1. Dr Pauline Prior

2. European Convention on Human Rights (ECHR) agreed in 1953  Protection from arbitrary or unnecessary interference by government in the lives of individuals  Special protection for vulnerable people – including children and those with mental illness  Note: some assumptions out of date 2

3.  UK: All laws must comply with the European convention on human rights  UK: New mental health laws - compliant  New legislation due in NI (see Bamford Review)  Mental Health Act 2007 (E&W)  The Mental Health (Care and Treatment) (Scotland) Act 2003  Republic of Ireland:  Mental Health Act 2001 3

4.  Everyone has the same human rights – importance of international standards  Any limitation or removal of rights must be justified by government  Some groups of people have been deprived of rights in the past – people ‘detained’ in hospital or prison  Some countries do not have specific human rights legislation. (cases may now be heard in UK courts - since 2002) 4

5.  To hear cases that have gone through national courts but the plaintiff is still dissatisfied Theoretical framework outlined in:  international human rights law, (Henry Steiner and Philip Alston, 2000) 5

6.  Main debates in cases taken to the ECtHR: Articles 5 – the right to liberty; and Article 6 – the right to a fair trial.  Also debated: Article 3 – the right not to be tortured; Article 8 – the right to family life 6

7. Main debates taken to ECtHR centred on  The right to life (including care and protection from harm or neglect and the right to education)  The right to liberty (especially in relation to children who have offended)  The right to an identity 7

8. 8.1 : Everyone has the right to respect for his private and family life, his home and his correspondence. 8.2: There shall be no interference by a public authority with the exercise of this right except such as it 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. 8

9.  6.1‘In the determination of this civil rights and obligations …. everyone is entitled to a … fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’ 9

10.  Electronic search of cases using key words ‘mental illness’, ‘parent’, and ‘child’. Out of >100 cases, selected those with most potential of impact on child protection services.  9 families in which children were taken into long-term care.  From UK, Finland, Sweden, Italy and Greece  In 8 families, one or both parent had a diagnosed mental illness. In the final case, no formal diagnosis for parents 10

11. Issues raised by these cases  How to ensure that the right to family life is protected for adults with mental illnesses  How to ensure access and opportunities for parents to bond with children in care  How to avoid damaging children while giving time for a proper assessment of the care situation 11

12.  Some people reject a psychiatric label as it makes them more vulnerable to state interference  State organisations often work on the basis of a static model of mental health and illness 12

13.  All families used Article 8 as basis for objections to decision to remove children  This is ‘interference by a public authority’ in the lives of the adults involved in caring  Circumstances that justify this ‘interference’ were debated in each case.  These are summarised in the case of E.P. v Italy (1999) in the dissenting opinion of Judge Bonello 13

14.  Circumstances in which the termination or drastic regulation of a parent’s relationship with his or her children have been considered justified include situations of conflict between the parents… also… where the child had been injured or neglected, where the parent was not in a position to take proper care of the child, where the child had not been treated in the correct manner, and where the parent had lost interest in the child…..  Continued on next slide 14

15.  If one of the parents suffers from grave psychiatric problems, or if the father had been sentenced to a very long term of imprisonment for violent crimes… or if the child lives in filthy accommodation and has an ‘education deficit’, the State’s interference with parental rights –including, in some cases, a total rupture in the relationship with the child – is justified. 15

16.  Both mothers rejected the claim by welfare authorities that their mental state might prevent them from caring for their children  For both mothers, having a child suddenly ‘snatched’ into care was extremely traumatic and damaging to their mental health  The mental health of both mothers improved over time  By the time the mothers were well enough to resume care, the children had bonded with a new family  Verdict: Right to family life was not protected. Violation of Article 8 16

17.  Discussion  It may take 3-4 years for an adult to recover mental health - for a child this is a long time  The new family replaces the biological family as the ‘best’ place for the child  Unless efforts are made by welfare authorities to maintain a link/access rights with a view to re-unification, bonding between the child and its biological parents will be almost impossible ◦ Bonding is the issue in the next case 17

18. Ensuring relationship/bonding continues: ‘ In the present case, the applicant had been deprived of her parental rights and access in the context of a permanent placement of her daughter in a foster home with a view to adoption by the foster parents. These measures were particularly far-reaching in that they totally deprived the applicant of her family life with the child and were inconsistent with the aim of re-uniting them.’  Violation of Article 8  (in keeping with H. v UK, 1987) 18

19.  Case H v. UK 1987 In this case a child was taken into public care and was later adopted without the mother’s consent, after a lengthy period of no access Issues:  Proceedings took too long (from time mother asked to take back care of child to decision)  No access to child  No participation in decision making  Violation of Article 8 and Article 6 19

20. Case Z and others v. UK, 2001 : case taken by the Official Solicitor E & W.  Delay in taking the children from the mother led to severe psychological damage to the children  ‘the severity of the damage suffered by the children is inextricably linked to the long period of time over which the abuse persisted’ (par. 121)  Violation of Article 3: failed to protect the children from ‘inhuman and degrading treatment’ 20

21.  Parents of children taken into care have the right to be fully briefed and fully represented in all official discussions on the future care of the children  While children have rights to care within a family setting, these do not cancel out the rights of parents to participate in parenting  If a bond is broken between parents and children it is difficult to re-establish it  Everyone has the right to a fair and timely hearing of objections to state intervention 21

22.  Deprivation or diminution of liberty must be justified, monitored, reviewed etc  Patients/clients must be informed fully of any decisions that have an impact on their lives (and on their children)  Patients/clients must be advised and helped to participate in any decisions about their care (or their lives)  Patients/clients have a right to privacy and respect, but also to information and support 22