right to family life


Transgender father to appeal for greater contact with ultra orthodox children

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

29 October 2015 by Thomas Raine

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.
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Controversial named person scheme upheld by the Court of Session

8 September 2015 by Thomas Raine

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.
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“Lamentable”, “egregious” and “wholly indefensible”: High Court lambasts local authority’s conduct of care proceedings

1 February 2015 by Jim Duffy

imgres-1Northamptonshire 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 woeful case” 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.
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Senior judges speak out on EU and rights law

17 December 2013 by Rosalind English

PrintFollowing David Hart’s highly popular review of  Alan Paterson’s book on the Supreme Court, here’s an account of the recent public speeches of Lord Sumption, Lord Justice Laws, and Lady Hale. I apologise in advance for the length of this post, but to do justice to all three lectures it has proved necessary to quote extensively from each. There are links to the full text of the lectures, if you want to digest them over Christmas. But whether or not that prospect appeals, here is a challenge for the festive season. Lord Sumption divides judges into three categories: the “parson”, the “pragmatic realist” and the”analyst”  (quoted by Professor Paterson in Final Judgment: The Last Law Lords and the Supreme Court). Which of these labels fit the respective speakers?
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Deportation of foreign criminals: the new immigration rules are a “complete code”

9 October 2013 by Rosalind English

ukborderMF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 – read judgment

In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A  were introduced into the Immigration Rules HC 395.  I have posted previously on the interpretation of these rules here and here.

The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and  the individual right to family life:

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Denial of contact with father too “draconian” – Court of Appeal

26 September 2013 by Rosalind English

Father-and-child-holding--006M (Children) [2013] EWCA Civ 1147,  20 September 2013 – read judgement

The Court of Appeal has taken the unusual step of reversing a denial of contact order, by reviewing the question of the proportionality of the order in relation to the children’s right to family life under  Article 8.

The appellant father appealed against the refusal of his application for contact with his three young sons. He had a history of violence and previous criminal convictions all but one of which, though distant in time, related to violent behaviour, including causing grievous bodily harm with intent. Following repeated episodes of abuse, which was often witnessed by the boys, the mother had left the family home with the children and had taken up accommodation in a women’s refuge.  She voiced fears of their abduction out of the jurisdiction and her own personal safety to the extent of “honour based” violence and death at the hands or instigation of the father.  When he applied for contact Cushing J found that the father had minimised his behaviour and blamed the mother as the victim of his violence. She concluded that he had failed to show any lasting benefit from therapy and his behaviour was likely to destabilise the children’s home and security, which was provided by the mother.
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UK court ducks position on circumcision

20 July 2013 by Rosalind English

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 Rosalind English

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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Genetic testing of children up for adoption

27 April 2013 by Rosalind English

12280487228O6zG0Y and Z (Children), 25 April 2013 [2013] EWHC 953 (Fam) – read judgment

Having children is a lottery. No judge or court in the land would sanction the regulation of childbearing, however feckless  the parents, unsuitable the conditions for childrearing, or unpromising the genetic inheritance.

Adoption on the other hand is stringently regulated, set about with obstacles for prospective parents, and strictly scrutinised by an army of authorities backed up by specialist family courts and a battery of laws, statutory instruments and guidance papers. Usually the filtering is in one direction only: the suitability of the parents to the child or children up for adoption. But sometimes it goes the other way, and this case raises the fascinating and somewhat futuristic question of whether children’s chance of finding a suitable home might be increased by genetic testing.

The circumstances were somewhat exceptional here, since the local authority had ascertained from the biological father  of the two young boys in question that they might have a chance of inheriting a rare genetic disorder of the central nervous system. Huntington’s Chorea is caused by a single gene mutation on chromosome IV and causes damage of the nerve cells and areas of the brain which in due course leads to severe physical, mental and emotional deterioration. Anyone whose parent has the disease is born with a fifty per cent chance of inheriting the gene. Anyone who inherits the gene will, at some stage, develop the disease. 
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Enforcement of custody in the face of children’s dissent: should law prevail?

4 April 2013 by Rosalind English

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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Another critique of the new Immigration Rules’ codification of Article 8

4 February 2013 by Rosalind English

aeroplane in sunsetIzuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) – read judgment

The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.

This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.

Background

The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8.
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