Wednesday, 10 December 2008

Baby P- Time for complete judicial supervision?

Five years ago I was assisting a senior member of the judiciary of the Court of Appeal during a seminal case of infant/child abuse before our courts, termed Re S Re W (see weblink). That case concerned the possibility of an implied power to courts to force children into care where there was a risk of abuse. This power would come from the right to life in the European Convention of Human Rights. The powers for judges to interpret laws according to the European Convention are derived from s.3 of the Human Rights Act. Thus the Children's Act and other related legislation could be interpretated to incorporate a principle of protecting the right of life for the child. The House of Lords rejected this approach on the grounds of judicial law-making, and taking the powers under the Human Rights Act to interpret statutes too far. However, the gap in judicial supervision of chidren and infants who suffer abuse was left unremedied by the Parliamentary process.

Prior to becoming a High Court judge, the judge had chaired a public inquiry on child abuse in 1989. The inquiry concerned the death of Tyra Henry who had died whilst under the care of Lambeth Council in 1988. Tyra had suffered physical asssault at the hands of her father. There was a distinct and continuous pattern of abuse that care-workers had become aware of. Everytime her parents met she would be beaten by her father. Though the social services and relevant care workers were aware of the relationship between her mother's meetings with her father and the violence, nothing was done. Eventually, she was killed by a physical assault by her father. There was no legal avenue available then, as there is not one now, for the doctors and care workers to refer such cases to a court for consideration. This would allow the court to prevent, insuch cases, the child from being present when the father would see the mother, by placing the child into emergency care. If a Court could have been seised by reference of the social workers or doctors and the judge had the power to grant an exclusionary order backed up by an imprisonable offence to contain the father, then such an abuse would have been prevented. Currently judges in the family courts have no power to order parents from seeing their own children or hear a reference by doctors or social workers as to the risk to a child. If any reform to prevent the Baby P scenario occuring again is made, such powers ought to be given to judges in those reforms. The reforms must include powers of reference to doctors and social workers who see the child.

There are several cases of previous child abuse that come to mind where such a proposal would be effective. Victoria Climbie's case resulted in several reforms brought in to the existing information network to do with recognising child abuse, but no real effective provisions as to how that information would be used. The public outrage at her death led to a public inquiry which produced major changes in child protection policies in the United Kingdom, including the formation of the Every Child Matters programme; the introduction of the Children Act 2004; the creation of the ContactPoint project, a planned government database that will hold information on all children in England and Wales; and the creation of the Office of the Children's Commissioner chaired by the Children's Commissioner. These were reforms, but they were reforms relating to information collection on the status of the welfare of children but none of these bodies has the power to step in and protect the child abused by an adult to the point where its very life is at risk. The EveryChildMatters programme is concerned with the general upbringing of the child, such as sports and other leisure activities and does not specifically cater for child abuse. Suprisingly, if not shockingly the Children's Act 2004 did not remedy the problem of compelling authorities to force children at high risk, those, for example, with visible marks that can be medically attributed to abuse, into care to protect their lives and for their general psychological well-being. This shocking omission led to the dithering concerning Baby P. Afterall social services will go around in circles if they cannot activiely get the law on their side to compel action. The real fault lies with the Labour Government for its ineffective and superficial response via the post Climbie measures.

The proposal of change here would allow doctors to be able to report such faults to an independent abuse or child officer to the family court. Such an officer needs to be set-up by legislation that in turn can be used by the judge to hold an investigation of his own motion. A radical step would be a list of short-term care homes or a list of families that are willing to take in the child until the court deems the risk of abuse is less, or the child is not a 'high risk' case. These will be social services approved, and then checked by the court for appropriateness prior to granting the order.

The UK has one of the most atrocious records for child abuse according to the United Nations Convention on the Rights of a Child, in the world. Those that oppose such an interventionist approach often couch it in terms of an unnecessary intrusion into family life. But what family life? Can a child or infant in such a position of continously suffering violence really be said to have a family life? Or is the closer reality that the level of neglect is such that the Government has failed completely to protect the most vulnerable? We need to grow up on this issue and realise that such a proposal is not as drastic as it seems. It does not mean that parents who smack their children will loose them for a short-period. The power compelled by the court would be in extreme circumstances where there is a real and significant risk to the life of the child, and nothing short will suffice. Courts make decisions on life and death cases at present, and thus have the competence to do so. A recent example was a granting of an order to let hospitals operate on siamese twins, where one baby would no doubt lose its life but barring the intervention both would. This would be within our history of protecting children, we were one of the first countries in the world that outlawed child labour. Where life and suffering of the weak and innocent are concerned, and where those weak and innocent are children such a proposal should be pursued. It is not extreme but one that puts children who suffer from such appalling cowardly conduct out of harm. No civilised state should stand idly by and let the status-quo continue.

APG Pandya

(Copyright Birkenhead Society)