Rights removed from govt guidance
The most vital part of what was removed from the government’s Working Together safeguarding guidance were references to Article 8 of the European Convention on Human Rights/Human Rights Act 1998. This protects the right to privacy and family life, including from intrusion from the State. Guidance no longer directs professionals working with children to comply with human rights which has allowed an ongoing chipping away at protection.
When State should/shouldn’t intervene
Article 8 is not absolute. There are times we might want the State to intervene in our lives, and there are times when it might be necessary for the State to intervene, even if we don’t agree.
“Article 8 itself makes clear that any interference with the right must be based on necessity. Applied here, social works interference in private and family life must either be consensual or it must be necessary.”
Allan Norman
UK Human Rights blog: Human rights have disappeared from Working Together (2013)
Consent to State involvement
Along with human rights the government removed the requirement for caregivers or children to consent to intervention AND removed all information about the threshold for coercive State intervention.
2010
Working Together to Safeguard Children 2010 guidance specified consent of children and caregivers was relevant throughout, including – if possible – when intervention is necessary
Active consent the basis of most State provision – including for ‘child in need’
“Sometimes children will seek out and ask for help and advice
themselves. However, in the great majority of cases, it will be the decision of parents when to ask for help and advice on their children’s care and upbringing.”
“If it is agreed that the child may be a child in need under the Children Act 1989 (see paragraph 1.25), then a referral to children’s social care should be discussed with the child and parents. If they consent, then the child should be referred to local authority children’s social care and the processes set out in this chapter followed.”
Even when intervention is necessary it should involve consent as far as possible
“Such intervention should – provided this is consistent with the safety and welfare of the child – support families in making their own plans for the welfare and protection of their children.”
2013
Working Together to Safeguard Children 2013 guidance removed all instructions as to consent, professionals instructed that consent no longer essential for State intervention, even at ‘early help’ level of need
No consent for ‘child in need’ referral.
“If at any time it is considered that the child may be a child in need as defined in the Children Act 1989…..a referral should be made immediately to local authority children’s social care.”
Child can be referred – without consent – during ‘early help’
“If parents and/or the child do not consent to an early help assessment, then the lead professional should make a judgement as to whether, without help, the needs of the child will escalate. If so, a referral into local authority children’s social care may be necessary.”
Threshold for compulsory intervention
2010
Guidance stated that compulsory State intervention should only be carried out if ‘necessary’ as per Article 8 European Convention on human Rights and the Human Rights Act 1989.
“Only in exceptional cases should there be compulsory intervention in family life, for example, where this is necessary to safeguard a child from significant harm.”
Significant harm is what makes it necessary
“The Children Act 1989 introduced the concept of significant harm as the threshold that justifies compulsory intervention in family life, in the best interests of children. It gives local authorities a duty under section 47 to make enquiries when they have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or likely to suffer, significant harm to enable them to decide whether they should take action to safeguard or promote the child’s welfare.”
2013
All references to the European Convention on Human Rights, the Human Rights Act 1989 and Article 8 removed.
Sections about when State “compulsory intervention” justified removed.
“It is wholly uncontroversial to me that protecting a child from significant harm is an obligation on the State, and is necessary. What is highly controversial is whether it is necessary or proportionate to extend compulsion and to ignore the issue of consent for those families who do not reach that threshold. And if it is not necessary or proportionate then it is not lawful.”
Allan Norman
Local Government Lawyer: Losing the rudder (2013)