The Round-Up – free abortions, no adoption for Sikh couple, and school uniform headscarves

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Women from Northern Ireland who travel to the UK seeking abortions will now be able to access the procedure without charge on the NHS. See the Supreme Court decision on this, posted by Rosalind English, which brought the whole matter to light. You can hear a discussion of the various issues in this case on our new podcast series.

The government changed its policy on the matter amid fears that Conservative MPs were planning on supporting an amendment to the Queen’s speech, put forward by Labour MP Stella Creasy, to provide Northern Irish women with access to free abortions in England; with the new Conservative government’s much reduced majority, Prime Minister Theresa May could not afford to risk a rebellion from her own MPs.

Currently, a woman in Northern Ireland will not be allowed access an abortion unless her life is at risk or there is a permanent or serious risk to her physical or mental health. These conditions are restrictive, such that even a woman who has been raped will not be granted an abortion. Moreover, only last year the Northern Ireland Assembly voted against permitting abortion in cases of fatal foetal abnormality. This means that a woman may be forced to give birth to a child which will never survive.

Northern Irish women in urgent need of an abortion have thus been left with few viable options. Until last Thursday those who travelled to the UK for an abortion found themselves having to pay £900 to undergo the procedure privately. Moreover, women across the UK who procure abortions for themselves, such as from drugs bought online, can still be prosecuted under an archaic Victorian law.

The dissenting speeches from the Supreme Court earlier this month would seem to be vindicated.  Lord Kerr in particular considered that the Northern Ireland Assembly had expressed no view on the ability of Northern Irish women to travel to England to obtain abortions, and that neither democratic deference to the Northern Ireland Assembly nor cost could be considered legitimate aims for an interference in the Northern Irish women’s Article 8 rights.

The policy has so far been adopted with alacrity by the British Pregnancy Advisory Service, which plans to provide for such women without delay. BPAS has even promised a refund to those Northern Irish women who used its services last Friday.

Yet although this should certainly be heralded as a positive step, access to abortions in England may not be so readily available for all Northern Irish women. While the procedure itself may now be free, women will still have to pay themselves for travel, accommodation and time away from work in order to seek out the procedure. Mara Clarke (the director of the Abortion Support Network, which offers financial assistance to women in need of abortions) acknowledged the move as “an incredible step”, but nonetheless warned that “the work will still be here tomorrow”. For example, Ms Clarke has highlighted the plight of any women caring full-time for children or in controlling relationships who will be unable to travel and therefore unable to benefit.

Moreover, the legal restrictions on abortions still remain firmly in place in Northern Ireland itself. Only last week, on the very day that the UK government announced its policy change on abortion for Northern Irish women, the Court of Appeal in Northern Ireland overturned a High Court judgment from 2015 and refused to declare the restrictive abortion laws incompatible with obligations under the UK’s Human Rights Act. Rather, the court considered that it was not appropriate for it to intervene and any change in the law should be left as a matter for the Stormont Assembly to decide. Although leave has been given to appeal to the Supreme Court, the UK’s highest court may well be inclined cite democratic deference to Stormont, and refuse to intervene.

 

ELSEWHERE IN THE NEWS: 

A Sikh couple are bringing a discrimination claim against Adopt Berkshire, the official adoption agency of the Royal Borough of Windsor and Maidenhead, after being denied the opportunity to adopt a white child because of their “cultural heritage”. Sandeep and Reena Mander, who were born in Britain and live in Berkshire, were hoping to adopt a child of any ethnicity, but were informed by the adoption agency that they were unlikely to be selected to adopt, given that only white children were in need and white British or European parents would instead be given preference. The couple claim that the adoption agency advised that they seek to adopt a child from India – a country with which they have no close links. While adoption agencies are allowed to consider race when matching parents with a child, the Children and Families Act 2014 had removed the requirement that due consideration be given to religion, race and cultural background which resulted in ethnic matches, since a child’s ethnicity should not constitute a barrier to adoption. Regarding the Manders’ case, despite intervention by their MP and Prime Minister Theresa May, and despite support from the Equality and Human Rights Commission, the council has so far refused to retreat from its position.

Sir John Thursby Community College in Burnley, Lancashire, has come under fire after introducing a uniform headscarf for Muslim female students. The rationale for the new uniform requirement arose from concerns that students were not wearing their headscarves appropriately. It was, however, criticised in an online petition launched by parents, who have lamented the lack of consultation with parents and students prior to its introduction. The main concerns arise from the tightness of the cap-like headscarf, which parents are concerned may be suffocating for students or may fail to cover their hair at all, which would defeat the point of the headscarf to protect the wearer’s modesty. The petition has even suggested that the uniform headscarf may have been introduced to deter Muslim female students from wearing headscarves altogether; head teacher David Burton has denied any such motive, and has pledged to discuss parents’ views with governors.

IN THE COURTS: 

Dean (Zain Taj) v Lord Advocate: the Supreme Court has ruled that the prison conditions in Taiwan are such that any extradition would breach the Human Rights Convention.  The respondent, convicted with driving under the influence, negligent manslaughter and leaving the accident in Taiwan, was sentenced to 4 years’ imprisonment.  He absconded to Scotland.   The Appeal Court found that, despite assurances from the Taiwanese government, he remained at real risk of ill-treatment at the hands of third parties who might seek to harm him since he had become well-known for his crime or given the special treatment he would receive because of the assurances.  The Supreme Court held that the Appeal Court had not applied the correct test from R (Bagdanavicius) v Secretary of State for the Home Department, which for threats from third parties is whether the state has failed to provide reasonable protection against harm inflicted by non-state agents. The Supreme Court held that the assurances from the Taiwanese government that he could elect to remain alone constituted sufficient reasonable protection, and his election to be so isolated would not amount to a breach of Article 3.

Lorefice v Italy: the European Court of Human Rights considered the applicant’s complaint concerning the fairness of criminal proceedings which had resulted in his conviction by a court of appeal and held that there had been a breach of the applicant’s Article 6 right to a fair trial. Mr Lorefice had been charged with extortion, possession of explosive devices, damage to other people’s property, collusion and attempted robbery, but was initially acquitted by the Sciacca first-instance court given the lack of credibility, incoherence, illogicality and imprecision of the evidence from two witnesses. The Palermo Court of Appeal however, overturned this judgment; in doing so it had reassessed the witnesses’ evidence and found it credible, despite the fact that it had not ordered a fresh rehearing of the witnesses’ evidence and merely relied upon. In light of the seriousness of the charges against Mr Lorefice, the Court found that the relevant issues could not, as a matter of fair trial, be properly determined without a direct assessment of the evidence given by the prosecution witnesses. It emphasised that in order to assess the credibility of witnesses, it should do so in person and not merely by reading statements as recorded in hearing transcripts.