When a child is subject to care proceedings, do their parents have a right to initiate a petition about it? What about the children’s rights?
The short answer is that parents can in some circumstances publish a petition, but they have to be careful about what information they include. It can’t include anything that would identify the children, or anything about ongoing care proceedings. Here’s why.
The DW case
The High Court recently considered the case of DW, which was about a couple who’d published a petition about the Local Authority’s decision to make four children subject to care orders. The parents created a petition on the Change.org website claiming that social workers had lied under oath, and asking that people sign the petition to ‘reunite’ the family. The original petition page, and the mother’s Facebook page, included photographs of the children, the children’s names and other details that allowed people to identify them.
The local authority demanded that the parents remove this identifying information in order to protect the children. At an initial court hearing the parents agreed to do this, but they refused to take down the petition itself, because they felt they had a right to protest about what they saw as unjust treatment.
When the matter came back before the court, the judge decided that the amended wording on the petition website was lawful, because it didn’t say anything about ongoing private court hearings and it no longer included anything that identified the children. Had it done so, that might have been a very different matter.
Why is this an important issue?
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It matters because it’s important to ensure that private information about children doesn’t end up in the public domain, and it’s also important that parents have a way to air their views. The case emphasises that although parents have the right to publicly object, they must be careful not to do so in a way that harms the right of their kids or jeopardises court proceedings.
Laws to protect children’s rights
Reporting restrictions are usually imposed in legal cases about children in order to protect them. Their names might be read out in court, but reporters are forbidden from identifying children in their reports. That’s why lots of cases which make it into the papers don’t name the child, but refer to them by letter – the distressing case of ‘Baby P’ for example. This is to protect the child (or its memory) from the harm that can come from publicity.
There are also restrictions on what parents can say. For example, the Children Act 1989 prohibits the publication of “material which is intended, or likely, to identify” the child. Putting something on a website or a Facebook page counts as publication.
A further protection comes from Article 8 of the Human Rights Convention, which provides that everyone, children included, has the rights to a private and family life.
In the DW case, the local authority believed that identifying the children in the petition breached their Article 8 rights. They were concerned that the information in the petition might prevent the children from being placed with adoptive parents or foster carers and that it might cause them emotional harm. This was why they applied to court for an injunction to have the petition taken down.
What about the rights of the parents?
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The parents claimed that they had rights too. As they saw it, the local authority had taken their children away from them and they had a right to protest about this (although they did not in fact challenge the care orders in question).
They put forward arguments relying on Article 10 of the Human Rights Convention, which protects the right to free speech and free expression, and Article 11 of the Convention, which protects the right to free assembly, and which gives us the right to peaceful protest.
However, Articles 10 and 11 are qualified rights – they aren’t absolute. That means they can be restricted in certain circumstances. Sometimes, one person’s right to freedom of speech or right to protest can conflict with another person’s right to a private life. In those circumstances, the rights have to be balanced. For example, politicians’ rights to privacy has to be balanced against newspapers’ rights to report on matters which might be in the public interest. When the rights being assessed are those of a child, the child’s best interests are a primary consideration.
What lessons can be drawn from this particular case?
In DW, the judge carefully considered the information and decided that the wording in the petition didn’t say anything about the private court hearings that was unlawful, and as the identifying information had been removed, and the Local Authority failed to produce evidence that the children had been harmed, it didn’t interfere with Article 8.
However, the judge made clear that his judgment was about these facts only. Had there been evidence that the petition was causing harm to the children, or that the proceedings were still happening, his judgement would have been different.
Nevertheless, the case does show that judges will attach importance to a parent’s right under Article 10 to express their grievances. It’s about reaching the balance that’s best for everyone.
The law about what a parent can and can’t publish is complicated. If you need legal advice, we suggest you consult a solicitor.