Britain does not have a good record when it comes to protecting children. Each year about 80 children die from abuse in the UK, and that figure has remained more or less the same since the 1960s. Children’s rights campaigners point out that while Victoria Climbié’s death (in February 2000) and crimes like it inevitably cause shock and concern, outdated UK laws still allow parents and carers to hit their children. They point out that this sends the wrong signal, providing a way for people to defend violent acts against their offspring or stepchildren.

In the past the class system was often used to legitimise corporal punishment. In 1795, a London court heard the Lord Chief Justice explain that a master not only had a duty to cane his servants, but also to ensure the beatings were severe.

Boys of all backgrounds were liable to “bare-bottom discipline” as soon as they joined the Navy before the practice was abolished in 1967. They were forced to pull down their trousers before being flogged with the cat-o’-nine-tails, a whip, usually made of cow or horse hide, with nine knotted lines for inflicting increased pain.

The tawse was the only instrument permitted under the 1968 Code of Practice agreed between the Scottish teachers’ unions and the Scottish Education Department. Pupils had to bend over a wooden bench, to which they were bound, or hoisted on the shoulders of two of their classmates so their bottoms presented a better target.

As I write this Editorial (August 21, 2003) a Scottish court has just ruled that it was not a crime for a man to beat an out-of-control teenager with a belt. At Stirling Sheriff Court, Sheriff Robert Younger ruled that the beating was “reasonable chastisement”.

Sheriff Younger told the man that his case was indistinguishable from a 1992 test case in which the high court had ruled that a child beaten in similar circumstances had “richly deserved punishment”.

The law upon which the Sheriff based his decision dates back to 1860 and was included in section 1(7) of the 1933 Children and Young Persons Act. It allows for the “reasonable chastisement” of children. Unfortunately, the meaning of “reasonable” is left uncertain and there is evidence to suggest that some people are using the uncertainty to excuse acts of violence.

The Government has consistently refused to move on banning smacking for parents or childminders. These relationships with children were private and therefore beyond the interference of the state. “I do believe that the right to smack in exceptional circumstances is one which should remain with parents and child carers who are carrying out the explicit wishes of parents,” David Blunkett said in December 2000.

Lord Laming QC, who headed the inquiry into Victoria Climbié’s death, pointedly told the influential Commons Health Select Committee earlier this year that her case had made him realise that “we seem to take assaults on adults much more seriously than we take assaults on children”.

The National Society for the Prevention of Cruelty to Children has long argued that children should have the same legal rights as adults. Hitting someone over the age of 18 could put the assailant in court. Hitting a child is perfectly legal.

The roots of the defence of “reasonable chastisement”, enacted in the 1933 Act, lie in a Lord Chief Justice’s ruling of 140 years ago. The principles of child care - and understanding of child development - have been transformed since then. So has international law.

In continuing to uphold the doctrine of “reasonable chastisement” the UK is out of line with most of the rest of Europe, where outright bans on smacking have existed in some cases for more than 20 years.

Sweden introduced a ban on corporal punishment and humiliating treatment in 1979. Since then child deaths at the hands of parents have fallen to zero. In Britain they are running at more than one a week.

In Norway, “the child shall not be exposed to physical violence”. (1987)

In Austria, “violence and inflicting physical or mental suffering” is unlawful (1989).

In Cyprus there is a law to prevent “violence … against another member of the family” (1994).

In Germany, “corporal punishment, psychological injuries and other humiliating measures are prohibited” (2000).

In Israel the Supreme Court banned all parental corporal punishment (2000).

In Iceland, “it is the parents’ obligation to protect their child against any physical or mental violence” (2003)

In 1998, in the case of A v UK, the European Court of Human Rights overturned a House of Lords decision that was in favour of a man’s right to beat his step son, and insisted that the UK Government pay compensation to the boy for failure to protect him.

The UK Government did not remove the “reasonable chastisement” rule, despite the verdict. Instead it sought ways of tightening up the definition. Organisations such as the NSPCC protested at this approach. They pointed out the kind of outcry there would be if an attempt were made to define exactly when it would be acceptable for a man to strike a woman, or another man.

Groups such as “Family and Youth Concern” insist on parents’ right to use corporal punishment as a means of disciplining their children. Research published by the government-funded National Family and Parenting Institute last year (2002) concluded that it does not work as a means of changing behaviour.

Psychologists say that while hitting a child may seem an effective way of imposing discipline, in fact it teaches children that, in order to get things done, it is acceptable to resort to violence. It also puts parents in the difficult position of perhaps having to increase the strength of their smacks when “mild” ones cease to be effective. We saw what happened in the case of Victoria Climbié. We should also remember that smacking can leave psychological as well as physical scars.

Smacking was banned in comprehensive schools in Britain in the 1980s. Private schools followed a decade later. Anti-smacking groups argued that it was illogical not to extend the ban to all those looking after children. Pressure has been building in recent years for further change.

The United Nations Committee on the Rights of the Child urged the British Government to make smacking illegal. The Committee said that the continued tolerance of parental smacking left the government failing to meet its obligations under the UN Convention On The Rights Of The Child.

This year it looked as if the Government was beginning to give way to international pressure. In May it announced that tens of thousands of childminders are to be banned from smacking. In one of the most significant anti-smacking moves since corporal punishment was outlawed in state schools in the 1980s, 70,000 childminders in England will be prevented from smacking or using any form of corporal punishment against children under eight, even if they have the written consent of the parents.

In June two important parliamentary committees called for an end to the “reasonable chastisement” law.

The Joint Parliamentary Committee on Human Rights concluded that the defence of “reasonable chastisement” was incompatible with the UN Convention On The Rights Of The Child - a convention that was ratified by Margaret Thatcher in 1991. They also noted the European Court of Human Rights had found it in breach of the European Convention On Human Rights, a ruling which requires the government to change the law. They sought to reassure doubters by suggesting new prosecution guidelines could be introduced to ensure mild smacking did not end up with parents facing criminal charges in court.

The group Children Are Unbeatable supports this approach. It says it is not interested in seeing parents punished, but in encouraging the teaching of better parenting skills. They believe that removing the “reasonable chastisement” defence would send out a clear signal that hitting children is wrong in any circumstances.

The Health Select Committee followed a similar line. The Committee is chaired by former social worker David Hinchliffe, who told his colleagues that he had personal experiences of trying to prosecute abusive parents who claimed “reasonable chastisement” in court to explain their children’s bruises. As long as the defence existed, social workers “have one arm tied behind their back when they remove a child that has been injured”, he said.

Lord Laming told the Health Select Committee that he had not made direct recommendations on reasonable chastisement in his report on the Climbié case, but added pointedly: “I would have thought people would come to the conclusion that violence towards children should be taken as seriously or more seriously than violence against adults.”

Both Parliamentary Committees wanted to end the current defence, used by parents accused of child abuse, of “reasonable chastisement”. It is seen by both Committees, after lengthy inquiries including public hearings, as a loophole through which some serious child abusers have escaped.

The two Parliamentary reports came as the NSPCC published a MORI poll of 100 MPs showing more than four in five of them believe that physically punishing children can tip over into physical abuse. If given a free vote, MPs felt the law would be changed. They urged that parents should be banned from smacking their children to stop abusers using discipline as an excuse for child cruelty.

Phillip Noyes, the NSPCC Public Policy Director, noted that the MPs were clearly concerned about the risks to children from physical punishment. He urged them to convert this concern into legal reform to give children the same protection from assault as adults. He said it was now clear only a minority of Labour backbenchers supported their own Government’s position – refusing to ban parental smacking - with 55 per cent of Labour MPs backing a change in the law.

Ministers are currently completing a green paper on children at risk, in response to the Laming report. The green paper would be an ideal vehicle for announcing the end of such an ancient and outmoded defence.

The debate was cut off before it could even begin. Downing Street moved quickly to squash a proposal from the two separate parliamentary inquiries to tighten the law against smacking children.

Banning smacking, whatever child development experts say, would not be popular. A number of polls have shown that the public believe that it is for them to decide on who should be able to smack their child, not the state. Any Government move to ban parental smacking would be opposed by ‘pro-family’ groups, rightwing parental rights groups, religious organisations and opposition MPs. Iain Duncan Smith, the Conservative leader, has made it clear he is in favour of corporal punishment. Liam Fox, the Conservative Shadow Health Secretary, said that it would be wholly wrong for the Government to interfere in family discipline. He claims that it would be “an outrageous intrusion by the state into the legitimate rights and duties of parents”.

So it is very clear that not everyone wants the law changed. Many, the Government believes a majority, are in favour of leaving the law as it stands. Groups such as Family and Youth Concern argue strongly that politicians should let parents get on with bringing up their children as they see fit, and warn that any change in the law would risk turning thousands of parents into criminals. They also feel a ban on smacking would be impossible to enforce.

In his last Labour Party Conference speech, Tony Blair urged his party to be bold, accept unpopularity, and pursue modernisation. Surely a law with 140-year-old roots is ripe for that recipe. The case seems well made.

Britain has one of the worst child-cruelty records in Europe.

Social workers and police have long complained that the ‘reasonable chastisement’ defence prevents them from intervening in cases of parental abuse

Striking other adults is unlawful. Why then do we persist in finding it acceptable to visit violence on children?

Still, there are fears that this could become an election issue. Consequently, when it announced that it would ban childminders from smacking their charges the Government made it clear that it would not ban parents doing so.

On August 22^nd 2003 Sheriff Robert Younger told a defendant accused of child abuse in Sterling Sheriff Court that the beating he had given his son was a “richly deserved punishment” and that “you are not guilty, and free to go”.

On the same day Judge Richard Holman told a defendant in Manchester County Court that he faced two years in jail if he was caught begging in the city centre again.

Any push to extend the ban on corporal punishment to parents would be the preserve of the Home Office. The man in charge there is David Blunkett. So parents will continue to use ‘reasonable chastisement’ as a defence. And one or two children a week will die in the UK from parental abuse for the foreseeable future.

Willie McCarney, Editor

Fifteen year-old Neil is a budding songwriter and musician, despite his father having told him he would never amount to anything. It is something many parents might say in the heat of the moment, but for Neil this was just one aspect of the intimidation and physical abuse he experienced at the hands of his dad.

In fact, Neil says he was born into domestic violence. “For a long time, I just thought that was how family life was,” he says. “You get used to being hit and seeing it happen to your mother, too, though for some reason he was nearly always nice to my younger sister.”

Because Neil was accustomed to abuse, he never talked about it to anybody else. “Whenever my friends came round to the house, my father was very nice to them - and I suppose I must have thought they lived in similar households to mine,” he says. “But by the age of 10 I was in a bad way. Although I loved school, I wasn’t doing well with school work. When I got home, I’d go to my room, lock myself in and run around screaming. I was very antisocial. I blamed God for making me feel this way; I remember clearly renouncing Christianity.”

Neil eventually attempted suicide and, as a result, received a small amount of counselling. This, together with the fact that his father left home after his mother filed for divorce, helped him become less suicidal. “Though at the time,” he adds, “I felt that I had no prospects in life.”

He is now trying to move on with his life, but admits it will be a long job to regain self-confidence. “Even now I get jumpy if anyone makes a sudden move towards my head,” he says. “Also, I’m bullied a lot because I seem to attract intimidation. I know I seem very subservient.”

Nevertheless, Neil and his mother, Jackie, who live in Northern Ireland, agree that things have improved - and that much of the progress derives from the support she received from a local project run by children’s charity Barnardo’s. “They not only gave me information and support but also a sense of power and confidence, which has helped me help Neil,” Jackie says.

Barnardo’s is publishing a report, Bitter Legacy, on the impact of domestic violence on children and young people. Alan Coombe, the charity’s principal policy and practice officer, says the aim is to draw attention to hundreds of thousands of emotionally scarred, yet often unrecorded, child victims of violence in the home.

Perhaps understandably, the primary focus of the public and of child protection agencies is on extreme physical and sexual abuse of children. But a great many more youngsters are emotionally and psychologically damaged through domestic violence, even if they are not physically harmed, and some local agencies are addressing this.

Sheffield council commissioned an independent review of how it handled domestic abuse, including the effects on children. “We have subsequently made some significant changes to the way we work together across the city,” says Penny Thompson, the council’s social services director and co-chair of the children and families committee of the Association of Directors of Social Services. “It is far more difficult to identify and define emotional abuse than physical abuse, but it is really important we don’t overlook it, as the effects can be devastating.”

In a foreword to the Barnardo’s report, Cherie Booth, the charity’s president, says there is an incident of domestic violence every 26 seconds. One in four women experiences such violence at some time and, where there are children in the home, they are present on nine in 10 occasions.

More than three-quarters of Barnardo’s 300 local projects identify domestic violence as a “significant” issue, and although most do not have this as their main focus, it was significant in over three-quarters of cases.

Maddie Bell, children’s services manager at a Barnardo’s domestic violence outreach scheme in Belfast, says that experiencing or witnessing domestic violence can have long-lasting emotional effects. “Some of the most damaging effects impact on children’s adolescence and adulthood, in terms of their ability to create and maintain relationships, self-esteem, self-confidence and stability, education and career prospects,” she says. “It can also make them more vulnerable as adults and as young parents.”

Recent guidance from the Royal College of General Practitioners draws attention to these problems. It says domestic violence can make children fearful, withdrawn and anxious, can disturb their sleep, create difficulties at school, and cause problems in making friends. Longer-term effects can include lack of self-confidence and social skills, violent behaviour, depression and difficulties in forming relationships.

Barnardo’s, the NSPCC and other child welfare agencies have repeatedly highlighted the links between domestic violence and running away from home or risky behaviour and lifestyles. The issue was highlighted in last year’s joint chief inspectors’ report, Safeguarding Children, and their recommendations are expected to be included in a forthcoming government green paper.

Yet Bell says that, despite all the research and recommendations, countless children and young people continue to suffer, frequently in silence. Some, like Neil, assume that an abusive home life is normal; others can be too terrorised or ashamed to tell anyone about what is going on and how they feel. Hard-pressed social services departments may be able to address only the needs of physically or sexually abused children, or those suffering severe neglect in homes where domestic violence occurs.

Barnardo’s wants to see a big increase in public awareness of the damage inflicted on children who experience domestic violence. It is one of the agencies involved in Hitting Home, a special season of BBC programmes on the theme, showing from February 15 to 23. The charity is also calling for the subject to be part of the mainstream national curriculum in schools.

Bhaggie Patel, who heads the Barnardo’s Phoenix project in Bolton, Greater Manchester, says that - as in Neil’s case - one of the most effective ways of helping children exposed to domestic violence is to support the mother and to monitor the children’s safety in the household.

In Sheffield, there is a special supported tenancy scheme for women and children trying to leave an abusive situation. However, it is not clear whether many other local authorities have this sort of comprehensive, multi-agency programme.

While the government continually urges local authorities to work with voluntary sector agencies, they often have slim resources to carry out what is usually difficult, sometimes potentially dangerous, work. Patel points out that, despite years of evidence showing the inadequacy of funding of women’s refuges and of work with children in the refuges, there is still no national funding strategy in place for the voluntary organisations running them.

Nor are there any clearly-defined strategies and policies for confronting violent men. She says: “Far too often, in cases of child protection in the context of domestic violence, the focus and expectations have centred on the mother, and little or no action is taken to monitor or control the behaviour of the violent man.”

Bell, in Belfast, stresses the need for short- and long-term counselling for children affected by domestic abuse - another strategy hampered by the lack of resources available. “This would help young people come to terms with their confused feelings and attitudes about their abusive father and what type of relationship, if any, they want with him,” Bell says. Neil would readily agree.

· Neil and Jackie are pseudonyms.

Useful Link:

Bitter Legacy: the emotional effects of domestic violence on children is available at £2.50 plus p&p from 01268-520224 or order online at www.barnardos.org.uk/resources

This article first appeared in the Guardian on February 5, 2003. I am grateful to the editor for permission to reproduce it here.

Willie McCarney

They are slick, professional and ready to go to jail for their belief that fathers get a raw deal from the divorce courts. The militant men’s rights movement has arrived in Britain.

Men are being openly encouraged by a new pressure group, Fathers 4 Justice, to break the law to highlight the cause of those denied access to their children. The group claims to have acquired up to 1,000 members in four months.

While insisting that it does not endorse the tactics of the Australian paramilitary-style Blackshirts - who terrorise divorced women by following them home, making threatening phone calls and leafleting their neighbours - Fathers 4 Justice claims that the emergence of such extremism in the UK is only a matter of time.

‘It’s harassment, but it is a logical consequence if the Government fails to act on what we are saying,’ said spokesman Matt O’Connor, a marketing consultant from Suffolk.

‘You are going to get more extremist groups appearing. Sooner or later a father is going to pick up a gun and go visit a judge or go into a Cafcass [the body of family court officials] office.

‘It isn’t a problem with the mothers; it’s the system which is always recalcitrant. The Blackshirts thing is worrying, but it is going to start happening soon. We are trying to be the voice of reason, but there are going to be other people who will not.’

The longer-established anti-feminist UK Men’s Movement has also described the Blackshirts as an ‘interesting group’, posting links on its website to a broadcast interview with Blackshirt founder John Abbott, who has suggested that adulterers should be hanged.

The new militants are worrying the Lord Chancellor’s Department and some in the legal system. Privately, legal sources complain that the Blackshirts are being unacceptably held up as a ‘threat’ by some protestors of what may happen if the judiciary does not give in to them.

But the men’s movement says it is simply standing up for a downtrodden gender. They argue that the courts still heavily favour mothers when deciding custody of children after a divorce - even as the Government calls on men to be more involved fathers - while failing to enforce access orders, allowing vengeful ex-wives to block access to their children. More than two decades of lawful protest, they say, has achieved nothing: it is time to turn up the heat.

Two women family court judges have so far been targeted: demonstrators have camped outside Lady Justice Butler-Sloss’s home, while Fathers 4 Justice activists demonstrated at a hotel in Somerset owned by Mrs Justice Bracewell, whom they denounce as being anti-family.

Women’s groups also report a recent rise in picketing of family courts while mothers attend custody hearings. ‘It’s meant to be a statement and it’s not just intimidating for women, it’s probably also putting pressure on some of the judges,’ said a spokeswoman for Women’s Aid, which says it does not know who is organising the protests.

Legal sources fear that direct attempts to disrupt courts will be next.

Fathers 4 Justice, advised by marketing and PR professionals, has so far advocated non-violent civil disobedience such as spraying purple paint over the doors of offices of Cafcass, the court officials’ body universally loathed by fathers’ groups.

It planed a more spectacular ‘Black Friday’ protest on 13 June to mark Father’s Day. Men were asked to come dressed in black, but O’Connor insists this is not aping the Blackshirts’ preference for all-black clothing.

There is apparently no shortage of potential martyrs. ‘I’m prepared to go to prison for this. Other fathers have said they will go to prison to defend the right for children to see both their parents,’ said O’Connor, who faced criminal damage charges in June.

‘The time has come when we are going to have to strike back. We are not misogynists: there are barristers, teachers - we represent a cross-section of society.’

Moderate campaigners, however, worry that such tactics may be counter-productive. Tony Coe, of the more moderate Equal Parenting Council, which campaigns for non-resident parents, said: ‘Fathers 4 Justice is an aggressive breakaway group that have really got fed up with people like us because they think that we are too busy having tea and scones with the judiciary.

‘We think the best way of winning hearts and minds is to treat them with respect.’

However, the different factions do unite around demands for parents to have automatic rights to see their children after divorce, unless there is a proven risk to safety.

The LCD argues that that would shift the focus from what is best for children - the cornerstone of family law - to what is best for parents, and has rejected an automatic right to access.

Only 713 fathers were refused contact with their children in 2001, compared with 55,000 who were granted it.

This article first appeared in the Observer on April 20, 2003. I am grateful to the editor for permission to reproduce it here.

Willie McCarney

Last year I began my report by referring to the occasion as the last AGM when we would meet as lay panellists. To paraphrase the words of Mark Twain, I’m afraid that the report of the demise of the lay panellist was greatly exaggerated !

Although much time has passed since the Belfast Agreement of 1998, and the subsequent Criminal Justice Review’s recommendation to establish the new post of lay magistrate, insufficient account was allowed for the inevitable and complex preparatory work prior to the implementation of the Justice (N.I.) Act, following Royal Assent.

By September 2002 we were informed that there would be no change in our present status prior to December 2003 and, in the interim, it would be inappropriate to use the title of lay magistrate. By February this year we learned that the target date was September 2004.

In one sense this prolonged period of uncertainty has had a positive aspect, allowing ample time to test the resolve, stamina and commitment for the challenge ahead as we acquired more information about the extended role. Having taken stock of other commitments and weighed up the implications of that role, amazingly, only 13 of our colleagues have decided to resign . Such a low fall-out (to date) is indicative of the dedicated service of current panellists. When the new force is recruited, trained and appointed as lay magistrates, I hope the same positive qualities will be evident.

Another noteworthy feature of the present situation has been the amount of updating of information which we have received, particularly through the visits to all our divisions by Patricia McKee and Joanne Flood. That has proved a very worthwhile exercise in communication and given members an opportunity to raise issues for clarification or further consideration. It has been much more effective than the customary circular and ought to be repeated on other occasions, when appropriate.

We have had over 6 years’ experience of the Children Order, and whilst I am not qualified to comment on points of law, I feel that I must mention some working features of the system which cause concern such as the increasing number of adjournments. Given the fact that any delay might be likely to be prejudicial to the interests of the child, it is frustrating to see applications in Family Proceedings adjourned again and again. During this last year a waiting list has had to be introduced for Guardian Ad Litem, such is the workload of this Agency. This is an unfortunate development, increasing delay and depriving children in public law cases of access to one of the most important attributes of the Children Order. Clearly this problem needs urgent attention to obtain adequate funding and increase the complement of properly qualified G.A.L’s.

Happily, a “wind of change” (as one source has described it) is beginning to blow through the system. The value of mediation is being appreciated and hopefully, steps will be taken to promote this important service across the divisions. The appointment of a Commissioner for Children is to be welcomed. The Commissioner’s wide- sweeping powers will ensure that the interests of children in general are better safeguarded.

Case management and a multi-disciplinary approach are to be encouraged in a Best Practice Guide which a sub-group of the Children Order Advisory Committee has been compiling for publication later this year.

Training during the year embraced Induction, Autumn Refresher and Emergency Protection Orders. I had the pleasure of addressing the 13 new recruits to the panel on the role of the lay panellist last June at Belfast Castle. I found them very interested in their new responsibilities. Refresher training, held in September and October at the Fitzwilliam Hotel, was attended by 104 panellists. Generally the training was well received, with expectations of the seminars fulfilled for 75 of the 78 who completed the evaluation forms. The Emergency Protection Orders Refresher conducted by Mrs Deirdre Dorman in 4 different venues attracted 57 applications. Deirdre’s presentation received high praise from those who attended these sessions. We are indebted to her for the amount of time she has been prepared to spend in sharing her expertise.

The Lay Panel Training sub-Committee has been busy with 8 meetings during the year. Apart from all the planning associated with training, discussions have taken place to widen the representation of membership and 5 divisions, not represented, have been asked to make a nomination. This wider representation should ensure a broader base of opinion for future planning . A draft Constitution, under consideration at present, will embrace this larger membership. Another initiative was the questionnaire for today’s training to ascertain which priority needs should be addressed. According to the responses, 67% chose Disposal Options in the Youth Justice System (Current/Future). The work of the Training Committee was greatly enhanced by the highly efficient and cheerful support of staff from Headline Building; Joanne Flood, Louise Mehaffey, Jonathan Mallon and Cathy Murphy, as well as the professional guidance given by Mr Harry McKibbin, R.M.

Our Honorary Secretary has paid tribute to the commitment of the Executive Committee. I would like to thank them for their support and encouragement throughout the year. We were sorry to lose Mrs Christine Day who is leaving the country. Mr John Richardson joined in the latter part of the year, replacing Mrs Margaret Collinson who had made a valuable contribution to our discussions during her short time with us. The Executive’s work was efficiently supported by the new Treasurer, Mrs Marie Woods and the Secretary, Mr Brian Rea whom we must congratulate on being awarded the M.B.E. for his services to the community.

Mrs Faulkner, our Vice-President, and I had the honour of meeting the Lord Chancellor at the official opening of the new courthouse in Dungannon. He took the opportunity to thank her for the valuable work she did on his behalf with our Association. I was unable to attend the official opening of Laganside Courts but our Honorary Secretary was able to be present.

I have deliberately kept the highlight of my year in office to the end of this report : the 16th World Congress of the International Association of Youth and Family Judges and Magistrates, in Melbourne. As I have already submitted a report of the Congress, I will restrict my comments to some overall impressions and memories of that grand occasion. Any conference stretching over 5 days and containing so many presentations presents a huge challenge to a summary. In the circumstances I have focused on a few of the issues. Apart from discovering that lay involvement is a rare commodity on a worldwide basis, and my role had to be explained constantly to delegates whom I met, I found some recurring themes which have relevance here : lack of resources, early intervention and diversion away from courts, community involvement and a multi-disciplinary approach to problem solving. It was a particular privilege to be present to see our own Dr Willie McCarney assume his new high office. The House magazine of the N.I. Court Service featured him in a recent addition, under the title, “International Man of Justice”. How appropriate !

I referred earlier to the new courts which opened recently here and it reminded me of the opportunity I had to explore the splendid facilities of the new Children’s Court of Victoria at Melbourne, featuring 4 Family Division Courtrooms, 3 Criminal Division Courtrooms, Pre-hearing conference rooms, interview rooms, Remote witness facilities, Indoor and outdoor child play areas, Children’s Court Clinic and Multi- purpose rooms. The building has a number of above ground holding rooms for young offenders in custody, each with its own TV set as well as a secure courtyard. I was very impressed by the building’s modern user - friendly design and great use of natural light.

Finally, thank you colleagues for (a) making it possible to attend such an important event and (b) allowing me to serve as Chairman for an extended period in office. My thanks also to Mrs Janet Leckey, whose tenacity and perseverance persuaded Court Service to sponsor my conference fees.

I hope all of you will stay the course as we head towards that new status of lay magistrate in the autumn of 2004 and I look forward to being your Chairman for part of that time.

NORMAN HUMES

26th April 2003

June 26 this year saw the culmination of nearly two and a half years’ work, when Angela Smith, MP, Parliamentary Under Secretary of State, announced that Nigel Williams had been appointed as the first Commissioner for Children and Young People for Northern Ireland.

The Commissioner, who is currently the Chief Executive of Childnet International, which specialises in protecting children from abuse on the Internet, will take up post on 1st October.

Speaking after the announcement, at Strandtown Primary School in Belfast, Ms Smith said: “This is an historic day for the children and young people of Northern Ireland. They now have a champion to speak for them, someone to ensure that their rights are safeguarded and respected.

“The Commissioner for Children and Young People has the widest range of powers of any Commissioner for Children and Young People in the world.

“We can take pride in the fact that Northern Ireland can now be held up as a model for best practice and a world-leader in this important area.”

Commenting on his new role, the new Commissioner, said: “I am honoured to be chosen for this important position. I am under no illusion about the extent of the task I have taken on. It will be a very challenging role, with the potential to have a positive impact on the lives of children and young people throughout Northern Ireland.

“While I intend to bring my specialist experience to bear on the tasks ahead, my priority is to listen to children and young people themselves and to work with the organisations that are involved in the field. I will be visiting as many of them as I can, once I take office, to learn more about what needs to be done.

The Office of the Commissioner for Children and Young People will be set up over the next 9 months and its staff will include experts in children’s legal rights, in research, marketing and education.

The event was attended by nine members of the Children and Young People’s Unit’s Young People’s Advisory Forum who had taken part in the rigorous selection process for the position. The panel made their final selection from a total of 39 applications from the United Kingdom, Ireland, the United States of America, Serbia, and New Zealand.

Amelia Deehan, 15, from Magherafelt, who sat on the young people’s selection panel, said: “The panel is delighted that Nigel Williams has accepted this appointment. He really impressed us with his enthusiasm and in particular his knowledge and ideas on the many issues that affect young people. We wish him well in his important work.”

Michael Leathem, 16, from Belfast, also on the selection panel, said: “This has been the first time young people have been involved in a public appointment in Northern Ireland and it wasn’t just a token gesture – we had a real say in the decision-making process; we hope that other organisations will follow suit and involve young people more in all aspects of decision-making.”

Originally from Limavady, Nigel Williams moved with his family to Portadown where he attended Portadown College before continuing his education at Cambridge University.

In 1976, he joined the Northern Ireland Civil Service as a graduate trainee working on a range of posts in the former Department of Economic Development.

He left the Civil Service in 1984 to establish a computer training business. Four years later he was recruited by the charity CARE (Christian Action Research and Education) as Head of Public Policy, in Westminster. In 1995 Nigel left CARE to found a new charity, Childnet International, focusing on promoting the rights and best interests of children on the Internet: www.childnet-int.org

Nigel is a Board member of the Internet Watch Foundation, and of the Internet Content Rating Association and was appointed by the Home Secretary in 2001 to the Task Force on Child Protection on the Internet.

From 1994-1998 Nigel was a Liberal Democrat member of Southwark Council in South London. He will be resigning from the party to emphasise his political independence in his new role.

Nigel has also been a school governor, chair of a Parents Teachers Association, and worked closely with a school governing body. He is also vice chair of the Parochial Church Council of All Saints Church in Peckham.

While living in Northern Ireland he wrote extensively, including the award winning series on places to visit throughout Northern Ireland, ‘Off the Beaten Track’. He is also author of a book on the impact of pornography ‘False Images’, and has published a number of articles including one on the UN Convention on the Rights of the Child and media use. He was also technical consultant to the Usborne Children’s book “101 things to do on the Internet”.

In his spare time he enjoys cycling, watching sport - especially rugby - reading biography and travel. He is married with four children.

Truancy initiatives since 1997, worth £650m, have failed to successfully tackle the problem. In fact the number of secondary school pupils playing truant has increased by nearly 25% since Labour came to power.

Analysis of data the government published at the beginning of May, revealed the amount of school hours lost to truanting remained static - 0.7% of half school days were lost through truanting. But the number of pupils truanting had significantly increased.

The figures show a 14.75% increase in the total number of primary and secondary pupils playing truant since 1997 to a total figure of 1,131,089.

566,000 secondary school pupils played truant at least once in the school year 2001/02, compared with 423,000 in 1996/97.

Martin Ward, deputy general secretary of the Secondary Heads Association, said the figures did not come as a surprise.

The initiatives address the symptoms

“I don’t think we were expecting that the truancy projects would make a difference because the underlying causes of truancy are deeply rooted. The initiatives address the symptoms rather than the cause.

Aim to grab the headlines

There have been too many grandstand policies - for example the announcement that heads would be able to fine parents whose children didn’t attend school was clearly an absurdity to gain a headline rather than do any good,” he said.

We need to make the curriculum more interesting and relevant

He said 100% attendance was unachievable, but truancy would be better challenged through making the curriculum more interesting and relevant, which is planned in the government’s green paper on 14 to 19 education. But, he added: “A lot of the problem is about social conditions and nothing to do with schools at all.”

Prosecuting parents doesn’t reduce absenteeism

In May 2002 Patricia Amos became the first mother to be jailed for 60 days for the truancy of her daughters, aged 15 and 13, in Oxfordshire. In September the government launched its £50m behaviour improvement programme, which included fast track prosecution for parents of persistent truants. Parents could face their first court appearance within 12 weeks of the problem arising and could be fined up to £2,500 or given a three-month prison sentence.

The latest research shows that prosecuting parents for their children’s truancy does little to reduce the overall level of absenteeism from school.

The study of 43 local authorities “indicates that the approach of taking more parents to court does not result in an [improved] school attendance rates or fewer truancy problems”, says Ming Zhang, principal education welfare officer at Kingston upon Thames borough council, who produced the work.

He looked at returns from the councils from 1999 and 2002 and found a “statistically insignificant” correlation between prosecution and truancy levels, both when comparing the different authorities and over time within individual authorities. But there was a slight improvement in secondary schools.

“We should not rush towards the approach of reliance on more court cases, more fines or even more jailing of truants’ parents in our efforts to combat truancy,” Mr Zhang said.

Parents who are truly indifferent to their children’s future are rare.

Parents who are truly indifferent to their children’s future are rare. There are plenty of disadvantaged parents who start off with great hopes that their children will learn more than they did, and who watch in bewilderment as their offspring fail to be educated or engaged by a target-driven machine.

These are the 25% of children who can’t read or write at 11 and who never catch up with their peers. For them, school becomes an exercise in perpetual failure, and it’s entirely rational that at some point they should decide to skip it and that their parents shouldn’t object. They might need the skills of the street, or a job, more than they need a failed GCSE.

What the government is engaging in isn’t double standards, but doublethink. It’s much easier to declare that all truancies are equal than to deal with the intractable problem of real truancies.

Schools should be a place where pupils want to be.

There are two ways to get children into schools: threaten them, or tempt them. The government’s very enthusiastic about the first option. But they’re not thinking enough about how to make schools a place where pupils want to be.

There’s no doubt that pupils’ absence is difficult for teachers. The best try to teach in coherent, developing strands, and absent children do miss out. But much teaching, delivered under the restrictions of Sats and exams, is tedious and dull, done only because targets require it, and not because it engages or enlightens anybody.

The government is breaching the United Nations convention on children’s rights by imposing a targets and testing regime in English schools that ignores their needs, a UN representative has warned.

In an interview with the Guardian, Katarina Tomasevski, special rapporteur on the right to education for the UN commission on human rights, said she believed the British government was in technical breach of the convention.

Article 29 says education should be “directed to the development of the child’s personality, talents and mental and physical abilities to their fullest potential”.

She said that the current system of tests at seven, 11, 14 and 16 for children in England was designed to fulfil government objectives rather than meet the needs of children.

Professor Tomasevski also argued that the government’s support for tuition fees contravened the convention, which calls for governments to “make higher education accessible to all on the basis of capacity by every appropriate means”. She said that in Britain, universities were being given “designer labels” and education was being defined as “merchandise”.

There was inconsistency in the government’s willingness to talk about human rights in relation to education in other countries but not in Britain, she said.

There were “far too many” compulsory tests in English schools, Prof Tomasevski added.

Children were tested so much that she wondered whether the government wanted England “to become another Singapore” - where in a poll pupils aged 10-12 said they were more worried about failing their exams than about their parents dying.

Prof Tomasevski, professor of law and international relations at Lund University in Sweden, has held the post of special rapporteur, an unpaid ambassadorship, since 1998. She produces an annual report on worldwide developments and carries out missions to specific countries.

She came to Britain to produce a report in 1999 and again in 2001, when she visited Holy Cross girls’ school in Belfast, subject of a sectarian feud.

“Education has to be in the best interests of the child and it [government policy] is not. It’s not about learning, enabling children to learn and develop, it is about skills in test-taking, it’s pushing them through industrial production of test-takers,” she said.

“We should drive away from this competitive-oriented uniformity, that all children should be cookie-cutter test-takers.

“Wherever testing is introduced it tends to overwhelm the whole design of education. Teachers have to teach the test because that’s how children are evaluated and how teachers are evaluated. The voice of children is missing.”

In this country children were caught in the crossfire between the government and teachers over testing. “It leaves children as the hostages of a battle which is highly political,” she said.

“The thing which I find particularly intriguing in the United Kingdom is the ideology which underpins the whole movement which is about target-setting and delivery - which is an ideology which comes from a command and control economy, it comes from the Soviet Union and the People’s Republic of China ... why is it that such a strange ideological import of targets and delivery to targets has been introduced in the United Kingdom?

“The government uses human rights rhetoric abundantly talking about education in other countries, but not at all talking about education in the United Kingdom. Very strange.”

Her remarks will irritate ministers at the Department for Education and Skills and at the Department for International Development. But they add to the swell of opinion against the government’s continued support for testing and league tables, particularly in primary schools.

Steve Sinnott, deputy general secretary of the National Union of Teachers, said her views were very controversial and divisive but had to be heard.

“She is saying things that are highly critical of our education system, but she’s taken on a brief which is to ensure that there is a child’s perspective on education development in the UK. We need to take that on board.

“She speaks with significant authority and I think we in the UK should consider very seriously what she’s got to say.”

This article first appeared in the Guardian on July 14, 2003. I am grateful to the editor for permission to reproduce it here.

Willie McCarney

The case-law of the European Court of Human Rights (hereinafter called “the Court”) regarding the protection of the right to respect for family life in Article 8 of the European Convention on Human Rights is extensive and diverse. It covers various aspects of family life, and since “private life” and “family life” are closely connected concepts, the judgments often deal with "private and family life" taken as one single concept.

The Court has frequently stated that the Convention is a dynamic and not a static instrument which must be interpreted in the light of present day conditions. The Court has pointed out, for instance, that it must have regard to the changing conditions within the Contracting States and maintain a dynamic and evolutive approach. This applies very much to the protection of private and family life.

One recent example – which concerns private life rather than family life but which also affects the right to marry – deals with the legal status of so-called transsexuals, i.e. persons who have undergone surgical treatment in order to change their sex from male to female or from female to male. The essential legal question relating to the Convention has been whether Article 8 of the Convention requires that such change of gender should be legally recognised, possibly subject to certain conditions. In the past the Court was not ready to state that Article 8 required such recognition (Rees v. UK, Cossey v. UK, Sheffield and Horsham v. UK). The Court took into account that views differed in the Convention States and considered that each State therefore had a wide margin of appreciation when deciding how to deal with these problems in the law.

But on 11 July 2002, the Court changed its mind in two new judgments (Christine Goodwin v. UK and I. v. UK). The Court admitted that there was still not a common European approach to this matter but found "clear and uncontested evidence" of a continuing international trend in favour of social acceptance and legal recognition of the new sexual identity of post-operative transsexuals. On this basis the Court considered that a total refusal to recognise such changes of gender was not in conformity with Article 8. The Court also considered that a total refusal to allow a person who as a result of such treatment had acquired a new sexual identity to marry a person of the opposite sex violated Article 12 of the Convention.

A fairly early judgment which affected previous case-law in the area of family relations was rendered in the Marckx v. Belgium case. This case concerned the relations of the child born out of wedlock, called the “illegitimate” child, with its mother and the mother's family. In its judgment from 1979 the Court found that Belgian law, as it then was, violated on a number of points the right to respect for family life. And the Court pointed out that this was a new case-law, since some of the Belgian legal provisions which the Court considered to be inconsistent with the Convention had been accepted a few years earlier by the European Commission of Human Rights.

There are two leading principles behind the Court's case-law in the area of family life:

– on the one hand, the principle of non-discrimination, which the Court has applied in regard to the legal situation of children born out of wedlock and in general to the status of families in which the parents are not married to each other, and

– on the other hand, the principle of proportionality which is applied when there is interference with existing family life and the question is whether the interference is justified by sufficiently strong reasons (e.g. when a child is taken away from the parents by decision of the authorities because of problems in the home environment or when one of the parents, usually the father, is expelled from the country where the other family members live).

A number of cases with an aspect of discrimination have concerned the legal rights of the child born out of wedlock.

In the Marckx case referred to above, the Court found that Belgian law violated the Convention because, first, the legal link between a mother and her child born out of wedlock was not created by birth but by a declaration of recognition or a court judgment and, secondly, the right of the child born out of wedlock to inherit from the mother was restricted and the child had no right at all to inherit from the mother’s relatives.

In its statements of a more general nature the Court pointed out that Article 8 of the Convention makes no distinction between the “legitimate” and the “illegitimate” family and that the members of the “illegitimate” family shall enjoy the guarantees of Article 8 on an equal footing with the members of the traditional family. In 1979, when the Marckx judgment was rendered, this was an important and not self-evident general principle.

However, it was a principle that was maintained and confirmed in several subsequent judgments, for instance the Johnston v. Ireland judgment from 1986 and the Keegan v. Ireland judgment from 1994 where the Court stated that “the notion of family in Article 8 is not confined to marriage-based relationships but may encompass other de facto family ties where the parties are living together out of wedlock” and that “a child born out of such a relationship is ipso jure part of that family unit from the moment and by the very fact of his birth” which means that “there exists between the child and his parents a bond amounting to family life".

The facts of the Johnston case differed a great deal from those of the Marckx case. In the Marckx case the family consisted of a single mother and her daughter. In the Johnston case the family was a complete family consisting of father, mother and child, all living together. But the father and mother could not marry each other because the father was already married and could not obtain a divorce.

The Court first examined whether the right to respect for family life or the right to marry might include a right to divorce but answered this question in the negative. The Court recalled that the Convention should be interpreted in the light of present-day conditions but added that it could not therefrom derive a right to divorce since this was a right that had clearly not been included in the Convention at the outset.

Consequently, there was no right for Mr. Johnston to a divorce and therefore no right to marry the woman he had lived together with for many years. But the Court emphasised that the inability of the parents to marry must not result in an unfavourable position for the daughter who “should be placed, legally and socially, in a position akin to that of a legitimate child”. But Irish law did not at all place her in such a position. She was not permitted to legally establish that Mr. Johnston was her father, and Mr. Johnston could not be appointed her guardian jointly with her mother, she could not be legitimated even if her parents were able in the future to get married, and she could not be adopted jointly by her parents. She had no right to inherit from her father and her right to inherit from her mother was restricted. She was thus in many respects in an inferior position as compared with a “legitimate” child.

The restricted right of inheritance was one of the crucial elements which in the Johnston case made the Court decide that the daughter’s right to respect for her family life had been violated. And it would seem that precisely the right of inheritance was an area where discrimination against children born out of wedlock had occasionally survived. The Court could be instrumental in removing such discriminatory remnants from the past.

The Inze v. Austria case, for instance, reflected old traditions from Austrian rural areas. The Carinthian Hereditary Farms Act was based on the idea that farms should not be divided which was in itself a reasonable aim. In order to avoid splitting up a farm among several heirs, one of them would have to be given precedence, but in selecting the heir who would inherit the farm, a number of discriminatory elements had been included in the law:

– male heirs would take precedence over female heirs,

– children related by blood would take precedence over adopted children, and

– “legitimate” children would take precedence over “illegitimate” children.

As a result of the latter rule, Mr. Inze, who was born out of wedlock, was excluded as heir of a farm which instead went to his younger half-brother who had been born in his mother’s marriage. The argument advanced by the Austrian Government that this reflected the opinions and feelings of the rural population was not a sufficient justification, and the Court concluded that the law was discriminatory.

Another case was the Mazurek v. France case which also concerned discrimination against children in respect of inheritance, but in this case the discrimination was not directed against children born out of wedlock in general but against a particular category among them, i.e. so-called adulterine children. According to French law, as it then was, these children only inherited half of the property a child would normally get. The Court did not accept the argument that this was justified by the legitimate purpose of protecting families from infidelity by one of the spouses.

Another question affecting children born out of wedlock concerns the establishment of paternity. For the child born in wedlock, there is a strong presumption that the husband is also the father. But for children born out of wedlock the paternity must be established in some other way, by recognition or by a court judgment.

A recent case – Mikulic v. Croatia – shows that the child born out of wedlock shall normally have a right to establish who is his or her father. The manner of doing this is to a large extent left to the discretion of the Convention States. There is, for instance, no requirement that the courts should use DNA tests which nowadays would appear as the most efficient method, but the courts must apply effective means of establishing the paternity. In the Mikulic case, the man who, according to the mother, was the child’s father and who was the defendant before the Croatian courts obstructed the court proceedings, and the courts were inefficient in dealing with his obstruction and in bringing the proceedings to an end. The Court found a violation of the Convention in that the courts had not taken care of the child’s interest in knowing who was his father.

A somewhat different situation arises when a child is born to a woman who is married and whose husband is presumed to be the child’s father. In order not to undermine this presumption, there may well be some restrictions in the right to bring proceedings in order to establish that another man is the father of the child. But these restrictions may not be so severe that the presumption is upheld also when it is obvious that it does not correspond to the realities. In fact, in such a situation the conflicting interests must be balanced, i.e. the interest in establishing the biological paternity and the interest in not spoiling the relations between spouses or within the family in general.

Two cases illustrate these problems. The first one is Nylund v. Finland. Mr. Nylund lived together with a woman who became pregnant while they were living together. Soon thereafter they broke off their relationship and the woman married another man before the child was born. Since the child was born at the time when the mother was married, her new husband was automatically registered as the child’s father. But Mr. Nylund considered that he was the father and wished his paternity to be legally established and recognised. The child’s mother and her husband opposed his request and the Finnish courts decided that Mr. Nylund had no right to have his paternity established. The Court found no violation of Article 8. It found it reasonable to uphold the presumption of the husband’s paternity in a case like this where the mother of the child did not want this presumption to be overturned.

But a different conclusion was reached in the case of Kroon and others v. Netherlands which concerned a child whose mother was married to a man who had disappeared to an unknown destination before the child had been conceived and who could not therefore be the child’s father. Moreover, the mother had a stable relationship with another man, and the mother as well as her new partner wished the latter’s paternity to be legally established. But the presumption of the husband’s paternity applied and the disappeared husband was therefore registered as the father of the child. It was not possible under Dutch law to change this, unless the husband participated in the proceedings and accepted that he was not the father. But the husband had disappeared and was probably not even aware of the existence of the child. The Court stated: “Respect for family life requires that biological and social reality prevail over a legal presumption which - - - flies in the face of both established fact and the wishes of those concerned without actually benefiting anyone.”

Since cohabitation without marriage has increased considerably during the last decades, there are many children born out of wedlock who do in fact come from stable relationships between a man and a woman. Such relationships can easily be assimilated to a marriage and the father often assumes the same responsibility for the child as a married father. As a result of these developments, there arose a need to strengthen the position of the unmarried father whose parental rights had been very weak under many national laws. But the factual situations differed. There are also cases where the unmarried father never lived together with the mother and never had a stable relationship with her.

The Court has dealt with these varying situations on the basis of a proportionality test. A fair balance must be struck between the interest of the child born out of wedlock and that of the father. And what Article 8 of the Convention requires in this respect is in particular a procedure which makes it possible for the father to be heard and substantive rules which give him some right to continued contact with the child when he has a well-founded interest.

The following cases may be mentioned:

– Elsholz v. Germany: The father had been refused a visiting arrangement without an expert opinion having being obtained and without a hearing. This was a violation of Article 8.

– Hoffmann v. Germany: The domestic court refused to give the father access to his child, but it did so after having heard the father, the mother and the child and after having obtained the views of various institutions and an expert. This procedure was considered satisfactory, and the father had been sufficiently involved. There was no violation of Article 8.

– Sahin and Sommerfeld, both v. Germany: In the Sahin case a child (who was only 5 years old) had not been heard, and in the Sommerfeld case a psychological report had not been ordered by the court. A chamber of the Court considered that Article 8 had been violated, but the judgments are not final, since they have been admitted for review by a Grand Chamber of the Court.

The father’s rights are affected in a particularly significant manner if the child, with the mother’s consent, is left for adoption, and it is therefore important that the father should be involved in this process.

The following two cases deal with adoption:

– Keegan v. Ireland: Mr. Keegan cohabited with a woman and was the father of a child born out of that relationship. However, the cohabitation ended, and the mother left the child for adoption without Mr. Keegan’s knowledge and consent. This was not consistent with Article 8.

– Söderbäck v. Sweden: This was a case where a child was adopted by the mother’s husband. Mr. Söderbäck who was the child’s father had been heard in the proceedings, he had objected to the adoption, but the Swedish court had made an investigation and obtained an expert opinion. The procedure was therefore acceptable and there was no violation of Article 8.

In cases of children taken into public care, the Court also applies proportionality and places emphasis on the procedural aspects. It is obvious that in these cases the Court cannot effectively review the merits of the decisions of the domestic courts which are mostly based on a great deal of oral and written evidence. But what the Court can do, and does, is to check that the procedure satisfies the interests of the parents and that the authorities, once the child has been taken into public care, act with the aim of returning the children to their parents, for instance by giving the parents regular access to the child.

There is a great deal of case-law on these matters, and the Court has mostly concluded that the taking into care as such fell within the margin of appreciation of the respective States and did not violate Article 8. However, in some cases the parents had not been sufficiently involved in the proceedings (O, H, W, B and R, all v. UK), or they had not had access to all reports or documents upon which the decisions were based (McMichael v. UK). and there was a violation of Article 8 because of these procedural deficiencies.

In other cases, the social authorities were found not to have worked with the aim of facilitating the return of the child to the parents as required by Article 8. In the Olsson v. Sweden case, for instance, the three children had been placed in two foster homes situated far from the place where the parents lived and far from each other, which made continuous contact difficult between parents and children and between the children.

Another important category of cases dealing with family life are those in which there is a conflict between the requirements of a normal family life and the public interests in restricting immigration or in protecting the society from serious crime. In these cases, it is the legislation about the status and rights of aliens which must be weighed against the right to respect for family life. Such conflicts can arise in basically two situations:

– on the one hand, where the family is separated and there is a wish to reunite the family by moving a spouse or a child from one country to another and,

– on the other hand, where the family lives together in one country but one family member is not permitted to stay in the country because he or she no longer satisfies the residence requirements or because he or she has committed a criminal offence which has resulted in an expulsion decision.

In such cases the Court has made an evaluation of the conflicting interests on the basis of the principle of proportionality. In other words, the question has been whether the public interest in not granting a person access to the country or in expelling him or her from the country was strong enough to outweigh the interest of the family members in living together.

In the cases concerning separated families one important consideration has been whether or not it would be a realistic alternative for the family to live together in their country of origin. The case of Gül v. Switzerland concerned a Turkish couple – husband and wife – who lived in Switzerland and who wished a son left behind in Turkey to come and live with them in Switzerland. But the Swiss authorities refused to grant a residence permit. The Court pointed out as an important element that it would be difficult but not impossible for the parents to return to Turkey and live there with their son. – A similar reasoning was applied in another case about a Moroccan citizen who wished a son, left behind in Morocco, to come and live with him in the Netherlands (Ahmut v. Netherlands).

But a different conclusion was drawn in the case of Sen v. Netherlands, which concerned a Turkish family living in the Netherlands who wished a daughter left behind in Turkey to come and live with them in the Netherlands. The Court considered that in this case it was not a realistic option that the family should establish a common life in Turkey, since the family had lived for a long time in the Netherlands and had two children who were born in the Netherlands and went to school there.

In expulsion cases, it is an important consideration whether the person concerned has committed a serious criminal offence and, in particular, a criminal offence which, if repeated, would be dangerous to other persons. Crimes of violence and serious narcotics offences are offences which may often make an expulsion justified even if it leads to family separation. But there are exceptions. In two recent cases the Court considered that the expulsion of persons who had committed serious criminal offences would violate Article 8.

The most recent case is Amrollahi v. Denmark where the Court found that the expulsion of an Iranian citizen who had been sentenced to three years’ imprisonment for drug trafficking would violate Article 8 of the Convention. The Court pointed out that Mr Amrollahi had lived for many years in Denmark, that he lived there together with a Danish woman with whom he had two small children and that the woman with whom he lived and their children could not, for various reasons, be expected to live in Iran.

The other case is Boultif v. Switzerland. Boultif, who was an Algerian citizen, had committed several offences, including robbery, and been sentenced to two years’ imprisonment. He had lived in Switzerland for about ten years and was married to a Swiss woman. The Court found that his wife could not be expected to follow him to Algeria and took into account that the offence had been committed several years back in time and that he had not committed any new offences.

In other cases a deportation order was no based on a criminal offence but only on a refusal to prolong a residence permit. Two cases – Berrehab and Ciliz, both v. Netherlands – concerned foreign men, one Moroccan and one Turk, who had been granted residence permits in the Netherlands because of their marriage to a woman resident in the Netherlands. However, the marriages ended in a divorce, and as a result thereof the residence permits were withdrawn. Each of the two men had a child with their wives in the Netherlands, and they were anxious to keep the contact with their children. The refusal to let them stay in the country was in these circumstances disproportionate.

The Court’s contributions to the development of the family law may be summarised as follows:

(a) The Court, by its judgments in the case of Marckx, Johnston and other cases, contributed to eliminating from national laws and practices elements which were discriminatory to children born out of wedlock. This development was already underway, but the Court could support it and contribute to solving some remaining problems.

(b) The Court made an important contribution to family law by emphasising, in an unambiguous manner, that de facto families based not on marriage but on factual cohabitation were protected by Article 8 in the same way as the traditional family based on marriage.

(c) It followed from the Court’s acceptance of de facto families that the unmarried father, in cases of stable cohabitation, should have rights similar to those of the married father. This means that when the family is split up, the unmarried father’s interest in having access to his children cannot be neglected but must be taken into account in the same way as the married father’s interest in having continued contact with the children.

(d) As regards the taking of children into public care, the Court’s case-law has presumably made the social authorities and the courts in some countries more aware of the parents’ rights and interests and more cautious than they were before in separating children from their parents and in restricting contacts between children and their parents.

(e) Similarly, the Court’s case-law regarding residence permits and expulsion has probably created a greater awareness of the importance of not splitting up families except when there are strong reasons for such a separation, and this will probably have an effect on the application of the laws on aliens in various countries.

This scheme was developed jointly by Down Lisburn HSS Trust, an NGO called Extern and the Northern Ireland Juvenile Justice Board.

The aim is to establish a small number of community based accommodation placements, supported by a dedicated worker (a Youth Advocate), for children as an alternative to a remand in custody or as a support during the community supervision component of a Juvenile Justice Centre Order. (JJCO)

A plan to meet that aim was drafted and has now received funding from the Northern Ireland Office for a pilot period 1 January 2003 to 31 March 2004.

Pilot Area

In the pilot stage service will be restricted to children normally domiciled within the Down Lisburn Trust area. This embraces Newcastle, Downpatrick, Ballynahinch, Lisburn and Twinbrook/Poleglass.

Identification of Need

In the target area in the year 2001 there were 8 children admitted to custody under the Police and Criminal Evidence Bill (PACE), who were subsequently further remanded by Court and 4 remanded directly by Court. Of these 12, six subsequently received bail. In 2002 16 were initially admitted under PACE and 3 admitted directly of which 10 subsequently received bail. (Lisnevin figures).

The average length of remand was 21 days in 2000 and 27 days in 2001. (NIO Research and Statistics Branch)

There is also currently a small group of children from the Down Lisburn Trust area committed under a Juvenile Justice Centre Order (JJCO) shortly to be discharged to the community but for whom a return home or to mainstream residential childcare provision is inappropriate. In Northern Ireland 50% of a JJCO is served in custody and 50% in the community. The circumstances of these cases are such that the likelihood of re-offending and subsequent re-admission to custody is perceived to be high.

Aim

The basis of this scheme is that the availability of alternative accommodation will contribute to both an increase in the number achieving bail and in shorter periods of remand in custody. It will provide an additional support to particular children during the community supervision component of the JJCO. The scheme will aim to reduce offending while under supervision (bail or post-custody). It will seek to assure that the child attends Court and complies with other requirements of bail or supervision.

This scheme seeks to offer two options - for those children who are aged 16+ a supported lodgings scheme and for those aged under16 a community placement recruited to foster care standards. In both circumstances the Looked After Children (LAC) Regulations will apply.

Down Lisburn Trust

Down Lisburn Trust has allocated one worker part-time to the role of identifying, assessing, training and supporting a pool of placement providers. Two distinct types of placements will be sought.

Firstly providers will be identified for long term (3-6 months) placements for children under the community supervision component of the JJCO. These placements will be planned and contracted for during the custody component of the JJCO.

Secondly providers will be identified for reactive immediate short-term placements in remand/bail situations.

The placement providers would be supported by Trust staff providing access to the 24 hour on-call duty system.

In situations where the reasons for the child’s admission to the scheme no longer applies, but it is perceived by the Trust as being in his/her interests to remain in that placement responsibility for that placement will pass from the scheme to the Trust. The Trust will nevertheless seek to maintain the pool of providers.

Extern

The children for whom the service is to be provided will be those who need an intensive package of support. While this package may include mainstream activity such as attendance at school or employment, it is likely that additional or alternative education or training, diversionary activity, advocacy and mentoring services will be required.

To meet this need Extern is appointing a Youth Advocate.

The youth advocacy concept is drawn from the Youth Advocacy Program (YAP) in Pennsylvania and is now being developed by Extern in the North Eastern Health Board in the Republic of Ireland. Extern has in place an agreement with YAP to provide training and support for this initiative.

The advocate will fulfil the following functions:-

provide support to the young person during placement through direct work and assist access to other services;

assist the young person with Court appearances;

develop and agree individualized service plans with each young person and their carer;

provide support to the young person on the programme;

identify and agree pro-social activities for each young person referred based on needs and the young person’s strengths and interests;

work with the probation officer in supervising the young person throughout the Court process and assist in the management of bail or remand;

where appropriate, assist the young person to re-engage with family or other supporters;

assist those young people wishing to access further support service post placement.

The advocate may also contribute to the training of potential providers.

Juvenile Justice Board

Juvenile Justice Board Custody Services will facilitate the identification of children to be referred to the scheme through the initial assessment process of children admitted to custody, and, in the case of post custody supervision, in conjunction with Probation.

Youth Justice Agency - Community Services projects will be available to the scheme as a support to the child under the terms of Bail Support or as a contribution to post-custody supervision provided by Probation.

Criteria for admission

Children who meet the following criteria will be considered for the scheme:

§ Subject to remand/bail decision in Court

§ In custody under JJCO

and

§ Ordinarily resident in Down Lisburn Trust Area

and

§ No alternative community placement

Admission will be controlled by Down Lisburn Trust.

Management

A steering group, representative of the NIO, Down Lisburn Trust, Extern, Juvenile Justice Board and Probation, will oversee the scheme.

This will be complemented by an operational group comprised of the fostering link-worker, the youth advocate, a representative of the assessment function of the JJB, and other key-worker as appropriate to the children currently on the scheme. This group will be chaired by the Extern Services Manager.

Costs

The costs of the scheme will be met by the NIO. This will include:

Down Lisburn Trust:

Worker’s Salary (50% pro rata)

Provider’s Fees and Retainers

Extern:

Workers Salary and Expenses

Programme Costs

For providers offering an immediate placement in bail/remand situations some form of retainer will be required, while those providing post custody placements on a planned basis will be contacted for each individual placement.

Administration and accommodation costs will be met by the partners.

Evaluation

This proposed scheme is for a period of fifteen months in the first instance. The geographical area and the numbers to be catered for are both limited. However the scheme will be subject to evaluation and thus form a pilot that may have wider application.

A detailed evaluation will be undertaken and completed during the final three months of the pilot.

Further information on how the scheme is progressing may be obtained by contacting:

“David Weir”

<davidw@jjbni-whitefield.org>

Commissioner For Children And Young People in Northern Ireland

Pilot Area

Identification of Need

Aim

Down Lisburn Trust

Extern

Juvenile Justice Board

Criteria for admission

Management

Costs

Evaluation