Children’s Human Right Claims: When Should You Consider a Human Rights Claim for a Child?
One of the roles of the child’s solicitor (together with the guardian) is to holistically scrutinise any case involving children in which they are appointed. Children are of course reliant on the adults around them to ensure they are safe. To assist with this, there are protections under domestic and international law.
What is the role of a local authority in safeguarding children?
Local authorities have a duty to safeguard children from harm in their area and provide meaningful support when they are in need. We would hope that the system gets it right most of the time, but those representing children can help ensure there are no breaches of children’s human rights and assist with lessons being learned (when that is in the child’s best interest). If things have not gone as expected, those responsible for representing the child/children must consider whether a human rights claim for compensation should be made on their behalf.
What happens when local authorities fail a child?
When a local authority fails a child, the child’s fundamental rights are violated. While it is never deliberate, local authorities fail to act appropriately at times. First and foremost, children need to be supported to stay with their family (if at all possible), but sadly, they sometimes do need to be removed, and may be removed to an unsuitable environment. Failures either way perpetuate emotional harm, and breaches their rights and freedoms.
Cafcass updates domestic abuse practice policy
Cafcass, or the Children and Family Court Advisory and Support Service, is a public body established by Section 11 of the Criminal Justice and Court Services Act 2000 to represent the interests of children and young people in family court.
Written by Molly Hood.
What is the Legal Framework that governs Children’s Human Rights Claims?
Legal frameworks are set out in United Nations Convention on the Rights of the Child (UNCRC), European Convention on Human Rights (ECHR), and in England and Wales, the Human Rights Act 1998.
Key protection incudes:
- Article 3 ECHR which is freedom from torture and inhuman or degrading treatment. This is most often an issue in cases where the local authority have not stepped in soon enough, and leave a child in a harmful situation (e.g. at home for too long when support has failed). Recent case law suggests claims can succeed, including being considered under Article 8 ECHR, which is the right to respect for private and family life. While claims will be very fact specific and a high hurdle, if a child has suffered “prolonged neglect” it is certainly worth considering on their behalf.
- Under Article 5 ECHR, the child has a right to not be deprived of liberty except in accordance with lawful procedures. This often happens when a placement has restrictions not agreed by the court. Any deprivation of liberty must be necessary, proportionate, and subject to legal safeguards.
It may be that local authorities are struggling with limited resources or lack of training and support, but that does not mean significant breaches need to be accepted. Often, the issues stem from poor planning or case presentation, and rushed applications without thought or proper strategies in place (ironically in the context of delay).
While declarations and damages cannot rectify the suffering a child has experienced, it is a tool which can be used to provide compensatory relief for a child and to show the breaching body that they need to manage their processes better.
Bringing a Human Rights Claim After Children’s Proceedings
Usually at the final hearing stage of children’s proceedings, if there has been a potential breach, the family court can give permission to disclose the papers to the Official Solicitor for a human rights claim when the young person lacks a litigation friend (someone to provide instructions on their behalf.) The Official Solicitor only acts as litigation friend of last resort.
As a child under 18, the civil procedure rules state the child must have a litigation friend. There is a referral mechanism on the Official Solicitor Website, where a form should be completed and sent with the papers.
At the end of the children proceedings, the child’s guardian and solicitor should consider if there has been an unacceptable breach and if so seek permission for disclosure. The family court is not there to consider if there has been a breach, but rather if there is potentially a claim which should be considered. The court can then direct “there is permission to disclose the case papers to the Official Solicitor or any solicitor, counsel and/or expert the Official Solicitor seeks to instruct for the purpose of bringing a claim.”
If the Official Solicitor agrees to act, they will accept the matter and instruct an administrative solicitor to work with the child, to hopefully make a claim on their behalf.
Children’s Human Rights Claims Frequently Asked Questions
A child can bring a human rights claim when their rights under the Human Rights Act 1998 or the European Convention on Human Rights have been breached, for example, if they have suffered harm due to a failure by a local authority or care provider to safeguard them. Claims are usually brought by a litigation friend on the child’s behalf.
Examples include failure to remove a child from an unsafe home environment, unlawful deprivation of liberty in a placement, or prolonged neglect due to poor planning by a local authority. These may breach:
Article 3 – Prohibition of torture and inhuman or degrading treatment
Article 5 – Right to liberty and security
Article 8 – Right to respect for private and family life
A solicitor, often working with a guardian or the Official Solicitor, can help assess whether a claim is appropriate. Where a child lacks capacity to instruct a solicitor directly, a litigation friend must act on their behalf under the Civil Procedure Rules.
Yes. If a child’s human rights have been breached, they may be entitled to compensation (also known as damages). This is intended to acknowledge the harm suffered and to hold the public authority accountable. While financial compensation cannot undo the harm, it can provide redress and may prompt systemic improvements.
The Official Solicitor is an independent public official who can act as a litigation friend of last resort for individuals who lack capacity to instruct a solicitor, including children. In children’s cases, if a potential human rights claim arises and no suitable litigation friend is available, the child’s solicitor or guardian can apply to the Official Solicitor.
Referrals usually happen at the end of care proceedings. A referral form must be completed and submitted along with relevant case papers. This form is available on the Official Solicitor’s website, and the family court must give permission for the disclosure of case documents.
Get in touch with our specialist Children Law Solicitors London and Brighton
If you require guidance or assistance with a children law matter please do not hesitate to contact Goodman Ray Solicitors. Call us on 020 7608 1227 or email us at mail@goodmanray.com.
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If you have any questions or wish to get legal advice on any of the topics raised above please feel free to contact us.
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