Monthly News Archives: December 2020

Challenge upheld to Covid-19 changes to care regime for children

7 December 2020 by Charlotte Gilmartin

R (Article 39) v Secretary of State for Education [2020] EWCA Civ 1577

The issue before the Court of Appeal was whether the Secretary of State for Education had acted unlawfully in failing to consult certain bodies representing children in care, including the Children’s Commissioner for England, before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (“the Amendment Regulations”) following the outbreak of the Coronavirus pandemic.

On 24 November 2020, the Court of Appeal allowed the appellant’s appeal, granting a declaration that the Secretary of State for Education had acted unlawfully by failing to consult those bodies before introducing the amendments.

Magna Carta and Freemen on the Land

4 December 2020 by Rosalind English

AVI and MHVB and Jacqueline Robinson, a.k.a. Jacquie Phoenix (Third Party and Unauthorised Alleged Representative) 2020 ABQB 489

I was put on to this decision from the Court of Queen’s Bench of Alberta by a response to a post from the Secret Barrister on Twitter (@barristerSecret) . This concerns the Magna Carta tsunami that has wreaked a certain amount of havoc on social media in response to the government’s Covid restrictions.

We have been taking an interest in the Freemen on the Land phenomenon from the early days of the UKHRB. See Adam Wagner’s 2011 “Freemen of the Dangerous Nonsense” and his comment on the 2012 Alberta case Meads v. Meads, 2012 ABQB 571 (CanLII) 

Puberty Blocking — can a child consent?

4 December 2020 by Marina Wheeler QC

A case about medical treatment for children experiencing gender dysphoria is bound to evoke strong feelings. So, in early October, when the parties in R (on the application of Quincy Bell and A v Tavistock and Portman NHS Trust and others arrived for the hearing at the Royal Courts of Justice, they found a buzz of press photographers and a throng of campaigners with placards.

Now the Divisional Court has delivered its judgment in this controversial and difficult case. On 1 December 2020, it substantially upheld the Claimants’ challenge to the practice of prescribing puberty-blocking drugs to children, some as young as 10, with gender dysphoria.

The first Claimant, Quincy Bell, was born female. At about 15 she was prescribed puberty blocking drugs (PBs) to halt the development of female sexual characteristics. Subsequently she transitioned to a male using “cross-sex hormones” and then underwent a double mastectomy. She told the court her doubts began before the surgery and she now wished to identify as a woman, reverting to the sex on her original birth certificate. “I made a brash decision as a teenager” she said, “… trying to find confidence and happiness except now the rest of my life will be negatively affected…transition was a very temporary, superficial fix for a very complex identity issue.”

The second Claimant was the mother of 15 year old with autism experiencing gender dysphoria whom she feared would be prescribed puberty-blockers.

The Claimants contended that prescribing these drugs to under 18s was unlawful because they lacked competence to give valid consent to the treatment, and were given misleading information.

Dolan’s latest lockdown defeat

3 December 2020 by Rosalind English

Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605

I wrote about the launch of these proceedings earlier this year (Legal Challenge to Lockdown) where Mr Dolan was refused permission to appeal the refusal of his application for judicial review. (see Dominic Ruck Keene’s post on that decision). Since then UKHRB has been covering this and similar challenges closely: see here and here, as well as alerting our readers to cases in other countries: New Zealand, and South Africa. My recent post on “vaccine hesitancy” and proposals for mandatory Covid-19 vaccines has attracted a considerable number of readers and comments.

Getting back to the case in hand, this latest defeat for Dolan’s team is slightly more complicated. The Court of Appeal’s ruling can be summarised briefly, but anyone wanting to be reminded of the details will do well to go back to Emmet Coldrick’s enlightening series on the earlier stages of this case and the arguments raised by the appellants in Part 1 and Part 2.

New criminal record disclosure rules take effect

1 December 2020 by Samuel March

On the 28^th November 2020, The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 (“the Order”) came into force, implementing important changes to the criminal records disclosure rules in England and Wales.

The criminal records disclosure regime provides information through Disclosure and Barring Service (DBS) certificates to employers about an individual’s criminal record. That information is then used by employers when considering the suitability of applicants for eligible roles or work.

The Order removes the requirement for automatic disclosure of youth cautions, reprimands and warnings and removes the ‘multiple conviction’ rule, which required the automatic disclosure of all convictions where a person has more than one conviction, regardless of the nature of their offence or sentence.