The Human Rights Act 1998 brings the European Convention on Human Rights (ECHR) into UK law. This means that children can bring cases in relation to the ECHR in UK courts, though ultimately they can still seek protection through the European Court of Human Rights. When the UK courts are considering a claim by a child under the Human Rights Act, they should refer to the UN Convention on the Rights of the Child.
All public bodies, such as local authorities, CAFCASS, schools and hospitals, are also required to act in accordance with the rights in the Human Rights Act. It also means that Parliament should always ensure that new laws are compatible with the rights of the ECHR and the courts should also interpret laws in ways that are consistent with these rights.
The rights contained in the Human Rights Act reflect the European Convention on Human Rights and are therefore sometimes referred to as ‘Convention rights.’
As the CRC has not yet been incorporated into UK law, the HRA also plays a crucial role in the protection and promotion of the rights of children; enabling them to claim and enforce some of the rights contained in the CRC. These include children’s right to life, to be free of slavery and forced labour and not to be treated in inhuman or degrading ways, their right to freedom of expression, to private and family life and their right to education. Case law has also made clear that when a case under the HRA involves a child, the rights in the HRA must be interpreted through the lens of the CRC.[1]
Since the HRA came into force it has provided important protections for some of our most vulnerable children such as children in care, child witnesses, children in custody, and refugee children.
Examples that illustrate the importance of the HRA for children
- Ensuring that 17-year-olds were given the right to an appropriate adult at the police station, and to have their parents notified of their whereabouts where previously they were treated the same as adults. [1] This previous lack of protection for 17 year-olds in police custody led to the tragic case of a child taking her own life.
- Confirming equal financial support for family and non-family members who foster children, when the High Court ruled that payments by a local authority should not discriminate against foster families on the grounds of family status.[2]
- Ensured that children in prison were entitled to the same protection and care as all other children. This landmark case found that the Children Act 1989 applies to children in custody and led to a raft of child protection policies and procedures being introduced to prisons.[3]
- Curtailed police powers to remove children under 16 years old from designated areas, when a court ruled that the power in the Anti-Social Behaviour Act 2003 to disperse children under 16 from certain areas after 9pm should only be used in cases where children are involved in, or at risk of, anti-social behaviour.[4]
- Preventing a woman living in poverty, who had to leave her partner after discovering he had been abusing their children, from being separated from her children. The woman and her children were placed in temporary bed and breakfast accommodation and were housed in three different places in a 6-month period. Social workers claimed she was not a ‘fit’ parent as she was unable to provide stability for her children and was having problems getting them to school. With assistance from a local group, the woman invoked her children’s right to respect for private and family life and their right to education under the HRA, and challenged their decision. The local authority then decided not to remove the children, but to keep them on the ‘children at risk’ register, and within three weeks the family was able to be placed in stable accommodation.[5]
- Preventing a mother and her new-born baby from being made homeless. A single mother who had been refused asylum was threatened with eviction by the National Asylum Support Service (NASS), while having her second child. NASS issued a ‘termination of support’ notice to her while she was giving birth in hospital. The voluntary organisation supporting the woman suggested to NASS that evicting the family in these circumstances could amount to inhuman and degrading treatment under Art. 3 of the HRA and suggested the NASS reconsider the decision. The notice was amended and the woman and her children were able to receive support and alternative accommodation under the Immigration and Asylum Act 1999.[6]
Duty on public bodies
Importantly for children, who depend heavily on public services, section 6 of the HRA also places a duty on public bodies to comply with the human rights obligations contained within it, including the police and the youth secure estate, care institutions, courts, publicly funded schools, and local authorities. This also requires all public officials to think about human rights in their day-to-day decisions and policy making so that all laws, policies, and guidance are compatible with the HRA. Section 6, when fully implemented, helps to ensure that public authorities comply with the European Convention on Human Rights (ECHR) and that there are positive changes to children’s rights protection without the need to go to court.
[1] R(HC) v The Secretary of State for the Home Department, and the Commissioner of the Police of the Metropolis [2013] EWHC 982 (Admin)
[2] R (L and others) v Manchester City Council, High Court, 26 September 2001
[3] R (on the application of Howard League) v Secretary of State for the Home Department and the Department of Health 2002
[4] R (W) v Commissioner of Police for the Metropolis and others, 2006, EWCA Civ 458
[5] The Human Rights Act Changing Lives, 2nd edition, British Institute of Human Rights, https://www.bihr.org.uk/Handlers/Download.ashx?IDMF=3c184cd7-847f-41b0-b1d1-aac57d1eacc4
[6] British Institute of Human Rights (2008) The Human Rights Act Changing Lives, 2nd edition
[7] House of Commons House of Lords Joint Committee on Human Rights (2021) The Government’s Independent Review of the Human Rights Act. Third Report of Session 2021–22 HC 89 HL Paper 31
[1] R (P & Q) v The Secretary of State for the Home Department, 2001, EWCA Civ 1151