Today is Human Rights Day, celebrated the world over to mark the importance of essential freedoms that protect and promote humanity. The UK is fully signed up to the Human Rights Act 1998 (it came into force on 2 October 2000 here). Under the Act, it is unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of any other primary legislation provides no other choice, but the judiciary must take account of any decisions, judgement or opinion of the European Court of Human Rights. If it is not possible to reconcile these decisions with UK law, then the Convention overrides that law.
The theme this year is Human Rights 365, which just means that we shouldn’t view these rights as a novelty, but a basic part of our daily experience as human beings. Human Rights Day is Every Day.
And in the family courts in the UK that will resonate deeply with parents, practitioners and members of the public who have either experienced or followed the evolution, some might say devolution, of the family courts over the last decade.
That devolution has involved the gradual erosion of those basic human rights we should be protecting inside our justice system. The ever shrinking budget for legal aid is now putting children, men and women at risk of harm. We know that women who have experienced domestic violence for example, continue to be denied legal aid. Under the Universal Declaration of Human Rights, one could argue that several freedoms have been breached already as a result of the new legal aid thresholds, including Article 7 which tells us that everyone is equal before the law, and entitled without any discrimination to equal protection of the law. Yet legal protection in the UK has become highly selective, with the vast majority of families inside the family courts now having to represent themselves, without the necessary tools or knowledge they need.
Article 10 tells us that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” Inside the family courts that fairness is eroded through the use of two differing standards, civil and criminal, when trying a parent for alleged neglect or abuse. A parent can find they are tried in both criminal and civil courts for an allegation, but as both courts use different burdens of proofs and standards for evidence, the outcomes often vary. This in itself is manifestly unfair, and leaves the door wide open for further miscarriages of justice.
Policy continues to clash with law, never more so than through the adoption process. The Websters, who lost their children due to injuries being misdiagnosed, were told they could not have their children back because adoption was final. And yet, a mother whose child is abducted and found eight years later is allowed to be reunited with him. This odd double standard highlights a clear violation of the right to a family life, and impinges of course, on every child’s rights as enshrined by the UN Convention on the Rights of the Child – a document the UK has signed up to (we signed the Convention on 19 April 1990, ratified it on 16 December 1991 and it then came into force on 15 January 1992.)
A recent development which threatens to remove the protections offered through the Convention altogether is the Court of Appeal’s decision that there is no longer a need to consider human rights in private family law cases. The argument the court put forward was that unlike public family law cases where the proceedings were brought by the State, private family law cases were brought by parents and so did not fall under the required remit. The judge took the view that human rights considerations of this nature, in family cases only applied where a public authority was involved and directly responsible for any actions which might lead to interference of a family member’s human rights. The view was that Parliament had provided a legislative mechanism for parties with parental responsibility in this area, which is human rights compliant, and that was that. But this line of thinking is ill-conceived. Even if parents do bring proceedings, they are effectively asking the State to provide a solution, and so once again that decision rests in the State’s hands. So one party has voluntarily asked the State to intervene, whilst the other has no choice. But the State is still the final arbiter in both cases.
These are some of the worrying developments within the family courts which seek to curtail or cut out completely those fundamental human rights that children and parents are entitled to. On Human Rights Day this year, we urge every one of you, parents, practitioners, children and the public, to stand up for those rights and let our government know that human rights are not flimsy philosophical ideals, they are the foundation, the bedrock, upon which family law rests.