Transparency in the Court of Protection: press should be allowed names

312856-002.jpgA healthcare NHS Trust v P & Q [2015] EWCOP (13 March 2015) – read judgment

The Court of Protection has clarified the position on revealing the identity of an incapacitated adult where reporting restrictions apply.

This case concerned a man, P, who as a result of a major cardiac arrest in 2014, has been on life support for the past four months. Medical opinion suggests that he is unlikely ever to recover any level of consciousness, but his family disagrees strongly with this position. The Trust therefore applied to the Court for a declaration in P’s best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. The trust also applied for a reporting restrictions order. When it sought to serve that application on the Press Association through the Injunctions Alert Service, the family (represented by the second Continue reading

The Return of the Round-up!

UnknownAfter a brief hiatus, the Human Rights Round-up is back. Our new team of expert summarisers – Hannah Lynes, Alex Wessely and Laura Profumo – is installed and ready to administer your regular dose of UK human rights news.

This week, Hannah reports on the Global Law Summit, access to justice, and what’s happening in the courts.

 

In the News

‘If you wrap yourself in the Magna Carta…you are inevitably going to look ridiculous if you then throw cold water on an important part of its legacy.’ Lord Pannick QC was not alone last week (23-28th February) in suggesting that there was some irony in Lord Chancellor Chris Grayling evoking the spirit of the Magna Carta at his launch of the three-day Global Law Summit.

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“Lamentable”, “egregious” and “wholly indefensible”: High Court lambasts local authority’s conduct of care proceedings

imgres-1Northamptonshire County Council v AS, KS and DS [2015] EWFC 7 - read judgment

A Family Division judge has awarded damages under the Human Rights Act against a local authority in what he described as an “unfortunate and woeful case” involving a baby taken into foster care. Mr Justice Keehan cited a “catalogue of errors, omissions, delays and serial breaches of court orders” by Northamptonshire County Council. Unusually, the judge decided to give the judgment in this sensitive case in public in order to set out “the lamentable conduct of this litigation by the local authority.

On 30 January 2013, the local authority placed the child (known as ‘DS’) with foster carers. He was just fifteen days old. In the weeks prior to DS’s birth, his mother’s GP had made a referral to the local authority due to her lack of antenatal care and because she claimed to be sleeping on the street. The mother then told a midwife that she had a new partner. He was a heroin addict.

After the birth DS’s mother avoided seeing her midwife. She frequently moved addresses and conditions at home were exceedingly poor. Three days before DS was taken into care, his mother told social workers that her new partner was being aggressive and threatening to her. She reported that he was leaving used needles around the house. Continue reading

Monitoring of sex offenders by home visits does not breach human rights – Court of Appeal

_60540582_policevisitsM, R (on the application of) v Hampshire Constabulary and another (18 December 2014) [2014] EWCA Civ 1651 – read judgment

The law governing the monitoring of sex offenders, allowing police officers to visit the homes of registered offenders, did not constitute an unlawful interference with the offenders’ privacy rights under Article 8 of the ECHR.

This was an appeal against a decision by the appellant (M) against a decision by Hallett LJ and Collins J in the Administrative Court that the practice of police officers making visits to the homes of registered sex offenders for the purpose of monitoring their behaviour did not violate the Convention. Continue reading

How to make family hearings fair

P-154a3cb5-e8aa-4516-9a6b-c5204c8a4e34Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1, HHJ Bellamy – read judgment 

Philippa Whipple QC of  1 COR appeared for the Lord Chancellor in this case.  She has played no part in the writing of this post.

This case raises a very stark problem. A father wants to see his children aged 5 and 4. The mother has an elder daughter, Y, aged 17. Y told her teacher that the father sexually abused her. The truth or otherwise of this allegation is relevant to whether there should be contact between father and his children. 

The father is a litigant in person, and unsurprisingly (whatever the status of her allegations) Y does not to be cross-examined by the father, nor, equally understandably, does the father wish to do so himself.

So who should? And does the court have the power to order Her Majesty’s Courts and Tribunals Service (HMCTS) to pay for legal representation for the father limited to that cross-examination of Y? So the Lord Chancellor was allowed to intervene – he had been invited to do so in a previous case (Q v. Q – hereand our post here, to which we will come), but had been unwilling to do so – not perhaps tactful to the judges but then he still seems to be learning the ropes in that respect – see here.

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Exceptional legal aid funding should not be limited to extreme cases – Court of Appeal

legal-aidR (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others [2014] EWCA Civ 1622 – read judgment

The Court of Appeal has ruled that the Lord Chancellor’s Guidance on exceptional funding in civil legal aid is incompatible with the right of access to justice under Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. The Court has further decided that this Guidance was not compatible with Article 8 of the ECHR in immigration cases; in other words, that legal aid should not be refused when applicants for entry to the UK seek to argue that refusal of entry would interfere with their right to respect for private and family life.

This was an appeal against a ruling by Collins J in the court below that the appellant Director’s refusal to grant the respondents exceptional case funding under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in their immigration cases was unlawful. Continue reading

Cracking intercepts: the war on terror and difficulties with Human Rights

TheImitationGame-BCLiberty v Government Communications Headquarters ( IPT/13/77/H); Privacy International v FCO and others (IPT/13/92/CH); American Civil Liberties Union v Government Communications Headquarters (IPT/13/168-173/H); Amnesty International Ltd v The Security Service and others (IPT/13/194/CH); Bytes for All v FCO (IPT/13/204/CH), The Investigatory Powers Tribunal [2014] UKIPTrib 13_77-,  5 December 2014 – read judgment

Robert Seabrook QC is on the panel of the IPT and  David Manknell of 1 Crown Office acted as Counsel to the Tribunal  in this case. They have nothing to do with the writing of this post.

This is a fascinating case, not just on the facts or merits but because it is generated by two of the major catalysts of public law litigation: the government’s duty to look after the security of its citizens, and the rapid outpacing of surveillance law by communications technology. Anyone who has seen The Imitation Game, a film loosely based on the biography of Alan Turing, will appreciate the conflicting currents at the core of this case: the rights of an individual to know, and foresee, what the limits of his freedom are, and the necessity to conceal from the enemy how much we know about their methods. Except the Turing film takes place in official wartime, whereas now the state of being at “war” has taken on a wholly different character. Continue reading