ISIL child brides: a big care problem for the Family Court?

isis-islamic-state-528116London Borough Tower of Hamlets v B [2015] EWHC 2491 (Fam) 21 August 2015 – read judgment 

When a judge waxes lyrical about a child, garlanded with starred GCSEs, their intelligence, their medical school ambitions, you wonder what is coming. It’s the judicial equivalent of those blurred reproductions in the press of murder victims’  graduate portraits. In this case, a sixteen year old girl “B”, the subject of a careful but nevertheless alarming judgment in the Family Division, turned out to be one of the many girls groomed by their family for exodus to Syria; all of whom appear to be:

intelligent young girls, highly motivated academically, each of whom has, to some and greatly varying degrees, been either radicalised or exposed to extreme ideology promulgated by those subscribing to the values of the self-styled Islamic State.

B herself seemed unoppressed by the situation she was in and indeed wrote to the judge in those terms. She and her family refused to give evidence and sat impassively whilst Heydon J gave judgment.

They have betrayed no emotion; they have been impassive and inscrutable as I have faced the challenge of deciding whether their family should be fragmented and their children removed. Their self discipline is striking. They have listened carefully. The mother has taken careful notes. They have revealed nothing in their responses.

These cases differ from the common run of family abuse cases in that these young women, in the judge’s words, have “boundless opportunities, comfortable homes and carers who undoubtedly love them”. But they have been seduced by a belief that travelling to Syria to become what is known as ‘Jihadi brides’ is somehow romantic and honourable both to them and to their families. Continue reading

Adam Wagner shortlisted for prestigious human rights award

Liberty_britainA hand of applause for our Chief Ed Adam Wagner who’s just been  shortlisted for the 2015 Liberty Human Rights Lawyer of the Year Award in recognition of his innovative efforts to bring human rights to life by correcting misinformation and explaining why human rights matter for everyone – the full list of nominees is here.

Adam Wagner founded the UK Human Rights Blog five years ago and more recently the new human rights information project RightsInfo, indefatigably combining all this writing and editing with his busy career as a barrister.

As Liberty’s press release says,

The barrister and campaigner has devoted his time and energy to debunking the myths which have grown up around our Human Rights Act, making the law more accessible to all in the process.

The Liberty Human Rights Awards celebrate the achievements of organisations and individuals from all walks of life who have worked tirelessly to protect and promote fundamental freedoms at a time when the post-war human rights consensus faces an unprecedented attack.

The award ceremony is open to the public (you can get tickets here) and will take place on 7 September at London’s Southbank Centre. It will be hosted by writer, actor and comedian Jo Brand.

When can the courts rule on the legality of future behaviour?

toad_white_natterjackKent & others v Arun District Council and others [2015] EWHC 2295 – read judgment

Iain O’Donnell of 1COR acted for the Council in this case: he played no part in the writing of this post.

This case concerned the application of the law in relation to future conduct, in particular, the role of the judicial review procedure in determining what precisely is meant by the prohibition on the selling of live animals under the Pet Animals Act 1951.

This is a detailed statutory provision inspired by welfare and conservation concerns. It has a complicated legislative history, and essentially the judge hearing the application was being asked to decide whether certain future activities might be caught by it.

For the record, the statute was introduced to protect the welfare of animals sold as pets. It requires any person keeping a pet shop to be licensed by the local council, which will only license such a business if they are satisfied as to the suitability of the accommodation, nutrition and safety of the animals concerned. Section 2 bans the selling of animals in the street, including on barrows and markets.

Councils are responsible for enforcing the law in this area. Continue reading

Scheme for Exceptional Case Funding not providing the required safety net

legal-aidIS (by the Official Solicitor as Litigation Friend)  v The Director of Legal Aid Casework and Anor [2015] EWHC 1965 (Admin) (15 July 2015) – read judgment

Collins J has ruled that the Legal Aid guidance as to whether to provide exceptional funding in certain cases is so rigid and complicated as to be unlawful.  

Although no declaration has been made in terms, he said that the scheme as operated was “not providing the safety net promised by Ministers and is not in accordance with [the relevant statute] in that it does not ensure that applicants’ human rights are not breached or are not likely to be breached.”

The actual case before him concerned a defendant who had in fact been granted legal aid consequent to an earlier decision by the Appeal Court. There were five other claims which raised similar issues in relation to the guidance and in which the individual claimants asserted that there had been a wrongful refusal of Exceptional Case Funding under Section 10(3) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). It was ordered that the six claims should be heard together to deal with the individual circumstances of each claimant and the attack on the guidance. The claims came before the same judge, Collins J, and on 13 June 2014 he granted judicial review in each of the six cases. His decision was appealed to the Court of Appeal by the defendants, but in this case the appeal was discontinued. The cases were reported under the title of R (Gudanaviciene) v. DLAC and Lord Chancellor (read my previous post on the Court of Appeal’s decision). Continue reading

When the Sh*t hits the Ban

Genetic Information Nondiscrimination ActJack Lowe and Dennis Reynolds, Plaintiffs v Atlas Logistics Group Retail Services

The first prosecution under the 2008 US Genetic  Information Nondiscrimination Act (GINA) has won $2.25 million jury damages for the individuals involved .

I have posted about genetic discrimination here and here. In the US some of these problems have been foreseen and legislated against: GINA prohibits discrimination against healthy individuals for employment decisions or health insurance purposes on the basis of genetic information alone; it also prevents employers and insurance providers from demanding or using information from genetic tests.

The law does include limited exemptions, however. Forensic laboratories can ask workers for their DNA to check that employees’ genetic material does not contaminate the genetic samples that they analyse. Continue reading

Care arrangements for severely autistic man did not deprive him of his liberty

Court of protectionBournemouth Borough Council v PS and another [2015] EWCOP (11 June 2015) – read judgment

Mostyn J in the Court of Protection was asked to determine whether care arrangements in place for a 28-year-old man (BS) with severe autism and who lacked capacity constituted a deprivation of his liberty. He concluded that the care arrangements in place were in his best interests and did not constitute a deprivation of his liberty under Article 5 of the ECHR. Although he was subject to observation and monitoring in his own home he was not under continuous supervision and he was afforded appreciable privacy; there were no locks on the doors and he was free to leave.

Interestingly, comments made in this case shows that judges, or some of them, do engage with what is being said about them in the blogosphere. Continue reading

Copying material for private use: is it legal?

fva-630-copyright-infringement-dmca-stock-photo-shutterstock-630wBritish Academy of Songwriters, Composers and Authors and others, R(on the application of) v Secretary of State for Business, Innovation and Skills and another [2015] EWHC 1723 (Admin) – read judgment

An exception to copyright infringement for private use has failed to survive a challenge in the High Court. But this may not be the end of the story. Although he accepted part of the claimants’ contentions, Green J observed that

the Claimants’ argument does not sit well or easily with the very unusual and particular circumstances which have led to the decision to introduce the private use exception in the first place. These are that the advent of digitalisation has led to a market where device sellers and consumers assume they may copy and where rightholders have not sought private law remedies against infringers.[my italics]

It is a particular feature of this case that there is a widespread consensus that the law has signally failed to keep up with market reality and with reasonable consumer expectations and indeed has been brought into disrepute by its condemnation as illegal of activities which are now accepted by consumers as lawful and which in actual fact form the basic commercial premise upon which copying and storage devices are actively sold throughout Europe.

Having upheld a small part of the challenge, Green J will now hear submissions as to what flows from this conclusion and from the judgment generally. In particular he will hear submissions as to whether any issue of law that he had decided should be referred to the Court of Justice and if so as to the question(s) that should be asked. Continue reading