Something has been bubbling away for the past few days (and it’s not my current penchant for baked beans & sprout dip).
Last Friday, I spoke at a conference in Cumbria. One of the other speakers was Neil Allen from 39 Essex Street Chambers who gave a brilliant presentation called – “Article 8 – The Nub of the Matter”. In his speech, he suggested that whilst we can get very caught up in breeches of Article 5 (Right to Liberty), Article 8 (Right to private & family life) can be the game changer when it comes to challenging State decisions. It made total sense to me.
This morning I was interviewed by the British Institute for Human Rights for a newspaper they are producing later this month. They knew about the Get Steven Home story and wanted to ask some questions about the human rights angle of our case. I’m not sure if it was because I was inspired by Neil on Friday, but I found myself emphasising the Article 8 element of our case.
The “Neary Case” is always talked about as a Deprivation of Liberty case, and as a consequence people tend to focus on Steven’s Article 5 Rights being abused. Of course, this is true but in his judgement, Justice Peter Jackson led with an Article 8 emphasis. This is what Justice Jackson had to say on the matter:
“The parties presented the issues in a different order, with the claim under Article 8 following the claims under Article 5. It nonetheless seemed to me during the hearing that the issue that arises under Article 8 represents the nub of the matter. The principles surrounding the right to respect for family life are well understood. They do not owe their origins to the Mental Capacity Act 2005, or even, I would suggest, to the Human Rights Act 1998, and they apply directly to cases where the legitimacy of the removal of a person from a family is in question. There is no automatic precedence between Convention articles. There will of course be cases where a grave breach of Article 5 overshadows consequences in terms of Article 8, but this will not always be so. In the present case, it seems to me that the real issue relates to Steven’s absence from his family home, rather than the deprivation of liberty to which he is to some degree or other necessarily subject wherever he lives.”
Spot on, in my view. And I’m worried that in the present climate, Article 8 runs the risk of being totally overlooked. Not a day goes by, since the Supreme Court judgement in Cheshire West, when you read an article about the extraordinary increase in DoLs’ workload created by the judgement. figures vary but the latest I have heard mentions a twelvefold increase in the past year. Barely a week goes by in Community Care without an article from a social worker, a BIA or someone from a supervisory body, warning that they are in danger of collapse with the expectations now so high. Only last week, it was announced that an additional £25m was being pumped into the administration of DoLs. Fair enough and very timely but what about Article 8?
Justice Jackson repeatedly refers to the interference in Steven’s family life. Judgement after judgement addresses the same point. So, why isn’t Article 8 at the embodiment of social work practice? Perhaps it isn’t as sexy as Article 5. Perhaps it doesn’t play into the unconscious power dynamics being played out. Perhaps it is as simple as further evidence that learning disabled are not quite human and therefore, the idea of them having a normal family life like everybody else doesn’t register. I don’t know the reason but it’s not good enough.
So instead of social care professionals getting their knickers in a twist about increased DoLs work, perhaps they should be concentrating on why the person is in a place where he/she is having to be deprived of their liberty. Where is their home? Why aren’t they there? Why has the importance of a person’s private and family life been so dismissed? And perhaps most importantly, what would they have to do, as professionals, to make sure that the person’s Article 8 Rights are upheld.