Justice or overprotection? The ECHR and the mentally ill offender

Dr Pauline Prior
European Convention on Human Rights
(ECHR) agreed in 1953
 Protection from arbitrary or unnecessary
interference by government in the lives of
 Special protection for vulnerable people –
including children and those with mental
 Note: some assumptions out of date
UK: All laws must comply with the European
convention on human rights
UK: New mental health laws - compliant
New legislation due in NI (see Bamford Review)
Mental Health Act 2007 (E&W)
The Mental Health (Care and Treatment) (Scotland) Act 2003
Republic of Ireland:
Mental Health Act 2001
Everyone has the same human rights –
importance of international standards
Any limitation or removal of rights must be
justified by government
Some groups of people have been deprived
of rights in the past – people ‘detained’ in
hospital or prison
Some countries do not have specific human
rights legislation. (cases may now be heard
in UK courts - since 2002)
To hear cases that have gone through
national courts but the plaintiff is still
Theoretical framework outlined in:
 international human rights law, (Henry Steiner
and Philip Alston, 2000)
Main debates in cases taken to the ECtHR:
Articles 5 – the right to liberty; and Article
6 – the right to a fair trial.
Also debated: Article 3 – the right not to
be tortured; Article 8 – the right to family
Main debates taken to ECtHR centred on
 The right to life (including care and
protection from harm or neglect and the right
to education)
 The right to liberty (especially in relation to
children who have offended)
 The right to an identity
8.1 : 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 it 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.
 6.1
‘In the determination of
this civil rights and obligations ….
everyone is entitled to a … fair
and public hearing within a
reasonable time by an
independent and impartial
tribunal established by law’
Electronic search of cases using key words ‘mental illness’,
‘parent’, and ‘child’. Out of >100 cases, selected those with
most potential of impact on child protection services.
9 families in which children were taken into
long-term care.
From UK, Finland, Sweden, Italy and Greece
In 8 families, one or both parent had a
diagnosed mental illness. In the final case, no
formal diagnosis for parents
Issues raised by these cases
How to ensure that the right to family life is
protected for adults with mental illnesses
How to ensure access and opportunities for
parents to bond with children in care
How to avoid damaging children while giving
time for a proper assessment of the care
Some people reject a psychiatric label as it
makes them more vulnerable to state
State organisations often work on the basis of
a static model of mental health and illness
All families used Article 8 as basis for
objections to decision to remove children
This is ‘interference by a public authority’ in
the lives of the adults involved in caring
Circumstances that justify this ‘interference’
were debated in each case.
These are summarised in the case of E.P. v
Italy (1999) in the dissenting opinion of Judge
Circumstances in which the termination or
drastic regulation of a parent’s relationship
with his or her children have been considered
justified include situations of conflict between
the parents… also… where the child had been
injured or neglected, where the parent was not
in a position to take proper care of the child,
where the child had not been treated in the
correct manner, and where the parent had lost
interest in the child…..
Continued on next slide
If one of the parents suffers from grave
psychiatric problems, or if the father had
been sentenced to a very long term of
imprisonment for violent crimes… or if the
child lives in filthy accommodation and has
an ‘education deficit’, the State’s
interference with parental rights –including,
in some cases, a total rupture in the
relationship with the child – is justified.
Both mothers rejected the claim by welfare
authorities that their mental state might prevent
them from caring for their children
For both mothers, having a child suddenly
‘snatched’ into care was extremely traumatic and
damaging to their mental health
The mental health of both mothers improved over
By the time the mothers were well enough to
resume care, the children had bonded with a new
Verdict: Right to family life was not protected .
Violation of Article 8
It may take 3-4 years for an adult to recover
mental health - for a child this is a long time
The new family replaces the biological family
as the ‘best’ place for the child
Unless efforts are made by welfare authorities
to maintain a link/access rights with a view to
re-unification, bonding between the child and
its biological parents will be almost
◦ Bonding is the issue in the next case
Ensuring relationship/bonding continues:
‘In the present case, the applicant had been
deprived of her parental rights and access in
the context of a permanent placement of her
daughter in a foster home with a view to
adoption by the foster parents.
These measures were particularly far-reaching in
that they totally deprived the applicant of her
family life with the child and were inconsistent
with the aim of re-uniting them.’
Violation of Article 8
(in keeping with H. v UK, 1987)
Case H v. UK 1987
In this case a child was taken into public care
and was later adopted without the mother’s
consent, after a lengthy period of no access
 Proceedings took too long (from time mother
asked to take back care of child to decision)
 No access to child
 No participation in decision making
Violation of Article 8 and Article 6
Case Z and others v. UK, 2001 : case taken by
the Official Solicitor E & W.
 Delay in taking the children from the mother
led to severe psychological damage to the
 ‘the severity of the damage suffered by the
children is inextricably linked to the long
period of time over which the abuse
persisted’ (par. 121)
Violation of Article 3: failed to protect the
children from ‘inhuman and degrading
Parents of children taken into care have the
right to be fully briefed and fully represented in
all official discussions on the future care of the
While children have rights to care within a
family setting, these do not cancel out the
rights of parents to participate in parenting
If a bond is broken between parents and
children it is difficult to re-establish it
Everyone has the right to a fair and timely
hearing of objections to state intervention
Deprivation or diminution of liberty must be
justified, monitored, reviewed etc
Patients/clients must be informed fully of
any decisions that have an impact on their
lives (and on their children)
Patients/clients must be advised and helped
to participate in any decisions about their
care (or their lives)
Patients/clients have a right to privacy and
respect, but also to information and

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