Dealing with human rights

In re V (a child) (care proceedings: human rights claims) CA TLR 17 February

In Re L (care proceedings: human rights claims) [2003] 2 FLR 160 Mr Justice Munby set out appropriate procedures designed to prevent the pursuit of applications under ss7 and 8 of the Human Rights Act 1998 derailing or unnecessarily delaying the trial of care cases. Those proceedings were endorsed by the President of the Family Division before the judgment was handed down. The Court in the present case also gave those procedures its whole-hearted endorsement; it was a matter of grave concern that they had not been followed. These were care proceedings in which the father applied for a declaration that the local authority had breached the rights of the child and the parents under the European Convention on Human Rights by failing to fund therapeutic treatment for the parents which would have enabled the family to be reunified. The judge had transferred the application to the High Court despite the guidance in Re L that any allegations that the local authority had acted in a way which was incompatible with a Convention right could and should be dealt with in the care proceedings by the court hearing those proceedings under s7(l)(b) of the Human Rights Act 1998. It was neither necessary nor desirable to transfer proceedings to a superior level of court merely because a breach of Convention rights was alleged. Applications for proceedings to be transferred to the High Court for discrete issues under the 1998 Act or the Convention to be determined by a High Court judge were to be strongly discouraged and could amount to an abuse of process. The father further alleged that the inability of the High Court or the county court to compel a local authority to find therapeutic treatment for the parents of a child who was the subject of care proceedings rendered the Children Act 1989 incompatible with the Human Rights Act 1998. This complaint was also rejected. If the court directed a medical or psychiatric examination or other assessment of a child under s38(6) of the Children Act 1989 by the local authority, the local authority was bound to undertake it and pay for it. However, s38(6) did not empower either the High Court or the county court, whether within proceedings under Part IV or under the Children Act 1998 or otherwise, to compel a local authority to fund therapeutic treatment for the parents of the child concerned and the absence of that power did not render the 1989 Act non-1998 Act compliant.