Mother’s determination that child was “gender variant” did him significant harm – Family Court

Father-and-child-holding--006J (A Minor), Re [2016] EWHC 2430 (Fam) 21 October 2016 – read judgment

These proceedings concerned a care order sought by the local authority in respect of a seven year old boy (J). The judge found that his mother, who had separated from his father within 12 months of J’s birth, had caused her son significant emotional harm by making him live as a girl. The care order sought would allow J to continue to live with his father, in whose care he had flourished.

After the separation J had stayed with his mother. Contact arrangements broke down in 2013, causing the father to apply for a child arrangements order. Contact was consistently opposed by the mother. In 2013 and 2014, various agencies raised concerns with the local authority about the mother’s mental health and the fact that J was presenting as a girl. The mother had claimed that J was “gender variant” and should be allowed to go to school dressed as a girl. Social services were concerned that he was made to wear a pink headband and nail polish. And indeed at a hearing in November 2015, the mother told the court that J was living life entirely as a girl: he dressed like a girl and had been registered with a GP as a girl. She was reported to be considering sending the child to a gender reassignment clinic. As the judge said, when all this was properly analysed it was clear that “flares of concern were being sent from a whole raft of multi disciplinary agencies.

Each was signalling real anxiety in respect of this child’s welfare. Whilst it is, I suppose, conceivable that these referrals were considered individually, it is impossible to draw any inference other than that they were never evaluated collectively.

The local authority, concluded Hayden J, had “consistently failed” to take appropriate intervention where there were strong grounds for believing that a child was at risk of serious emotional harm. It was “striking” that the local authority had moved into wholesale acceptance that J should be regarded as a girl.

Once again, I make no apology for repeating the fact that J was still only 4 years of age.

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Belfast court dismisses Brexit challenge

eu-1473958_1920McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) – read judgment

A challenge to the legality of the UK’s departure proceedings from the EU has been rejected by the High Court in Northern Ireland. In a judgment which will be of considerable interest to the government defending a similar challenge in England, Maguire J concluded that the UK government does not require parliamentary approval to trigger Article 50 of the Lisbon treaty. This is, par excellence, an area for the exercise of the government’s treaty making powers under the Royal Prerogative.

See our previous post on Article 50 and a summary of the arguments in the English proceedings.

This ruling was made in response to two separate challenges. One was brought by a group of politicians, including members of the Northern Ireland assembly, the other by Raymond McCord, a civil rights campaigner whose son was murdered by loyalist paramilitaries in 1997. They argued that the 1997 peace deal (“the Good Friday Agreement”) gave Northern Ireland sovereignty over its constitutional future and therefore a veto over leaving the EU. Like the English challengers, they also argued that Article 50 could only be invoked after a vote in Parliament.

At centre stage in the English case is the means by which Article 50 TEU is to be triggered and the question of the displacement of prerogative executive power by statute.  While this issue was also raised in the challenge before the Northern Ireland court, Maguire J also had before him a range of specifically Northern Irish constitutional provisions which were said to have a similar impact on the means of triggering Article 50. To avoid duplication of the central issues which the English court will deal with, this judgment concerned itself with the impact of Northern Ireland constitutional provisions in respect of notice under Article 50.

However, the judge had some clear views on the role of prerogative powers in the Brexit procedure, which, whilst respecting the outcome of the English proceedings, he did not hesitate to set out. Continue reading

Subsidy withdrawal from renewable energy entirely lawful – Court of Appeal

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Infinis Energy Holdings Ltd v HM Treasury and Anor [2016] EWCA Civ 1030 – read judgment

In July 2015 the government announced that it was removing a subsidy for renewable energy. Its decision in fact was to take away the exemption that renewable source electricity enjoyed from a tax known as the climate change levy. We have covered previous episodes in the renewables saga on the UKHRB in various posts.

The appellant, the largest landfill gas operator in the UK and one of the leading onshore wind generators, challenged the government’s removal of the subsidy on the basis of the EU law principles of foreseeability, legal certainty, the protection of legitimate expectations or proportionality. At first instance the judge upheld the Secretary of State’s decision, and the Court of Appeal dismissed the appeal against this finding.

Legal and Factual Background

The subsidy took the form of an exemption for renewable source electricity (RSE) such as that provided by the appellant’s company, from the climate change levy (CCL). (The judgment is replete with these acronyms so it’s worth getting to grips with them before reading.)

Jay J, the judge at first instance, summarised the government’s reasons for removing the exemption. The government wanted to move away from a system of indirect support to one of direct support, the latter being more efficient and cost-effective. The exemption, it was said, benefited foreign generators and there were incentives and support in place that would continue to support domestic generators of renewable energy.  The government had considered the impact of this decision on companies such as Infinis,  but it was decided that it was outweighed by the public interest.  Continue reading

Prosecution of Italian traffickers can go ahead even after Romania’s accession to EU

italy_immigrationPaoletti and others (Judgment) [2016] EUECJ C-218/15 (6 October 2016) – read judgment

The Court of Justice of the European Union (CJEU) has ruled that people smugglers can be punished even if the illegal immigrants themselves have subsequently gained EU citizenship by dint of the relevant country’s accession to the EU.

Legal and factual background

The accused in the main proceedings had illegally obtained work and residence permits for 30 Romanian nationals in 2004 and 2005, before the accession of Romania to the EU. They were therefore charged with having organised the illegal entry of these Romanian nationals “in order to benefit from intensive and ongoing exploitation of foreign labour”. This law was introduced to the Italian criminal code in accordance with the EU directive requiring the prevention and punishment of people smuggling (Article 3 of Directive 2002/90 and Article 1 of Framework Decision 2002/946, which provide that such an offence is to be punishable by effective, proportionate and dissuasive penalties). Continue reading

“British Troops to be Exempted from Human Rights Law”

british-army-troops-iraq..is the headline of the leading article in The Times today.

Theresa May vows to end ‘vexatious claims’ against service personnel. In the UK about £100 million has been spent since 2004 dealing with thousands of cases lodged against soldiers who served in Iraq. Many were launched under ECHR laws on rights to life and liberty.

Apparently the Prime Minister will announce today that under proposals she has put forward, Britain plans to opt out of international human rights law when it goes to war. British troops will be free to take “difficult decisions” on the battlefield without fear of legal action when they come home. This move follows an outcry over investigations into thousands of claims against soldiers by a government body examining alleged human rights abuses in Iraq. Mrs May said that the plan would

put an end to the industry of vexatious claims that has pursued those who served in previous conflicts.

Britain will put in place temporary derogations against parts of the Convention before planned military actions.

Since the Convention has been extended to cover actions by soldiers outside the jurisdiction of the UK and other signatory states, many senior officers have warned that operations will be undermined by soldiers wary of taking risks. Continue reading

Arguments in the referendum challenge now available

OLYMPUS DIGITAL CAMERA

The imminent  litigation concerning the government’s response to the Brexit vote is much anticipated. The skeleton arguments have now been filed. The High Court has just resisted an application for partial redaction of the arguments, so they are open for public perusal.

A quick reminder of what this is all about:

In R (on the Application of Gina Miller) and others v Secretary of State for Exiting the European Union the claimants seek a declaration that it would be unlawful for the defendant secretary of state or the prime minister on behalf of HM Government to issue a notification under Article 50 (TEU) to withdraw the UK from the EU without an act of parliament authorising such notification.

Here is the  skeleton argument from one of the groups supporting that case (People’s Challenge), and here are the Government defendants’ grounds of resistance

Prerogative Power

People’s Challenge

The triggering of Article 50 requires a prior step: the decision to withdraw from the EU in response to the referendum result. It is only once this decision is taken that it can be notified to the European Council.

This first step cannot be made as an exercise of the royal prerogative, which is the power of the government to take action without consulting parliament.  This power has been weakened over time – mainly whittled away by parliamentary legislation – and is so residual now that it cannot be exercised to implement Brexit. Consequently, the executive does not have power to decide that the UK should withdraw from the EU, and without putting the matter to vote in Parliament, ministers cannot notify the European Council of any such decision to withdraw.

Because parliament brought us into the UK, only parliament can authorise a decision to leave.

Since the prerogative forms part of the common law,  the courts have jurisdiction to determine the extent of this power in accordance with ordinary judicial review principles.

Government 

Prerogative powers cannot be reduced by implication. In any event, withdrawal from the EU by governmental fiat has not been prohibited by any statute.

The Act that parliament passed to authorise the referendum was predicated on the “clear understanding” that the government would respect the outcome, and this is a lawful and constitutional step. Parliament has a role, but only in the negotiations following the decision to leave, not in the taking of the decision itself, which follows the outcome of the referendum. That is for the government, under its prerogative treaty making powers.

The referendum result cannot be attacked in the way the challengers contend; the vote concerned the decision to leave the EU. As articulated, this result should be given effect by use of prerogative powers.

Courts have no more power to adjudicate on the decision to withdraw from the EU as they did on the decision to join it. This is now, and was then, a matter of “highest policy reserved to the Crown”. Treaty-making, with the European Union or any other body, is not generally subject to parliamentary control.

Citizens’ Rights

People’s Challenge

Even if the government has prerogative power to deal with this, it cannot be used in any way to modify “fundamental rights”, in particular “citizenship rights”; these rights include employment, equal pay and healthcare rights.

Government

Article 50 was drafted to allow member states to determine their own requirements for withdrawal, free from interference from EU law. This is a provision of the EU Treaties which regulates states and does not confer rights upon individuals. As such, it cannot be invoked in a complaint such as the one at hand, regarding the activation of Article 50.

In any event, no particular rights have been asserted by the claimant that might be infringed by this process, and therefore they are not justiciable.

Devolution

People’s Challenge

The devolved legislatures of Scotland, Northern Ireland and Wales are bound by EU law to protect the rights of their citizens. Furthermore, Northern Ireland and the Irish Republic cannot be separated by different rules on free movement of EU citizens.

Government

The government’s use of its prerogative powers has nothing to do with devolution. The conduct of foreign affairs is a “reserved” matter so that the devolved governments have no competence over it.

Concluding statements

People’s Challenge

If Article 50 is triggered without the authorisation of MPs, this would create a precedent preventing any future parliament from legislating to hold a second referendum on EU withdrawal.

Government

It is “entirely appropriate” under the UK’s unwritten constitution for the government to implement the outcome of the resolution without the need for parliamentary authorisation.

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No more human rights? Wait. No more lawyers??

415h7k2lel-_sx329_bo1204203200_Not only is God dead, says Israeli professor Yuval Noah Harari, but humanism is on its way out, along with its paraphernalia of human rights instruments and lawyers for their implementation and enforcement. Whilst they and we argue about equality, racism, feminism, discrimination and all the other shibboleths of the humanist era, silicon-based algorithms are quietly taking over the world.

His new book, Homo Deus, is the sequel to Homo Sapiens, reviewed on the UKHRB last year. Sapiens was “a brief history of mankind”, encompassing some seventy thousand years. Homo Deus the future of humankind and whether we are going to survive in our present form, not even for another a thousand years, but for a mere 200 years, given the rise of huge new forces of technology, of data, and of the potential of permissive rather than merely preventative medicine.

We are suddenly showing unprecedented interest in the fate of so-called lower life forms, perhaps because we are about to become one.

Harari’s message in Sapiens was that the success of the human animal rests on one phenomenon: our ability to create fictions, spread them about, believe in them, and then cooperate on an unprecedented scale.  These fictions include not only gods, but other ideas we think fundamental to life, such as money, human rights, states and institutions. In Homo Deus he investigates what happens when these mythologies meet the god-like technologies we have created in modern times.

In particular, he scrutinises the rise and current hold of humanism, which he regards as no more secure than the religions it replaced. Humanism is based on the notion of individuality and the fundamental tenet that each and everybody’s feelings and experiences are of equal value, by virtue of being human. Humanism cannot continue as a credible thesis if the concept of individuality is constantly undermined by scientific discoveries, such as the split brain, and pre-conscious brain activity that shows that decisions are not made as a result of conscious will (see the sections on Gazzaniga’s and Kahneman’s experiments in Chapter 8 “The Time Bomb in the Laboratory”).

…once biologists concluded that organisms are algorithms, they dismantled the wall between the organic and inorganic, turned the computer revolution from a purely mechanical affair into a biological cataclysm, and shifted authority from individual networks to networked algorithms.

… The individual will not be crushed by Big Brother; it will disintegrate from within. Today corporations and governments pay homage to my individuality, and promise to provide medicine, education and entertainment customised to my unique needs and wishes. But in order to do so, corporations and governments first need to break me up into biochemical subsystems, monitor these subsystems with ubiquitous sensors and decipher their working with powerful algorithms. In the process, the individual will transpire to be nothing but a religious fantasy.

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