Discrimination

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High Court calls for change in bereavement law to benefit cohabitees

1152277_90340870Smith v Lancashire Teaching Hospitals NHS Trust and another [2016] EWHC 2208 (QB) – read judgment

Under the Fatal Accidents Act 1976 those who live together but are not married are not entitled to damages for bereavement. The High Court has found that though this did not directly engage the right to family life and privacy under Article 8, the difference in treatment between cohabitees and those who were married or in a civil partnership could not be justified and consideration should be given to reforming the law.

The issues before the Court

The claimant had cohabited with a man for over two years before he had died as a result of the first and second defendants’ negligence. She had made a dependency claim under s.1 of the 1976 Act, which by a 1982 amendment had been extended to people who had been cohabiting for more than two years, but the bereavement damages provisions in s.1A(2)(a) still applies only to spouses and civil partners. Continue reading →

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Father should be allowed to apply for parental responsibility following surrogacy

surro imageZ (A Child) (No 2) [2016] EWHC 1191 (Fam) 20 May 2016 – read judgment.

The Court of Protection has granted an order for a declaration of incompatibility with Convention rights of a section in the Human Fertilisation and Embryology Act on grounds of discrimination.

This case concerned a child, Z, who was born in August 2014 in the State of Minnesota in the United States of America. Z was conceived with the applicant father’s sperm and a third party donor’s egg implanted in an experienced unmarried American surrogate mother. The surrogacy arrangements were made through the agency of an Illinois company and in accordance with Illinois law.

Following Z’s birth, the father obtained a declaratory judgment from the appropriate court in Minnesota, relieving the surrogate mother of any legal rights or responsibilities for Z and establishing the father’s sole parentage of Z. Following that court order he was registered as Z’s father in Minnesota. The father has since returned to this country, bringing Z with him.

The legal effect of this is that the surrogate mother, although she no longer has any legal rights in relation to Z under Minnesota law, is treated in the UK as being his mother. By the same token, whatever his legal rights in Minnesota, the father has no parental responsibility for Z in this country. The only two ways in which the court could secure the permanent transfer of parental responsibility from the surrogate mother to the father is by way of a parental order or an adoption order. The father would obviously far prefer a parental order. Continue reading →

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Court of Session: Partners in Crime Have no ‘Family Life’

O’Neill and Lauchlan v Scottish Ministers [2015] CSOH 93, 28th October 2015 – read judgment

The Outer House of the Court of Session has dismissed challenges brought by two convicted paedophiles to the Scottish Prison Service’s refusal to allow them to visit each other in prison. The decisions were challenged under articles 8 and 14 ECHR, as it was claimed that the prisoners were in a homosexual relationship. Continue reading →

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Is it homophobic to turn away gay blood donors?

mike 0010

mike 0010

Léger (Judgment) [2015] EUECJ C-528/13 (29 April 2015) – read judgment

Blood donation centres all over Europe are grateful for volunteers, but sometimes people don’t make it through the assessment process.  Restrictions on male homosexual blood donors are particularly tricky, because they fly in the face of equality, whilst reflecting our current, no doubt inadequate, understanding of how infectious diseases are transmitted, and how long pathogens remain viable in human blood.

This case started when a French citizen, M. Léger, presented himself at his local blood donation centre. He was turned down after interview. The relevant law in France implements two EU Directives on blood donation which lay down specific conditions regarding eligibility.

Legal background

This was a request to the European Court (CJEU) for a preliminary ruling on Directive 2002/98/EC which imposes safety standing on the collection of blood for therapeutic use (the “Blood Directive”). It requires that blood should only be taken from individuals “whose health status is such that no detrimental effects will ensue as a result of the donation and that any risk of transmission of infectious diseases is minimised”. It also states that potential donors should be assessed by way of interview for their suitability. Continue reading →

The Round-up: Human Rights Act – the long struggle ahead

Actor Benedict Cumberbatch is vocal in his support for the HRA

This week’s Round-up is brought to you by Hannah Lynes

In the news

Prime Minister David Cameron has postponed the introduction of a British Bill of Rights, the Queen’s Speech containing only proposals for consultation. Director of Liberty, Shami Chakrabarti has welcomed the development:

“It is heartening that a Conservative Government committed to scrapping the Human Rights Act has at least paused for thought in its first Queen’s speech. There is a long struggle ahead but time is the friend of freedom.”

Debate surrounding the proposed Bill of Rights continues in full force. Proponents of the HRA draw attention to perceived misconceptions advanced by the opposing side. Lord Leveson points out that UK courts are not ‘bound’ by the decisions of Strasbourg (“the legislation only requires us to take them into account”), whilst Colin Yeo for the Free Movement blog questions the accuracy of claims that the HRA prevents us from deporting serious foreign criminals. Dr Ed Bates argues in the Constitutional Law blog that the domestic judiciary is more supportive of the ECHR than certain politicians would have us believe. Useful coverage of the views expressed by senior judges is provided here.

Other news

Housing: Leading housing charities last month issued a report claiming that the present ‘crisis’ in housing has put the UK in breach of its UN obligations to provide adequate homes. Housing campaigners fear government proposals set to reduce housing benefit for 18-21 year olds will serve to exacerbate the problem. The measures could “spell disaster for thousands of young people who…could be facing homelessness and the terrifying prospect of roughing it on the streets”, warns Chief Executive of Crisis, Jon Sparkes.

Surveillance: Prominent legal academics have signed a letter calling on the Government to ensure that any changes in surveillance law “are fully and transparently vetted by parliament, and open to consultation from the public and all relevant stakeholders”. The Guardian reports here.

Police: Hampshire Constabulary has admitted a failure to properly investigate the complaint of a victim of rape, who had been accused of lying by the force. An out-of-court settlement was reached with the young woman following commencement of proceedings under the Human Rights Act.

Discrimination: A woman turned down for a job because she observed Shabbat, the Jewish day of rest, was successful in her claim for indirect discrimination. The Telegraph reports on the decision.

Gender: An interview with barrister Roy Brown in Halsbury’s Law Exchange examines the significance of recent High Court decisions in JK and Carpenter for transgender rights in the UK.

In the courts

This case concerned the question of legal representation in complex family proceedings. The Court of Appeal held that whilst it may be inappropriate for an unrepresented litigant to conduct cross-examination of his alleged victim, a judge is not entitled to order the Courts Service (HMCTS) to pay for a legally trained advocate to do so on the litigant’s behalf. A court is not permitted to circumvent the detailed provisions for legal aid eligibility set out in LASPO. Further, the result does not amount to a breach of Article 6 ECHR (the right to a fair trial), since the court has available to it other alternatives. These include the possibility of the judge himself conducting the questioning.

1COR’s David Hart QC analyses the decision here.

UK HRB posts

Events

1COR/JUSTICE will be holding a major seminar on 4 June: Public Law in an Age of Austerity. To register please email lisa.pavlovsky@1cor.com.

If you would like your event to be mentioned on the Blog, please email the details to Jim Duffy, at jim.duffy@1cor.com.

Spiritual Influence and Human Rights at Sea: the Weekly Round-up – Hannah Lynes

Rescue of migrants

Photo Credit: The Guardian

In the news

The drowning of several hundred migrants attempting to cross the Mediterranean has dominated headlines in recent weeks, prompting a special meeting of the European Council on 23 April. The UN High Commissioner for Refugees has called for ‘a robust search-and-rescue operation in the Central Mediterranean, not only a border patrol’.

Under the ECHR, migrants rescued at sea cannot be returned if there is a ‘real risk’ of treatment that is incompatible with the absolute provisions of the Convention. Jacques Hartmann and Irini Papanicolopulu consider claims that human rights law therefore creates a perverse incentive for EU Member States not to conduct operations proactively.

Continue reading →

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Birth certificate cannot be retrospectively changed to reflect father’s gender reassignment

birthcertificate300x203_4fba822944823JK, 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 →