Draconian
Social Work Action Violates Parents and Childs rights
by Charles Pragnell,
Expert Defence Witness - Child Protection
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In a landmark judgment, the European Court of
Human Rights has found that the rights of a British couple were violated under
Articles 6 and 8 of the European Court of Human Rights following the removal of
their infant daughter shortly after birth and the immediate placement of the
infant for adoption.
The actions of the social worker were
described by the Court as "draconian" and the court proceedings were
described by the Judge at the time as giving the appearance of
"rail-roading" the parents.
The brief circumstances of the case were that
the mother, P, had been convicted of a misdemeanour in California U.S.A. in
1995 following an allegation during divorce and custody proceedings that she
had caused harm to her child by inducing an illness (diarrhoea) in a child of a
previous marriage (so-called Munchausen Syndrome By Proxy). The child was
placed with the father. She was given a three month suspended custodial
sentence and three years probation with a condition that she completed a
"psychological and psychiatric programme".
The mother then married a British subject, C,
and they began living together in
In its assessment of the case, the
"The taking of a new-born baby into
public care at the moment of its birth is an extremely harsh measure. There
must be extraordinarily compelling reasons before a baby can be physically
removed from its mother, against her will, immediately after birth as a consequence
of a procedure in which neither she nor her partner had been involved…... the
taking into care of a child should normally be regarded as a temporary measure
to be discontinued as soon as circumstances permit, and any measures of
implementation of temporary care should be consistent with the ultimate aim of
reuniting the natural parent and child."
The European Court further stated that it did
not find that, "…the possibility of some months' delay in reaching a final
conclusion in those proceedings was so prejudicial to her (the baby S's)
interests, as to justify what the trial judge himself regarded as a procedure
which gave the appearance of rail-roading her parents."
It was the
The European Court concluded that, "…the
draconian step of removing S from her mother shortly after birth was not
supported by relevant and sufficient reasons and that it cannot be regarded as
having been necessary in a democratic society for the purpose of safeguarding
S…. the lack of legal representation of P (the mother) during the Care
Proceedings and both P and C (both parents) during the Freeing for Adoption
Proceedings, together with the lack of any real lapse of time between the two
procedures, has been found to have deprived them of a fair and effective
hearing in court. Having regard to the seriousness of what was at stake, the
Court (European) finds that it also prevented them from being involved in the
decision-making process, seen as a whole, to a degree sufficient to provide
them with the requisite protection of their interests."
The lessons to be learned from this case by
social workers in the
1. There must be a full and comprehensive
assessment of the family's circumstances (carried out if possible before the
removal of a child) before a decision is taken to bring court proceedings and
that parents should be fully consulted and informed of the decisions of the local
authority.
2. Infants should only be removed from mothers
at birth in exceptional circumstances e.g. the baby is at immediate risk of
harm.
3. Parents should be afforded full legal
representation where the outcome of court proceedings may be the removal of
their child from their care.
4. The primary objective of social work with
children should be the reunification of children with their families and only
when reasoned decisions can be taken that this objective is not achievable and
attainable, should adoption be considered, in consultation of course with the
parents.
These have always been some of the fundamental principles of social work with
children and families embodied in Children Acts in the
Case of P., C., and S., v The
United Kingdom - July 2002. (Application No. 56547/00)
Grand Chamber verdict
Case of K and T v Finland