Category Archives: Family

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The conservative case for gay marriage

The current debate on legalising gay marriage was sparked by one of the more memorable speeches of this Government, when Prime Minister David Cameron said “I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.” 

What has been missing from the debate since that speech has been a convincing, measured discussion from the political right on what he meant. Until now, that is. Today the Policy Exchange, a leading conservative think tank thank, has published What’s In A Name? Is there a case for equal marriage? Don’t be fooled by the question mark in the title. This report represents the best and most carefully considered case for equal marriage from a conservative (with a small ‘c’) perspective so far.

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Care system failures breach children’s human rights

A & S v. Lancashire County Council [2012] EWHC 1689 – read judgment 

The poor quality of provision for children in care was much in the headlines last week. A highly critical report by the Deputy Children’s Commissioner, which found children in many privately run care homes were at high risk of suffering violent or sexual abuse, was followed by the Government’s announcement of plans to speed up the adoption process and allow families who wish to adopt children to foster them first.

The problems of the current system and the effect these have on the lives of individual children was also vividly highlighted in a tragic case in which the High Court held that a series of failures by a local authority constituted a breach of two young boys’ rights under Articles 3 (protection from inhuman and degrading treatment), 6 (fair trial rights) and 8 (family and private life rights).

The very distressing story of the boys’ lives to date is set out in considerable detail at paragraphs 18-102 of Mr Justice Jackson (Jackson J)’s judgment. However, the brief facts are as follows. A and S are brothers who were first taken into care in 1998, aged just 3 and 6 months’ old, after their mother abandoned them. The local authority initially placed them with their aunt, but she was a single woman with six children of her own and could not cope.

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German court rules child’s religious circumcision can be a criminal offence – Analysis

Updated | As has been widely reported, a regional German court has ruled that a Muslim boy’s religious circumcision was a crime and that it violated his basic constitutional rights to bodily integrity. This ruling has no direct effect on other European states, but will buoy the campaign against male circumcision.

Thanks to an admirably swift response from the Cologne Regional Court to my request, I have uploaded the appeal decision (the important one), the original decision which was under appeal and the court’s press release. All are in German. I have also uploaded a version of the appeal judgment in English (updated - I have been sent a much better English translation).

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Church of England’s argument against gay marriage is without foundation – Paul Johnson

At the heart of the Church of England’s (CoE) response to the Government’s Equal marriage: a consultation is an argument about the existence and importance of canon law on marriage. The CoE pins its objection to same-sex marriage on the assertion that its ‘teaching on marriage is embodied in law’ and that the Government has failed to consider the significance of canon law in its proposal to change the statutory organization of civil marriage.

What exactly is canon law and how does it relate to marriage?

Canon law (or Canons Ecclesiastical), as set out in the Canons of the Church of England, is primary legislation that determines inter alia the doctrine and form of worship of the CoE. Since the First Act of Supremacy 1534, canon law has been formally subservient to ‘state law’ – it has become progressively subsumed by both common and statutory law – but has often retained a strong influence, particularly in respect of marriage.

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Will the European Court force churches to perform gay marriages?

The Government’s Consultation on Equal Civil Marriage ends on Thursday 14 June: you can fill in the brief online survey here if you haven’t already. In the meantime, the Church of England is on the front pages this morning with its own response, which amongst other things, warns that “it must be very doubtful whether limiting same-sex couples to non-religious forms and ceremonies could withstand a challenge under the European Convention on Human Rights”

The Church’s argument is set out on pages 10 to 13 of its response. It is interesting, and there might be something in it. However, it is clear from the rest of the document that the Church is, in its introduction, inflating the likelihood of a successful court challenge. This has of course made its way into the press coverage, where it is being suggested that a challenge would “probably” succeed. But even the Church’s own response, reading a little further, does not go this far.

Let’s consider the argument. The Church puts a number of propositions. First,

It remains the case that member states of the Council of Europe are not obliged to make legal provision for same-sex marriage.

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Refusal of child care leave to female prisoners was unlawful, rules High Court

MP, R(on the application of) v the Secretary of State for Justice   [2012] EWHC 214 (Admin) – read judgment

The prison authorities had acted unlawfully in restricting childcare resettlement leave to prisoners who were within two years of their release date and had been allocated to “open” conditions.

Two female prisoners applied for judicial review of decisions of the defendant secretary of state and prison governors to refuse them childcare resettlement leave (CRL). CRL is a type of temporary licence available to prisoners who have sole caring responsibility for a child under 16. CRL enables prisoners to spend up to three days at home (including nights), provided certain conditions are met. The principal issue in the claim was whether the secretary of state was acting lawfully in restricting CRL to female prisoners who have less than 2 years until their earliest release date. Continue reading →

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Can a homosexual person adopt his or her partner’s child? The case of Gas and Dubois v France.

Gas and Dubois v France (2012) (application no 25951/07).  Read judgment (in French).

The French government did not violate articles 8 (right to respect for private and family life) and 14 ECHR (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms) in not allowing one partner in a homosexual couple to adopt the child of the other.  And the Daily Mail goes off on another frolic of its own.

Ms Valerie Gas and Ms Nathalie Dubois, now in their 50s, lived together as a lesbian couple, obtaining the French equivalent of a civil partnership (the pacte civil de solidarité, or PACS) in 2002.  Ms Dubois, through artificial insemination in Belgium using an anonymous sperm donor, gave birth to a girl in September 2000.  Together, they took care of the child and, in 2006 , Ms Gas, applied to adopt the girl with the consent of her partner, Ms Dubois.  Continue reading →

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Legal aid: Government backs down on clinical negligence and domestic violence

The Ministry of Justice has proposed two important amendments to the Legal Aid, Punishment of Offenders and Sentencing Bill.

As has been predicted for a number of months, the proposals will bring a limited number of clinical negligence claims and claims arising as a result of domestic violence back within the scope of legal aid. The clinical negligence exception only relates to claims arising whilst a person was still in their mother’s womb, or 8 weeks after their birth. If the baby is born before 37 weeks gestation, the legal aid clock will begin to tick from the date they would have been 37 weeks gestation. The victim must also be “severely disabled” as a result.

As to domestic violence, the amendments are to provide legal aid for civil claims where:

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A step closer to the legalisation of assisted suicide?

Debby Purdy and husband

The Commission on Assisted Dying, set up in September 2010 and chaired by former Lord Chancellor Charles Falconer, has issued its monumental report on assisted dying in England and Wales.

The Commission was funded by two supporters of assisted suicide, author Terry Pratchett and businessman Bernard Lewis, and despite reassurances that the running and outcome of the Commission were independent, some individuals and groups opposed to the practice regrettably refused to give evidence to the Commission.  Still, the range and quantity of the evidence, which included evidence gathered from international research visits, qualitative interviews and focus groups, commissioned papers, and seminars, is impressive and can be read and watched here.

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Policy, possession and proportionality – Nearly Legal

Denry Okpor v London Borough of Lewisham, Bromley County Court 25 October 2011 [Transcript not publicly available]

Adam Wagner represented Mr Okpor in this case. He is not the author of this post.

This was a rolled up permission to appeal and appeal hearing (on which more later) for appeal to a Circuit Judge from a possession order made by a District Judge at Bromley. At issue was whether the District Judge was wrong to reject a) a proportionality defence and b) a gateway B public law defence arising from Lewisham’s failure to follow its own policy. It is interesting as an example of proportionality/gateway B defences in action in the County Court, but also somewhat frustrating, for reasons which will become clear.

Mr Okpor was the secure tenant of Lewisham. At the age of 15 he had been taken into care by Lewisham following abuse. He left care aged 18 in 2006. In 2009, aged 21, he was given the secure tenancy. Mr O went into full time higher education later that year and has remained in full time higher education. This meant that the relevant Children Act 1989 provisions for care leavers continued to apply and would do until he was 24, if still in full time higher education. Mr O was receiving support from the Lewisham Leaving Care Team.

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A blueprint for a simpler, fairer justice system

The Civil Justice Council (CJC) has just released a major new report: Access to Justice for Litigants in Person (or self-represented litigants). The report attacks head-on the prospect of thousands more people having to represent themselves in court once civl legal aid is mostly taken away.

The 94-page report, written by a group including a QC and a High Court judge, is a major and ambitious attempt to make the justice system fairer and simpler for people who go to court without a lawyer. A huge amount of research and thought has gone into it, building on the process begun by Lord Woolf in 1997 with the Civil Procedure Act. The CJC was itself a creation of the 1997 Act, its function being to figure out how to make the civil justice system more accessible, fair and efficient.

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Major family justice review published

A major review by David Norgrove into the family justice system has been published today. You can find the report here or reposted below via Scribd.

The 225-page Family Justice Review was commissioned jointly by the Ministry of Justice, the Department for Education, and the Welsh Assembly Government. It aims to “improve the system so that it is quicker, simpler, more cost-effective and fairer whilst continuing to protect children and vulnerable adults from risk of harm.” The full terms of reference can be found here.

The report has already been widely reported:

  • Professor Richard Moorhead points out that the report makes “measured but telling criticisms of the legal aid proposals” which might be “sophisticated civil servant speak for, “There’s a fast train coming…. better get us off them tracks.””
  • The BBC highlights the report’s criticism of family justice delays and recommendation that all childcare decisions should be made within six months.
  • The Guardian, amongst others, picks out the lack of a recommendation (contrary the interim report - see para 108) for fathers to be granted a legal right to guarantee that their child has “a meaningful relationship with both parents”.

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Another cuts challenge fails: Changes to housing benefit scheme is lawful

Child Poverty Action Group v Secretary of State for Work & Pensions [2011] EWHC 2616 (Admin) – Read judgment

On 13 October 2011 Mr Justice Supperstone in the High Court held that changes to rules for calculating housing benefit were lawful and in particular did not breach equality legislation.

Two particular measures were under challenge. The first was the introduction of maximum weekly caps on the amount of local housing allowance (LHA). The second was the reduction of the maximum size in accommodation eligible for housing benefit from five bedrooms to four bedrooms.

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Gay marriage on the way… but not quite yet

In his Conservative Party Conference speech the Prime Minister David Cameron signalled his strong support for the legalisation of gay marriage. He said:

Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.

We have covered the slow progress towards legalised gay marriage in a number of posts since this blog launched in March 2010: see the links below. Where are we up to now?

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When is family life family life? A look at deportation cases – Lourdes Peroni

In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own [also see Rosalind English's post].

In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution:  this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?

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