In the matter of J (Children)  UKSC 9
The United Kingdom Supreme Court has considered the appropriate balance to be struck between the right of the child to live in a safe and nurturing environment and the right to family life in circumstances where those two rights are said to be in conflict. Although these rights are most often complementary, there are unfortunate cases where a child is at risk of being harmed by a family member and protecting the child (and upholding their human rights) can necessitate an intrusion by the State into a family’s private life. In this judgment, the Court made a weighted legal analysis of when and how such an intrusion can be justified.
The case looked at a particular family situation where local authorities were considering removing children from their home because of concern that they may be harmed by one of their caregivers. The mother/step-mother of the children concerned had a child with a former partner and it had been previously found that her child had died because of mistreatment, though it could not be established which parent had perpetrated the harm. As a result the parents lost custody of their second child. After the couple separated, the woman, pregnant from her former partner, started a relationship with a single father of two. The case before the Court concerned the protection of this man’s two children and the woman’s child, who were under the care of the new couple.
The question the Court was essentially required to resolve was: when there is a pool of two or more suspected perpetrators of past harm to a child and one of these potential perpetrators is now a primary caregiver to another child, does the strong possibility that this caregiver has previously perpetrated harm against a child establish a strong likelihood that this person will harm the another child in the future?
The court was required to decide whether, based on these facts and the likelihood of past harm, protective measures should be taken to safeguard the children now in the couple’s care notwithstanding that such protective measures would constitute an encroachment by the State upon the right to family.
The Court found that the right to family life, and the protection against State intrusion into it, should be preserved unless there is a clearly established and objective basis for intervention. In the words of Lady Hale, reiterated by her colleagues: “My view remains that the need for the local authority to prove the facts which give rise to a real possibility of significant harm in the future is a bulwark against too ready an interference with family life on the part of the state.”
Consequently, the Court unanimously decided that a strong possibility of past harm did not in and of itself establish a strong likelihood of perpetrating harm in the future.
Courts are often called upon to resolve tensions between rights that may ordinarily be complementary but be in conflict in the context of a particular case. This Supreme Court decision confirms that any limitation to a basic right must be considered carefully and can only be justified when it is based on clear evidence as to necessity and is in response to a pressing need or in pursuit of some other legitimate aim. Further, any interference must be proportionate to the aim sought to be achieved.
When the State is considering removing a child from his or her home, the two rights being balanced are not necessarily contradictory. Indeed, it is generally in the child’s interests to remain with his or her family and it can be deeply damaging to the child if he or she is removed on insufficient grounds. Accordingly, the Court was unanimous in deciding that without a high threshold for intervention, there would be no “pressing social need” or legitimate aim sufficient to warrant intrusion by the state into family life.
In Australia, a child protection intervention is authorised where a court believes that a child or young person is in “need of care”, “in need of protection”, “in need of care and protection”, “at risk”, or “at risk of harm” as variously described in the legislation of the states and territories. This wording is very similar to the wording on which the UK decision is based, although in Australia there is no overarching federal or state act protecting the right to family life.
This decision is available online at: http://www.bailii.org/uk/cases/UKSC/2013/9.html
Candice Van Doosselaere is a volunteer at the Human Rights Law Centre.