Child Exploitation: Legal responses to new challenges in child protection

Posted On: 06 September 2011

Author: Janys M Scott QC

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Janys Scott QC explained the impact of the European Convention on Human Rights on the work of professionals responsible for the protection of children from abuse, at Dundee University's Child Exploitation Conference on 1 September 2011.  Below is the paper she delivered.

 

CHILD EXPLOITATION: LEGAL RESPONSES TO NEW CHALLENGES IN CHILD PROTECTION 

GETTING IT RIGHT FOR CHILDREN

  

[1]  “Ain’t I a person? Ain’t this my life? Ain’t I got rights? ... ”

This was the cry of a real child, in a society where recognition of the standing of children before the law is rather more limited than in Scotland.  The child, Tony, was in foster care and wanted to know when someone was going to listen and to treat him as a person, with some standing in his own right before the law.  Before we indulge in any smugness about recognition of children’s rights in Scotland we had better look at our own record, and what may still require to be learned.  The European Convention on Human Rights has the, perhaps startling, effect of making adult professionals accountable to children. 

European Convention on Human Rights

[2]  When dealing with children who may be exploited we tread between two key articles of the Convention:

Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 8

1. Everyone has the right to respect for his private and family life, . . .

2. There shall be no interference by a public authority with the exercise of this right except such as is 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.

[3]  On the one hand children must be protected from exploitation.  Article 3 is unqualified.  It is stated in stark terms.  There is an obligation on the state to step in and protect children from inhuman or degrading treatment.  On the other hand, the state must respect the private and family lives of the children it protects, and the private and family lives of their parents. However article 8 rights are qualified.  In a case that falls within the scope of article 8 the court asks whether interference is in accordance with the law, whether it has a legitimate aim and whether there are relevant and sufficient reasons for the interference which are proportionate to the restrictions imposed on the right.  The European Court of Human Rights accords a level of respect to the scope for individual states to reach their own decisions about what is “necessary in a democratic society”.  This is generally referred to as the “margin of appreciation.”  The application of article 8 is often a balancing exercise between different claims and interests. This can be seen from the case law. 

 

Protection of children from inhuman or degrading treatment

[4]  The overriding requirement to protect children from inhuman or abusive treatment is very clear.  The Court has had little time for authorities that fail in their article 3 duties towards children.  This can be seen from:

E v United Kingdom (2003) 36 EHRR 31

This case dates from Scottish social work practice in the late 1970s, but illustrates the legal principles.  Some of the lessons are worryingly contemporary.  The case arose from a long saga involving a family of 8 children who lived with their mother and a man who was the father of the youngest two.  Mother was in poor health.  One of the girls expressed dislike of her stepfather, but social workers thought that the home had “a warm friendly atmosphere”.  Another of the girls then accused her stepfather of an attempt to rape her.  He was prosecuted and certain guilty pleas were accepted in relation to indecent behaviour against two of the girls.  He was placed on probation, purported to be living away from the family but was oddly there, albeit “just leaving” on occasions when social work turned up at the house.  Home circumstances deteriorated and the mother died in 1981.  By the late 80s four of the children were reporting serious abuse.  The stepfather was again prosecuted.  Four children sought damages from the local authority, but on the basis of the law at the time, their claims were dismissed.  They were awarded criminal injuries compensation, but took their case to the European Court of Human Rights.

(Continued.......to read the full paper please click on the link at the top of the page)