Category: Children
11 November 2010 by Adam Wagner
The Royal College of Nursing & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2010] EWHC 2761 (Admin) (10 November 2010) – Read judgment
The High Court has ruled that a scheme which prohibits people convicted or cautioned for certain crimes from working with children or vulnerable adults breaches human rights law.
The system of automatically banning those convicted for or who admit certain crimes from working with children and vulnerable adults without allowing them to make representations breached their rights to a fair trial.
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11 November 2010 by Matthew Hill
Updated | JXF (a child) v York Hospitals NHS Foundation Trust [2010] EWHC 2800 (QB) – Read judgment
Mr Justice Tugendhat has held that the High Court should withhold the identity of a child claimant when approving the settlement of a clinical negligence case. The decision represents a restatement of the orthodox principle that cases should be heard in public and reported without restrictions, and that anonymity orders should only be granted after careful scrutiny.
His reason for coming to this particular decision was that revealing the name of the claimant would “make him vulnerable to losing the [settlement] money to fortune hunters or thieves.”
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2 November 2010 by Matthew Hill
Updated | R (McDonald) v Royal Borough of Kensington and Chelsea, [2010] EWCA Civ 1109 – read judgment
The Court of Appeal has held that a local authority was entitled to reduce the care package provided to one of its resident following a re-assessment of her needs, even though this had the effect of forcing her, against her wishes, to use incontinence pads and/or absorbent sheets at night.
In doing so, the authority did not breach Article 8 ECHR (right to privacy and family life), or the relevant disability discrimination legislation. The judgment suggests that the courts will only intervene in disputes about the level of care being provided by local authorities in limited circumstances, something that may be significant in an environment of public spending cuts.
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21 October 2010 by Rosalind English
Radmacher (formerly Granatino) (Respondent) v Granatino (Appellant) [2010] UKSC 42 (On appeal from the Court of Appeal [2009] EWCA Civ 649) Read judgment
The Supreme Court has ruled that ante-nuptial arrangements should be binding and enforceable in ancillary proceedings. Thus in future it will be natural to infer that parties who enter into an ante-nuptial agreement to which English law is likely to be applied intend that effect should be given to it.
Although human rights were not in issue in this litigation, there is an interesting question to explore here in relation to the parties’ rights to peaceful enjoyment of their possession without interference by the state (in the form of a court order reversing the provisions of a private settlement). Now the Supreme Court has given nuptial agreements considerably more weight in the fall-out folllowing marital breakup the likelihood of a Convention-based challenge in this context falls away but does not disappear altogether because the statutory regime still obliges courts to interfere with agreements if they are considered unfair in any way, or prejudicial to the children of the marriage.
First, the following summary is based on the press release of the case published on the Supreme Court website.
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18 October 2010 by Alasdair Henderson
A (a minor) and B (a minor) v. A Health and Social Services Trust, [2010] NIQB 108 – Read judgment
In a fascinating case involving IVF treatment, the High Court in Northern Ireland has held that no duty of care is owed to human cells and that having a skin colour different to that intended cannot be considered legally recognisable loss and damage.
Professor Robert Edwards, the British scientist who pioneered in vitro fertilisation, was recently awarded the Nobel Prize for Medicine. But while Professor Edwards’ achievements have changed the lives of millions of infertile couples around the world, they have also given rise to a whole host of thorny ethical and legal questions. A recent decision by Mr Justice Gillen in an extremely unusual case has attempted to wrestle with some of these issues, and in particular with the rights (if any) of human cells.
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30 September 2010 by Rosalind English
J M v. The United Kingdom – 37060/06 [2010] ECHR 1361 – Read judgment
The European Court of Rights has declared that rules on child maintenance prior to introduction of the Civil Partnership Act discriminated against those in same-sex relationships.
The events happened nearly a decade ago and the law in relation to same-sex couples has greatly altered since, so it will be of limited relevance to those paying child benefit now. Of more interest is the reasoning of the majority in deciding the case under the right to peaceful enjoyment of property rather than the right to family life.
The case summary is based on the Court’s press release, and is followed by my comment.
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16 September 2010 by Adam Wagner
The Pope begins a four-day visit to the UK today, the first official trip by a serving Pope for 28 years. The visit has already been controversial, and it raises some interesting questions from a human rights angle.
The leader of the Catholic church has spoken out recently on UK equality laws, complaining that they would run contrary to “natural law”. His comments were most likely directed at the effect of the new legislation on Catholic adoption agencies, making it more difficult for them to turn down gay couples. This could have been the key issue of the trip, but it has been overshadowed by a more difficult and damaging controversy.
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26 August 2010 by Adam Wagner
Updated 27 Aug (17:15) | A High Court judge has branded the Legal Service Commission’s recent and highly controversial tender for legal aid work as a “dreadful” and potentially irrational decision.
The comments of Mr Justice Collins came in a permission hearing (i.e., only the first stage of a two-part process) on the application by the Community Law Partnership to judicially review the LSC’s recent tender, and specifically the rejection of CLP’s own application. It appears from a Law Society Gazette article that the hearing was adjourned, with the judge warning the LSC to consider its position carefully, and that if it fights and loses the decision could set a dangerous precedent. The hearing is to resume in around a week and a half.
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19 August 2010 by Adam Wagner
Tenets of belief not enough
The Charity Commission has rejected a bid by a Catholic organisation to amend its charitable objects in order to restrict its adoption services to heterosexuals. The case highlights the significant protections which have been put in place by recent equality law, and the policing role which the Charity Commission is required to play from a human rights perspective.
The Commission was ordered by the High Court in March to look at its initial decision again in light of Article 14 of the European Convention on Human Rights. The law behind the case is quite convoluted, but is worth looking at again as it is likely to have significant implications for gay couples looking to adopt as well as for religious charities in general.
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9 August 2010 by Adam Wagner
A leading children’s charity has said that vulnerable children are trapped in an unnecessary limbo of court delays, with courts taking up to 65 weeks to decide whether it is safe for a child to remain with its parents.
Barnardo’s has based its research (see press release) on ‘court data’ although the data itself is not published on their website. On the face of it, the figures are worrying:
Vulnerable children are waiting on average more than a year (57 weeks) in unstable family homes or emergency foster placements before a county court decides if they will be taken into care. In the family proceedings (magistrates) court the average time is 45 weeks – more than 10 months.
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6 August 2010 by Adam Wagner
In happier days
A database which was to hold the details of every child in England will be switched off at noon today, but the uneasy relationship between social services, the government and the courts in child protection matters still remains.
The closure of the £224 million scheme marks a victory for human rights and privacy campaigners as well as the fulfilment of a longstanding promise by the coalition partners.
The ContactPoint Database was set up in the wake of Lord Laming’s 2003 Victoria Climbié Public Inquiry, which recommended, amongst other major changes in child protection policy, that the government should investigate the setting up of “a national children’s database on all children under the age of 16.” Victoria Climbié died in 2000 at age 8 after being abused by her guardians. In the trial of her guardians which followed her death, the judge described the response of local authorities as “blinding incompetence”.
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4 August 2010 by Adam Wagner
The Human Genetics Commission have today published new guidance for direct-to-consumer genetic tests, including a recommendation that children should not be genetically tested by their parents unless the test is clinically indicated. The guidelines highlight that the ethical issues surrounding home-testing are still fuzzy and provide an interesting challenge from a perspective of human rights.
Home DNA testing kits are a fast-growing trend. They have already been on sale direct to consumers for three years by companies such as 23andMe and deCODEme, which advertise home-testing as a means of “taking charge of your health” and “filling in your family tree”. DNA paternity testing has been available for years, but it is the health aspects of home testing which have huge and potentially troubling implications in respect of basic rights.
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3 August 2010 by Adam Wagner
Worth lying for?
(1) MS JENNY PATON (2) C2 (3) C3 (4) C4 (5) C5 and POOLE BOROUGH COUNCIL, Investigatory Powers Tribunal – Read ruling
The Investigatory Powers Tribunal (IPT) has ruled that a local council acted unlawfully in spying repeatedly on parents suspected of lying about where they lived in order to get their child into a sought after school. The ruling may not, however, prevent local authorities from spying on families for similar reasons in the future.
The IPT exists to investigate complaints about conduct by various public bodies, including in relation to surveillance under the Regulation of Investigatory Powers Act 2000 (RIPA). Section 28 of RIPA allows a public body to apply to conduct direct surveillance if the authorisation is necessary on various grounds, including the detection of crime.
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22 July 2010 by Adam Wagner
A (A Child) v The Chief Constable of Dorset Police [2010] EWHC 1748 (Admin) (16 July 2010) – Read judgment
The High Court has ruled that the gist of sensitive evidence in a case involving a child being picked up for being spotted with an “inappropriate adult” must be disclosed in order that the child can bring a claim against the police.
The case is probably the first to follow the significant restriction of the use of secret evidence resulting from the Al Rawi decision (see our previous post), in which the Court of Appeal rejected a request by the Government that evidence in a torture compensation claim be kept secret from the public, and emphasised that the interests of open justice would be seriously compromised if this kind of request were ever granted in a civil case, even in very limited circumstances.
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16 July 2010 by Rosalind English
A (Appellant) v Essex County Council & National Autistic Society (Intervener) [2010] UKSC 33
Supreme Court (Lord Phillips, Lady Hale, Lord Brown, Lord Kerr, Lord Clarke) July 14 2010
The right to education under Article 2 Protocol 1 of the Convention was not breached by the delay in catering for the special educational needs of a child. Convention rights must be intepreted pragmatically; it is not right to equate a failure to provide the educational facilities required by domestic law with a denial of access to education.
This was an appeal against a decision ([2008] EWCA Civ 364, [2008] H.R.L.R. 31) upholding the dismissal by summary judgment of the appellant’s claim that the respondent local authority had breached his right to education under A1P1.
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