Draconian Social Work Action Violates Parents and Child's
rights
by Charles Pragnell,
Expert Defence Witness - 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 judgement, 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 "railroading" the parents.
The brief circumstances of the case were that the mother, P, had been
convicted of a misdemeanour in California USA 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 railroading 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 UK
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 UK 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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