We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
The Christian Institute (and others) v Scottish Ministers [2015] CSIH 64, 3rd September 2015 – read judgment
The Court of Session’s appeal chamber – the Inner House – has unanimously rejected challenges to the Scottish government’s controversial named person scheme. Three individual petitioners, as well as The Christian Institute, Family Education Trust, The Tymes Trust, and Christian Action Research and Education (CARE), contested the appointment of named persons and the scheme’s provisions for data sharing.
The Named Person Scheme
The named person scheme is part of a package of measures introduced by the Children and Young People (Scotland) Act 2014. According to the Scottish government, the aim of the legislation is to ensure that the rights of children are respected across the public sector. Continue reading →
Beggs v Scottish Ministers [2015] CSOH 98, 21st July 2015 – read judgment
The Court of Session’s first instance chamber – the Outer House – has held that the way in which the Scottish Prison Service (SPS) handled a prisoner’s correspondence breached Article 8 of the European Convention on Human Rights.
The petitioner, William Beggs, was a prisoner at HMP Glenochil until March 2013 and thereafter at HMP Edinburgh. In 2001 he was sentenced to life imprisonment for the 1999 murder of 18 year-old Barry Wallace, whose dismembered body parts Beggs disposed of in Loch Lomond. Continue reading →
Main v Scottish Ministers [2015] CSIH 41, 22nd May 2015 – read judgment
The Court of Session’s appeal chamber – the Inner House – has had to decide whether the scheme of indefinite notification requirements for sexual offenders in Scotland is compatible with Article 8 of the European Convention on Human Rights.
Re K and H [2015] EWCA Civ 543, Court of Appeal, 22 May 2015 – read judgment
Philippa Whipple QC and Matthew Donmall of 1 COR appeared for the Lord Chancellor in this case. They have played no part in the writing of this post.
Lord Dyson for the Court of Appeal has recently reversed the decision of HHJ Bellamy (see my post here) who had ordered legal aid to help an unrepresented father in family proceedings. The conundrum was that the father wanted contact with his children aged 5 and 4, but a 17-year old step-daughter, Y, told her teacher that the father sexually abused her – which the father denied.
That issue had to be decided first – and understandably the father felt unable to cross-examine Y himself. Hence the judge’s order that the Courts Service (HMCTS) should pay for legal representation for the father limited to that cross-examination of Y.
Mirza v The Secretary of State for the Home Department [2015] CSIH 28, 17 April 2015 – read judgment
On the same day as it handed down judgment in the Khan case (see Fraser Simpson’s post here), the Court of Session’s appeal chamber – the Inner House – provided further guidance on the relationship between the Immigration Rules and Article 8. Of particular interest in Mirza are the court’s comments on where the rights of a British spouse figure in the context of an application for leave to remain by his or her partner.
This week we welcome to the Blog our new team of commentators on Scottish human rights issues – Fraser Simpson, David Scott and Thomas Raine.
Khan v. The Advocate General for Scotland, [2015] CSIH 29 – read judgment.
A Pakistani national refused leave to remain in the UK after expiry of his visitor visa has had his successful challenge to that decision upheld by Scotland’s civil appeal court, the Inner House of the Court of Session.
The request for leave to remain was initially refused under the Immigration Rules due to a lack of “insurmountable obstacles” preventing Mr Khan from continuing his family life in Pakistan. That decision was reduced (quashed) by the Lord Ordinary – a first-instance judge in the Outer House of the Court of Session – as although the decision had been in accordance with the Immigration Rules, the decision-maker had failed to undertake a proportionality assessment of the decision as required under Article 8 ECHR (read the Outer House judgment here).
JK, R(on the application of) v Secretary of State for Home Department and another [2015] EWHC 990 (Admin) 20 April 2015 – read judgment
This case concerned the rights of transgender women, and their families, in particular the right to keep private the fact that they are transgender.
The Court heard a challenge to the requirement in the UK’s birth registration system that men who had changed gender from male to female should be listed as the “father” on the birth certificates of their biological children. Having decided that this did engage the claimant’s privacy rights under Article 8 of the European Convention of Human Rights, in conjunction with the right not to be discriminated against under Article 14, the Court concluded that the interference was justified.
Factual and legal background
The clamant JK had been born male. She was married to a woman, KK, and the couple had two naturally conceived children. After the birth of the first child in 2012, JK was diagnosed with gender identity disorder and concomitant gender dysphoria. In October 2012, she started a course of feminising hormone treatment. The treatment pathway requires two years living as a female before consideration is given for referral for gender reassignment surgery. Before the claimant started feminising hormone therapy, KK fell pregnant a second time, again conceiving naturally by the claimant. Continue reading →
Laura Profumo runs through the week’s human rights headlines.
In the News:
The Conservative party published its manifesto last week. The document makes for curious reading, writes academic Mark Elliott. The manifesto confirms the party’s pledge to scrap the Human Rights Act and to replace it with a British Bill of Rights, reversing the “mission creep” of current human rights law.
Yet the polarising references to “Labour’s Human rights Act” illustrate the Act’s failure to secure supra-political constitutional status, being tossed between the parties like a “political football”, writes Elliott.
Reactiv Media Limited v The Information Commissioner (Privacy & Electronic Communications Regulations (2003) [2015] UKFTT 2014_0213 (GRC) (13 April 2015) – read judgment
Although an individual’s right to privacy is usually thought of in the context of state intrusion in one form or another, in reality the real threat of intrusion in a society such as ours comes from unsolicited marketing calls.
What many people may not be aware of is that if an individual has registered with the Telephone Preference Service, these calls are unlawful and the company responsible may be fined. It is therefore worth making a complaint, even if one instinctively feels that taking such a step will invite more intrusion. This case is a nice illustration of privacy being upheld and the rules enforced against an unscrupulous and persistent offender.
A healthcare NHS Trust v P & Q [2015] EWCOP (13 March 2015) – read judgment
The Court of Protection has clarified the position on revealing the identity of an incapacitated adult where reporting restrictions apply.
This case concerned a man, P, who as a result of a major cardiac arrest in 2014, has been on life support for the past four months. Medical opinion suggests that he is unlikely ever to recover any level of consciousness, but his family disagrees strongly with this position. The Trust therefore applied to the Court for a declaration in P’s best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. The trust also applied for a reporting restrictions order. When it sought to serve that application on the Press Association through the Injunctions Alert Service, the family (represented by the second Continue reading →
After a brief hiatus, the Human Rights Round-up is back. Our new team of expert summarisers – Hannah Lynes, Alex Wessely and Laura Profumo – is installed and ready to administer your regular dose of UK human rights news.
This week, Hannah reports on the Global Law Summit, access to justice, and what’s happening in the courts.
In the News
‘If you wrap yourself in the Magna Carta…you are inevitably going to look ridiculous if you then throw cold water on an important part of its legacy.’ Lord Pannick QC was not alone last week (23-28th February) in suggesting that there was some irony in Lord Chancellor Chris Grayling evoking the spirit of the Magna Carta at his launch of the three-day Global Law Summit.
Northamptonshire County Council v AS, KS and DS [2015] EWFC 7 – read judgment
A Family Division judge has awarded damages under the Human Rights Act against a local authority in what he described as an “unfortunate and woefulcase” involving a baby taken into foster care. Mr Justice Keehan cited a “catalogue of errors, omissions, delays and serial breaches of court orders” by Northamptonshire County Council. Unusually, the judge decided to give the judgment in this sensitive case in public in order to set out “the lamentable conduct of this litigation by the local authority.”
On 30 January 2013, the local authority placed the child (known as ‘DS’) with foster carers. He was just fifteen days old. In the weeks prior to DS’s birth, his mother’s GP had made a referral to the local authority due to her lack of antenatal care and because she claimed to be sleeping on the street. The mother then told a midwife that she had a new partner. He was a heroin addict.
After the birth DS’s mother avoided seeing her midwife. She frequently moved addresses and conditions at home were exceedingly poor. Three days before DS was taken into care, his mother told social workers that her new partner was being aggressive and threatening to her. She reported that he was leaving used needles around the house. Continue reading →
M, R (on the application of) v Hampshire Constabulary and another (18 December 2014) [2014] EWCA Civ 1651 – read judgment
The law governing the monitoring of sex offenders, allowing police officers to visit the homes of registered offenders, did not constitute an unlawful interference with the offenders’ privacy rights under Article 8 of the ECHR.
This was an appeal against a decision by the appellant (M) against a decision by Hallett LJ and Collins J in the Administrative Court that the practice of police officers making visits to the homes of registered sex offenders for the purpose of monitoring their behaviour did not violate the Convention. Continue reading →
Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1, HHJ Bellamy – read judgment
Philippa Whipple QC of 1 COR appeared for the Lord Chancellor in this case. She has played no part in the writing of this post.
This case raises a very stark problem. A father wants to see his children aged 5 and 4. The mother has an elder daughter, Y, aged 17. Y told her teacher that the father sexually abused her. The truth or otherwise of this allegation is relevant to whether there should be contact between father and his children.
The father is a litigant in person, and unsurprisingly (whatever the status of her allegations) Y does not to be cross-examined by the father, nor, equally understandably, does the father wish to do so himself.
So who should? And does the court have the power to order Her Majesty’s Courts and Tribunals Service (HMCTS) to pay for legal representation for the father limited to that cross-examination of Y? So the Lord Chancellor was allowed to intervene – he had been invited to do so in a previous case (Q v. Q – here, and our post here, to which we will come), but had been unwilling to do so – not perhaps tactful to the judges but then he still seems to be learning the ropes in that respect – see here.
R (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others [2014] EWCA Civ 1622 – read judgment
The Court of Appeal has ruled that the Lord Chancellor’s Guidance on exceptional funding in civil legal aid is incompatible with the right of access to justice under Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. The Court has further decided that this Guidance was not compatible with Article 8 of the ECHR in immigration cases; in other words, that legal aid should not be refused when applicants for entry to the UK seek to argue that refusal of entry would interfere with their right to respect for private and family life.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
The Christian Institute (and others) v Scottish Ministers [2015] CSIH 64, 3rd September 2015 – read judgment
Main v Scottish Ministers [2015] CSIH 41, 22nd May 2015 – 
This blog is run by
Recent comments