children’s rights


Supreme Court holds children’s hearings system is compatible with article 8

6 July 2020 by

ABC v Principal Reporter and another

In the matter of XY [2020] UKSC 26

The Supreme Court recently dismissed two appeals concerning the role and rights of siblings in children’s hearings in Scotland. It held that the provisions of the Children’s Hearings (Scotland) Act 2011 in question were compatible with article 8 of the European Convention on Human Rights.

CHS-logo-transparent-black-text-1140x531

Background

The appeals concerned whether a sibling is a “relevant person” for the purposes of the Children’s Hearings (Scotland) Act 2011 (‘the 2011 Act’), which governs the children’s hearings system in Scotland.

A relevant person is defined as including a person who has parental responsibilities or rights in relation to the child (section 200(1) of the 2011 Act). If a person does not fall under this definition, they may still be classed as a relevant person under a procedure set out in sections 79-81. Section 81(3) provides that a person can be deemed a relevant person if it is decided that the person has, or recently had, a significant involvement in the upbringing of the child. In most circumstances, this would not include a sibling.

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Human Rights in the Supreme Court in 2020 – Lewis Graham

12 February 2020 by

It is undeniable that the Human Rights Act has had a significant impact on the work of the Supreme Court. Just under a quarter (14 of 61) of cases decided during the Court’s 2018-19 term featured a determination on at least one issue relating to the Act or the European Convention on Human Rights. The UK Supreme Court is soon to begin Hilary Term 2020, and whilst the docket of cases it is set to hear this term seems to largely steer clear of controversial human rights issues we can nonetheless be confident that 2020 will feature its usual share of big human rights cases. What follows is a short preview of some of the more interesting and controversial of those cases, all of which the Court is due to hand down at some point this year. 

  1. Article 3 and deportation

In the case of AM (Zimbabwe) v Secretary of State for the Home Department (on appeal from the Court of Appeal) the Court will have an opportunity to re-assess its approach to how Article 3 should apply in deportation cases.

It is well established that, under Article 3 ECHR, the United Kingdom cannot deport an individual to a country where, there is a “real risk” of them being subjected to torture, inhuman or degrading treatment. This has been extended to include situations where the deportee would be placed in circumstances which might occasion a significant deterioration of health, including where they lack access to life-saving treatment

The question in this case is whether Article 3 prohibits deportation in AM’s situation. He is an HIV-positive individual, whose condition for many years was being managed by anti-retroviral drugs in the UK. If deported to Zimbabwe, he would be very unlikely to have access to the same treatment. Although some medical options would be available to him, they would likely be significantly less effective for the management of his condition. 

Previous authorities had restricted the application of Article 3 to ‘deathbed’ cases only, where the deportee would likely die quickly following their removal from the country.


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Children Act 1989 and a child’s rights thirty years later

6 November 2019 by

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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Seriously sick child and distraught parents – where to draw the line

26 February 2018 by

Alder Hey Children’s NHS Foundation Trust v Evans, James and Alfie Evans (a child by his guardian Cafcass Legal) [2018] EWHC 308 (Fam) – read judgment

This was an application by the hospital for a declaration to allow their doctors to withdraw life support from a 19 month old child, Alfie. He suffers from a progressive, ultimately fatal neurodegenerative condition, probably a mitochondrial disorder. His epileptic seizures have not been brought under control by anti-convulsant treatment. The evidence before the court was that even if these seizures were to end, his brain is “entirely beyond recovery”. However caused, his neural degeneration is both “catastrophic and untreatable”.

In simple terms the thalami, basal ganglia, the vast majority of the white matter of the brain and a significant degree of the cortex have been wiped out by this remorseless degenerative condition.

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The end of a chapter

25 July 2017 by

Great Ormond Street Hospital v Yates and Gard –  [2017] EWHC 1909 (Fam) – read judgment

A lot of things have been said, particularly in recent days, by those who know almost nothing about this case but who feel entitled to express opinions. Many opinions have been expressed based on feelings rather than facts.”

So said Francis J, when dealing with an unusual application by Great Ormond Street Hospital (Gosh) asking for an order, rather than a declaration, that Charlie Gard should be allowed to slip away quietly.  The involvement of the White House, the Vatican, the Bambino Gesu Children’s Hospital in Rome and Dr. Hirano and the associated medical centre in the USA  in this story demonstrates the fact that a mere declaration carries too much ambiguity to allow the hospital staff to do what the courts have approved. The terms in which Gosh put its application were unambiguous indeed:

Therefore orders are sought to remove any ambiguity; orders are enforceable. Despite all of the hospitals best endeavours, this appears as potentially necessary. Not for the first time the parents through their solicitors raised the prospect of criminal proceedings against the hospital and its staff. The Hospital understands that no court order best interests proceedings can afford it or its staff from prosecution.

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Scottish Government’s Named Persons scheme incompatible with Article 8

29 July 2016 by

The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland) [2016] UKSC 51 – read judgment here

The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).

by David Scott

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Parents’ wish to treat child’s cancer with Chinese medicine overruled by Family Court

11 October 2015 by

71bl6-vngql-_sl1500_JM (a child), Re [2015] EWHC 2832 (Fam), 7 October 2015 – read judgment

Mostyn J, ruling in the Family Division that a child should receive surgical treatment for bone cancer against the wishes of his parents, has referred to Ian McEwan’s “excellent” novel The Children Act (Jonathan Cape 2014), which is about a 17 year old Jehovah’s Witness refusing a blood transfusion. The judge noted however that the book was in fact “incorrectly titled”:

a question of whether a medical procedure should be forced on a 16 or 17 year old should be sought solely under the High Court’s inherent jurisdiction, and not under the Children Act.

This case on the other hand concerned a ten year old child, J. The NHS Trust sought permission to perform urgent surgery of a serious nature on his right jawbone, where he has a very rare aggressive cancer. Its medical name is a craniofacial osteosarcoma, presenting a tumour in the bone of about 4 inches long and 1½ inches wide. The unambiguous medical evidence before the court was that if it was not removed very soon then in 6 months to a year J would die “a brutal and agonising death”. The oncologist had spelt this out in unflinching detail:

 J will not slip peacefully away. The cancer will likely invade his nerve system affecting basic functions such as speaking, breathing and eating. His head will swell up grotesquely. His eyes may become closed by swelling. A tracheostomy may be needed to allow breathing. Above all, the pain will likely be excruciating.

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Mother paraded as “intimidated martyr” to cheat gay couple of surrogacy arrangement – Family Court

11 May 2015 by

surrogate_motherH & 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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France’s ban on religious clothing in schools did not prevent removal of asylum seeker there under Dublin Regulation

1 July 2014 by

niqab R (On the application of Mofazzar Baradarn and Malik Baradarn0 v Secretary of State for the Home Department and the Sikh Council Hampshire 24 June 2014 [2014] EWCA Civ 854 – read judgment

David Manknell of 1 Crown Office Row represented the Home Office in these proceedings. He has had nothing to do with the writing of this post.

France is a country which observes its Convention obligations therefore it is not in breach of Article 3 or any other of the Convention’s provisions to return an asylum seeker thence under the Dublin Regulation, since that system provides that once a Member State has “taken charge” of an application for asylum (as France has in this case) it has exclusive responsibility for processing and determining the claim for asylum. The prohibition on religious clothing in public schools in France did not disclose a threat to the second appellant’s Convention rights.

Background facts

The appellants were Iranian nationals (father and daughter) who challenged the Secretary of State’s decision on 5 December 2011 to refuse their asylum claims on safe third country grounds and to remove them to France. France had accepted responsibility for their asylum claims pursuant to the Dublin II Regulation. Before Hickinbottom J, they objected to their return to France because under French law they were banned from the wearing of the burka and the niqab in public. They alleged that this would breach their rights under articles 3, 8, 9, 11 and 14 of the European Convention on Human Rights. Their claims were dismissed by the judge in their entirety. Maurice Kay LJ gave them permission to appeal in relation only to articles 8, 9 and 14 by reference only to the French Law 2004-228 (“the 2004 law”) and in relation to section 55 of the Borders, Citizenship and Immigration Act 2009 (“BCIA”). The 2004 law had not featured in argument before the judge. It was, however, common ground that the appeal was concerned with the 2004 law and not the 2010 law. The 2004 Law provides that “in public elementary schools, middle schools and secondary schools, the wearing of symbols or clothing by which the students conspicuously indicate their religious belief is prohibited”.
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Welfare of child not a trump card against deportation

29 November 2013 by

aeroplane in sunset Zoumbas (Appellant) v Secretary of State for the Home Department (Respondent) On appeal from the Inner House of the Court of Session, [2012] CSIH 87 [2013] UKSC 74 – read judgment

 

The Supreme Court has clarified the principles to be applied when considering the welfare of children in deportation cases. The following summary is based on the Supreme Court’s Press Summary.

The appellant (Mr Z) and his wife (Mrs Z) are nationals of the Republic of Congo currently living in Glasgow with their three children, now aged 9, 5 and 2. Mr Z entered the UK illegally in May 2001 using a French passport that did not belong to him. He married Mrs Z in November 2003 after she had entered the previous year using a forged French passport and both their asylum claims had been refused. Their appeals were unsuccessful . In October 2005 Mrs Z and the couple’s daughter (A) were detained and removed to Congo. For the following ten months, Mr Z was treated as an absconder having failed to report to the authorities.

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UK court ducks position on circumcision

20 July 2013 by

605islamSS (Malaysia) v Secretary of State for the Home Department [2013] EWCA Civ 888 – read judgment

This case concerns a hitherto little-explored aspect of the right to a private and family life: a parent’s opportunity to teach their offspring about their own religious faith.

This is also a subset of the right under Article 9 to practise one’s own religion. This question was raised in EM(Lebanon) (FC) v Secretary of State for the Home Department [2008] UKHL 64 but was only tangential to the main issue, which was the relationship between the appellant mother and her son as opposed to the father whose entitlement to custody would have been secured under Islamic law.
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Supreme Court considers conditions for removing child for adoption

20 June 2013 by

mother-and-child_1681173cIn the matter of B (a child) (FC) [2013] UKSC 33 – read judgment

This appeal concerned whether a child of two years of age should be permanently removed from her parents and placed for adoption; and, in that regard, whether the child was likely to suffer “significant harm: within the meaning of s.31(2)(a) of the Children Act 1989; and a consideration of whether her permanent removal might interfere with the exercise of the right to respect for family life under Article 8 of the ECHR, and, if so, whether the order  should be proportionate to its legitimate aim of protecting the child.

The following summary is based on the Supreme Court press report. References in square brackets are to paragraphs of the judgment.

Background facts

The child concerned had been removed from her parents at birth under an interim care order. The mother was for many years in an abusive relationship with her step-father. She also had criminal convictions for dishonesty and a history of making false allegations. She had been diagnosed with somatisation disorder, a condition which involves making multiple complaints to medical professionals of symptoms for which no adequate physical explanation can be found.
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LAA must give reasons about funding expert assessments in care proceedings – Eleanor Battie

2 May 2013 by

justice24-300x199R (on the application of T) v Legal Aid Agency (formerly Legal Services Commission) [2013] EWHC 960 (Admin) Collins J, 26 April 2013 read judgment This successful challenge to a decision by the Legal Aid Agency (LAA) arose from an expert assessor in family proceedings – not unnaturally – refusing to begin work unless funding was in place. If the LAA are asked to fund an assessment on behalf of a party with legal aid, then it is common for lawyers to obtain prior authority from the LAA to ensure that the expert will be paid for their work. If not, then the lawyers themselves can be liable for an expert’s costs. In this case, prior authority to pay for the expert assessment had been refused by the LAA thus resulting in further court hearings and delay in the resolution of the case for the children.

The application for judicial review of the LAA came before Collins J. He concluded that:

For the reasons given the decision of the defendant was wrong in law. Reasons have not been given. This might not have led to any relief beyond a declaration if I were persuaded that the only result could be that the decision was confirmed. Not only am I not so persuaded but I find it difficult to see that it would be reasonable, at least without engaging with the judge whether in writing or orally, to fail to comply with what she has decided is necessary.
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Planning policy versus the UN rights of the child

11 April 2013 by

a-1-rose-lane-ripleyStevens v. Secretary of State for Communities & Local Government, Hickinbottom J, 10 April 2013 read judgment

As the judge explicitly recognised, this case raised the clash of two principles – how to resolve the policy-driven field of planning with the rights of family under Article 8 ECHR and of the child under Article 3 of the UN Convention on the Rights of the Child (UNCRC).

The battlefield was the well-trodden one of a Gypsy family living in caravans within the Green Belt, but without existing planning permission for those caravans. Ms Stevens sought to regularise this by applying for retrospective permission. The Council turned her down, and her appeal to a planning inspector was dismissed. She then made a statutory challenge to that decision under section 288 of the Town & Country Planning Act 1990, seeking to quash it and have it re-determined.

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Enforcement of custody in the face of children’s dissent: should law prevail?

4 April 2013 by

Father-and-child-holding--006Raw and others v France – read judgment (only available in French)

This complicated inter-jurisdictional battle between estranged parents is a stark illustration of how difficult it can be in these sorts of cases to apply the law in the fog of family warfare.

Even though the mother’s case was upheld in the Strasbourg Court, one can tell from the modesty of the damages awarded and the strength of the minority opinions that the judges were extremely reluctant to apply hard letter law to the complicated case before them. Indeed in one partially concurring judgment, Judge Nussberger found it distinctly odd that the mother was able to join the children as parties, in the light of their opposition to her wish that they leave their father to join her.
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