Putting children and young people first in the family courts

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Human Rights

 

The Human Rights Act 1998 is fully in force in the United Kingdom. The broad effect of this Act is to require that UK Domestic Law is interpreted, and that public authorities act, in a manner that is compatible with the European Convention on Human Rights.

The European Convention on Human Rights contains "Articles." Those which are most likely to be relevant to cases about children are Article 6 (the right to a fair trial) and Article 8 (the right to respect for private and family life).

In some circumstances the facts of the case may involve the balancing of competing rights. However, there are some rights that are absolute and cannot be restricted or interfered with. Articles 8 to 11 may be limited where that is necessary to achieve an important objective. These are therefore called qualified rights.

 

Article 2: The right to life.

This requires that everyone's right to life shall be protected by law. This is not an absolute right in that although no one can be deprived of life intentionally there are exceptions where it would be legal to do so.

 

Article 3: Prohibition of torture.

This requires that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. This is an absolute right, breach of which cannot be justified or excused by other factors.

 

Article 4: Prohibition of slavery and forced labour.

 

Article 5: Right to liberty and security.

No one is to be deprived of his liberty except in very specific circumstances and in accordance with procedures prescribed by the law.

 

Article 6: Right to a fair trial.

There must be access to a court or tribunal that is independent and impartial. A hearing must be within a reasonable time and there must be a sense of "fair balance" between the parties, with each party being afforded a reasonable opportunity to present their case.

There must be disclosure of documents to ensure that all parties have all the information available. Every party must have the opportunity to have knowledge of and to comment upon the evidence adduced by the other parties.

There is the right to a public hearing, although at present children's cases are heard in private. There should be a reasoned decision given by the court for decisions reached.

 

Article 7: No punishment without law.

 

Article 8: Right to respect for private and family life.

There is a positive obligation on the state to ensure an effective respect for this right. However, this is a qualified right which means there can be interferences with an individual's family life provided the interference is:

a) lawful
b) must serve a legitimate purpose
c) be necessary in a democratic society and
d) must not be discriminatory

 

Article 9: Freedom of thought, conscience and religion.

 

Article 10: Freedom of expression.

 

Article 11: Freedom of assembly and association.

 

Article 12: Right to marry.

 

Article 14: Prohibition of discrimination.

 

Article 16: Restrictions on political activity of aliens.

 

Article 17: Prohibition of abuse of rights.

 

Article 18: Limitation on use of restrictions on rights.


The First Protocol, Article 2: Right to Education

No person shall be denied the right to education. The State shall respect the right of parents to ensure such education conforms with their own religious and philosophical convictions.

(A protocol is a later addition to the convention).

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