A Global Perspective on Challenges and Progress in Human Rights Legislation

Introduction

Protecting a child’s right in a world where humans are often abused and assaulted are extremely hard. The protection of human rights is one of the controversial subjects across the world and after the World Wars inflicted horrors upon the whole world, the United Nations came up with the Universal Declaration of Human Rights (UDHR) of 1948. During the same timeline, European Commission also declared a convention in the year of 1950 on human rights. While most of the countries across the world implemented the basics of the UDHR or European countries implemented European Convention on Human Rights (ECHR), it took several years for United Kingdom to do the needful in such respect. For students who are struggling with the complexities of human rights and related issues, and prefer seeking HRM dissertation help can provide guidance and required support.

UK had the general rule of not to be bound by treaties unless and until it is transformed into a National Act and thus, till 1998, the domestic courts of United Kingdom had no jurisdiction to adjudicate any violation of Human Rights. Only in the year of 1998, the enactment of Human Rights Act in United Kingdom has provided the country with different perspective in relation to Human rights and it has changed the definition of the protection of Child’s law as well.

Although, UK might have acknowledge the necessity of a proper law to govern abuses and assaults against children of the state since 1945 in the context of the case of Dennis O’Neil which forced the authorities to think twice about the foster care and the foster law of the land, the evolution of the children law in the United Kingdom still lacks various aspects. Thus, in this critical commentary based on the given comment , we shall discuss the evolution of child law in the UK, how enactment of the Human Rights Act, 1998 has impacted the child’s law of the country and we shall critically discuss about the present loopholes on the subject and provide with necessary suggestions as well.

The Evolution of Child Law in England and Wales (1945-1997)

In the year of 1945, the case of Dennis O’Neil shook the nation and it forced the authorities of the country to revise and revive better protective laws against the children. A child is a minor and

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1. What have we learned? Child death scandals since 1944 (2007). Community Care. < https://www.communitycare.co.uk/2007/01/10/what-have-we-learned-child-death-scandals-since-1944/ > [accessed on 12th August, 2021]

a minor cannot consent, a minor cannot protect their rights and it can only be done through their parents or guardian. After Dennis O’Neil was killed off by his foster father, United Kingdom felt the necessity of implementing stricter and stringent laws for the protection of the children. Thus, following the case of 1945’s, two committees were immediately formed in the year of 1946, namely ‘Curtis Committee’ and ‘Clyde Committee’. Curtis Committee conducted a thorough investigation in England and Wales and provided with a detailed report on children who do not have any parents and how care is provided for such child. The report of the ‘Curtis Committee’ helped in the formation of 1948’s Children Act of the country.

Based on the abovementioned committee’s reports, the Children Act, 1948 was passed in United Kingdom where children with no parent were mentioned to be cared by the local authority and a special local body was made in each region of the United Kingdom to provide sufficient care for the children.

However, such enactment of Children Act eventually proved to be insufficient in the year of 1973 when the country roared with protests and shock after the death of Maria Colwell by his foster father. The investigation of this particular case revealed how the girl needed help to be saved from her foster parent and the local authority was found to be incompetent in the case. The murder case by foster parent pointed fingers at the system and how a generalized system shall not work for the protection of the weaker section of the society, i.e. the children.

Hence, in the year of 1975, the Children Act, 1948 was amended and individual social worker was appointed for taking care of child who asked for help or who did not have a home or parents to be taken care of during any kind of family court proceeding. However, it is only after the death of another girl in England and Wales, the Children Act of 1989 was evolved and UK’s judicial system became aware of how there had been several murder cases of children after they

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2. Ibid
3. PACKMAN, JEAN, and BILL JORDAN. “The Children Act: Looking Forward, Looking Back.” The British Journal of Social Work, vol. 21, no. 4, 1991, pp. 315–327
4. Ibid
5. Minty, Brian (1994) Maria Colwell: the legacy. Journal of Forensic Psychiatry, Vol.5, Iss.3.

were returned home from the foster care. The act of 1989 made it mandatory for the courts to look after child and it became one of the main considerations.

In the year of 1990, UK signed the United Nations Convention on the Rights of the Child (UNCRC) and following the development, several enactments were done in England, Northern Ireland and Scotland. However, major developments in the sector did not bloom only after the enactment of the 1998 Act.

The Impact of Human Rights Act, 1998 on the Evolution of Child Law in England and Wales

As it has been mentioned in the given comment that the enactment of the Human Rights Act, 1998 had a positive impact on the development and evolution of the Child Law in England, major changes were introduced for the protection of the children in the year of 1999 and 2000. Post enactment of Human Rights Act of 1998 had seen another gruesome murder of child by her mother’s boyfriend. Centering on this incident, Lord Laming’s report gained popularity and the strict provisions of Human Rights Act, 1998 made first major changes in the child law evolution in England and Wales.

The Human Rights Act, 1998 interpreted the ECHR and the provisions of this treaty were made into law in the UK. While it is true that ECHR did not directly governed the children and it did not directly enacted laws concerning children of the United Kingdom. However, ECHR has directed UK to implement UNCRC into its children law in the year of 1990 and several other programs and charters for the protection of the Children Rights in England and Wales was set out by ECHR in the period of 1992-1998.

The Human Rights Act, 1998 only brings about 16 articles from the ECHR and implements them in the national courts in a way that the citizens of UK could derive benefit from it before the National Courts. While it is true that special mention or care for children is not mentioned under

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6. London Borough of Hillingdon. Area Review Committee (1986) Report of the review panel of the London Borough of Hillingdon Area Review Committee on child abuse into the death of Heidi Koseda. London: London Borough of Hillingdon.
7. Probert, Rebecca. “The History of 20th-Century Family Law.” Oxford Journal of Legal Studies, vol. 25, no. 1, 2005, pp. 169–181
8. Lowe, NV. “THE LEGAL POSITION OF PARENTS AND CHILDREN IN ENGLISH LAW.” Singapore Journal of Legal Studies, 1994, pp. 332–346
9. Laming, L (2003) The Victoria Climbie inquiry: report of an inquiry by Lord Laming (PDF). Norwich: The Stationery Office (TSO).
10. Drew, Sandhya. Children and the Human Rights Act, 1998 (2000). London: Save the Children

the Human Rights Act, 1998, there are several articles of this Act that had made courts of England and Wales to consider the cases of children with promptly. Thus, it can be said that the implication of Child right in UK was brought about by the careful inspection and implementation by the national courts herein.

Article 2, protocol 1 of the Human Rights Act, 1998 expressly states that “no person shall be denied the right to education.” The case of Ali v. Lord Grey School, UKHL14 2006 House of Lords Appeal, essentially pronounces judgment on how article 2 of the Human Rights Act, 1998 provides special guidelines and reference to the children of the nation and it is the basic right of every child to get the basic education and no one can deny such right on any ground whatsoever.

In the case of AD and OD v United Kingdom, article 8 of the Human Rights Act 1998 was implemented, stating that a child has the right to privacy and protection of the family privacy shall not be violated by any authority arbitrarily. The case of R v Ashman also pronounces the same rights of the children and it has been said that it is for the protection of the privacy of the child, sentencing a parent would be lawful, in the context of the past developments herein.

Applying the articles of 3, 4 and 5 of the Human Rights Act, 1998, a determinable age of child for asylum was decided in the case of A, R (on the application of) v London Borough of Croydon and how such detention by the asylum is a gross violation of the human rights under the Act of 1998.

In consideration to the immigration, the case of MXL, R (on the application of) & Ors v Secretary of State for the Home Department, it has been decided that the detention of children in the immigration centre was a gross violation of article 5 & 8 of the Human Rights Act, 1998 and such actions should not be entertained under this Act in respect of child or a minor herein.

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11. Ali v. Lord Grey School, UKHL14 2006 House of Lords Appeal
12. AD and OD v United Kingdom [2010] ECHR 340 (16 March 2010)
13. R v Ashman [2010] ACTSC 45 (21 May 2010)
14. A, R (on the application of) v London Borough of Croydon [2009] UKSC 8 (26 November 2009)
15. MXL, R (on the application of) & Ors v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) (30 September 2010)

Also, in the case of Aldridge v R, it was held by the court that under article 10 & 11 of the Human Rights Act, 1998, a grant of bail or sentencing of a parent could be taken up for the welfare and protection of child herein.

In the case of Moore v British Columbia (Education), it was decided by the courts of England and Wales that the government authority of the State is responsible to provide satisfactory education to the children and if State fails to provide such educational facility under article 3 of the Human Rights Act, 1998, it would be considered as discriminatory in the eyes of the law.

Thus, it can be seen that how Human Rights Act, 1998 has positively impacted the lives of children and the child law in England and Wales. However, it is just not the case laws and precedents that developed but the administration and the laws as well.

Following the implementation of ECHR through the Human Rights Act, 1998, ‘Safeguarding Vulnerable Groups Act, 2006’ was implemented in England and Wales and with the help of the Children Act, 2004 several local authorities were set up in England and Wales. The establishment of Children’s Commission in England and Local Safeguarding Children's Boards (LSCBs) in England and Wales are some of the prime positive aspects of the child law in UK.

Does Human Rights Act, 1998 provides with enough support for the protection of Children – A critical analysis

While it might seem that Human Rights Act, 1998 provides an all rounder inspection for the children of England and Wales but it lacks in several aspects. It can be critically analyzed from the abovementioned prospect and discussion that, the Human Rights Act, 1998 only talks about the positive rights of the children and essentially leaves out the negative rights and it is still in the hands of the local authority to provide with such law and order.

It can be critically observed that the ECHR or the Human Rights Act, 1998 does not reflect on the topic of sexual exploitation of children or sexual offences that is committed against the children. It also does not shed light on providing with a valuable suggestion for the psychological

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16. Aldridge v R [2011] ACTCA 20 (22 September 2011)
17. Moore v British Columbia (Education), 2012 SCC 61 (9 November 2012)
18. LOWE, N.V. “The Allocation of Parental Rights and Responsibilities—The Position in England and Wales.” Family Law Quarterly, vol. 39, no. 2, 2005, pp. 267–299/

19. abuses inflicted by the parents and it does not cover any aspect of the sexual assaults committed against immigrated children.

    

    It can be critically observed that Human Rights Act, 1998 does not govern the subject of Child Prostitution and child trafficking and the provisions of this Act are not strong enough to govern such grave situations. Currently, in England there exists The Department for Education (DE) which ensures the safety of the children through local authority and in Wales, The Social Services and Well-being (Wales) Act 2014, that also provides better connection with the local authority herein.

    Also, it is to be mentioned that there has been no mention of the juvenile justice or youth justice in the Human Rights Act, 1998 and the protection of the children who have followed the wrong path herein. UK lacks serious delegation in this aspect and there are very less concerns regarding the subject of youth justice as well.

    Conclusion

    Hence it can be stated that Human Rights Act, 1998 has many aspects to grow into and it is the high time that ECHR adapts to more inclusive laws of children with special reference to children under the age of 10. It is the duty of the ECHR and the Human Rights Act, 1998 to shed light on the negative rights of the children for better protection herein.

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20. Landsberg, Gerald, and Corinne Wattam. “Differing Approaches to Combating Child Abuse: United States vs. United Kingdom.” Journal of International Affairs, vol. 55, no. 1, 2001, pp. 111–121
21. Muncie, John. “ILLUSIONS OF DIFFERENCE: Comparative Youth Justice in the Devolved United Kingdom.” The British Journal of Criminology, vol. 51, no. 1, 2011, pp. 40–57.

BIBLIOGRAPHY

Article

What have we learned? Child death scandals since 1944 (2007). Community Care. < https://www.communitycare.co.uk/2007/01/10/what-have-we-learned-child-death-scandals-since-1944/ > [accessed on 12th August, 2021]

Journals

Lowe, NV. “THE LEGAL POSITION OF PARENTS AND CHILDREN IN ENGLISH LAW.” (1994) Singapore Journal of Legal Studies, pp. 332–346

LOWE, N.V. “The Allocation of Parental Rights and Responsibilities—The Position in England and Wales.” (2005) Family Law Quarterly, vol. 39, no. 2, pp. 267–29

Landsberg, Gerald, and Corinne Wattam. “Differing Approaches to Combating Child Abuse: United States vs. United Kingdom.” (2001). Journal of International Affairs, vol. 55, no. 1, pp. 111–121

Minty, Brian. Maria Colwell: the legacy (1994). Journal of Forensic Psychiatry, Vol.5, Iss.3.

Muncie, John. “ILLUSIONS OF DIFFERENCE: Comparative Youth Justice in the Devolved United Kingdom.” (2011). The British Journal of Criminology, vol. 51, no. 1, , pp. 40–57.

PACKMAN, JEAN, and BILL JORDAN. “The Children Act: Looking Forward, Looking Back.” (1991). The British Journal of Social Work, vol. 21, no. 4, pp. 315–327

Probert, Rebecca. “The History of 20th-Century Family Law.” (2005). Oxford Journal of Legal Studies, vol. 25, no. 1, pp. 169–181

Case Laws

Ali v. Lord Grey School, UKHL14 2006 House of Lords Appeal

AD and OD v United Kingdom [2010] ECHR 340 (16 March 2010)

A, R (on the application of) v London Borough of Croydon [2009] UKSC 8 (26 November 2009)

Aldridge v R [2011] ACTCA 20 (22 September 2011)

MXL, R (on the application of) & Ors v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) (30 September 2010)

Moore v British Columbia (Education), 2012 SCC 61 (9 November 2012)

R v Ashman [2010] ACTSC 45 (21 May 2010)

Reports/Others

London Borough of Hillingdon. Area Review Committee (1986) Report of the review panel of the London Borough of Hillingdon Area Review Committee on child abuse into the death of Heidi Koseda. London: London Borough of Hillingdon

Laming, L (2003) The Victoria Climbie inquiry: report of an inquiry by Lord Laming (PDF). Norwich: The Stationery Office (TSO).

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