Category: Article 8 | Right to Privacy / Family
10 June 2011 by Rosalind English
In the matter of E (Children) [2011] UKSC – read judgment
The Supreme Court has ruled that two girls, aged seven and four respectively, be returned with their mother to Norway, after she had removed them without the father’s consent. The decision was made largely under the Hague Convention on the Rights of the Child which gives more specific direction to the courts in abduction cases than the European Convention on Human Rights, although, as the Supreme Court observed, a little more reassurance that the necessary safeguards can be enforced in the destination country would make it easier for the courts in the requesting country to make orders protecting the interests of the child.
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10 June 2011 by Maria Roche
RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651 – Read Judgment
Further to our recent post on the deportation of foreign criminals, the matter has once again come to the attention of the Court of Appeal. This case determines how the First-tier Tribunal, the first court of call for challenges to threatened deportations, should consider and weigh the issue of deterrence when deciding whether to deport a single offender.
The court made some interesting statements about the “public interest” aspect of deporting foreign criminals, and how the logic of a deterrence system must work.
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9 June 2011 by Rosalind English
Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment
1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.
This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.
The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
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3 June 2011 by Lucy Series
I watched Panorama’s exposé of institutional abuse of adults with learning disabilities at Winterbourne View Hospital with mounting horror. What legal mechanisms were available to prevent abuses like this, or bring justice to victims?
There can be little doubt that the acts of the carers towards the patients were inhuman and degrading, a violation of their Article 3 rights. It is highly questionable whether the establishment fulfilled their rights to privacy and dignity under Article 8, the right to private and family life.
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2 June 2011 by Rosalind English
R. and H. v. United Kingdom (no. 35348/06) – Read judgment
This ruling from Strasbourg sheds little light on how Article 8 can help adoption procedure, but it does illustrate how courts and agencies are having to square up to the deepening crisis in adoption rates.
Newspaper and charity campaigns are vocal about this issue but little attention is paid to the very difficult business of balancing the needs of children against those of the biological or (prospective) adoptive parents.
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2 June 2011 by Adam Wagner
The House of Commons Home Affairs Committee has today published a report, The work of the UK Border Agency (November 2010–March 2011), which accuses the UKBA of effectively creating an amnesty for hundreds of thousands of asylum seekers whose cases have been delayed for years.
The report is not particularly easy to find online – it should be available on the Home Affairs Committee website, but isn’t for some reason. You can download a PDF here, see the previous reports here or read on this page via Scribd.
As has been picked up in media reports, the report concludes that the UKBA’s success in clearing a backlog of around 400,000 to 450,000 unresolved asylum cases has been achieved
through increasing resort to grants of permission to stay… or the parking of cases in a controlled archive, signifying that the applicant cannot be found and the Agency has no idea whether or not the applicant remains in the UK, legally or otherwise.
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1 June 2011 by Adam Wagner
Updated | As a follow-up to Isabel McArdle’s post on an unsuccessful challenge to a control order, a quick note to say that the long-heralded Terrorism Prevention and Investigation Measures Bill was published last week.
The purpose of the bill, first previewed in January by the Counter-terroism review (see my post), is to abolish control orders and make provision for the imposition of terrorism prevention and investigation measures (so-called “TPIMs”). For more information on the human rights controversies surrounding control orders, see my post: Control orders: what are they are why do they matter?
Some useful links for more information on the bill:
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1 June 2011 by Isabel McArdle
CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin) Read judgment
As readers of this blog will know, control orders have often been successfully challenged in the courts on human rights grounds. But in this case, an order forcing a person to relocate to a different part of the country was found to be lawful.
The Prevention of Terrorism Act 2005 gives the Home Secretary the power create to control orders, which impose obligations on persons “for purposes connected with protecting members of the public from a risk of terrorism”. One of the obligations permitted is a restriction on an individual’s place of residence.
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26 May 2011 by Adam Wagner
In 1991 US band Salt-n-Pepa reached number 2 in the UK charts with Let’s Talk About Sex. It is difficult to imagine now, 20 years on, why such an inoffensive and gently educational song generated huge controversy.
That difficulty highlights how much less prudish we are about sex now than we were then. Salt-n-Pepa talked about sex on the “radio and video shows“. Now the song would include Twitter, YouTube and Facebook too. In the post-internet age, sex is everywhere. So why are judges and politicians still making decisions about whose sex the public can or cannot talk about?
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25 May 2011 by Adam Wagner
Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) (23 May 2011) – Read judgment
The police may have a duty under article 8 of the European Convention on Human Rights (the right to privacy) to inform members of the public that their phone calls have been intercepted.
This was only a judicial review permission hearing, which means that the full “substantive” judicial review will still have to be argued at a later date. In short, the case is the latest in the long-running News of the World phone hacking affair (see this post and this one on Inforrm’s Blog for the latest developments).
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25 May 2011 by Maria Roche
AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 Read Judgment
In the ongoing controversy over the deportation of foreign offenders, the Court of Appeal has decided that the Immigration Tribunal had not made a mistake of law in deciding that a foreign citizen who had lived in the UK since the age of 4 and had been convicted and sentenced to 18 months imprisonment for a drugs offence, following a string of other offences, should not be deported.
The Court of Appeal also commented on the interaction between the Tribunal and appellate courts and a potential distinction between ‘foreign criminals‘ as defined by the UK Borders Act 2007 and other foreign offenders.
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23 May 2011 by Adam Wagner
John Hemming MP has somewhat predictably “revealed” the name of a footballer who has been trying to keep his alleged affair with a reality TV contestant private, and breached the traditional “sub judice” rule in the process. Does this mean that the privacy injunction in question is now effectively defunct?
Hemming made his move just hours after Mr Justice Eady in the High Court maintained the injunction against an application by News Group International, despite the fact that many users of Twitter have apparently revealed his name. Eady took a principled stance:
Should the court buckle every time one of its orders meets widespread disobedience or defiance? In a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.
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22 May 2011 by Adam Wagner
I asked in a recent post whether journalists need to attend court hearings to report accurately. The post arose from judgment in a family court case involving a mother’s abuse of her baby. The judge took the unusual step of criticising the Sunday Telegraph’s Christopher Booker’s reporting, which he called “unbalanced, inaccurate and just plain wrong“. That criticism was then supported by the most senior family judge in a different judgment.
Christopher Booker has now responded to my post, although somewhat obliquely. He writes:
I was again attacked last week by a prominent legal blogger, for reporting on cases where the system appears to be going tragically wrong, without having sat for days in court to hear “both sides of the story”.
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20 May 2011 by Adam Wagner
Lord Neuberger has published his long-awaited report on super-injunctions. His committee was set up in April 2010 in order to “examine the issues around the use of injunctions which bind the press and so-called ‘super-injunctions“.
In summary, the report emphasises the principles of open justice and the right to freedom of speech, and that courts should “ensure that any derogation from open justice is the minimum necessary to secure the proper administration of justice”. It recommends that Civil Procedure Rule 39.2 (concerning public hearings) should be amended to make reference to the strict necessity test.
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19 May 2011 by Alasdair Henderson
W v. M, S, an NHS PCT and Times Newspapers Ltd. [2011] EQHC 1197 (COP) – read judgment. In the midst of all the fuss over the last two weeks about ‘superinjunctions’ and the law on privacy (see our coverage here, here, here and here) the Court of Protection (“CoP”) has just granted an injunction imposing extensive reporting restrictions on the media in a case involving potentially controversial end-of-life issues.
The press has picked up on the decision mainly because the injunction is the first in the UK courts (and perhaps anywhere in the world) to specifically prohibit publishing restricted information on any “social network or media including Twitter or Facebook“. This is noteworthy given the recent furore about an anonymous Twitter user ‘outing’ a number of UK celebrities who had obtained injunctions (although given that Twitter is a US-based website, it is difficult to see how the order will be enforced). But the decision by Baker J is far more interesting for the way he described how the media’s free speech rights should be balanced against the parties’ privacy rights in the kind of sensitive cases dealt with by the CoP, and how he expressly distinguished it from the approach taken in celebrity cases.
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In the matter of E (Children) [2011] UKSC – read judgment
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