A SPECIMEN FREE-STANDING APPLICATION TO BRING UK PROCEEDINGS UNDER s7 HRA1998 – use this when CARE PROCEEDINGS ARE STILL ONGOING, i.e. whilst Interim Care Orders are being renewed monthly
NB. Lodge this Application using Application Form C2, under the Family Proceedings Rules 1991,rule 4.3, LINKING it on the SAME FORM to a CA 1989 Application for increase in Contact and/or Discharge of the Care Order, which secures appointment of a Guardian for the child/children (if not already instructed)
FORM : C2, APPLICATION FORM, download from HMCS website as a PDF Document
IN THE _____________ COURT CLAIM NO.____________
Statement of Truth etc…
1. The [Mother/Father or as the case may be] applies under Human Rights Act 1998, sections 6, 7 & 8, for injunctive relief requiring [insert name of the Applicant Council] ‘the Local Authority’ to amend its Care Plans in respect of [name child/children] who is/are the subject of the present proceedings. This application is issued without prejudice to [the Mother/Father’s] main case which is that care orders should not be ordered in respect of the [child/children].
2. The Local Authority has acted/proposes to act in a way which is incompatible with Convention Rights contrary to section 6 of the Human Rights Act 1998 in that:
(a) The care plans in these proceedings in respect of the [child/children] provide for the Local Authority.
[i] [eg to find Adoptive placements for the [child/children];
[ii] [stipulate other disputed element in the care plan] and,
(b) The Local Authority would not, in the event of its being granted care orders in respect of the [child/children], either:
[i] [set out desired elements in care plan, eg] attempt to rehabilitate the [child/children] to the Mother; and / or alternatively;
[ii] identify and place the [child/children] in the present or some other foster placement in the long term.
[iii] [set out other desired elements in care plan].
3. The present care plans, if implemented as the Local Authority proposes, would be incompatible with the right to family life which is duly established under Article 8 taken in conjunction with Article 6 of the European convention for the protection of Human Rights and fundamental freedoms 1950 enjoyed by the Mother [and the child/children/and the Mother’s other children/ other members of the family or as the case may be] as follows;
(a) [The Mother and the child/children] [and name others necessary] would – either wholly or substantially – be deprived of their established family life and mutual enjoyment of each other’s company including contact.
(b) [The Mother would lose any legal status as parent in respect of the [three] children.]
(c) [set out any other alleged incompatibilities]
(d) Such an outcome would not be in accordance with the Law or necessary in that;
[i] The prospects for a future successful rehabilitation to [the Mother] are, in fact, sufficiently high so as not to displace the presumption under European Law that a care order is to be regarded as a temporary measure to be used to reunite the family as soon as practicable; and,
[ii] Even if the [child/children] are not to be rehabilitated to [the Mother], the advantages of enjoying the enhanced opportunities for contact with their [Mother/Father/siblings/others] offered by any likely foster placement are either such that adoption is not in the [child’s/children’s] interests or alternatively such as to make the circumstances not so exceptional that adoption should be pursued.
4. In the circumstances, the [Mother] and the [child/children] would be victims of the Local Authority’s proposed action within the meaning of s 7(1) of the Human Rights Act 1998.
5. In the event of care orders being made in respect of all or any of the children, the mother seeks an Order in the following terms pursuant to s 8(1) of the Human Rights Act 1998.
(a) that the care orders be interim orders only. And,
(b) that the Local Authority by its officers, employees or howsoever otherwise be required by injunction to devise and implement, in consultation with the Children’s Guardian and subject to the further injunctive direction of the Court, a Plan for the rehabilitation of the [child/children] to the [Mother]. Alternatively,
(c) that the Local Authority by its officers, employees or howsoever otherwise be required by injunction to use its best endeavours to either:
[i] maintain the [child/children] in their present foster placement in the long term; or,
[ii] identify and place the [child/children] together in an alternative long-term foster placement. And, further,
(d) that the Local Authority be restrained by injunction until further Order from pursuing any plan to identify an adoptive placement for the children unless it shall first have demonstrably exhausted the possibility of any long-term foster placement. And, further,
(e) that pursuant to s 34 of the Children Act 1989, the Local Authority permit the [Mother] and the child/ren to have reasonable contact with each other pursuant to their established family life [ insert desired Order for contact], or in such other terms as the Court may think fit.
6. Further, the [Mother] seeks such other Orders or other relief/remedy within the jurisdiction of this Court, given its range of powers under BOTH the CA 1989 and the HRA 1998, as may be necessary or as the Court may think fit.