The Weekly Round-up: Cop27 deals, advertising restrictions, and online safety

21 November 2022 by Lucy Stock

In the news:

• A historic deal has been agreed at the United Nation’s Cop27 summit which will provide funding to vulnerable countries to cope with the impact of climate change. The final cover document did not include commitments to reduce the use of fossil fuels. The deal also used new ambiguous language about “low emissions energy” which experts suggest could refer to fossil fuels including gas.

• There has been an investigation following the appearance of sexual abuse victims’ personal details on the Suffolk Police website. Police and crime commissioner Tim Passmore issued an “unreserved apology” for the breach. The published information included victims’ names, addresses, dates of birth and details of the offences committed against them.

• On Monday 14 November, the United Nations Human Rights Council released a report which including 302 recommendations demanding that the UK must tackle rising poverty. The report follows new figures revealing that four million children in households on universal credit face big cuts in income if benefits are not increased in line with inflation. Oxfam and the Healthcare Trade Unison, amongst other organisations, have said the UK is “failing to meet its international legal obligations”.

In other news:

• The Refugee Council called on ministers to introduce a range of measures to deal with the record delays in processing asylum claims. Currently, government spending is at around £6.8million for housing migrants in hotels. It has also been revealed that at least forty child asylum seekers were placed in a Home Office hotel designated for adults; last month, one child was the victim of a serious stabbing.

• The Advertising Standards Authority (ASA) has revised its guidance on age-restricted ads online. The new guidelines provide greater protection to children and young people by introducing content, media placement and audience targeting restrictions. The Committee of Advertising Practice (CAP) provided a principles-based checklists to help limit the exposure of young people and children to age-restricted ads. Advertisers have ultimate responsibility for ensuring compliance with the rules.

• Analysts at the Internet Watch Foundation (IWF) revealed they found nearly nine-hundred instances of Category A child sexual abuse material in just five days. The research revealed children as young as seven are being coerced by abusers into filming themselves carrying out the most severe forms of child sexual abuse material. The data publication has been used to highlight the need for the delayed Online Safety Bill.

In the courts

• In X, Re (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, the Court of Protection dismissed an application by X’s parents, V and W, for a declaration that it would be lawful for a doctor to retrieve X’s gametes to be stored both before and after his death, and an order that V may sign the relevant consents in accordance with the provisions of sub-paragraph 1(2) of Schedule 3 to the Human Fertilisation and Embryology Act 1990 (“The 1990 Act”). Schedule 3 of the 1990 Act deals with the use or storage of gametes, as does Section 4(1) of the 1990 Act; both stress the importance of consent in order that this activity be effectively regulated. X was potentially to be assessed as brain dead within 24 hours of the hearing. Citing Parrillo v. Italy (Application no. 46470/11) the Court held that the ability to give consent in regards to gametes or embryos constitutes a facet of private life. The Court relied upon  K v LBX and others [2012] EWCA Civ 79 in establishing that for an interference with X’s Article 8 rights to be lawful, it must be necessary and proportionate to achieve a legitimate aim. Having considered all the circumstances, and applying section 4 of the Mental Capacity Act 2005, the Court held that it would not be in X’s best interests to make the declarations sought. The Court was not persuaded that the significant interference with X’s Article 8 rights would be necessary or proportionate.

• On 18 November, judgement was handed down in AG (A Child), Re [2022] EWCA Civ 1505. The Court dismissed an appeal against the decision of the Divisional Court to refuse to make a declaration of incompatibility between certain provisions of the Diplomatic Privileges Act 1964 (DPA) and the Vienna Convention on Diplomatic Relations 1961 (VCDR) with Article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The key issue in the appeal was whether the Divisional Court was right to decide that neither Article 3 nor ECtHR jurisprudence required the UK to breach the VCDR. The Appellant, AG, and her 5 siblings were subjected to abuse by both their parents. Their father was an accredited diplomat at the time and thus had immunity from the criminal, civil and administrative jurisdiction of the receiving state under DPA and the VCDR.  Barnet, the London Borough where the family lived, tried to intervene on the children’s behalf, and supported AG in the appeal. The Appellant contended, referencing Z v United Kingdom (Application no. 29392/95), that Article 3 includes a systems duty on the state to take effective measures to prevent private acts of torture, inhuman or degrading treatment or punishment. The Court were unpersuaded by this. Relying upon Lord Reed’s judgement in R (AB) v Secretary of State for Justice [2022] AC 487, the Court held that they could not be confident that the ECtHR would regard the systems duty in Article 3 as overriding the long-established international law principles enshrined in the VCDR and it was not open to the court to declare Article 3 and the VCDR incompatible.

• A woman living with Autistic Spectrum Disorder (“ASD”), absence epilepsy and learning difficulties succeeded in a claim for judicial review against the London Borough of Croydon after a deputy High Court judge ruled that the council had failed to meet her needs contrary to the requirements of the Care Act 2014. The claim in P, R (On the Application Of) v London Borough of Croydon [2022] EWHC 2886 (Admin) contended that the council’s decision to fund 35 hours per week of support was unlawful as it failed to meet her needs, and succeeded on three of four grounds. In relation to Ground 1, the Judge observed that it was arguably unlawful for the Defendant to have set a level of required care in an assessment, and then to have provided a Care and Support Plan making assumptions that the required care could be provided by her parents. Grounds 3 and 4 both concerned a failure to comply with The Care and Support Statutory Guidance. The Court held, referring to the standard of proof established in R (Cava Bien Ltd) v Milton Keynes Council [2021] EWHC 3003, that the Defendant’s apparent failure to asses the level of care which could and would be provided by the Claimant’s parents did make a substantial difference to the outcome of the Claimant’s care assessment. The Court ordered the quashing order of the Defendant’s February 2022 decision to provide or fund 35 hours of support per week, and the Defendant’s Care and Support Plan dated 14 February 2022. With reference to R (CP) v North East Lincolnshire Council [2019] EWCA Civ 1614, the Court maintained that it was not unconcerned with “historic” breaches and the Claimant was entitled to declaratory relief on this aspect of Ground 1.