Parents to have some rights, however, the better way of thinking about it is ‘what are my child’s rights'
The question of rights is often asked when a parent finds themselves denied parenting time. There are rights of parents, however, by focusing on your children's rights you are likely to come to better outcomes for them and for yourself.
The Human Rights Act
The Human Rights Act 1998 incorporated much of the European Convention on Human Rights into UK Law. This now means most human rights issues can be dealt with in UK courts without having to go to the European Court of Human Rights. At the time of writing (post Brexit) the UK no longer has access to the ECHR but the human rights issues remain unchanged.
There are 12 Articles and a number of Protocols in the Human Rights Act which deal with many topics from Freedom from Slavery and Forced Labour to The Right to Freedom of Assembly and Association.
How does the Human Rights Act affect Parents.
The two most important articles are Article 8, the Right to Respect for Private and Family Life, Home and Correspondence, and Article 6, the Right to a Fair Trial. There are two kinds of Rights described in the Act they are qualified rights and limited rights.
Article 8 is a qualified right, which means it can be restricted. How it can be restricted is described in the wording.
Everyone has the right to respect for his private and family life, his home and his correspondence.
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.
This becomes evident when the Family court limits your right to having face to face parenting opportunities with your children while investigations of allegations of domestic abuse take place. It also is applied to court procedures when it is made an offence to make public court documents especially those that may identify the children. Other times you will have encountered Article 8 is if the Police decide that prosecution of somebody is not 'in the national interest'.
In general and under normal circumstances You have the right to enjoy family relationships without interference from government. This includes the right to live with your family and, where this is not possible, the right to regular parenting opportunities with your children.
Article 6 is a limited right, which means it cannot be balanced against the rights of others. Article 6 says:
When charged with a criminal offence you have the right to a fair and public hearing that:
is held within a reasonable time
is heard by an independent and impartial decision-maker
gives you all the relevant information
is open to the public (although the press and public can be excluded for highly sensitive cases)
allows you representation and an interpreter where appropriate, and
is followed by a public decision.
You also have the right to an explanation of how the court or decision-making authority reached its decision.
During your trial your rights are:
You have the right to:
be presumed innocent until you are proven guilty
be told as early as possible what you are accused of
have enough time to prepare your case
legal aid (funding) for a lawyer if you cannot afford one and this is needed for justice to be served
attend your trial
access all the relevant information
put forward your side of the case at trial
question the main witness against you and call other witnesses, and
have an interpreter, if you need one.
How does this work in Family Courts?
Family courts are not criminal courts. They do not find you innocent or guilty in the way criminal courts do. They do not have a jury. They deal with all matters to do with the breakdown of relationships. As far as FNF members are concerned this is child arrangements and divorce. Sometimes it can involve your Local Authority.
What is the standard of evidence in Family Courts.
The standard of evidence is lower in Family Courts. Whether an allegation is accepted by the court will be decided by the judge if s/he thinks it is likely to have happened, eg the balance of probabilities. This is significantly different to a criminal court where the standard is beyond reasonable doubt.
The reason for this is the court is primarily interested in finding a way to protect your Article 8 rights to a family life e.g., how best can they enable you to have a safe and continuing relationship with your children following separation and divorce. In this regard the court believes the safety of the children is paramount. That means the safety of the children overrides all else and if the court believes you are in some way a threat to the safety of your children they will limit your Article 8 rights in order to protect your child. This may be in the form of supervised parenting only in a contact centre, or contact with your children only by letter of email or other variations.
Can my contact with my children be restricted?
The court will put this limit in the final court order but usually with a path that will lead to the removal of these restrictions. This maybe a drawn out reintroduction to your child if there have been long periods of absence (often caused by court delays), variations of contact leading up to contact in the community, undertaking a parenting course, a period of confirmed abstinence from drugs or alcohol, successful attendance at the domestic violence perpetrators programme, a mental illness treatment programme, or a combination of these.
How can these restriction on seeing my children be removed?
Sometimes the court will omit a description of how to remove the restriction on your parenting opportunities, apparently forever. This is not the case. If this has happened to you there will have been some concern regarding the safety of your child/ren that concerns you e.g., drugs, violence, mental illness etc. You will be able to reapply to the court for a new order once you have addressed these issues. You will need to provide new evidence of the changes you have made and demonstrate you have followed the orders of your first application to court.
Do I have the right to appeal?
Yes. But this right can also be limited. Unless a Judge explicitly refuses your right to appeal (by issuing a 91(14) order you can ask permission to appeal a Family Court order. Your request will be assessed following the submission of your reasons and evidence for your appeal (called a skeleton argument) but maybe refused. You cannot appeal simply because you disagree with the outcome of your case. You must have a significant reason to do so e.g., the failure to stick to court protocols, the ignoring of significant evidence or law, a Judge expressing a personal opinion or demonstrating some form of bias.
The Rights of the Child
The United Nations Convention on the Rights of the Child (commonly abbreviated as the CRC or UNCRC) is an international human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The Convention defines a child as any human being under the age of eighteen. The only countries not ratifying the treaty is the United States.
The UK Government ratified the UNCRC treaty with some reservations. This means it has not been incorporated into UK law. Scotland and Wales have done so. This means judges may take account of the treaty when making judgements but they are not bound by it.
The areas the UN have concerns regarding compliance with the treaty are:
Legal Aid and access to justice
The Residence Test
Children in custody
Criminal age for prosecution
Special Educational Needs
Migrant children and child trafficking
Children in armed conflict
The areas FNF parents find most concerning with are Special Educational Needs (SEN) and Reasonable Punishment (smacking). The UK Government have refused to ratify the treaty regarding smacking saying "the use of physical punishment is a matter for individual parents to decide". This is not the case in Wales and Scotland.
Special Education Needs (SEN)
Separated parents of children with SEN particularly the NRP (non-residential parent) could find themselves ignored or even excluded from meetings with schools and education authorities regarding plans for their children. This includes the allocation of funding, for assessment, resources and teaching time. It also includes the communication of minutes of meetings, invitations to progress meetings and reviews. It also requires vigilance by parents to ensure targets are met and if they are not reviewed, re-set or a whole new strategy adopted to address the child's needs.
Smacking & Other Corporal Punishment
FNF strongly advise parents not to use physical punishment despite the ambiguous position the law puts us in. Social Services, CAFCASS and the courts will almost always interpret any physical punishment as child abuse, irrespective of how much it keeps withing national guidelines. There are lots of more effective alternatives to physical punishment for managing behaviour. There is some detailed advice about the legal position on the Child Law Advice website.
Protecting the rights of your child during separation or divorce
How the UNCRC is interpreted is different in many countries. For instance the Convention does not link child marriage and slavery for this reason. There are cultural norms and social expectations that make this unrealistic for some countries. However in the UK there are key issues that may affect your attempt to obtain a court order that allows you a meaningful relationship with your child following separation. These areas are what are often referred to as 'the rights of the child':
Life, survival and development. This includes access to appropriate medical care, an adequate diet play resources, other children, social interaction and removal of the child to a place of danger
Protection from violence, abuse or neglect. This includes emotional abuse or neglect, physical abuse, failure to thrive, and access to drugs or alcohol.
An education that enables children to fulfil their potential. This includes school absence, attendance at schools that are not registered with OFSTED, inadequate home schooling or schools that have consistently failed OFSTED inspections and refusal to encourage natural talent.
Be raised by, or have a relationship with, their parents. This is the function of Family courts. To decide the safest way for both parents to continue to have a meaningful relationship with their children. You will often find the parenting opportunities of the NRP are seriously limited due to your apparent inability to demonstrate perfect parenting. This seems not to apply to the RP.
Express their opinions and be listened to. Courts will often ask for CAFCASS to undertake a wishes and feelings interview with children and the older the children the more significant the wishes will be with regards to the final order. The important issue is to ensure that child's ascertainable views are established e.g., the underlying views of the child rather than simply the words spoken by the child, which of course may have been coached.
The experience of FNF in Family Courts
We have found that emphasising the rights of the parents in a court submission, fall on deaf ears. It is frequently interpreted as aggressive, controlling or even vengeance by CAFCASS or social workers. It is much better for all participants, if children's rights become part of your court submission, to emphasise the rights of the child.
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