Withholding information – balancing P’s Article 8 Rights

Photo credit- Darwin Bell via Foter.com : CC BY-NCPhoto credit: Darwin Bell via Foter.com / CC BY-NC

Case scenario

  • PD is 16 years of age. He was previously known as HD, but formally changed his name by deed poll in August 2015.
  • P’s adoptive parents are SD and JD.
  • P is placed with local authority foster carers pursuant to Section 20 of the Children Act 1989.
  • In September 2014 P told his parents that he wanted to be a boy. He said he wanted to change his identity to be male. He was referred to the Tavistock Gender Identity Clinic having experienced gender dysphoria.
  • P’s parents have struggled to come to terms with P’s decision. In the course of direct and indirect contact they called him H, which caused P much annoyance and upset.
  • P has decided that he no longer wishes his parents to be involved in his life and does not wish them to receive any information about his day-to-day life, nor about his assessment and possible treatment at the Tavistock Clinic or other medical facility.

Source: PD v SD & Another 2015 

What do you do in these circumstances?

This issue has to be one of the most Frequently asked questions that I get as a Local Authority lawyer – “Little Frank is in care and he doesn’t want his mum to know X, do I respect Frank’s wishes, or respect the duty in the Act that parents are to be consulted with about major issues?” 

March 2016, Suesspiciousminds

Read a legal perspective by suesspiciousminds here

%22Before making any decision with respect to a child whom they are looking after oThere is an inherent tension between the provisions of the European Convention on Human Rights and its interpretation by the European Court of Human Rights, and the provisions of the Children Act 1989.

The Convention recognises all members of the family unit as rights holders and advocates a balancing of the competing rights subject to the principles of ‘necessity’ and ‘proportionality’.

The European Court of Human Rights recognised in Yousef v Netherlands [2003] 1 FLR 210 that, all things being equal in the balancing act between competing interests of the parents and the child, the best interests of the child can trump the rights of parents so that:

“where there is a tension between the Article 8 rights of the child, on the one hand, and the parents, on the other, the rights of the child prevail”.

What happened about PD v SD & Another 2015?

“When balancing P’s Article 8 rights against those of the parents I am entirely satisfied the balance falls decisively in favour of P’s Article 8 rights. At the age of 16, having decided to disengage from his family in the very sad circumstances of this case, it is for P to decide what, if and when any details about his life are given to his parents. I have taken particular account of the genuine and sincere conviction with which P has expressed his views and wishes. It would, in my judgment, be wholly contrary to (a) his welfare best interests, (b) his Article 8 rights and (c) any hope of a reconciliation being effected for the court to override his views and permit or require the local authority to provide information about P to his parents.”

[2015] EWHC 4103 (Fam)

Read suesspicousminds: Child in care wanting parents to have no information or involvement

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