Children
28 May 2020 by Rosalind English
Re H (A Child) (Responsibility Order: Vaccination) [2020] EWCA Civ 664
In the current circumstances, this case has important resonances and maybe even implications for future vaccinations. It was an appeal by the parents of a ten year old child against a decision that the local authority, had lawful authority to have the child vaccinated (pursuant to Section 33(3) of the Children Act 1989.
The local authority had made care and placement orders in respect of the child, who was at the time in foster care. The LA argued that it had lawful authority, pursuant to the Children Act 1989 s.33(3), to arrange the vaccination of a child in care notwithstanding the objection of the parents, and that therefore it was unnecessary and inappropriate to refer the decision to the High Court under its inherent jurisdiction. Parental views regarding immunisation had always to be considered but the decision depended solely on the child’s welfare.
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6 November 2019 by Guest Contributor
Child rights in 2019
The Children Act 1989 (CA 1989) received Royal Assent on 23
November 1989 (30 years ago); and it was in force from October 1991. It was a
major reform of children law which required everyone – parents, children (when
of ‘understanding’), judges, social workers, health professionals and lawyers –
to learn a new set of legal concepts and attitudes. But what about children’s
rights? And what has happened to the law’s regard for those rights since 1989?
The Act required courts to consider a child’s ‘wishes and
feelings’ when that child’s welfare was in issue in a court. In parallel with
this, United Nations Convention on the Rights of the Child 1989 Art 12.1 –
though not formally part of the Act – says:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
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27 June 2017 by Rosalind English
J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4 (30 January 2017) – read judgment
The Court of Appeal has granted permission to the father to appeal against the decision of the High Court earlier this year. Briefly, Peter Jackson J denied a father, who now lives as a transgender person, direct contact with his five children who live with their mother in the heart of a Charedi community of ultra-orthodox Jews.
The judge said that he had reached the “unwelcome conclusion”
that the likelihood of the children and their mother being marginalised or excluded by the ultra-Orthodox community is so real, and the consequences so great, that this one factor, despite its many disadvantages, must prevail over the many advantages of contact.
The appeal hearing, estimated to last one day, will take place on 15 November 2017.
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30 March 2017 by Rosalind English
Hand and Anor v George [2017] EWHC 533 (Ch) (Rose J, 17 March 2017) – read judgment
The Adoption of Children Act 1926 s.5(2) had the effect that adopted children were not treated as “children” for the purposes of testamentary dispositions of property. The continuing application of this provision was a breach of the rights guaranteed by Article 14 in combination with Article 8 of the Convention. Therefore, the contemporary version of that provision, Adoption Act 1976 Sch.2 para.6, had to be read down so as to uphold the right not to be discriminated against.
Background Facts and Law
Henry Hand died in 1947. He was survived by his three children, Gordon Hand, Kenneth Hand and Joan George. In his will dated 6 May 1946, Henry Hand left the residue of his estate to his three children in equal shares for life with the remainder in each case to their children in equal shares. The question at the centre of this claim was whether adopted children count as “children” for the purposes of this will. Under Section 5(2) of the Adoption of Children Act 1926, which was in force at the relevant time, adopted children were not included as “children” for the purposes of a testamentary disposition of property.
The claimants, the adopted children of Kenneth Hand, accepted that under the domestic law in force, they were not included and their father’s share of the Henry Hand trust would go to the their cousins the defendants. However, the claimants maintained that they can rely on their rights under Article 14 of the European Convention of Human Rights in conjunction with Article 8 to override the discriminatory effect of that domestic law so that they are treated as equals with the birth grand-children of Henry Hand. The defendants argued that the ECHR could not be applied to interpret an instrument that was drawn up at a time before it existed.
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20 March 2017 by Isabel McArdle
A clinic in Newcastle upon Tyne has been granted the UK’s first licence to carry out a trial of “three person IVF” (Mitochondrial Replacement Therapy, or MRT). The fertility technique is intended to be used by couples who want to prevent genetic diseases being passed on to their children, due to faulty mitochondrial DNA. The process uses genetic material from the mother, father and a female donor, and replaces faulty genetic material in the mother’s DNA with the female donor’s genetic material.
There have already been a small number of three parent IVF pregnancies elsewhere in the world, resulting in reportedly healthy babies.
However the technique is not without its controversies and critics.
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8 February 2017 by Rosalind English
Vaccine in vial with syringe. Vaccination concept. 3d
SL (Permission to Vaccinate), Re 2017 EWHC (Fam) EWHC (30 January 2017) [2017] EWHC 125 (Fam)
The alleged risks attending on vaccination were outweighed by the benefits of immunisation by a clear margin, the Family Court has ruled.
Background facts
The seven month old baby SL was subject of an interim care order. The mother (the third respondent) objected to immunisations on the basis that her other children had suffered adverse reactions from them in the past. The local authority applied under the court’s inherent jurisdiction for a declaration that it was in the child’s interests for it to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine and the pneumococcal conjugate (PCV) vaccine.
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6 January 2016 by Matt Donmall
Two recent Court of Appeal cases, heard together, have considered the legality of the immigration detention of those who are, or possibly are, minors. Such cases involve local authority age assessments, which are to be carried out according to the guidance set out in Merton [2003] EWHC 1689 (Admin).
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27 August 2015 by Rosalind English
London Borough Tower of Hamlets v B [2015] EWHC 2491 (Fam) 21 August 2015 – read judgment
When a judge waxes lyrical about a child, garlanded with starred GCSEs, their intelligence, their medical school ambitions, you wonder what is coming. It’s the judicial equivalent of those blurred reproductions in the press of murder victims’ graduate portraits. In this case, a sixteen year old girl “B”, the subject of a careful but nevertheless alarming judgment in the Family Division, turned out to be one of the many girls groomed by their family for exodus to Syria; all of whom appear to be:
intelligent young girls, highly motivated academically, each of whom has, to some and greatly varying degrees, been either radicalised or exposed to extreme ideology promulgated by those subscribing to the values of the self-styled Islamic State.
B herself seemed unoppressed by the situation she was in and indeed wrote to the judge in those terms. She and her family refused to give evidence and sat impassively whilst Heydon J gave judgment.
They have betrayed no emotion; they have been impassive and inscrutable as I have faced the challenge of deciding whether their family should be fragmented and their children removed. Their self discipline is striking. They have listened carefully. The mother has taken careful notes. They have revealed nothing in their responses.
These cases differ from the common run of family abuse cases in that these young women, in the judge’s words, have “boundless opportunities, comfortable homes and carers who undoubtedly love them”. But they have been seduced by a belief that travelling to Syria to become what is known as ‘Jihadi brides’ is somehow romantic and honourable both to them and to their families.
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8 July 2015 by Jim Duffy
In the matter of an application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42
Does the publication of photographs of a child taken during a riot fall within the scope of Article 8 ECHR?
It depends, says a Supreme Court majority, specifically on whether there was a reasonable expectation of privacy. Either way, the Court in J38 agreed that whether or not the 14 year-old Appellant’s right to respect for private life was in play, the publication of police photographs of him was justified in the circumstances.
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11 May 2015 by Rosalind English
H & S (Surrogacy Arrangement) EWFC 36, 30 April 2015
M, a fifteen month old girl, was born as the result of artificial or assisted conception and of a highly contested agreement between S (the mother, a Romanian national) and H (the father, of Hungarian extraction) and B (the second applicant and H’s partner who had moved to the UK in 2004). None of these parties are portrayed in the photograph illustrating this post. Read judgment here
H is in a long-term and committed relationship with B and was at the time of conception. H and B contended that they had an agreement with S that she would act as a surrogate and that H and B would co-parent the child but that S would continue to play a role in the child’s life. It was a central part of their evidence that S offered to help them become parents and, following discussions between them, first with H and then involving B, the parties agreed to proceed on the basis that H and B would be the parents to the child and that S would have a subsidiary but active role. On 20 or 22 April 2013 M was conceived by artificial insemination using sperm from H at the applicants’ home. It is agreed by all parties that B was at home when the insemination took place.
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19 March 2015 by Guest Contributor
R(on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16 – read judgment
The Supreme Court was sharply divided yesterday over whether the benefit cap breaches the Human Rights Act. The controversial cap limits the total amount of benefits an out-of-work family can receive, including housing benefit and benefits for children, to £500 per week. It is applied regardless of family size or circumstances such as rental costs. As a result, lone parents with children in large families are disproportionately affected, both because they are more likely to be hit by the cap and because they are less likely to be able to avoid its effects.
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18 January 2015 by Rosalind English
B and G (Children) (No.2) [2015] EWFC 3 – read judgment
Contemplating the details of different forms of female genital mutilation is not for the faint hearted. But that is what the courts and the relevant experts have to do, not only to protected alleged victims but to defend the interests of those suspected of perpetuating the procedure, whether it is a question of criminal liability under the FGM Act 2003, or determining that a threshold of harm has been passed so as to initiate care proceedings if the victim is a child.
This case concerned the latter; although in the end the court was not satisfied that the evidence was sufficient to satisfy the “significant harm” requirement under the Children Act 1989, Sir James Munby P considered the case sufficiently important to explore the inclusion of FGM, and, more controversially, male circumcision, in the array of cultural and religious rituals that can trigger the state’s intervention in family life.
These were “deep waters” which the judge was “hesitant to enter”, yet, enter them he did, all the better for the clarification of this difficult issue in care proceedings.
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24 December 2014 by Martin Downs
Photo credit: guardian.co.uk
Using the inherent jurisdiction against Child Sexual Exploitation: Birmingham City Council v Riaz & Ors, 15 December 2014, read judgment
As prefigured on this Blog here, Keehan J has handed down a public Judgment explaining how he used the inherent jurisdiction of the High Court to make novel and far-reaching Orders against ten men.
The inherent jurisdiction is the power vested in the Higher Courts to maintain their authority and prevent their processes being obstructed and abused. Traditionally this has also included the exercise on behalf of the sovereign as parens patriae of particular powers concerning children – most commonly wardship.
Birmingham City Council were addressing a real and significant issue. This had been highlighted in Rotherham. The gold standard response is to secure criminal convictions as occurred in Bristol. However, in some instances, the evidence will not secure jury convictions and hence the search is on for alternatives.
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29 October 2014 by Rosalind English
Cotton and others, (R on the application of) v Minister for Work and Pensions and others, 15 October 2014 [2014] EWHC 3437 (Admin) – read judgment
Whether you call it the “spare room subsidy” or the “bedroom tax”, the removal of this type of housing benefit has been nothing short of controversial. There have been several previous legal challenges to the Regulations, as well as to the benefit cap introduced as part of the same package of welfare changes. The outcome of these cases was not promising for these claimants, in particular the decision of the Court of Appeal in R (MA) v Secretary of State for Work & Pensions [2014] EWCA Civ 13. Another important case is R (SG (previously JS)) v Secretary of State for Work & Pensions [2014] EWCA Civ 156.
Now the High Court has settled one aspect of the matter by ruling that these amendments did not breach the rights of singe parents under Article 8 ECHR who looked after their children under shared care arrangements where they received discretionary housing payments to make up the shortfall.
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31 August 2014 by Rosalind English
Q v Q ; Re B (a child) ; Re C (a child) [2014] EWFC 31 – 6 August 2014 – read judgment
Public funding is not generally available for litigants in private-law children cases, and no expert can now be instructed in such a case unless the court is satisfied, in accordance with section 13(6) of the Children and Families Act 2014, that the expert is “necessary” to assist the court to resolve the proceedings “justly”. As the President of the Family Division observed, restrictions on legal aid in certain circumstances has led to a “drastic” reduction in the number of legally represented litigants:
The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly.
All this has led to increased calls on the Bar Pro Bono Unit, which is generally not able to meet the demand.
Sir James Munby P has therefore suggested that the cost of certain activities, such as bringing an expert to court and providing advice to parents accused of sexual offending within the family, should be borne by the Courts and Tribunals Service.
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