Monthly News Archives: October 2015


Radicalism and the Family Courts

30 October 2015 by

schoolgirls_3208827bMarina Wheeler

Remember the three girls from Bethnal Green Academy, who in February slipped through Gatwick security to join so-called Islamic State of Iraq and the Levant (ISIL)? If, watching the footage, you exclaimed, “how can we stop this?”, then read on. Eight months and a massacre in Tunisia later, the Courts have intervened in more than 35 cases to prevent the flight of children to Syria or to seek their return.

In the very first cases, in which Martin Downs of these Chambers appeared, the High Court’s inherent jurisdiction was invoked to make the children wards of court. The value of this mechanism, previously used in child abduction cases and to thwart forced marriages, is that the ward requires permission of the Court to leave the jurisdiction, and passports can be seized. (See, for example, Re Y (A Minor: Wardship) [2015] EWHC 2098 (Fam)).
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The UK Human Rights Blog turned five, and we’re celebrating!

29 October 2015 by

No particular reason

No particular reason….

We’re about to have a fifth birthday party for the UK Human Rights Blog (a bit late – we turned five at the end of March…) so it seems like as good as time as any to reflect on what we have achieved. 

First, some numbers.

  • Five years and seven months
  • 2,245 posts
  • 4.7 million hits
  • 6,258 comments
  • 13,273 subscribers (just email – loads more on Facebook and Twitter)

Not bad, eh? I started this blog towards the end of my pupillage (year of training) at 1 Crown Office Row in 2009. Thanks to the incredibly hard work and dedication of our dedicated band of authors and editors, the UKHRB has become a key source of human rights information in the UK and also across the world. Particular thanks to Angus McCullough QC, Rosalind English, David Hart QC and Martin Downs who have been total champions.

After five years on the job, you will probably noticed that I have drawn back my involvement to concentrate on my new project, RightsInfo, which fills in some gaps which the blog couldn’t have, without changing its basic nature. Into the breach has stepped another 1COR hero, Jim Duffy, who has brought a fresh approach and a lot of fantastic new authors. We are very grateful to him.

Anyway, keep reading and thanks for all of your support, comments and bizarre emails. See you at our 10 year party.

Saudi blogger awarded Sakharov prize

29 October 2015 by

isThe European Parliament has awarded the Sakharov Prize for Freedom of Thought to Saudi Arabian blogger, Raif Badawi. The Prize, named after Andrei Sakharov who spoke out publicly against the nuclear arms race during the Cold War and criticised Soviet society, is awarded to those who “have made an exceptional contribution to the fight for human rights across the globe, drawing attention to human rights violations as well as supporting the laureates and their cause.”
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Court of Session: Partners in Crime Have no ‘Family Life’

29 October 2015 by

O’Neill and Lauchlan v Scottish Ministers [2015] CSOH 93, 28th October 2015 – read judgment

The Outer House of the Court of Session has dismissed challenges brought by two convicted paedophiles to the Scottish Prison Service’s refusal to allow them to visit each other in prison. The decisions were challenged under articles 8 and 14 ECHR, as it was claimed that the prisoners were in a homosexual relationship.
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Bank Mellat and disclosure in closed material proceedings

28 October 2015 by

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2015] EWCA Civ 105, 23 October 2015  read judgment

Bank Mellat is an Iranian bank, initially subjected to a 2009 order which prohibited anybody in the UK from dealing with it – until the Supreme Court quashed it:  here, and my posts here and here.  

The Treasury tried again, by orders made in 2011 and 2012 addressed at all Iranian banks, not just Bank Mellat. The EU has now taken over regulation of these banks.

In the current proceedings, the Bank seeks to set the 2011 and 2012 orders aside. These restrictions are, the Treasury says, addressed at the financing of Iran’s nuclear programme, in which all Iranian banks are complicit. Bank Mellat denies this, and the conundrum in the case is how to make sure that the challenge is fairly tried.  Collins J (my post here) thought that the Treasury had not revealed enough about its case, and, in substance, on appeal the CA agreed.

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Management consultant charges mother £400 for each visit to nursing home – Court of Protection

28 October 2015 by

Court of protectionSF, Re [2015] EWCOP 68 (26 October 2015) – read judgment

This Court of Protection case has, unusually, made the papers, and when you read the details you won’t be surprised. What the judge described as a “callous and calculating” son charged his widowed mother, who suffered from dementia, more than £117 000 for “out of pocket expenses” visiting her in her nursing home.  He had been in charge of her expenses since 2004 when Sheila (the mother) had been admitted to hospital under the Mental Health Act 1983. But alarm bells only went off after her unpaid nursing bills reached nearly £30 000. The Public Guardian launched an enquiry that led to this hearing of an application for the court to revoke the son’s  (Martin’s) Enduring Power of Attorney (‘EPA’) and to direct him to cancel its registration. The Public Guardian also applied to freeze Sheila’s bank account.
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Transparency in the Family Court: judge allows publication of article about children in care

26 October 2015 by

Fountain pen on a blank page open on a diary book...

Fountain pen on a blank page open on a diary book…

Tickle v Council of the Borough of North Tyneside and others [2015] EWHC 2991 (Fam) (19 October 2015) – read judgment

Before the court were cross applications by a journalist and the local authority regarding care proceedings which the former wished to report. The individual in question was a mother (representing herself in these proceedings) who had had a number of children taken into care in the past. Her life had been “blighted” historically by serious mental health problems which have at times made it unsafe for her to care for her children. At the time of this application, it seemed, those times appeared to be behind her. Be that as it may, she and her children had been through the care system on a number of occasions.

She had shared this experience on social media sites, and had described, in particular, how she fought for her youngest child (a child who was removed at birth) and how she eventually succeeded in having that child live with her. Bodey J, who had read some of her online articles,  found them “balanced and responsible”.
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The round up: a battle of ideas and freedom of expression

25 October 2015 by

UK Human rights blog photo

In the News

“This is, at its heart, a battle of ideas. On one side sit the extremists, with a deliberate strategy to infect public debate, divide our communities and advance their warped worldview,” announced David Cameron last Monday, when the government unveiled their new Counter Extremism Strategy. “On the other side,” he said, “must sit everyone else”.

The question is, how is ‘everyone else who sits on the other side’ to be protected under the proposals? Not without cost, it seems – although laudable in motive, the methods suggested with which to fight this ‘battle of ideas’ run the risk of infringing individuals’ right to freedom of expression. Joshua Rozenberg has called for careful attention to one section of the paper in particular which outlines new proposed powers to “ban extremist organisations”, “restrict harmful activites” and “restrict access to premises that are repeatedly used to support extremism”. The plan to ban extremists from mosques has drawn criticism from the Muslim Council of Britain, the UK’s largest Muslim group, who detected “McCarthyist undertones” in the proposal to compile blacklists. Would restricting access to premises used for extremist purposes restrict extremism itself? As Rozenberg wonders, “What would be the point of closing a hall? It’s not the hall’s fault. People would simply go elsewhere.”
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Western Sahara goes to Europe

23 October 2015 by

wsaharaR (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA [2015] EWHC 2898 (Admin) Blake J, 19 October 2015 read judgment

Not primarily about migration, but a case arising out of the long-running conflict between Morocco, as occupying power, and the Western Sahara as occupied territory. For many years, the UN has recognised the Western Sahara as a non-self-governing territory which is entitled to exercise its right of self-determination. Morocco does not agree, and has done what occupying powers do, namely send in Moroccan nationals to flood the existing populations, add troops, and commit human rights abuses, according to evidence filed in the case. 

You may be wondering how this North-West African problem got to London’s Administrative Court. This is because the challenge is to two EU measures concerning Morocco. The first is a preferential tariff (administered by HMRC) applicable to imports from Morocco of goods originating from the Western Sahara. The second concerns the intended application of an EU-Morocco fisheries agreement about fishing in the territorial waters of Western Sahara.

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The Blog is 5. And this is your last chance to come to the party!

23 October 2015 by

ann-marie-calilhanna-mardigras-party-2012_1514-banner

After 2,237 posts and 4.6 million visits from readers all over the world, the UK Human Rights Blog is 5 years old.  

As we announced last month, we at 1 Crown Office Row are marking the occasion with a party next Thursday (29 October). 

There are still a few places available for this free event featuring drinks, food and live music. It’s open to all our readers.

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This way, that way, the other way? Latest debate on Human Rights Act – Brian Chang

23 October 2015 by

IMG_3736Those who want change should have to make the case for it, Baroness Helena Kennedy QC challenged her fellow panellists, at a recent event jointly organised by the Bingham Centre for the Rule of Law and British Institute of International and Comparative Law, and hosted by Bindmans. The panel was one of the most stimulating contributions of the year to the debate over the proposed repeal of the Human Rights Act and its replacement with a British Bill of Rights, featuring contributions from three members of the 2012 Commission on a Bill of Rights, a number of comparative perspectives including one from Australia, and even a call for what appears to be a written constitution.

Professor Jeffrey Jowell gave some preliminary remarks to set the scene for the panel discussion. He noted that the Bingham Centre had not adopted any particular position on the proposed repeal of the Human Rights Act (HRA) and its subsequent replacement with a British Bill of Rights, since the Conservative Government had not yet published its proposals. He then quoted a recent  report that the Government was planning to publish its consultation paper within the next two months, and then seek to legislate rapidly to get the British Bill of Rights on to the statute books by the end of next summer. Given this, he felt that the time was therefore right to hear a spectrum of views on the subject to assist the Bingham Centre in forming its position.
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Court of Appeal castigates judge’s conclusion on deprivation of liberty

21 October 2015 by

logoKW (by her litigation friend) and others v Rochdale Council (Court of Appeal) [2015] EWCA Civ 1054 – read judgment

This was an appeal against a ruling by Mostyn J in the Court of Protection concerning a consent order between an incapacitated woman, the appellant, and the local authority ([2015] EWCOP 13). The judge had held that the 52 year old appellant, who had been severely incapacitated following surgery, had not been subject to deprivation of liberty contrary to Article 5 of the European Convention on Human Rights by her 24 hour care package. In his view, the test for deprivation of liberty in Cheshire West and Chester Council v P [2014] UKSC 19 did not apply.  In paragraph 17 of his judgment Mostyn J remarked that it was impossible to see how the protective measures in place for KW could linguistically be characterised as a “deprivation of liberty”. Quoting from JS Mill, he said that the protected person was “merely in a state to require being taken care of by others, [and] must be protected against their own actions as well as external injury”. At para 25, he said that he found that KW was not “in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom”.

He therefore ordered that it was in KW’s best interests to reside at the address at which she was residing and to receive a package of care in accordance with her assessed needs. The Court of Appeal upheld her appeal against this ruling, holding that the judge had been bound by Cheshire West and had made a material error of law. 
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IPT rules on interception of Parliamentarians’ communications

19 October 2015 by

Photo credit: Guardian

Photo credit: Guardian

Emma-Louise Fenelon is a Pupil Barrister at 1 Crown Office Row

‘Eavesdropping, sir? I don’t follow you, begging your pardon. There ain’t no eaves at Bag End, and that’s a fact.’ (J.R.R Tolkein)

Introduction

If parliamentarians are seen to be taking a more forensic interest in matters of surveillance in the coming weeks and months, the reason is unlikely to be purely down to the publication of the greatly anticipated surveillance legislation. Last week’s Investigatory Powers Tribunal judgment has sent ripples of discontent through both Houses of Parliament, evidenced in immediate calls for an emergency debate on the subject (scheduled to take place in the House of Commons later today).

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