Category: Article 8 | Right to Privacy / Family
29 March 2012 by Daniel Sokol
Gas and Dubois v France (2012) (application no 25951/07). Read judgment (in French).
The French government did not violate articles 8 (right to respect for private and family life) and 14 ECHR (right not to be discriminated against in one’s enjoyment of Convention rights and freedoms) in not allowing one partner in a homosexual couple to adopt the child of the other. And the Daily Mail goes off on another frolic of its own.
Ms Valerie Gas and Ms Nathalie Dubois, now in their 50s, lived together as a lesbian couple, obtaining the French equivalent of a civil partnership (the pacte civil de solidarité, or PACS) in 2002. Ms Dubois, through artificial insemination in Belgium using an anonymous sperm donor, gave birth to a girl in September 2000. Together, they took care of the child and, in 2006 , Ms Gas, applied to adopt the girl with the consent of her partner, Ms Dubois.
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27 March 2012 by David Hart KC
Kolyadenko v. Russia
EHCtR, 28 February 2012
This was the scene in the riverbed lying below a large reservoir near Vladivostok. There had been very heavy rain, causing the managers of the reservoir to let water through into that riverbed for fear that the reservoir might collapse. But the channel beneath was not exactly clear of obstructions, as the image shows. 6 flooded applicants obtained no redress in the Russian Courts, and had to go to Strasbourg to get damages – nearly 11 years after the flood in August 2001.
It might be thought that similar claimants here would not go uncompensated. But that is far from clear, as English law on flooding liabilities is by no means straightforward. Hence, the interest of the case, in which claims under Articles 2 (right to life), 8 (right to private and home life) and Article 1 Protocol 1 (right to possessions) were successful.
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23 March 2012 by Isabel McArdle
JD (Congo) and others v Secretary of State for the Home Department, Public Law Project [2012] EWCA Civ 327
The Court of Appeal has considered the test for granting permission at the second stage of appeal in immigration cases, when someone wishes to appeal from the Upper Tribunal to the Court of Appeal. The test requires showing that:
“(a) the proposed appeal would raise some important point of principle or practice; or (b) there is some other compelling reason for the [Court of Appeal] to hear the appeal.”
But these test cases were of special interest, because they involved situations where the appellant has succeeded before the First-Tier tribunal but failed in the UT after the Secretary of State’s appeal succeeded, or where the appellant was unsuccessful at both levels, but the FTT had made a material error of law and the UT made the decision afresh. Previous authority showed no clear approach in these circumstances. The Court stressed that the test for permission at the second stage of appeal is higher than the first stage test.
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19 March 2012 by David Hart KC
Barr v. Biffa, CA, 19 March 2012, read judgment
For the last year or so, the law of nuisance has been in a state of flux pending this appeal. In this case about an odorous landfill, Coulson J had ruled that compliance with the waste permit amounted to a defence to a claim in nuisance, and that a claimant had to prove negligence in the operation of the landfill before he could claim in nuisance. The Court of Appeal has today reversed this decision.
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15 March 2012 by Adam Wagner
The Government has begun its consultation on whether the ban on marriage between people of the same sex should be removed. As suggested by the consultation’s title – Equal civil marriage consultation – the Government is only proposing to remove the ban on civil gay marriage.
The consultation document makes clear that it is “limited to consideration of civil marriage and makes no proposals to change the way that religious marriages are solemnised“. In other words, religious institutions will not be forced to allow same-sex marriages on their premises. And moreover, perhaps in order to dodge some of the controversy which has erupted in recent weeks, there are no plans to allow same-sex marriage to take place on religious premises at all. So even religious denominations which support same-sex marriage in principle will not be allowed to conduct the ceremonies on religious premises.
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14 March 2012 by Henry Oliver
The Court of Appeal has ruled that there is no “near miss” principle in the application of the Immigration Rules. People who miss the five years’ continuous residence requirement – even if by two weeks – will not have met the rules. There is no exception.
Mr Miah’s application for further leave to remain as a Tier 2 (General) migrant was refused by the Home Secretary. As was his application under Article 8 (right to private and family life) of the European Convention on Human Rights, and the application of his wife and child to be his dependents. His appeal to the First Tier Tribunal was unsuccessful, as was his appeal to the Upper Tribunal.
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1 March 2012 by Adam Wagner
The Ministry of Justice has proposed two important amendments to the Legal Aid, Punishment of Offenders and Sentencing Bill.
As has been predicted for a number of months, the proposals will bring a limited number of clinical negligence claims and claims arising as a result of domestic violence back within the scope of legal aid. The clinical negligence exception only relates to claims arising whilst a person was still in their mother’s womb, or 8 weeks after their birth. If the baby is born before 37 weeks gestation, the legal aid clock will begin to tick from the date they would have been 37 weeks gestation. The victim must also be “severely disabled” as a result.
As to domestic violence, the amendments are to provide legal aid for civil claims where:
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19 February 2012 by Guest Contributor
Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 – Read judgment
On 10th February 2012, the Court of Appeal upheld a Judge’s ruling that a Christian couple, Peter and Hazelmary Bull, had discriminated against Martin Hall and Steven Preddy on grounds of sexual orientation when they refused them a double-bedded room at their hotel near Penzance.
For many years, Mr and Mrs Bull had restricted the use of double-bedded rooms at the Chymorvah Private Hotel to married couples. As devout Christians they believed that monogamous heterosexual marriage was the form of partnership “uniquely intended for full sexual relations” and that sex outside of marriage – whether heterosexual or homosexual – was sinful. To permit such couples to share a double-bed would, they believed, be to participate in promoting the sin (single-bedded and twin bedded rooms were available to all).
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15 February 2012 by David Hart KC
Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012 read judgment
This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.
As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.
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14 February 2012 by Leanne Buckley-Thomson
A Local Authority v H [2012] EWHC 49 (COP) – Read judgment
The Court of Protection has ruled that an autistic woman with an IQ of 64 does not have the mental capacity to engage in sexual relations, on the basis that she does not understand the implications and cannot effectively deploy the information she has understood into her decisions.
H is a 29 year old woman with mild learning difficulties and atypical autism. Although there is potential for improvement in her conditions, they are life-long.
She had a history of a very early and very deep degree of sexualisation. H engaged in sexual behaviour with others which she did not always consent to, one man having been convicted in 2003 of her attempted rape, and when she did consent the behaviour was still unconventional and exploitative. She had been on the child protection register and had extensive entries in her adult records with the local authority. In short, she is highly sexualised and vulnerable.
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13 February 2012 by Wessen Jazrawi
Sanade, Harrison & Walker v Secretary of State for the Home Department [2012] UKUT 00048(IAC) – Read judgment.
This case concerns the application of human rights exceptions to the deportation of individuals who were married to British citizens or who had British children.
The Upper Tribunal (Immigration and Asylum Chamber) (the “Tribunal”) noted that in Mr. Walker’s case, it was accepted before the Court of Appeal that there was an error of law by reason of the failure of the Tribunal to examine the interests of British national children as a primary consideration in light of the guidance in (ZH) Tanzania v SSHD [2011] UKSC 4. It found that similar errors existed in the other two cases and, as such, it would set aside and re-make the decisions.
by Wessen Jazrawi
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7 February 2012 by Guest Contributor
The media were successful in both the judgments handed down this morning by the Grand Chamber of the European Court of Human Rights. The judgments made it clear that the right to privacy has to be carefully balanced against contribution which a publication makes to a debate of general interest. In both cases, taking account of the nature of the individuals involved and the publications the right to freedom of expression prevailed over the right to privacy.
The judgments demonstrate the need for a careful balancing exercise in privacy cases. Both cases involved “popular journalism” and show that, even in this area, privacy is not a “trump card”. The judgments will be welcomed by the media as showing that the Court of Human Rights remains sensitive to the need to protect its freedom of expression.
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31 January 2012 by Guest Contributor
The European Court of Human Rights has announced today that it will deliver two Grand Chamber judgments, in the cases of Axel Springer AG v Germanyand von Hannover v Germany (No.2) on 7 February 2012. The cases were both heard more than 15 months ago, on 13 October 2010.
We had a post about the hearing at the time (and an earlier preview).Both cases concern the publication in the media of material which is alleged to be private. The Axel Springercase concerned the publication in “Bild” of an article about a well-known television actor, being arrested for possession of cocaine. The article was illustrated by three pictures of the actor. The German court granted him an injunction to prohibit the publication of the article and the photos. The applicant company did not challenge the judgment concerning the photos. The newspaper published a second article in July 2005, which reported on the actor being convicted and fined for illegal possession of drugs after he had made a full confession.
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18 January 2012 by Isabel McArdle
The Government of the United States of America -v- O’Dwyer, Westminster Magistrates’ Court – Read judgment
It seems appropriate, on the day when Wikipedia shut down for 24 hours to protest against US anti-piracy legislation, to talk about piracy (in the copyright sense) and what role human rights law has to play in the perpetual battle against it.
It is a topic that polarises, with some considering piracy to be no more moral than any other theft, and others seeing those who commit piracy offences as fighting for freedom of expression and liberal copyright laws. In the case of Richard O’Dwyer, a young man who is accused of setting up a website which breaches US copyright law and who is facing extradition to the US for trial, he attempted to block his extradition by relying on a combination of human rights and other objections relating to the manner and circumstances surrounding the request.
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16 January 2012 by Rosalind English
The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd and Serco plc [2012] EWHC 8 (Admin) – read judgment
Although certain restraining measures had been taken unlawfully against young people in secure training centres for a number of years, the court had no jurisdiction to grant an order that the victims of this activity be identified and advised of their rights.
The claimant charity alleged that children and young persons held in one or other of the four Secure Training Centres in the UK had been unlawfully restrained under rules which approved certain techniques of discipline. It sought an order requiring the defendant to provide information, to the victims or their carers on the unlawful nature of restraint techniques used in Secure Training Centres (“STCs”) and their consequential legal rights.
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Gas and Dubois v France (2012) (application no 25951/07). Read judgment (in French).
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