JK, R(on the application of) v Secretary of State for Home Department and another  EWHC 990 (Admin) 20 April 2015 – read judgment
This case concerned the rights of transgender women, and their families, in particular the right to keep private the fact that they are transgender.
The Court heard a challenge to the requirement in the UK’s birth registration system that men who had changed gender from male to female should be listed as the “father” on the birth certificates of their biological children. Having decided that this did engage the claimant’s privacy rights under Article 8 of the European Convention of Human Rights, in conjunction with the right not to be discriminated against under Article 14, the Court concluded that the interference was justified.
Factual and legal background
The clamant JK had been born male. She was married to a woman, KK, and the couple had two naturally conceived children. After the birth of the first child in 2012, JK was diagnosed with gender identity disorder and concomitant gender dysphoria. In October 2012, she started a course of feminising hormone treatment. The treatment pathway requires two years living as a female before consideration is given for referral for gender reassignment surgery. Before the claimant started feminising hormone therapy, KK fell pregnant a second time, again conceiving naturally by the claimant. Continue reading
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In the News
“It seems hard to believe that Grayling will remain Lord Chancellor for long”. Joshua Rozenberg delivered a biting analysis of the minister’s future legacy in the Law Gazette last week. As the General Election looms, “perhaps Cameron has finally begun to realise how much anger and despair there is at the steady erosion in access to justice for which Grayling is held responsible”. If the Conservatives lead the next government, the Lord Chancellor will struggle to secure his place, Rozenberg warns.
R(on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions  UKSC 16 – read judgment
The Supreme Court was sharply divided yesterday over whether the benefit cap breaches the Human Rights Act. The controversial cap limits the total amount of benefits an out-of-work family can receive, including housing benefit and benefits for children, to £500 per week. It is applied regardless of family size or circumstances such as rental costs. As a result, lone parents with children in large families are disproportionately affected, both because they are more likely to be hit by the cap and because they are less likely to be able to avoid its effects. Continue reading
Traveller Movement v Ofcom and Channel 4,  EWHC 406 (Admin), 20 February 2015 – read judgment
One of the nation’s great televisual fascinations last week became the unlikely subject of an Administrative Court judgment that demonstrates the limits of common law standards of fairness, as well as the lightness of touch applied by the courts when reviewing the decision-making of the media regulator.
M.R. and D.R.(suing by their father and next friend O.R.) & ors -v- An t-Ard-Chláraitheoir & ors  IESC 60 (7 November 2014) – read judgment
The definition of a mother, whether she is “genetic” or “gestational” for the purpose of registration laws was a matter for parliament, not the courts, the Irish Supreme Court has ruled.
At the core of the case was the question whether a mother whose donated ova had resulted in twin children born by a surrogacy arrangement should be registered as their parent, as opposed to the gestational mother who had borne the twins.
The genetic mother and father sought her registration as “mother” under the Civil Registration Act, 2004, along with a declaration that she was entitled to have the particulars of her maternity entered on the Certificate of Birth, and that the twins were entitled to have their relationship to the fourth named respondent recorded on their Certificates of Birth. Continue reading
Cotton and others, (R on the application of) v Minister for Work and Pensions and others, 15 October 2014  EWHC 3437 (Admin) – read judgment
Whether you call it the “spare room subsidy” or the “bedroom tax”, the removal of this type of housing benefit has been nothing short of controversial. There have been several previous legal challenges to the Regulations, as well as to the benefit cap introduced as part of the same package of welfare changes. The outcome of these cases was not promising for these claimants, in particular the decision of the Court of Appeal in R (MA) v Secretary of State for Work & Pensions  EWCA Civ 13. Another important case is R (SG (previously JS)) v Secretary of State for Work & Pensions  EWCA Civ 156.
Now the High Court has settled one aspect of the matter by ruling that these amendments did not breach the rights of singe parents under Article 8 ECHR who looked after their children under shared care arrangements where they received discretionary housing payments to make up the shortfall. Continue reading
Karia, R (on the application of) v Leicester City Council (Sir Stephen Silber, acting as High Court Judge)  EWHC 3105 (Admin) (30 September 2014)- read judgment
In a robust judgment Sir Stephen Silber has asserted that neither the ordinary laws of judicial review, nor the Equality Act nor the Human Rights Act require the courts to micro-manage the decisions of public authorities. Indeed the latter two statutory powers are not designed as a back door into a merits review of a decision that is restricted to the court’s review of the legality of a public sector decision.
Background facts and law
The claimant, a 101 year old woman of Gujarati descent, challenged the decision to close the care home which she has occupied since 1999. Her grounds of challenge were threefold:
1. that the Council had failed to take account of material issues of fact relating to the present and future levels of demand for residential care one provision
2. that it had reached its decision without due regard to the need under the Equality Act 2010 to avoid unlawful discrimination in the provision of services
3. and it had failed to take into account the impact of the closure on the claimant’s Article 8 rights
She also complained that she had a legitimate expectation of a home for life at Herrick Lodge and that the Council had not considered whether her needs could be met in alternative placements.
Although the judge was at pains to stress that as this was a judicial review application, it was not for him to assess the merits of the Council’s decision, merely its legality. Having done so, he concluded that the Council had not acted irrationally, nor had it paid due regard to the need to advance equality of opportunity.
It is not for the Court to determine whether proper weight has been given to a factor where as here there has been proper appreciation of the potential impact of the decision on equality issues.