Equal marriage on the way as Bill published

gaycouple“Marriage of same sex couples is lawful”, begins the Government’s new Equal Marriage Bill, which will, amongst other things, make it legal for gay couples to marry in both civil and religious ceremonies.

Religious communities will not be forced to conduct ceremonies, but will be able to ‘opt-in’ to the new system. However, Church of England communities will not be permitted to opt in even if they want to. The progress Bill can be tracked here – the next reading is in the House of Commons on 5 February. The Bill is summarised as follows:

A Bill to make provision for the marriage of same sex couples in England and Wales, about gender change by married persons and civil partners, about consular functions in relation to marriage, for the marriage of armed forces personnel overseas, and for connected purposes.

Continue reading

Identity of social workers may be published following fostering bungle

question-mark-face Bristol City Council v C and others [2012] EWHC 3748 (Fam) – read judgment

This was an application for a reporting restriction order arising out of care proceedings conducted before the Bristol Family Proceedings Court. The proceedings themselves were relatively straightforward but, in the course of the hearing, information came to light which gave rise to concerns of an “unusual nature”, which alerted the interest of the press.

Background

After family court proceedings decided that child A was at risk of violence from her father, an interim care order was implemented and A was moved to foster carers. However some time afterwards the local authority received information from the police suggesting that someone living at the address of A’s foster carers had had access to child pornography. A also told social workers that another member of the foster household (also respondent to this action) had grabbed her around the throat. As a consequence police and social services visited the foster carers, informed them of the concerns about pornography, removed all computers from the house and moved A to another foster home. On the following day the male foster carer was found dead, having apparently committed suicide. Continue reading

Allowing religious gay marriages will avoid human rights challenges

gay_marriage_cake_300The Prime Minister has announced his support for gay marriage in religious institutions. Having already said, memorably, that “I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative”, he has now gone a step further and argued that gay couples should be able to marry on religious premises. But, he also made clear, “if there is any church or any synagogue or any mosque that doesn’t want to have a gay marriage it will not, absolutely must not, be forced to hold it“.

The announcement is important in the context of a legal debate which has been taking place since the Government signalled that marriage law reform was on its agenda: namely, whether religious institutions would be forced, as a result of equalities and human rights legislation, to carry out gay marriage ceremonies whether or not they wanted to. In June, when the Government was consulting over the “equal civil marriage” plans, Church of England sounded the alarm 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

What is really interesting about the Prime Minister’s announcement is that the Government is now going beyond  its original proposals as set out in the June consultation. At that point, the Government was careful to state that the proposals related only to civil (that is, non-religious) marriage and, indeed said:

Upper Tribunal confirms the legitimacy of the new immigration rules – but questions their completeness

MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment

This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see  Adam’s post  on the Home Office’s proposals earlier this year).

Before the new immigration rules were introduced in July,  cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act  2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions  to the automatic deportation regime,  “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.

But then there was a move to set out an extensive, codified definition of the Article 8 balancing factors, in order to

unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.  Continue reading

In the name of God: ultra-orthodox Jewish education not in children’s best interest, rules Court of Appeal.

G (Children), Re [2012] EWCA Civ 1233 – read judgment

If you received this article by email, it will have been attributed to Adam Wagner. It is in fact by Karwan Eskerie – apologies

What is happiness? If you thought this most philosophical inquiry was beyond the remit of the judicial system then you should read this case. 

In Re G (Children), the estranged parents of five children disagreed over their education.  Both parents belonged to the Chassidic or Chareidi community of ultra orthodox Jews.  However, whilst the father wanted the children to attend ultra-orthodox schools which were unisex and where all the children complied with strict Chareidi practices, the mother preferred coeducational ‘Modern Orthodox’ schools where boys did not wear religious clothing and peyos (long hair at the sides), and children came from more liberal homes where for instance, television was taken for granted.

Continue reading

Autonomy and the role of the Official Solicitor – whose interests are really being represented?

R.P. and others v United Kingdom (9 October 2012) – read judgment

The day before our seminar on the Court of Protection and the right to autonomy, the Strasbourg Court has ruled on a closely related issue in a fascinating challenge to the role of the Official Solicitor in making decisions on behalf of individuals who are for one reason or another unable to act for themselves.

The Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. This particular case involved child care proceedings, but the question before the Court was the vital one that arises out of any situation where an individual is deemed to have lost capacity to represent his or her own interests in court. What the parties asked the Court to consider was whether

the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court. Continue reading

Sex abuse allegations against parent should be disclosed in contact proceedings

Re J (A Child: Disclosure) [2012] EWCA Civ 1204 – read judgment

The Court of Appeal has ordered the the disclosure of serious allegations made against a parent by an anonymous third party in contact proceedings. In doing so, it has demonstrated the correct approach to balancing the many different human rights considerations involved. 

Every day, family courts across the UK are required to determine the difficult question of how much contact there should be between a child and his or her parents. It is the norm for these cases to be factually complicated and emotionally draining. However, this case was exceptional. It was an appeal relating contact proceedings in respect of a ten year old girl (A). The court had made various orders for contact over a number of years, with a final order being made in 2009 that the she was to stay with her father for two weeks each February and four weeks each summer.

Continue reading

When human rights hit the private law of damages for death

Swift v. Secretary of State for Justice [2012] EWHC 2000 (QB) Eady J, read judgment

This decision involves the intersection of Articles 8 (family) and 14 (discrimination) of the ECHR with the law governing who can recover damages for the death of a relative. This law is the Fatal Accidents Act 1976 (for the text see [10] of the judgment – embarrassingly, the one freely available on the internet is out of date). One does not to think for very long before realising that the FAA is underpinned by an idea that one ought to respect the rights of the family, and to pay the family when one has negligently caused the death of a family member. But like all such laws, there is the problem of where to stop – where does the family stop for these purposes?

Ms Swift had been living with Mr Winters for 6 months when he was killed at work. She was pregnant with their child. Under FAA rules, her child had a claim for financial dependency against his father’s employer – what he expected to derive from his father had his father lived – even though he was not born at the date of his father’s death. Indeed, her son recovered £105,000. But, says the FAA, Ms Swift does not have a claim. s.1(3) requires an unmarried partner to have been living with the deceased for 2 years before his death before they can become a “dependant”, and no amount of re-writing via  s.3 of the Human Rights Act  (to make the FAA  rights-compliant “so far as possible”) can make “2 years” read as “6 months” . Had she qualified as a dependant, she would have had a claim for about £400,000.

So Ms Swift’s claim was against the Secretary of State for a declaration that the FAA was incompatible with her Article 8 and 14 rights.

Continue reading

Scottish adoption law compatible with human right to family life

ANS v ML [2012] UKSC 30 - read judgment / press summary

Another week and another judgment about adoption. This time it is a decision of the Supreme Court about the Scottish family law system. Whereas last week’s post was about a case where children should have been placed into adoption, but were not, this case concerned a mother who opposed an adoption order being made for her child. The mother challenged the legislation which allowed the court to make an adoption order without her consent, arguing that it was incompatible with her Article 8 rights to private and family life. However, the Supreme Court ruled that there was no breach of the Convention. 

The appellant mother argued that s.31 of the Adoption and Children (Scotland) Act 2007 was incompatible with the Convention. This would mean it was unlawful, as statutory provisions incompatible with the ECHR are not within the legislative competence of the Scottish Parliament under s.29(2)(d) of the Scotland Act 1998. (This is different to the UK Parliament in Westminster, which is able to legislate contrary to the ECHR, and the most the courts can do under the Human Rights Act is make a declaration of incompatibility.)

Continue reading

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 saidI 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.

Continue reading

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.

Continue reading

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).

Continue reading

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.

Continue reading

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.

Continue reading

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