Category: Article 8 | Right to Privacy / Family


Court of Appeal laments systemic failures in family justice

9 September 2013 by

CH08-P209-ARe 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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Health protection “not a warrant for lifestyle fascism”

7 September 2013 by

Cigarette_smokeCM, 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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They paved Plantagenet ‘n put up a parking lot

22 August 2013 by

p180vajuda12ijjc57ac1qhh37s1The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 15 August 2013  read judgment

I spent long hot summers in the 1970s digging up the remains of Saxons and prehistoric Greeks. In Greece, skeletons were good time-consuming cannon-fodder for incompetent interns, whilst real archaeologists got on with the serious stuff of looking for walls and post-holes. So I can understand the impulse which took the Plantagenet Alliance to court about the bones of Richard III with its diagnostic severe scoliosis. 

The judge gave the Allliance permission to seek judicial review of the Secretary of State’s decision about re-burial. But I question the result –  does the Alliance really have a legal right to be consulted about where Richard III is to be re-buried?

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David Miranda – Remember his name.

20 August 2013 by

David MirandaOur attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician’s trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced.

But we know , somewhere in the back of our minds, that we are being fooled.

As with our safety from terror. We are happy because major terrorist attacks in the UK or US are thankfully rare. We are told about countless attacks which have been thwarted. We applaud, we are entranced. But we know, somewhere, that there must be a price.

That price is our civil liberties. More accurately, that price is the civil liberties of others, who we don’t know but whose faces occasionally drift through the public conscience. Binyam Mohamad, who was tortured by the CIA, apparently with collusion by our own Security Services. Shaker Aamer, who has been detained in Guantanamo Bay without charge for almost 12 years. And it is no secret that many anti-terrorism laws are draconian and involve a huge potential for abuse.

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Mental health detention powers must be reviewed urgently, says Parliamentary Committee – Lucy Series

14 August 2013 by

Screen Shot 2013-08-14 at 09.57.43The House of Commons Health Committee has published a report (PDF) following its inquiries into the Mental Health Act 2007.  The MHA 2007 introduced several amendments to the Mental Health Act 1983 (MHA, as amended), some of which were very controversial at the time and continue to be so now.  The Health Committee’s report follows post-legislative scrutiny of the legislation by its parent department

The Committee’s report was very focussed on the rights of mental health patients guaranteed by Article 5 ECHR and the MHA itself.  Those with an interest in mental health human rights will, however, notice that the radical challenge to detention and involuntary treatment under the MHA from the UN Convention on the Rights of Persons with Disabilities was absent from their discussion.

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Rihanna wins against Topshop but does she have a right to her image? – Emily Goodhand

2 August 2013 by

Rihanna--010Fenty & Ors v Arcadia Group Brands Ltd (t/a Topshop) & Anor [2013] EWHC 2310 (Ch) – Read judgment

The ruling in the Rihanna/Topshop case marks a significant trend, both in case law and society, towards equating image with commodity. Increasingly, celebrities and sports personalities earn large sums of money from sponsorship and advertising deals because companies recognise that their image sells products. So how can so-called image rights be protected?

The legal regime around image rights has arisen out of common law concepts of property, trespass and tort (civil wrong). The common law system means that precedents for the protection of an individual’s likeness have arisen from judges’ decisions in cases involving unauthorised exploitation of a likeness where an individual has suffered damage as a result. Some US states have enacted specific legislation equating celebrities’ personality rights with property rights, where expiration of the rights occurs 70 years following the death of the celebrity.

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No trade unions for clergy if the Archbishop says no, rules European Court

1 August 2013 by

priestSindacutul ‘Pastorul Cel Bun’ v. Romania [2013] ECHR 646 – read judgment here.

The Orthodox Archbishop of Craiova in Romania, that is, not the Archbishop of Canterbury. The European Court of Human Rights recently handed down an interesting ruling on Article 11 (freedom of assembly and association) that could also have more far-reaching consequences for the application of Article 9 (freedom of religion).

The Grand Chamber, overruling the earlier decision of the Third Section, held by a majority that it was not a breach of the right to freedom of association for the Romanian Government to refuse to register a trade union formed by a group of Orthodox priests, after the Archbishop and Holy Synod (the governing body of the Romanian Orthodox Church) had decided formal trade unions should not be allowed within the church.

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Second Christian B&B case headed for the Supreme Court

23 July 2013 by

black and morganBlack and Morgan v. Wilkinson [2013] EWCA Civ 820 – read judgment here.

The Court of Appeal recently dismissed an appeal by a Christian bed and breakfast owner, upholding the decision that she unlawfully discriminated against a gay couple by refusing to provide them with a double bedroom. However, the Master of the Rolls (head of the civil justice system) Lord Dyson expressed doubt about whether the previous binding decision of the Court of Appeal in the very similar case of Hall and Preddy v. Bull and Bull [2012] EWCA Civ 83, was correct, and the Court granted permission to appeal to the Supreme Court. 

This decision is the latest in a line of cases which have grappled with the ‘conflict of equalities’, many of which have concerned the potential clash between religious freedom and the prohibition on discrimination on grounds of sexual orientation. It raises difficult questions about how to reconcile competing rights or ‘protected characteristics’ under discrimination law, and it will be very interesting to see how the Supreme Court deals with this and the Preddy case when they are heard together in the autumn.

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UK court ducks position on circumcision

20 July 2013 by

605islamSS (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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Guerilla gardening in unlawfully occupied property did not give rise to Article 8 rights

8 July 2013 by

GrowHeathrowMalik v Fassenfelt and others [2013] EWCA Civ 798 – read judgment

A common law rule that the court had no jurisdiction to extend time to a trespasser could no longer stand against the Article 8 requirement that a trespasser be given some time before being required to vacate:

The idea that an Englishman’s home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it. But what if the invaders occupy for long enough to establish their home within the keep? Whose castle is it now? Whose home must the law now protect?

This was the question before the Court of Appeal in a challenge to a possession order requiring the removal of squatters from private land.

Although there is now some doubt as to whether the leading authority on landowners’ rights against squatters is still good law, Article 8 still does not entitle a trespasser to stay on the land for ever. At its highest it does no more than give the trespasser an entitlement to more time to arrange his affairs and move out.

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Public interest environmental litigation in Strasbourg

7 July 2013 by

zimbabwe_environmental_law_association_(zela)Public Interest Environmental Litigation and the European Court of Human Rights: No love at first sight, by Riccardo Pavoni – read article 

Thanks to this link on the ECHR blog, a fascinating account of the twists and turns of Strasbourg environmental case law from Professor Pavoni, of the University of Siena. It is 30 closely-argued pages, so I shall try and give a flavour of the debates Pavoni covers, as well as chucking in my own penn’orth. 

The starting point, as I see it, is that public interest environmental litigation is a square peg in the round hole of Strasbourg case law. The Convention and the case law are concerned with victims of human rights abuses. Environmental degradation affects everyone, but not necessarily in a way which makes them a a Strasbourg victim. Take loss of biodiversity, say the decline in UK songbirds, or the peace of a remote moorland affected by 150m high wind turbines. Who is the potential victim in those cases when judged by human rights? Pavoni argues that if the Strasbourg Court were to assert jurisdiction over environmental cases as a common good, alongside adverse impacts on private victims, this would not result in a major overhaul of the Court’s current principles – not too much expansion of the hole needed to fit the square peg in snugly. How does he reach that position?

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High level Parliamentary committee asks whether mental capacity laws are working

3 July 2013 by

Screen Shot 2013-07-03 at 09.23.12

Updated | The House of Lords ad hoc Select Committee on the Mental Capacity Act 2005 has now heard three sessions of evidence, and is currently calling for written evidence (deadline 3 September – details here).

The Committee, chaired by Lord Hardie (former Lord Advocate) and including such heavy-hitters as Lord Faulks (Ed Faulks QC as was) and Baroness Hollins (former President of the Royal College of Psychiatrists and current President of the BMA), aims to “scrutinise the legislation to see if it is working as Parliament intended” and to examined “whether the Government’s implementation programme was effective in embedding the guiding principles of the Act in every day practice, and whether there has been a noticeable change in the culture of care.”

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Brain-damaged claimant fails in Article 8 claim against Council

2 July 2013 by

7c70bb7581834f77a7ca9f20e4dc6253Bedford v. Bedfordshire County Council, 21 June 2013, Jay J – read judgment

On 29 May 2004, Bradley Bedford, then aged 13, was beaten senseless by one AH, then 15, whom he had the misfortune to encounter entirely by chance near the seaside in Torbay. AH was in a children’s home there which was contracted to the Defendant Council; AH was a “looked after” child under section 20 of the Children Act 1989. Bradley sued the Council for failing to protect him. His claim was limited to one under the Human Rights Act, and Article 8 ECHR in particular.

Jay J dismissed the claim on the grounds that (a) it was brought too late; (b) there was not a real and immediate risk of harm to Bradley of which the Council should have been aware; (c) even if there was, the local authority took reasonable steps to eliminate or substantially reduce any risk. All these rulings are of some interest.

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US Supreme Court opens door to marriage equality, UK coming next

29 June 2013 by

Kris Perry kisses Sandy StierHollingsworth v Perry – No. 12–144 – Read judgment

United States v Windsor – No. 12–307 – Read judgment

In rulings that have the potential to influence the jurisprudence of courts around the world, the Supreme Court of the United States has handed down two landmark decisions pertaining to the issue of same-sex marriage.

The right of gay and lesbian couples to wed remains one of the most controversial and debated civil rights issues of our time. However, the ground has been shifting with increasing rapidity in recent years and months. The direction of change is clear. There are now fifteen countries which permit or will permit same-sex marriages, including most recently Uruguay, New Zealand and France. With bills steadily progressing through the Parliamentary process, there is a strong possibility that England, Wales and Scotland may soon be added to the list.

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Court lifts anonymity order in David McGreavy case

3 June 2013 by

David McGreavyM, R(on the application of) v The Parole Board and another [2013] EWHC 1360 (Admin) – read judgment

Reporting restrictions on proceedings concerning a life prisoner should be discharged since the public interest in allowing media organisations to publish reports outweighed the prisoner’s human rights.

The claimant had been convicted of the brutal murder of three infant children in 1973. Subsequent to his incarceration in open prison, his movements had come to the attention of the press. Inmates made threats and the claimant was moved to secure conditions.  When he sought judicial review of a decision by the parole board in 2011 (declining his return to open conditions), the judge granted an order restricting reporting of  the claimant’s identity, the details of his offences and his current location.  In this hearing, various media organisations intervened to request the discharge this order.
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