Draconian Social Work Action Violates Parents' and Child's Rights

Draconian Social Work Action Violates Parents and Childs rights
by Charles Pragnell,
Expert Defence Witness - Child Protection

 

 

 

 


Charles Pragnell is an Expert Defence Witness in Child Protection.

This article was previously published in the website Children and Young People Webmag in their September 2002, Issue 33. Unfortunately, this web site no longer exists.
 
The copyright belongs to the Children and Young People Webmag.

 

 

 

In a landmark judgment, the European Court of Human Rights has found that the rights of a British couple were violated under Articles 6 and 8 of the European Court of Human Rights following the removal of their infant daughter shortly after birth and the immediate placement of the infant for adoption.

The actions of the social worker were described by the Court as "draconian" and the court proceedings were described by the Judge at the time as giving the appearance of "rail-roading" the parents.

The brief circumstances of the case were that the mother, P, had been convicted of a misdemeanour in California U.S.A. in 1995 following an allegation during divorce and custody proceedings that she had caused harm to her child by inducing an illness (diarrhoea) in a child of a previous marriage (so-called Munchausen Syndrome By Proxy). The child was placed with the father. She was given a three month suspended custodial sentence and three years probation with a condition that she completed a "psychological and psychiatric programme".

The mother then married a British subject, C, and they began living together in Rochdale, North West England. In May 1998 their daughter, S, was born prematurely by caesarean section. Based on the American trial evidence, the local authority sought an Emergency Protection Order and removed the baby from the hospital on the same day that she was born and decided to apply for a Care Order and an Order immediately freeing the baby for adoption. The Care Order and the Freeing Order were granted in March 1999. The local authority claimed there was an urgency in making permanent arrangements for the baby's care, and informed the

United Kingdom Court
that there were eight couples suitable to adopt the baby, but she was not placed for adoption until September 1999. The Adoption Order was granted in March 2000. The parents were refused the right of appeal.

In its assessment of the case, the

European Court
stated it was not convinced that "the importance of proceeding with expedition which normally attaches generally to child care cases, necessitated the draconian action of proceeding to a full and complex hearing, followed within one week by the Freeing for Adoption application, both without legal assistance being provided to the applicants. Though it was doubtless desirable for S's future to be settled as soon as possible, the imposition of one year from birth as the deadline, appears a somewhat inflexible and blanket approach, applied without particular consideration of the facts of this individual case."

"The taking of a new-born baby into public care at the moment of its birth is an extremely harsh measure. There must be extraordinarily compelling reasons before a baby can be physically removed from its mother, against her will, immediately after birth as a consequence of a procedure in which neither she nor her partner had been involved…... the taking into care of a child should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit, and any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and child."

The European Court further stated that it did not find that, "…the possibility of some months' delay in reaching a final conclusion in those proceedings was so prejudicial to her (the baby S's) interests, as to justify what the trial judge himself regarded as a procedure which gave the appearance of rail-roading her parents."

It was the

European Court
's view that, "the procedures adopted not only gave the appearance of unfairness but prevented the applicants from putting forward their case in a proper and effective manner on the issues which were important to them….. the measures together deprived P and C of any further family life with S and were inconsistent with the aim of reuniting them with their daughter. The local authority, whose attitude was unremittingly negative towards them (the parents), ignored the parents' excellent record of contact with S, their stable marriage and the fact that S was placed with experienced foster parents….. the way in which the Care Proceedings and freeing for adoption were allied together, decreased any possibility of exploring future rehabilitation and reunification. S's welfare did not require the authorities to move so quickly, most adoptions taking place within two, rather than one year."

The European Court concluded that, "…the draconian step of removing S from her mother shortly after birth was not supported by relevant and sufficient reasons and that it cannot be regarded as having been necessary in a democratic society for the purpose of safeguarding S…. the lack of legal representation of P (the mother) during the Care Proceedings and both P and C (both parents) during the Freeing for Adoption Proceedings, together with the lack of any real lapse of time between the two procedures, has been found to have deprived them of a fair and effective hearing in court. Having regard to the seriousness of what was at stake, the Court (European) finds that it also prevented them from being involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests."

The lessons to be learned from this case by social workers in the U.K. are that :

1. There must be a full and comprehensive assessment of the family's circumstances (carried out if possible before the removal of a child) before a decision is taken to bring court proceedings and that parents should be fully consulted and informed of the decisions of the local authority.

2. Infants should only be removed from mothers at birth in exceptional circumstances e.g. the baby is at immediate risk of harm.

3. Parents should be afforded full legal representation where the outcome of court proceedings may be the removal of their child from their care.

4. The primary objective of social work with children should be the reunification of children with their families and only when reasoned decisions can be taken that this objective is not achievable and attainable, should adoption be considered, in consultation of course with the parents.

These have always been some of the fundamental principles of social work with children and families embodied in Children Acts in the
U.K. as far back as 1963, but they are now considerably reinforced by the

European Court
judgement.

 

Case of P., C., and S., v The United Kingdom - July 2002. (Application No. 56547/00)

 

Grand Chamber verdict Case of K and T v Finland

 

Case of K and T v. Finland 

 

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