‘Proportionality’ is the key concept to understanding how family law operates. This comes from Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).
The ECHR has been given ‘direct effect’ into domestic law by the Human Rights Act 1998 which makes it clear at section 6 that ‘public authorities’ – which includes local authorities who want to make applications for care orders – cannot act in a way which is incompatible with the ECHR, unless they are following statute law which they can’t interpret in a way to make it compatible.
If a Judge agrees that statute law is incompatible with the ECHR, he or she can make a ‘declaration of incompatibility’ which means the Government will have to think seriously about amending that statute.
Article 8 ECHR – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.
Therefore Article 8 rights are not absolute but can be breached if:
- it is lawful to do so;
- it is necessary to do so, for example, to protect health or morals.
This is where proportionality comes into play. It cannot be ‘necessary’ to breach someone’s rights if they way you propose to breach them is well in excess of what is needed to prevent harmful consequences.
Therefore, courts have to be confident that any order they make to remove children from their families, is a proportionate response to the harm the children have suffered or are at risk of suffering.