When Should the State Become Involved in Family Life - Assignment Example

?When should the become involved in family life? Introduction It is generally accepted that the should not intervene in family life, unless intervention is necessary to “correct inequality” and to “prevent abuse”.1 An absolute non-protection stance on the part of the state will be far more “harmful” than “helpful”.2 Developments in family relations during the 20th century indicated that state intervention in family life was increasingly necessary for resolving a familial crisis: child neglect and abuse.3 Highly publicized incidents of child abuse which resulted in the death of children have renewed and intensified public demands for a more aggressive form of state intervention aimed at identifying and protecting children at risk.4 It is therefore accepted and understood that states should have the authority to intervene for the protection of children who are vulnerable to neglect and abuse. This paper analyses the current state of law, policies and practices that speak to a general justification for state intervention in family life for the protection of children. In this regard, this research study is divided into two parts. The first part of this study identifies the state agents that are authorized to intervene in family life for the protection of children. The second part of this paper analyses the laws, practices and policies enabling state intervention via state agents. I. State Intervention via Public Authorities Local authorities who are defined as a region’s “governing body” are responsible for providing “domestic comfort” for residents within their respective regions.5 Domestic comforts are typically divided into three categories: educational, environmental and social services. Social workers fall under the ambit of local authorities and are responsible for providing social services.6 Thus for the purpose of this research study, local authorities who provide social services via social workers are the agents used by the state to intervene in family life. Social work as and social services as an instrument of state intervention is rationalized by the theory of neoliberalism which in turn supports concepts of social justice. Neoliberalism theory does not support the operation of a welfare state which essentially constructs state intervention around citizen dependency and public preferences. The welfare state by implication serves the collective needs of all and at the same time confers virtual autonomy on the state over its citizens. Neoliberalism takes the position that social services are part and parcel of the free and open market economy. It is generally presumed that the state bears some responsibility for meeting social needs while at the same time recognizing that individuals are free to take care of themselves and their families. In order to achieve social justice, social democracy commands that the state implement measures and policies for promoting and enforcing social justice.7 Pursuant to neoliberal theory and concepts of social democracy, the state constructs rules prescribing how the state and its various agents function to achieve social justice. In the interest of achieving social justice, states may retain for themselves some measure of coercive authority which permits the state to prohibit some behaviour on the part of its citizens. States in neoliberal contexts respond to the demands of social justice by observing society, social institutions and implement or modify public policies that are consistent with their observations.8 In this regard, social justice with respect to children in the UK was originally informed by the death of Maria Colwell which was caused by her stepfather while under the supervision of social services in 1973. Over the last 15 years, there have been a number of high profile inquiries about the efficacy of social services and thus the state in identifying and protecting children from child abuse and neglect. While most of the high profile inquiries involve the failure of the state via its social services agents to identify and protect children at risk, other high profile inquiries involved state agents via social services removing children from their homes in circumstances where the child was not at risk.9 Drawing on the theory of neoliberalism, the UK government’s observations of society has informed that social services confront a paradox of priorities in the delivery of social justice. On the one hand, based on the high profile cases into death and harm to children, social services are not being aggressive and efficient enough. On the other hand, based on high profile cases relative to the removal of children from safe homes indicate that social services are too aggressive in their determination to protect children at risk. It is this paradox that informs child protective services under the ambit of social services in the UK. State Intervention for the Protection of Children: Law and Policies State intervention for the protection of children is based on policies founded on Section 1 of the Children Act 1989. Section 1 of the 1989 describes what is popularly known as the paramountcy principle. By virtue of Section 1 courts are directed that when deciding any issue relative to a child’s “upbringing” or “the administration of a child’s property or the application of any income arising from it” the welfare of the child “shall be the court’s paramount consideration.”10 The paramountcy of the child’s welfare arguably conflicts with Article 8 of the European Convention on Human Rights (ECHR) 1950 and thus raises the question of whether or not state intervention under the welfare principle is consistent with the rights conferred on family life under Article 8.11 Article 8 (1) of ECHR provides that the state “everyone has the right to respect for his private and family life, his home and his correspondence”.12 Article 8(2) goes farther to state that: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.13 Article 8(2) therefore provides an important caveat which allows the UK to intervene in family life for ensuring that the child’s welfare is protected and promoted. Taking steps to remove a child from an abusive home for the protection of his/her health and for the protections of his/her rights is consistent with Article 8(2) of the ECHR. In fact, the government’s Green Paper Every Child Matters indicates that it is the state’s responsibility to intervene to protect a child from abuse and neglect. The Green Paper which was in response to the death of Victoria Climbie, noted that the child’s death, “exposes shameful failings in our ability to protect the most vulnerable children”.14 It therefore follows that the emphasis is on a policy that errs on the side of caution. Decidedly, the child’s welfare is more important than the protection of the rights of parents to have respect for their family life. Thus, the investigation of allegations of child abuse or neglect in circumstances where the child is safe, is justified on a proportionality basis. Justice Hedley’s assessment of the balance between the investigation of a false allegation of child abuse or neglect and preventing the death of a child is highlighted in A v East Sussex County Council and Another [2010] EWCA Civ 743. As Justice Hedley acknowledged, the social costs involved in protecting a child is justified on the basis that children are dependent and vulnerable. As Justice Hedley observed, the protection of children can only be achieved by incurring cost. The cost involved is the “innocent parent” who must endure an “emergency assessment of risks” and “public authorities” who are required to justify the “exercise of power. Nevertheless, these costs are necessary “if the most vulnerable members of society, dependent children, are to be properly protected by the state.”15 State intervention has been increasingly debated over the years and reached a pinnacle in 2008 following the investigation into the death of 17 month old Baby Peter.16 In Lord Laming’s Report The Protection of Children in England: A Progress Report, which followed the death of Baby Peter who had been under the supervision of local authorities, the obstacles to effective state intervention and the need for removing those obstacles were obviated. According to Lord Laming, social workers are hesitant with respect to penetrating family life and sharing information or concerns about children that may be at risk. Essentially, local authorities are overly conscious of contravening the privacy and confidentiality laws.17 Baby Peter’s case essentially raises questions about the extent to which the state can effectively intervene in family life in a neoliberal framework. For the most part, the legislative framework exists and has existed since the 1990s permitting local authorities to intervene in family life for the purpose of identifying and protecting children at risk.18 Moreover, the Children Act 2004 provides local authorities with the authority to cooperate with public and private agencies for sharing information and compiling a data base which identifies children at risk.19 Even so, the courts have taken a position that cautions local authorities to be mindful of the right to one’s family life within the meaning of Article 8 of the ECHR. Implicitly, there are restrictions on the extent to which states should intervene in family life. For example in Venema v The Netherlands, the European Court of Human Rights determined the implications for local authorities under Article 8 of the ECHR. In this case, the European Court of Human Rights considered the extent to which a supervision order that was obtained without notice and executed so that a child was removed from a family. The court ruled that while it will generally defer to the judgments and decisions of local authorities, the court will look at whether or not the measures taken were proportionate to the urgency of the situation and were “necessary in a democratic society”.20 It therefore follows that in a democratic society, the removal of a child from a family will be considered by reference to Article 8 of ECHR. In particular, the exceptions in Article 8(2) will only be justified if the removal of the child was sufficiently urgent to allow a breach of Article 8(1) of the ECHR. The limitations of state intervention were determined by the Court of the Appeal division of the Supreme Court of Judicature in Langley v Liverpool City Council. In this case the court ruled that the removal of a child from his or her family was a very serious matter and is manifested by Parliament’s provision that an emergency protection order can only be obtained via the courts.21 The appellate court also came to the conclusion that an Emergency Protection Order pursuant to Section 44 of the Children Act 1989 should only be made in circumstances where the urgency of the situation justified it. Essentially, the court was of the opinion that the local authorities could have obtained a prohibitive order in the case where the children subject to the emergency protection order were not in immediate danger. In this case, the court made a similar observation with respect to Section 46 of the Children Act 1989. By virtue of Section 46, local law enforcement officers have the authority to remove children from a home where he or she has “reasonable cause to believe that a child would otherwise be likely to suffer significant harm”.22 However, the court expressed the view that the authority to remove the child under Section 45 is only exercisable in emergency situations.23 The European Court of Human Rights considered the authority relative to emergency protection and ruled that state intervention on an emergency basis may contravene Article 8 of the ECHR.24 The European Court of Human Rights also expressed the view that the removal of an infant from the mother shortly after the birth of the child should only be done where there are justifiable reasons for doing so.25 In other words, the right to family life should only incur state intervention in situations where it can be justified in a democratic society. The practical difficulty for state intervention in family life has always been balancing the rights of the child with those of the family as a whole. Article 8 of the ECHR speaks broadly to the rights of the family to privacy and non-intervention by the state. The UN Convention on the Rights of the Child 1989 provides a similar paradox. The UK is a signatory to the 1989 Convention and is also bound by it. Article 3(1) of the 1989 Convention which contains the paramountcy principle is mirrored in Section 1 of the Children Act 1989. Article 3(2) of the 1989 Convention directs contracting states to take measures ensuring the children are protected and have the care that is “necessary for his or her well-being”.26 However, Article 3(2) goes on to provide that in providing the necessary care and protection, contracting states must take: Into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.27 It therefore follows, that despite the move toward the intensification of efforts to protect children and to safeguard against harm, state intervention is restrained so as to ensure that respect for family life is not unnecessarily eroded. The European Court of Human Rights reiterated the point in Haase v Germany. In this case the European Court of Human Rights acknowledged that certainly there will be times when the state will necessarily intervene in family life for the protection of a child. However, this would only be justified in cases where there is a crisis or a crisis is eminent. The authority will not be justified in cases where the care of the family is ongoing. The court also stressed that there is a dire need to take into account other options for resolving a family crisis and parents should as far as possible be involved in decisions for removing a child from their homes.28 The legal framework for the protection of children is therefore complex. It takes into account the need to identify and respond to risk so as to prevent a crisis. At the same time, state intervention is constrained so that protection measures are proportionate. In this regard, the removal of a child by the state from a home is regarded as an extreme measure which can only be exercised where the child is in eminent danger or there is a crisis in which the child has been exposed to harm. State intervention in family life is thus exercised with caution and as such local authorities are understandably directed to look at alternative measures of intervening. Alternative measures for intervening are contained in Section 47 of the Children Act 1989. In general alternative measures are intended to create some balance between the child’s protection and the family’s (parents and caregivers) “legitimate interests and responsibilities”.29 Even so, state intervention in alternative measures can be carried out without the involvement of the parent or caregiver. For example A Child Assessment Order pursuant to Section 47 of the Children Act 1989 permits local authorities to conduct assessments of children without the necessity of obtaining parental consent. Such an assessment will evaluate a child’s emotional and physical status. However, such an assessment can only be conducted when there are reasonable grounds to believe that the child is subjected to harm or is in danger of suffering serious harm.30 A Child Assessment Order obviously takes into account situations in which allegations or suspicions of child neglect or abuse are expressed. Rather than waiting for a crisis, the state has the authority to intervene at least in an investigative capacity to determine whether or not the child is at risk. The efficacy of Child Assessment Orders however is called into doubt when one considers that it has been in operation since the implementation of the Children Act 1989 and yet there have been high profile cases in which children have died or suffered significant harm at the hands of their own parents while under the supervision of local authorities. The Baby P case is such an example. The difficulty with the alternative measures may be attributable to the difficulty with assessing the psychological well-being of a very young child such as Baby P. Moreover, there are obvious difficulties with obtaining relevant information without parental consent as even a parent seeking to hide evidence of child abuse or neglect can provide valuable information about a child’s well-being. For instance, such a parent might be able to identify medical treatment that a young child received. Moreover, when parents do not consent to an assessment of a child believed by the state to be in danger, the withholding of consent alone should raise suspicions. In such a case, parental responsibility is neglected and the state should therefore be free to intervene to ensure that the child’s well-being is not compromised. Conclusion State intervention in family life is guided by the concept that the protection of children is regarded as just as important as the protection of the child. In this regard, the UK as a state has conferred qualified power upon local authorities to intervene in family life for the protection of children. It would appear, that only in cases where a crisis is obvious, the state will be able to intervene on an emergency basis. In other cases where a crisis is not eminent, respect for family life prohibits or at the very least constrains the state’s authority to intervene in family life. In the final analysis, the protection accorded family life ensures that the state must be virtually certain that the protection of the child is proved by evidence. Even at the investigative stage, the state must be satisfied that there is evidence justifying an investigation and as such, the disruption of family life. While this has proven to be problematic, the problem may not be related to legal safeguards against state intervention. It may be a mere matter of judgment in analysing and following up on suspicions of child abuse and neglect. Bibliography Textbooks Cleaver, Karen. Emergency Care of Children and Young People. (Oxford, UK: Blackwell Publishing, Ltd., 2007). Craig, Gary. Social Justice and Public Policy: Seeking Fairness in Diverse Societies. (Bristol, UK: The Policy Press, 2008). Fortin, Jane. Children’s Rights and the Developing Law. (Cambridge, UK: Cambridge University Press, 2005). Gilbert, Neil; Parton, Nigel and Skiveness, Marit. Child Protection Systems: International Trends and Orientations. (Oxford, UK: Oxford University Press, 2011). Parton, Nigel. Child Protection and Family Support: Tensions, Contradictions, and Possibilities. (London, UK: Routledge, 1997). Pedersen, S. Family, Dependence, and the Origins of the Welfare State. (Cambridge, UK: Cambridge University Press, 1993). Articles/Journals Keenan, Caroline. ‘A Plea Against Tort Liability for child Protection Agencies in England and Wales,’(2003) 42 Washburn Law Journal, 235-256. Olsen, Frances, E. ‘The Myth of State Intervention in the Family.’ Cited in Susan Moller Okin and Jane Mansbridge (Eds.). Feminism, Vol. 1. (Hants, England: Edward Elgar Publishing Limited, 1994). Parton, Nigel. ‘Child Protection and Safeguarding in England: Changing and Competing Conceptions of Risk and Their Implications for Social Work.’ (2011) 41(5) British Journal of Social Work, 854-875. Cases A v East Sussex County Council and Another [2010] EWCA Civ 743. Haase v Germany [2004] 2 FLR 39. Langley v Liverpool City Council [2005] EWCA civ 1173. P., C. and S. v UK [2002] 2 FLR 631. Venema v The Netherlands [2003] 1 FLR 552. Statutes Children Act 1989. Children Act 2004. European Convention on Human Rights, 1950. UN Convention on the Rights of the Child 1989. Official Papers HM Treasury, ‘Every Child Matters.’ (8 September, 2003) CM 5860 TSO. Lord Laming. The Protection of Children in England: A Progress Report. (London: The Stationery Office, March 2009). Read More