By: Rosalind English
26 September 2013 by Rosalind English
M (Children) [2013] EWCA Civ 1147, 20 September 2013 – read judgement
The Court of Appeal has taken the unusual step of reversing a denial of contact order, by reviewing the question of the proportionality of the order in relation to the children’s right to family life under Article 8.
The appellant father appealed against the refusal of his application for contact with his three young sons. He had a history of violence and previous criminal convictions all but one of which, though distant in time, related to violent behaviour, including causing grievous bodily harm with intent. Following repeated episodes of abuse, which was often witnessed by the boys, the mother had left the family home with the children and had taken up accommodation in a women’s refuge. She voiced fears of their abduction out of the jurisdiction and her own personal safety to the extent of “honour based” violence and death at the hands or instigation of the father. When he applied for contact Cushing J found that the father had minimised his behaviour and blamed the mother as the victim of his violence. She concluded that he had failed to show any lasting benefit from therapy and his behaviour was likely to destabilise the children’s home and security, which was provided by the mother.
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25 September 2013 by Rosalind English
J.D. Heydon: Are Bills of Rights necessary in common law systems? – read lecture
Former Australian High Court Justice Heydon’s thought-provoking speech questioning the efficacy and indeed the very merits of the Human Rights Act deserves reading in full, but the following summary highlights its main features and should encourage readers to immerse themselves in the lecture.
Proponents of human rights instruments urge their necessity on society because they gesture toward a morality more capacious than the morality of our tribe, or association, or nationality. The forum of human rights is one in which our allegiances are not to persons or to wished-for outcomes but to abstract norms that are indifferent to those outcomes. That is why the Human Rights Act has around it what Heydon calls an “aura of virtue” that would make its repeal extremely difficult from a political point of view, even though it is legally and practically possible.
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24 September 2013 by Rosalind English
R (on the application of R) v Chief Constable [2013] EWHC 2864 (Admin) 24 September 2013 – read judgment
The High Court has ruled that it is not a breach of the right to private life to request DNA samples from those who were convicted of serious offences before it became commonplace to take samples for the production of DNA profiles for the investigation of crime.
Background Facts
The claimant was asked, by reason of his previous convictions, to provide a DNA sample under the Police and Criminal Evidence Act to enable the police compare the his DNA profile with those held by the police in connection with unsolved crime. He refused to give the sample when it was sought initially, so he was sent a letter requiring him to attend at a police station to provide the sample on pain of arrest. He applied for judicial review of this requirement, arguing that it was an unlawful incursion on his right to privacy under Article 8.
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18 September 2013 by Rosalind English
R (on the application of) Christopher Prothero v Secretary of State for the Home Department [2013] EWHC 2830 (Admin) 18 September 2013 – read judgment
This was a challenge to regulations introduced in 2012 under the Sexual Offences Act 2003 which require a person on the Sex Offenders Register to provide details of bank, debit or credit card accounts held by him. The claimant sought a declaration that this particular regulation was incompatible with his right to respect for private life under Article 8 of the European Convention on Human Rights.
The last time the notification requirements under the 2003 Act came under attack, the Supreme court held that they were capable of causing significant interference with the Article 8 rights of an offender on the register (R (F)(a Child)) v The Secretary of State for the Home Department [2010] UKSC 17) – see our post on that case and its consequences.
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17 September 2013 by Rosalind English
Fish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water (Case C-279/12) – read Opinion of AG Cruz Villalon
In this most recent case concerning access by private individuals to environmental information held by public authorities, the AG grasps the nettlish question of what precisely a public authority is. The issue was a subject of debate because the request for information had been addressed to private companies which manage a public service relating to the environment. The question therefore was whether, even though the companies concerned are private, they may be regarded as “public authorities” for the purposes of the Directive governing access to environmental information (Directive 2003/4).
Clearly the definition of the concept of “public authority” is an issue of importance not just in relation to access to information, but across the board, whether involving EU law or the application of the Human Rights Act 1998 and judicial review in domestic law.
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9 September 2013 by Rosalind English
Re A (a child) [2013] EWCA Civ 1104 – read judgment
Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8. Whilst this particular appeal was not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”, McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.
The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start. As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. Nevertheless, as the Court of Appeal points out, “substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”
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7 September 2013 by Rosalind English
CM, Re Judicial Review [2013] CSOH 143 – read judgment
The Scottish Court of Session has ruled that the prohibition of smoking and possession of tobacco products by patients at a mental hospital was unlawful. Whilst being careful to emphasise that this ruling did not spell out a specific right to smoke, the Court considered that the ban infringed the patients’ right to respect for home under Article 8.
The petitioner, a patient in a high security psychiatric hospital, sought judicial review of the policy adopted by the State Hospitals Board to ban smoking not just inside the hospital but also in the hospital grounds. He claimed that the ban amounted to a breach of his right to respect for private life and home under Article 8, both as a stand‑alone claim and in combination with Article 14 (enjoyment of Convention rights without discrimination). He also argued that the ban constituted an unlawful and discriminatory infringement of his right to peaceful enjoyment of possessions under Article 1 Protocol 1.
The petitioner further based his position on compassionate grounds, pointing out that there are few diversions available in the State Hospital; that he derived pleasure from smoking; and that as an individual with relatively few liberties the removal of his ability to smoke had had a disproportionately large impact on him.
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28 August 2013 by Rosalind English
Sylvie Beghal v Director of Public Prosecutions, [2013] EWHC 2573 (Admin) – read judgment
In a judgment with implications for the detention of David Miranda, the High Court has today dismissed an appeal against a conviction for wilfully failing to comply with a duty imposed by virtue of Schedule 7 to the Terrorism Act 2000.
The Court rejected the submission that the Schedule 7 powers in question violated the Appellant’s right under Articles 5, 6 and 8 of the ECHR. However, the Court urged consideration of a legislative amendment introducing a statutory bar to the introduction of Schedule 7 admissions in subsequent criminal trials.
Part of the following report is taken from the Court’s press summary, part is based on the judgment itself.
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20 August 2013 by Rosalind English
NHS Trust v DE [2013] EWHC 2562 (Fam) 16 August 2013 – read judgment
For the first time a UK court has permitted non therapeutic sterilisation of a male individual who, through learning disabilities, was unable to consent to such a procedure.
The NHS Foundation Trust made an application in the Court of Protection for a raft of declarations in relation to a 37 man, DE, who suffers from a profound learning disability. After fifteen years of hard work and sensitive care by his parents and social workers he had achieved a modest measure of autonomy in his day to day life and had a long standing and loving relationship with a woman, PQ, who is also learning disabled.
But things changed dramatically for the worst in 2009, when PQ became pregnant and had a child. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. As a result of the distress he felt following this event DE was clear that he did not want any more children. Evidence before the court suggested that his relationship “nearly broke under the strain.”
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15 August 2013 by Rosalind English
Tabbakh, R (on the application of) v Staffordshire and West Midlands Probation Trust and others [2013] EWHC 2492 (Admin) – read judgment
The claimant, a Syrian national, was serving the non-custodial part of a seven year sentence imposed for an offence of preparing a terrorist act. He was released automatically on licence on 23 June 2011, having served half his sentence. He took proceedings for judicial review contending that he had had no meaningful opportunity to participate in the process when his licence conditions were determined and that this constituted a breach of the procedural guarantees under Article 8 of the European Convention on Human Rights.
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12 August 2013 by Rosalind English
Navarathnam v Secretary of State for the Home Department [2013] EWHC 2383 (QB) – read judgment
There was no unfairness in the Secretary of State for the Home Department refusing a Sri Lankan asylum seeker leave to remain in the United Kingdom, despite the ruling from the Strasbourg court that to return him would violate his rights under Article 3 of the European Convention on Human Rights 1950.
A decision had been made to grant the applicant six months discretionary leave to remain but he had absconded before it could be implemented, and by the time he resurfaced the secretary of state had been entitled to review the case and determine that the circumstances in Sri Lanka had changed so that he was no longer at risk if returned.
Factual Background
The claimant was a Sri Lankan national who had been subject to removal action after his asylum claim was refused. In 2008 the Strasbourg Court declared that the circumstances in Sri Lanka were such that his expulsion to Sri Lanka would violate the prohibition on torture and inhuman treatment under Article 3 (AA v United Kingdom). The UK authorities consequently confirmed that removal directions would not be applied to him, and stated that he would be granted six months discretionary leave to remain (DLR).
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12 August 2013 by Rosalind English
Ignaoua, R (On the Application of) v Secretary of State for the Home Department [2013] EWHC 2512 (Admin) – read judgment
The Government’s termination of existing judicial review proceedings via certification under the Justice and Security Act was “troubling” but lawful. Parliament’s intention was clear, even though there were no new rules in force yet.
The claimant was challenging her exclusion from the UK on national security grounds in proceedings commenced in 2010. The proceedings were terminated under special powers conferred by the Act. The challenge could proceed instead before the Special Immigration and Appeals Commission (SIAC), which has all the powers of the divisional court to conduct a judicial review of his exclusion.
The question before the court was whether the certificate had been lawfully made and not an abuse of process.
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31 July 2013 by Rosalind English
MA and others (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 2213 (QB) (30 July 2013) – read judgment
The High Court has unanimously dismissed an application for a declaration that the so-called “bedroom tax” discriminates unlawfully against disabled claimants.
The arguments
This was a challenge by way of judicial review to regulations that came into force last year, reducing the amount of housing benefits by reference to the number of bedrooms permitted by the relevant statute (the Social Security Contributions and Benefits Act 1992 ). These new rules, which have applied to claimants of housing benefit since April 2013, restrict housing benefit to allow for one bedroom for each person or couple living as part of the household. Discretionary housing payments are available for certain qualifying individuals to mitigate the effect of the new rules, in particular the effects on disabled people and those with foster caring responsibilities.
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31 July 2013 by Rosalind English
R (on the application of) Nicklinson and Lamb v Ministry of Justice [2013] EWCA Civ 961 – read judgment
The Court of Appeal has today unanimously dismissed appeals by Jane Nicklinson and Paul Lamb challenging the legal ban on voluntary euthanasia.
We have posted previously on the Hight Court ruling in the Nicklinson case, here and here. The following is based on the Court’s press summary. An analysis of this case will follow shortly.
Summary of the facts and the ruling
These appeals concern two individuals who suffer from permanent and catastrophic physical disabilities. Both are of sound mind and acutely conscious of their predicament. They have each expressed a settled wish to end their life at a time of their own choosing in order to alleviate suffering and to die with dignity.
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20 July 2013 by Rosalind English
SS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 – read judgment
This case concerns a hitherto little-explored aspect of the right to a private and family life: a parent’s opportunity to teach their offspring about their own religious faith.
This is also a subset of the right under Article 9 to practise one’s own religion. This question was raised in EM(Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 but was only tangential to the main issue, which was the relationship between the appellant mother and her son as opposed to the father whose entitlement to custody would have been secured under Islamic law.
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M (Children) [2013] EWCA Civ 1147, 20 September 2013 – read judgement
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