have suffered.
Just last year, the Family Division of the High Court considered competing human rights of a 17-year old girl suffering alleged abuse and ten men who Birmingham City Council were concerned may be grooming her. Despite there being insufficient evidence to secure a criminal conviction against the men, the court was aware that there were real concerns that the girl was a victim of child sexual exploitation and needed to be protected. In weighing up the competing human rights of both sides, the court decided that protecting the child’s human rights was paramount.
The Birmingham decision shows how English courts have used the Human Rights Act in bold and creative ways to protect children. Human rights principles have become interwoven with our common law system, forced judges to abandon the old blanket immunity once enjoyed by local authorities and enforced a child’s right to be kept safe.
The Human Rights Act continues to be used by our courts to put the rights of children at the heart of many decisions they make.
And surely that is worth defending.
Kim Harrison is the National Practice Development Leader for Human Rights at Slater and Gordon Lawyers UK.
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