High Court rules dead partner’s sperm can be kept despite lack of written consent

Sperm, microscopicElizabeth Warren -v- Care Fertility (Northampton) Limited and Other [2014] EWHC 602 (Fam) - Read judgment / court summary 

The High Court has ruled in favour of a 28-year-old woman who wanted her late husband’s sperm to be retained even though the correct written consent was not in place. Mrs Justice Hogg (‘Hogg J’) ruled that Mrs Warren has a right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to decide to become a parent by her deceased husband.

Mr Brewer had put his sperm into storage in April 2005 in order to enable his wife, Elizabeth Warren, to conceive a child by him after his death. However, he was not advised by his Clinic as to the statutory steps he needed to take in order for his sperm to be stored for longer than 10 years. In the event, he sadly passed away shortly before the lawful expiry of his consent, leaving his widow insufficient time to decide whether she wished to conceive his child.

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Human rights for kids

to-kill-a-mockingbird-first-edition1UKHRB editor Adam Wagner asked Twitter for suggestions of human rights kids for books… and Twitter responded! Here are some of those responses, compiled by Thomas Horton.

‘Whether Maycomb knows it or not, we’re paying the highest tribute we can pay a man. We trust him to do right. It’s that simple.’ (Harper Lee, Nelle ‘To Kill a Mockingbird’, Ch. 24)

Whether Harper Lee’s ‘To Kill a Mockingbird’ (as recommended by @Kirsty_Brimelow) will impact a child so much that they want to become a human rights lawyer is not a given. Yet there are plenty of classic novels and human rights-centered literature aimed at a younger audience which give children the opportunity to learn human rights principles. The legal twittersphere responded in their droves to suggestions of such literature, and below are just a selection of what is available:

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Court orders MMR vaccine for children

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F v F [2013] EWHC 2683 (Fam) – read judgment

The High Court has ruled that two sisters must receive the MMR vaccine against their wishes and the wishes of their mother.

This was an application by the father for a declaration and a specific issue order concerning his daughters both receive the MMR vaccination. This was opposed by their mother.

Background

Following the breakdown of their parents’ marriage, the girls (aged 11 and 15 respectively) lived with their mother, and the father had contact every alternate weekend and half the school holidays. After publication of the now discredited paper published by Dr Andrew Wakefield in the Lancet connecting the MMR vaccine with autism, both parents agreed not to have a booster arranged for the older daughter (who had been inoculated against MMR at birth) and to forego a vaccination for the other daughter completely. Continue reading

Challenging adoption order using human rights

Adoption blueThe recently released statistics from the Department for Education showing an increase of 15% in the adoption of looked after children in the last year further highlights the government’s preferred strategy for ensuring the welfare of children in care.

In my recent post, I considered the main thrust of the decision of the Court of Appeal in Re B-S which concerned the rigour which was expected of evidence, hearings and Judgments before a Placement Order was made.

However, the Court also dealt with the issue which had concerned Lord Justice McFarlane  when he gave permission to appeal  namely, where a Court has already made an order that a child may be placed for adoption and that has happened and the prospective adopter has applied for an Adoption Order, in what circumstances can a parent seek to stop it going ahead?

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When adoption without parental consent breaches human rights

adoption-network-law-centerRe B-S (Children) [2013] EWCA Civ 1146 – Read judgment 

is the latest Judgment of the Court of Appeal on non-consensual adoption since the Supreme Court authorized a closer scrutiny of first instance decisions In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 (see comment by Rosalind English here)

It is also the most authoritative (the case was allocated to Lord Dyson MR, the President of the Family Division and Black LJ) and uses to strong language about the current inattention to Human Rights in care and adoption proceedings.

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Court of Appeal laments systemic failures in family justice

CH08-P209-ARe A (a child) [2013] EWCA Civ 1104 – read judgment

Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8.  Whilst this particular appeal was  not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”,  McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.

The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start.  As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges.  Nevertheless, as the Court of Appeal points out,  “substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”   Continue reading

High level Parliamentary committee asks whether mental capacity laws are working

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Updated | The House of Lords ad hoc Select Committee on the Mental Capacity Act 2005 has now heard three sessions of evidence, and is currently calling for written evidence (deadline 3 September – details here).

The Committee, chaired by Lord Hardie (former Lord Advocate) and including such heavy-hitters as Lord Faulks (Ed Faulks QC as was) and Baroness Hollins (former President of the Royal College of Psychiatrists and current President of the BMA), aims to “scrutinise the legislation to see if it is working as Parliament intended” and to examined “whether the Government’s implementation programme was effective in embedding the guiding principles of the Act in every day practice, and whether there has been a noticeable change in the culture of care.”

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Brain-damaged claimant fails in Article 8 claim against Council

7c70bb7581834f77a7ca9f20e4dc6253Bedford v. Bedfordshire County Council, 21 June 2013, Jay J - read judgment

On 29 May 2004, Bradley Bedford, then aged 13, was beaten senseless by one AH, then 15, whom he had the misfortune to encounter entirely by chance near the seaside in Torbay. AH was in a children’s home there which was contracted to the Defendant Council; AH was a “looked after” child under section 20 of the Children Act 1989. Bradley sued the Council for failing to protect him. His claim was limited to one under the Human Rights Act, and Article 8 ECHR in particular.

Jay J dismissed the claim on the grounds that (a) it was brought too late; (b) there was not a real and immediate risk of harm to Bradley of which the Council should have been aware; (c) even if there was, the local authority took reasonable steps to eliminate or substantially reduce any risk. All these rulings are of some interest.

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Can you decide who is to be your unpaid advocate? Eleanor Battie

mckenzie-friend11RE F (CHILDREN) 14 May 2013, Court of Appeal – extempore so currently only available as a Lawtel summary (£)

A topical case, this, given legal aid cutbacks. It concerns the ability of unrepresented litigants to choose those to help them out as advocates in court. Not an unconstrained right, as this case demonstrates. The High Court ruled that a judge had been entitled to refuse an application for a particular person to act as a McKenzie friend despite that individual not being present in court at the time of the application. The Court of Appeal upheld that decision. 

This application for permission to appeal resulted from the refusal by a family judge to permit a person to act as a McKenzie friend within care proceedings.

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Closing the loophole: Care services and human rights protection – Sanchita Hosali and Helen Wildbore

Care homeMuch of the House of Lords debate surrounding yesterday’s Second Reading of the Care and Support Bill focused on seeking solutions to complex issues around the future provision of care. Additionally, as several peers flagged, the Bill also provides a timely opportunity to clarify which bodies have legal obligations to uphold protections under the Human Rights Act. Baroness Campbell noted “those who receive their care not from a public authority but from a private body lack the full protection of the Human Rights Act…[This] is a loophole that must be closed.”

What loophole?

Section 6 of the Human Rights Act essentially creates a legal duty to respect, protect and fulfil certain human rights (drawn from the European Convention on Human Rights). This duty is placed on public authorities and those performing “public functions”. The second type of body – those performing public functions – has proved somewhat awkward in practice, particularly in relation to those who receive care services.

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Genetic testing of children up for adoption

12280487228O6zG0Y and Z (Children), 25 April 2013 [2013] EWHC 953 (Fam) – read judgment

Having children is a lottery. No judge or court in the land would sanction the regulation of childbearing, however feckless  the parents, unsuitable the conditions for childrearing, or unpromising the genetic inheritance.

Adoption on the other hand is stringently regulated, set about with obstacles for prospective parents, and strictly scrutinised by an army of authorities backed up by specialist family courts and a battery of laws, statutory instruments and guidance papers. Usually the filtering is in one direction only: the suitability of the parents to the child or children up for adoption. But sometimes it goes the other way, and this case raises the fascinating and somewhat futuristic question of whether children’s chance of finding a suitable home might be increased by genetic testing.

The circumstances were somewhat exceptional here, since the local authority had ascertained from the biological father  of the two young boys in question that they might have a chance of inheriting a rare genetic disorder of the central nervous system. Huntington’s Chorea is caused by a single gene mutation on chromosome IV and causes damage of the nerve cells and areas of the brain which in due course leads to severe physical, mental and emotional deterioration. Anyone whose parent has the disease is born with a fifty per cent chance of inheriting the gene. Anyone who inherits the gene will, at some stage, develop the disease.  Continue reading

Local authority ordered to pay substantial costs in family human rights case – Adam Smith

A & S v. Lancashire County Council [2013] EWHC 851 (Famread judgment

This was a costs application arising from an extremely important decision by Peter Jackson J in June 2012 (see Alasdair Henderson’s post here and read judgment)

In that original judgment, Lancashire County Council were found to be in breach of Articles 8 (private life), 6 (fair trial) and Article 3 (inhuman treatment) of ECHR. Two brothers had come into local authority care as infants and were freed for adoption.

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Local authorities and the duty to consult with parents

126415R (on the application of H) v Kingston Upon Hull City Council & KS, AS, SS, TS and FS (Interested Parties) [2013] EWHC 388 (Admin) read judgment

This was a successful claim for judicial review brought by a mother in care proceedings in respect of her two children who were removed from the care of the paternal grandparents. To that extent, it is a first. It concerns the duty on the Local Authority to consult with parents when an Interim Care Order is in place.

The claim raised two points. The first concerned whether it was permissible to bring a claim for JR when there were ongoing care proceedings and secondly the extent of the Local Authority’s duty to consult with parents when an ICO is in force. As to the latter point, there were two decisions that were challenged by the mother. The first was a decision taken on 31st January 2013 and the second concerned a decision taken on 1st February 2013 both concerning the placement of her children under the ICO.
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Planning policy versus the UN rights of the child

a-1-rose-lane-ripleyStevens v. Secretary of State for Communities & Local Government, Hickinbottom J, 10 April 2013 read judgment

As the judge explicitly recognised, this case raised the clash of two principles – how to resolve the policy-driven field of planning with the rights of family under Article 8 ECHR and of the child under Article 3 of the UN Convention on the Rights of the Child (UNCRC).

The battlefield was the well-trodden one of a Gypsy family living in caravans within the Green Belt, but without existing planning permission for those caravans. Ms Stevens sought to regularise this by applying for retrospective permission. The Council turned her down, and her appeal to a planning inspector was dismissed. She then made a statutory challenge to that decision under section 288 of the Town & Country Planning Act 1990, seeking to quash it and have it re-determined.

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Human rights have disappeared from ‘Working Together’ – Allan Norman

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‘Working Together to Safeguard Children’ is the lead piece of statutory guidance on… well, working together to safeguard children. Originally published in 1999, a new edition was published in 2006 following the changes brought about following the death of Victoria Climbié. And the next edition in 2010 incorporated recommendations of the second Laming Report which followed the death of Baby P. It had grown longer over time, as we all learned lessons from Haringey; but its growing length was causing concern. 

A new version was published last month. The new version was published the week after judgment was handed down in AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013) (my firm represented the Claimants).

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