Category: Family
11 May 2010 by Adam Wagner
Watch but don
In a week where promoting open justice has been high on the Court of Appeal’s agenda in cases involving terrorism, Frances Gibb writes that the family courts are still sealed shut: “After a flurry of interest, the media have stopped reporting family cases in all but rare high-profile disputes because a restrictive reporting regime makes coverage meaningless.”
The Justice Secretary’s 2009 reforms were the outcome of years of campaigning by the media and pressure groups to open up the secretive family courts. The arguments had centred on the conflict between the privacy of those involved in proceedings versus the public benefit of open justice; a balancing exercise which all public authorities are now familiar with by virtue of Article 8 of the European Convention on Human Rights (the right to privacy). It is an often quoted principle of English law that justice must not just be done but be seen to be done, and it seemed that that the family courts were moving onto that side of the balance.
In the heady days of late April 2009, Camilla Cavendish, who had campaigned for the changes predicted that “more than 200,000 hearings involving sensitive and traumatic cases, and with decisions that will have a huge impact on the lives of children and their families, will now be open to media scrutiny.”
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4 May 2010 by Elspeth Wrigley
BJ (Incapacitated Adult) sub nom Salford City Council V BJ (By His Litigation Friend The Official Solicitor) [2009] EWHC 3310 (Fam) – Read judgment
Where there is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights, regular reviews by the court are not merely desirable but essential.
This case concerned the application of Article 5 of the European Convention on Human Rights to the ongoing review of the continuing detention of persons lacking capacity. The individual in question was a 23 year old man, BJ. As BJ lacked capacity, it was found that his best interests would be served by his continued residence at a location referred to as “MH”.
As such, the care plan devised by the local authority and approved by Lord Justice Munby (in the original hearing of 16 May 2008), required the deprivation of BJ’s liberty within the meaning of Article 5 of the European Convention on Human Rights.
Summary
Given that BJ was being deprived of his liberty, Article 5 required a review by the court of the lawfulness of his detention at ‘reasonable intervals’. Munby LJ had set out the frequency and nature of any review at the previous hearing and at paragraph 10 of this judgment the LJ again highlighted the importance of regular reviews in such circumstances,
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21 April 2010 by Rosalind English
MAK and RK v United Kingdom (Application Nos 45901/05 and 40146/06) European Court of Human Rights March 23, 2010 – Read judgment
The taking of blood samples and photographs of a child by the medical authorities in the absence of the parents violated the child’s and parents’ rights to respect for their private and family life under Article 8 of the European Convention, and the inability of the parents to take an action for damages at common law against the hospital breached their right to a remedy under Article 13.
The applicant M.A.K was the father of R.K., who was born in 1989. In 1997 and again in 1998 M.A.K. took her to their family doctor because he, his wife and their daughter’s swimming teacher were concerned about what appeared to be bruising on her legs. This was followed by a visit to a paediatrician who had blood samples and pictures of the girl taken in the absence of either of the parents and despite the father’s indication that any tests should be done in the mother’s presence or with her explicit consent. The paediatrician concluded, after examining the girl’s genitalia and legs, that she had been sexually abused and informed the social workers.
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20 April 2010 by Rosalind English
EH v London Borough of Greenwich and AA and REA and RHA (through their guardian), A (children) [2010] EWCA Civ 344
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This was an appeal against the decision of the judge at first instance granting the local authority a full care order and placement order in respect of the appellant mother’s children. One of the children had been admitted to hospital as a baby with a fracture injury that was diagnosed as being non-accidental, following which both children were immediately taken from their parents’ care and placed with their maternal grandmother.
A later fact finding hearing determined that the baby’s injury had probably been caused by her father and that the mother had failed to protect the baby, although the judge did find that the mother had very many good qualities and her parenting abilities, per se, were not in issue, and that apart from the fracture injury there was no evidence that the children had suffered any harm.
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13 April 2010 by Adam Wagner
Sir Nicholas Wall, the new head of the Family Division, is being sworn in today. The Times reports this morning on comments he made in a recent judgment in the case of EH v London Borough of Greenwich & Ors [2010] EWCA Civ 344.
He said of social workers:
What social workers do not appear to understand is that the public perception of their role in care proceedings is not a happy one. They are perceived by many as the arrogant and enthusiastic removers of children from their parents into an unsatisfactory care system, and as trampling on the rights of parents and children in the process. This case will do little to dispel that perception. (paragraph 109)
A profile of Sir Nicholas in The Times suggests that he arrives at his new post with a reputation as a forthright critic of social services, local council, social workers and politicians. Indeed, it has been suggested that the Justice Minister Jack Straw may have been trying to block the appointment of Sir Nicholas for that very reason.
We posted earlier this week on the issues regarding child protection and the duty of care of local authorities. The courts are often finding themselves having to balance the competing rights of children, who must be protected against abuse, and parents, who are sometimes themselves the victims of overzealous prosecutions by local authorities. It would appear that the pressure on public authorities will only increase once the new Family Division head is in post.
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6 April 2010 by Adam Wagner
We posted last week on Carson and Others v The United Kingdom (read judgment), in which the European Court of Human Rights rejected a claim that UK pensioners living abroad should have their pensions index-linked (i.e., that they be raised in line with inflation).
It turns out that it is not just the UK, or indeed Europe, being affected by the long reach of the ECtHR. Alison Steed in The Daily Telegraph reports that the Australian Government are footing the bill for 170,000 ex-pat British pensioners living there. They have said in response to the judgment:
“The Australian government believes this policy is discriminatory. We have been actively lobbying the UK government on this issue… This policy continues to place an increasing burden on all Australian taxpayers, as the Australian government picks up the tab for around 170,000 UK pensioners who also receive means-tested Australian pensions – estimated at about A$100 million (£60 million) per year in additional social security payments.”
Australia ended its social security agreement with the UK in 2001 in light of this issue, which affects around 500,000 ex-pat UK pensioners living worldwide.
Read more:
- 28 March 2010 post
- The ECtHR judgment
- Our case summary of Carson; Reynolds v Secretary of State for Work and Pensions (May 2005 – House of Lords, 2003 – Court of Appeal)
- Media coverage of the Carson judgment in The Guardian and on the BBC website
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2 April 2010 by Rosalind English
AD and OD v United Kingdom (Application No 28680/06), 2 April 2010
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The European Court of Human Rights (ECtHR) has ruled unanimously that a local authority’s failure to conduct a risk assessment, which resulted in a child being placed with foster parents, breached the right to respect for family life under Article 8 of the Convention. It also concluded that the mother should have had available to her a means of claiming that the local authority’s handling of the procedures was responsible for any damage which she suffered and obtaining compensation for that damage. As such redress was not available to her, the Court held that she had suffered a violation of Article 13.
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17 March 2010 by Adam Wagner
Baroness Deech, the Chair of the Bar Standards Board, has given the second lecture in her series on family law at Gresham College. In this lecture she questions whether the current law of marriage is compatible with human rights law. In particular, homosexual couples cannot legally marry, and hetrosexual couples are disbarred from entering civil partnerships. She said:
“Since [the] acceptance and recognition [of gay rights] has grown, advanced by the Human Rights Act 1998 and the Equality Bill 2010. Gay couples may adopt children (Adoption and Children Act 2002); they have access to fertility services and full parentage of donor conceived children (Human Fertilisation and Embryology Act 2008). Same sex childless couples are deemed to be a “family” for the purpose of succeeding a deceased partner to a tenancy (Fitzpatrick v Sterling Housing Association [1998] Ch.304). This trend culminated in the legislative establishment of civil partnerships in the Civil Partnership Act 2004, creating a union almost identical to, but not marriage.”
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11 February 2010 by Rosalind English
Re W (Children) [2010] UKSC 12
SC (Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Kerr) March 3 2010
The facts of this case are set out in the report of the Court of Appeal judgment below. In the Supreme Court the stepfather continued his submission that there should be no presumption against a child giving evidence, as that gave insufficient weight to the rights of all concerned under the European Convention on Human Rights 1950.
Read the judgment
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