Human Rights Act
The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into domestic law. It came into force in England and Wales in October 2000. It enables citizens of the UK (including children and young people) to seek to protect their ECHR rights through domestic courts. In addition, they can still seek protection through the European Court of Human Rights in Strasbourg, France.
When the UK courts are considering a claim by a child under the Human Rights Act, they should refer to the UN Convention on the Rights of the Child and the UN Committee on the Rights of the Child's General Comments and Concluding Observations. Unfortunately, still too few cases concerning children make use of the UN Convention on the Rights of the Child, despite the very strong ECHR Chamber judgement in the Sahin case:
rights of children and the standards to which all governments must aspire in
realising these rights for all children are set out in the Convention on the
Rights of the Child.
Sahin v Germany, Chamber judgment of the ECtHR, July 8 2003
Notable Human Rights Act and ECHR cases benefiting children and young people
- January 2010 - the European Court of Human Rights says that police blanket stop and search powers, introduced under counter-terrorism legislation, are unlawful. Between 2007 and 2009, nearly 310,000 children aged 10 to 17 were stopped and searched by the police; 40% of these were Black children.
- July 2008 - Court of Appeal upholds the human rights of children in secure training centres (prisons run by private companies) by quashing restraint rules introduced by Ministers the previous summer. The rules were rushed in following the damning inquest into the death of a child following restraint. Instead of increasing child protection in secure training centres, Ministers had given staff extra restraint powers.
- January 2006 - the High Court says young people can continue to receive confidential advice and treatment relating to contraception, sexual and reproductive health, because to stop this would result in more young people not seeking help, and would be a violation of their right to make decisions (in accordance with their age and maturity).
- May 2005 - the Court of Appeal says that three boys, aged 13, 15 and 17, can have a lawyer to represent them in a case brought by their separating parents in dispute about which parent the boys should live with. The boys argued successfully that their views should be heard in line with article 12 of the UN Convention on the Rights of the Child.
- February 2005 - Law Lords reject the claim from a group of Christian head teachers, teachers and parents of four independent schools that the corporal punishment of children is central to their religious beliefs and to prohibit this in private schools is a violation of their right to practise their religion. The Law Lords found the ban on corporal punishment to be legitimate and proportionate.
- November 2004 - the European Court of Human Rights says an 11 year-old boy did not have a fair trial because he did not understand the consequences of any penalty, including imprisonment. An independent psychologist said the boy was functioning between the age of a six and eight year-old.
- November 2002 - the High Court says children in prison must be given the same protection from abuse and harm as children in families and other institutional settings such as children's homes.
- January 2001 - the High Court stops three powerful news organisations from publishing the details of two 18 year-olds who had served custodial sentences for a murder they committed when they were 10 years-old. The judge said the injunctions were necessary because of "real possibility of serious physical harm and possible death".
Rights under the ECHR
There are 13 substantive rights in the ECHR (articles 2 to 14), with three additional rights under the First Protocol.
Article 2– the right to life
Article 3– protection from torture or inhuman or degrading treatment or punishment
Article 4– protection from slavery
Article 5– right to liberty and security
Article 6– the right to a fair trial, including the child's right to be informed promptly, in a language he or she understands, of the alleged offence and to have an interpreter in court if he or she cannot understand or speak the language used in court. Restrictions on reporting can be applied to protect the interests of children
Article 7 – no one can be punished for an act that was not a criminal offence when it was carried out
Article 8– the right to respect for private and family life, home and correspondence
Article 9– the right to freedom of thought, conscience and religion
Article 10– the right to freedom of expression
Article 11– the right to freedom of assembly and association
Article 12 – right to marry
Article 13 – right to an effective remedy
These are all supported by article 14 – all the rights in the Convention apply to all people without discrimination.
The ECHR contains rights that are, for the most part, civil and political in nature, and, unlike the Convention on the Rights of the Child, it is not a document designed exclusively for children and young people. However, that should not undermine its relevance for children and young people. There have been numerous cases considered both by the Commission and the Court in Strasbourg that have dealt with children’s rights. They have adopted a very robust approach to the interpretation of ECHR Articles in children’s cases and the concept of the ECHR being a "living instrument" has meant that changing legal and social conditions are taken into account.