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.
One of the main human rights debates of the General Election is whether the Human Rights Act 1998 will be replaced with or bolstered by an American-style Bill of Rights.One aspect of the debate which has been mostly ignored in the British media has been the impact which a Bill of Rights would have in Northern Ireland.
The need for an additional human rights framework that reflects the particular circumstances of Northern Ireland was recognised in the Belfast Agreement and given shape through the commitment to set up a Bill of Rights Forum as part of the St Andrews Agreement… The fundamental principle of mutual respect for the rights and freedoms of all the people of Northern Ireland has been at the heart of this progress, and still has a crucial role to play in its future success.
The Northern Irish Human Rights Commission responded in February, welcoming the proposal to produce a separate Bill of Rights. However, the Commission was sharply critical of the tone and content of the substantive proposals. Amongst other things, it accused the proposal of failing to take appropriate account of international standards and of suggesting that existing human rights standards are actually lowered.
The Committee for the Administration of Justice (CAJ), an independent human rights organisation, have also recently published their own response to the interim report, and have also argued that the proposals are too weak and do not go far enough in increasinghuman rights protections. CAJ say:
A Bill of Rights is one of the final parts of the human rights jigsaw; it ensures that rights currently enjoyed cannot be taken away at the whim of any government. It is intended to ensure, in a divided society, that whoever exercises governance over this disputed ground cannot rule without respecting the rights of everyone who lives here. It also ensures that those who are not or do not identify primarily as part of the two main communities will have their rights respected also.
The Bill of Rights for Northern Ireland is clearly in its early planning stages, and may not go ahead at all. That said, it is more advanced than English and Scottish proposals, which, if they ever happen, will certainly not do so until long after the Election.
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.
Maya Evans, an activist, is brining a judicial review against the Ministry of Defence in respect of the British Army’s detainee transfer policy in Afghanistan. It is alleged that British forces knew of the torture risks when handing over prisoners to the Afghan security services.
This is the latest in a series of cases where the Government have been criticised in the courts for defence policies in Iraq and Afghanistan. In 2007, the House of Lords (the old Supreme Court) inAl-Skeinieffectively opened the door to such claims by foreign nationals by holding that the Human Rights Act applies outside of the UK.
The most notable recent example is the Binyam Mohamedcase, where the Court of Appeal heavily criticised the security services. Similar issues in relation to secret evidence appear to have arisen in Evans, with The Guardian reporting:
So concerned is the Ministry of Defence about the challenge to the practice, that it is insisting that evidence it had passed to her lawyers must now be suppressed.
As a result, skeleton argument from her lawyers – a document consisting of an outline of the case – includes a number of passages blacked out at the insistence of the MoD.
Following one long excised passage, the document revealed in court today reads: “The lessons from these shocking events is … investigation by the NDS [Afghanistan’s National Directorate of Security] is obviously incapable of providing any satisfaction of the UK’s human rights obligations.”
Our posts on the Binyam Mohamed litigation can be found here, here, and here
Our case comment on R (Mazin Mumaa Galteth Al Skeini and others) v Secretary of State for Defence
The University of Salford have informed us that they will be hosting the first post-election Human Rights conference, which aims to address these issues. The Conference also coincides Human Rights Act 1998’s tenth birthday.
The Conference is ‘Ten years on’: A Multi-perspective Evaluation of the Human Rights Act – Salford Human Rights Conference 2010″, at the University of Salford on Friday and Saturday 4-5 June 2010. Full details can be found here and a list of speakers here.
The National DNA database has become another key human rights issue in the 2010 Election. It is by far the largest such database in the world, with over 1 in 10 people now on the database. The issue of whether innocent people will have their DNA retained has now become highly politicised.
The Tories have now dropped their opposition to the Crime and Security Bill 2010, which has since become law. They had initially opposed provisions which allowed the police to retain the DNA samples of innocent people for up to 6 years. However, they have pledged if elected to bring in early legislation to ensure the DNA profiles of innocent people accused by minor crimes would not be retained.
The Prime Minister and the Home Secretary recently accused the Tories of not being tough enough on crime, whilst appearing at a press conference with Linda Bowman, whose daughter was raped and murdered at age 18. Her killer was convicted in 2008 with the help of DNA evidence. Liberty, the civil liberties organisation, commented that Labour had deliberately confused the issue.
The Conservatives pledge in their manifesto to “Reform Labour’s DNA system with the slimmer and more efficient Scottish system as our model” and “Change the rules on the DNA database to allow a large number of innocent people to reclaim their DNA immediately”.
The Liberal Democrats agree they will “Remove innocent people from the police DNA database and stop storing DNA from innocent people and children in the future, too.”
For their part, Labour say they will “ensure that the most serious offenders are added to the database no matter where or when they were convicted – and retain for six years the DNA profiles of those arrested but not convicted.”
It is probably no coincidence that the criticism of the Tory policy coincides with the Government’s recent concession to strong criticism from the European Court of Human Rights (ECtHR).
We posted last weekon issues of breach of duty in cases involving child protection, and mentioned the MAGA case as an important decision in extending the duty of care to priests in the Catholic church. The lawyers in the case have now written up the judgment.
MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church  EWCA Civ 256, Court of Appeal (Lord Neuberger MR, Lord Justice Longmore and Lady Justice Smith) (read judgment)
This appeal was brought with permission from the trial Judge Mr Justice Jack. The claim arose out of sexual abuse suffered by the Claimant whilst a child living in the area of the Church of Christ the King in Coundon, Coventry. This was a Catholic church under the control of the the Trustees of the Birmingham Archdiocese of the Roman Catholic Church. The priests appointed to work at that church in the 1970s included a senior priest father McTernan and a younger priest Father Clonan. The Claimant was seriously and repeatedly sexually assaulted over a number of months by the younger priest known as Father Clonan. The abuse took place after Father Clonan befriended the Claimant, invited him to the church youth club and then to the Presbytery where Father Clonan and other priests including the senior Priest Father McTernan lived.
The Lord Chief Justice used a recent lecture to argue that the European Court of Human Rights (ECtHR) is being given too much respect in the UK courts, with its judgments being cited by lawyers and judges with alarming regularity.
Joshua Rozenberg writing the Law Society Gazette suggests that Lord Judge’s lecture was in fact misunderstood by many in the media, who used the speech to “call for the judiciary to give the good old English common law supremacy over that nasty foreign stuff they make in ‘Alsace, France’”
The issue an important one, as it goes to the heart of the debate over whether the Human Rights Act 1998 should be repealed. The original intention of the 1998 Act was to “bring rights home”; in other words, to prevent decisions on matters of great public importance and local sensitivity being decided in Strasbourg rather than the UK. Before the 1998 Act, the only human rights cases which could be cited were from Strasbourg. But the UK courts now have almost ten years of home-grown human rights case law to consider. The effect of the 1998 Act was therefore to diminish the relevance of ECtHR cases, and the Lord Chief Justice was reminding lawyers of this point.
Analysing the speech, it is clear that Lord Judge’s main complaint was that too many lawyers cite ECtHR authorities at inappropriate times, and that modern technology (including, it would seem, overzealous use of copy and paste) has meant that too many European authorities are creeping back into arguments.
Section 2(1) of the Human Rights Act 1998 states that a court determining a human rights question must “take into account” any “relevant” judgment of the ECtHR. However, as the Lord Chief Justice pointed out, unlike decisions of the European Court of Justice, “the decisions of the European Court of Human Rights in Strasbourg do not bind our courts… What I respectfully suggest is that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court.”
Lord Judge also appears to despair of lawyers and even judges’ use of copy and paste. He said:
The British Chiropractic Association (BCA) has dropped its libel action against Simon Singh, in light of the stinging rebuke it received from the Court of Appeal earlier this month.
Dr Singh was being sued by the BCA in respect of an article he wrote in The Guardian (now reprinted) in April 2008, in which he said there was not enough evidence to prove that chiropractic treatment is effective against certain childhood conditions including colic and asthma.
We posted on April 1 on the preliminary decision. The Court of Appeal judges used their judgment on two preliminary issues (in particular, whether Dr Singh could use the defence of “fair comment”) to mount a robust and somewhat lyrical defence (quoting Milton, amongst other things) of the right to scientific freedom of expression.
Given the unusually strong tone of the Court of Appeal judgment, the BCA will have questioned their chances of success in the final hearing. The BCA say in their statement:
The Court of Appeal, in its recent judgment, has taken a very different view of the article [than Mr Justice Eady in the High Court]. On its interpretation, the article did not make any factual allegation against the BCA at all; it was no more than an expression of ‘honest opinion’ by Simon Singh. While it still considers that the article was defamatory of the BCA, the decision provides Dr Singh with a defence such that the BCA has taken the view that it should withdraw to avoid further legal costs being incurred by either side.
The three main political parties have now have set out their stalls on human rights in their election manifestos, and the future of the Human Rights Act is very much in the balance.
We have been following the arguments for and against a Bill of Rights, which has been proposed either as a replacement for or supplement to the Human Rights Act 1998.
After a period of uncertainty, now only the Conservative Party say they will actually replace the Human Rights Act, with both Labour and the Liberal Democrats committing to keeping it on the statute books. The Conservatives have not spelled out how or within what time frame their plans will take shape. Dominic Grieve, the shadow justice secretary, spoke to lawyers recently on the issue but provided little further detail.
The Human Rights Act 1998 came into force in October 2000, and despite approaching its 10th birthday, it still inspires strong views either in support or opposition. As Francis Gibb writes in The Times, “it… became derided by the Government’s own ministers as well as by the Conservatives as a “charter for the undeserving” and for criminals.”
The two parties which support keeping the Act may be reluctant to raise the issue over other more obvious vote winners, and as such it remains to be seen how much it will feature in debate leading up to the election. However, whether or not it becomes a key issue on the soap boxes, the fate of the Human Rights Act will be one of the important lasting effects of this election.
The manifestos can be found (in alphabetical order) below:
Article 6(3)(c) of the Human Rights Convention says that everyone charged with a criminal offence has the right to defend himself through legal assistance of his own chosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
The second important point is that from June, the right to legal aid in serious criminal prosecutions will be limited by the introduction of means testing.
The scheme is undergoing significant changes primarily in order save costs. In 2008/9 £2.186 billion was spent on legal aid, with 53% spent in the criminal courts, amounting to 1/630 of government expenditure. In order to reduce that figure, from June 28 this year criminal legal aid in the Crown Court, where more serious criminal offences are tried, will become means tested. Legal aid in the Magistrates’ Courts, where less serious offences are tried, is already subject to means testing. The Legal Services Commission now hopes to save a further £35m per year.
From June, anyone with a net (i.e. after tax) disposable income of more than £3,398 per year and with capital of over £10,000 will have to contribute to their own legal expenses when prosecuted in the Crown Court. As such, the three MPs would probably not receive full legal aid under the new scheme.
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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