EVANS v AMICUS HEALTHCARE LTD

In vitro fertilisation (IVF), and the unilateral consent of the potential mother, is a circumstance that invokes both legislative and Convention rights for both parties, prior to the actual process of childbirth.

On this occasion, the needs of a single woman are driven to exhaustion, despite knowledge that her former partner has made his position clear.

Having both met in their twenties, the parties to this case were engaged to be married, while at the time, equally excited about the possibility of raising children.

Before conception could begin, the appellant was diagnosed with cancerous tumours to both her ovaries; at which point, her world quite literally turned upside down.

Following a medical consultation, the appellant learned that due to slow tumour growth, there was hope that IVF treatment might permit her the chance to carry a child to birth, and thus have the life she had hoped for. 

As part of the process, the two parties were asked to complete consent forms for the use and storage of sperm and embryos, as prescribed by the Human Fertilisation and Embryology Act 1990 (HFEA).

Upon completion of the harvesting and fertilisation process, six embryos were cryogenically frozen for use by the donors at a time two years from the treatment, and as advised by the clinic.

Roughly six months after their participation, the couple separated, and the man wrote to the clinic, expressly notifying them of his wish to withdraw from the arrangement, and to request that the embryos be destroyed.

Upon learning of this, the appellant issued proceedings against him by injunction on the stipulation that he could not withdraw from the agreement, that the embryos were to be kept frozen for ten years as per the terms of the agreement, and that the appellant was lawfully entitled to receive the embryos, despite his obvious disagreement.

By declaration of incompatibility with schedule 3 of the 1990 Act, it was further claimed that anything to the contrary was a violation of articles 2 (Right to life), 8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (ECHR), and that the embryos were afforded equal rights under articles 2 and 8 accordingly.

Schedule 3 of the HFEA 1990 Act was drafted to address all matters relating to consent and use of gametes or embryos, and while it was contended that paragraph 2(1)(a) provided that consent allowed for the treatment of two people acting ‘together’, it is also clearly provided for in section 4(1)(b) that no person shall:

 “[I]n the course of providing treatment services for any woman, use the sperm of any man unless the services are being provided for the woman and the man together or use the eggs of any other woman, except in pursuance of a licence.”

HFEA ACT 1990

This translated that the written withdrawal by the appellant’s former partner had vetoed the use of the embryos in the absence of his consent, and the family court adopted the same line of argument, before dismissing her claim.

Having been appealed before the Supreme Court, the implications of Convention rights and incompatibility were given greater consideration, along with commentary by the Secretary of State, as required under section 5(2) of the Human Rights Act 1998.

Adopting the position that the case revolved around the right to bring life into being as opposed to a right to life, the Court held that the appellant needed to recognise the complexities of the IVF process, and that careful scrutiny of the Warnock Report demonstrated that the rights of fathers had been exercised with due caution of the rights of potential mothers.

It was also held that while denial of the treatment to the appellant was a violation of article 8 of ECHR, the same principles equally applied were the Court to allow the appellant to proceed without the consent of her former partner.

Therefore, in circumstances of public policy, it was deemed justifiable to encroach upon certain Convention rights where the best interests of the people applied.

While accusations of discrimination levelled under article 14 ECHR were also valid, there were unavoidably distinct differences between natural conception and the rigours of IVF; therefore, a right to withdraw from consent was fundamental to the mechanics of such treatment, and thus did not prejudice the appellant on grounds of gender.

With regard to the rights of the embryos, it was determined under article 2 of ECHR (Everyone’s right to life shall be protected by law), that in accordance with section 37(1)(a) of the HFEA Act 1990, a twenty-four week old foetus was eligible to legal rights, but not before.

And so, any declaration that non-enforcement of rights was incompatible with the Convention could not be sustained; hence, the appeal was dismissed, with note to the need for greater clarification of individual rights during the IVF registration process, so as to avoid further painful outcomes for those involved, while the court reminded the parties that:

“[W]hile legislation modifying individuals’ private law liabilities can be expected not to infringe their Convention rights without clear justification, legislation directed to the implementation and management of social policy may well have to infringe some individuals’ Convention rights in the interests of consistency.”

R V LAMBERT

Innocent until proven guilty’ is a phrase common to both English and European law; however, when the conviction of possession of controlled drugs required a reverse burden of proof upon the the defendant, it ran risk of violating the rights afforded citizens under the Convention.

Having been arrested and convicted of possession of £140,000 worth of class A drugs under section 5(3) of the Misuse of Drugs Act 1971, the appellant challenged the trial judges direction and that of the jury under article 6(2) of the European Convention for the Protection of Human Rights (ECHR) (Right to a fair trial).

Further citing that when section 28 of the 1971 Act placed an unfair burden of proof where taken in context with section 6 of the newly introduced Human Rights Act 1998 (HRA) (Right to a fair trial), it rendered the actions of the court void and thereby unlawful.

As point of fact, the HRA 1998 had been drafted and given royal assent in November 1998, but had not taken legal affect until 2nd October 2000; yet, contrastingly the appellant had been convicted on 9th April 1999; and so, relied upon the effects of the Convention and the HRA 1998 in order to undermine the courts decision to pass sentence.

Domestic legal position at the time prior to the 1998 Act was that when accused of possession of controlled drugs, the defendant was afforded reasonable protection through section 28(2) of the Misuse of Drugs Act 1971, which read:

“[I]n any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove that he is to be convicted of the offence charged.”

Misuse of Drugs Act 1971

This allowed the defendant to prove by balance of probability, that possession of such substances arose from ignorance of it’s existence rather than conscious choice.

Section 28(3)(b)(i) further allowed the defendant to seek acquittal by proving that he had no reason to suspect that whatever substance he possessed was a controlled drug.

When heard before the first court, the judge applied existing criminal procedure by directing the jury to assume that the defendant knew he had possession of the drugs, and that by reverse burden of proof it was for the defendant to demonstrate otherwise.

It was this approach that the appellant relied upon when citing the Convention rights and HRA 1998 principles, inasmuch as article 6(2) of the Convention stated that “everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law”; yet, despite his protestations, the court reached summary conviction and he was sentenced to seven years in prison.

Having later brought his case before the Court of Appeal, his appeal was dismissed, while a number of questions were raised concerning both the presumption of innocence and the retroactive nature of the HRA 1998.

This allowed his case to be heard again in the House of Lords, where consideration of the hearing date (April 2001) enabled the House to examine the validity of his claim, after the effects of the HRA 1998 had begun.

Through the powers of section 6(1) of the HRA 1998, it was possible for individuals to hold a local authority liable for violations of the Convention, and that under English law, the House of Lords was exactly that.

However, the caveat to this argument was that the initial conviction was in fact prior to the 1998 Act, and that for perhaps obvious reasons, no express provision had been made to allow retroactive effect upon previously decided cases.

It was for that primary reason that the appeal, while occurring inside the watershed of human rights protection, was considered by extension, as nothing more than a decisive aspect to the whole case; while section 7(6) of the HRA 1998 alone denoted that appeals against the decisions of a court applied only to those matters brought by public bodies and not convicted criminals.

This translated that regardless of hypothetical arguments, the outcome would have remained the same, and so the appeal was again dismissed, while the House reminded the parties that:

“[A] true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance.”

Additional Note

The imposition of legal burden upon defendants under section 28 of the Misuse of Drugs Act 1971, was compared to the empowering effects of the Convention, and the House agreed that while the duty of the prosecution was an establishment of guilt, failure to convince a jury that the accused was ignorant as to the existence of an illegal substance should not determine the verdict, and ran counter to the principles of the 1998 Act.

CAMPBELL v MIRROR GROUP NEWSPAPERS (MGN)

Convention principles and the juxtaposition between public interest and individual  privacy lie central to a clamant’s case when the needs of a known supermodel are considered secondary to the public knowledge of her drug addiction, thus sparking fierce debate as to where the lines of journalistic privilege and private health ought to be drawn.

Following the appellant’s prolonged public denial, she was rushed to hospital for emergency treatment in what was described as an allergic reaction to antibiotics, however a few months later the appellant was photographed outside a known ‘Narcotics Anonymous’ venue before a newspaper article included a number of those images under the title ‘Naomi: I am a drug addict’; in which, the publication revealed that despite  repeated protests, the appellant was in fact a long-term narcotics user, and that in a battle to overcome her addiction, she had enrolled into a self-help programme. 

Unfortunately, one of the images had captured the sign of a well-known café, which allowed readers to know where she may be found and the article text revealed how often she might be attending, while prior to its release, the newspaper editor had contacted the appellant’s agent, whereupon they were told that the images proved a violation of the appellant’s right to privacy and confidentiality in relation the anonymous nature of her chosen therapy, and yet the respondents ran the story and litigation followed soon after. 

In the first hearing, the appellant claimed for breach of confidence and sought damages under the Data Protection Act 1998, whereupon she was awarded a total of £3,500, after which the Court of Appeal reversed and discharged the award before the House of Lords examined article 8(2) of the Human Rights Act 1998, which reads that:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, of for the protection of the rights and freedoms of others.”

Human Rights Act 1998

And article 10(2), which reads that:

“The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalities as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protections of the reputation or rights of others, for preventing the disclosure of information received in confidence, of for maintaining the authority and impartiality of the judiciary.”

Human Rights Act 1998

While noting how in Attorney-General v Guardian Newspapers Ltd (No 2) they had held that:

“[A] duty of confidence arises when confidential information comes to the knowledge of a person . . . in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the e­ffect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.”

Attorney-General v Guardian Newspapers Ltd (No 2)

Before the House further noted how clause 3(i) of the Editors’ Code of Practice of the Press Complaints Commission provides that:

“(iii) It is unacceptable to photograph individuals in private places without their consent. Note – Private places are public or private property where there is a reasonable expectation of privacy.”

However, the House also referred to Bladet Tromsø and Stensaas v Norway, in which the European Court of Human Rights had held that:

“Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart in a manner consistent with its obligations and responsibilities information and ideas on all matters of public interest.”

Bladet Tromsø and Stensaas v Norway

Which was a position concurrent with section 12(4) of the HRA 1998, which reads that:

“The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the pubic interest for the material to be published; (b) any relevant privacy code.”

Human Rights Act 1998

And so, by embracing both elements to the argument, the House upheld the appeal on grounds that clandestine nature of ‘Narcotics Anonymous’ protected the needs and identities of those attending, thus when the respondents gained unauthorised access to the appellant’s treatment, they did so in the knowledge that it represented no less than a violation of her article 8 rights, whereupon the House reminded the parties that:

“Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. The decisions that are then taken are open to review by the court.”

THORBURN v SUNDERLAND CITY COUNCIL

In a collective hearing, the facts surrounding a national transition between imperial and metric measurements for the purposes of trade, gave rise to claims of unlawful application and subsequent challenge within the High Court as below:

Thoburn v Sunderland City Council

In this matter a greengrocer was accused of trading without licensed weighing scales under section 11(2) of the Weights and Measures Act 1985, while it was also alleged that despite repeated warnings to calibrate his scales in line with the legal requirements, the defendant had continued to operate the machines until their seizure by the local authority, and so losing his case in the Divisional Court the defendant later applied for referral to the High Court in order to further discuss the legalities of both imperial and metric measurements.

Hunt v Hackney London Borough Council 

On this occasion another fruit and vegetable trader was accused of a number of offences under section 4 of the Prices Act 1974 and section 28(1) of the Weights and Measures Act 1985 after commercial standards officers made discreet purchases revealing average product weight losses of twenty percent in favour of the defendant. 

Charged in the first instance, the defendant challenged the validity of the legislation and also sought the opinion of the High Court on grounds that he contended the applicability of the 1974 Act and the unlawfulness of displaying goods under the imperial weights system.

Harman and another v Cornwall County Council

This matter involved a market trader and fishmonger, who were both accused of selling their produce using imperial units of cost and thereby violating article 5 of the Price Marking Order 1999, as found under the Prices Act 1974 and schedule 1 of the Weights and Measures Act 1985, as amended by The Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 (SI 1994/1851). 

Here, it was alleged that the two defendants had also prevented their attending local authority representative from removing the imperial price stickers when attempting to obtain evidence of their acts; and so, having admitted liability the judge was referred to the outcome of Thoburn and raised the question as to the intention that both imperial and metric systems were to continue to run in parallel to one another; and whether the trading standards officers were acting beyond their powers when attempting to obtain pricing stickers from traders, despite no suggestion of dishonesty by those accused.

Collins v Sutton London Borough Council

In a slightly different circumstance, the appellant had argued that the terms of the renewal of his trading licence had been unlawfully amended by the issuing council, and so applied for a summons under section 30(1)(a) of the London Local Authorities Act 1990 while claiming that under the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994, Units of Measurement Regulations 1994 and  The Weights and Measures (Metrication Amendments) Regulations 2001 (SI 2001/85) the local authority had instructed the appellant that he must display and charge for his produce under the metric weights system, and that such a request constituted a breach of statutory powers and a violation of article 10 of the Human Rights Act 1998 (Freedom of expression). 

To clarify, section 1(1) of the Weights and Measures Act 1963 provided that both the metric and imperial system of measurements were permitted equal presence within the United Kingdom until the creation of the European Communities Act 1972  and the introduction of Directive 80/181/EEC in 1979; after which, chapter 1 of Directive 89/617/EEC cited that the metre and the kilogram were to become the single legal measurements of both length and mass, however chapter IV provided that certain goods sold loose in bulk were  allowed to be measured in pounds and ounces until 31st December 1999. 

In the following two years, The Units of Measurements Regulations 2001 (SI 2001/55) provided that imperial measures (while unlawful as primary indicators for sale) were still permitted as secondary indicators until 1st January 2010, while contrastingly the Price Marking Order 1999 required traders to indicate unit prices in metric measures, yet anything to the contrary was a criminal offence under para.5 of schedule 2 of the Prices Act 1974.

When brought before the High Court, the four appellants relied upon a contention that the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994, Units of Measurement Regulations 1994, Weights and Measures (Metrication Amendments) Regulations 1994 and the Price Marking Order 1999 were all unlawful and void under the principle of ‘implied repeal’, which is a process applied when Parliament enacts successive statutes containing inconsistent terms, and where the former is repealed by the latter in order to avoid future binding and confusion of effect.

While it was also argued that the 1985 Act had repealed section 2(2) of the European Communities Act 1972 in order to prevent future subordinate legislation, as had been used to replace the imperial system with the metric measurement system. 

Having considered the appellants’ somewhat unorthodox line of argument, the Court dismissed the appeals on grounds that while observation of European Community law remained first and foremost to the function of the sovereign, there was nothing in the European Communities Act 1972 that allowed any outside jurisdiction to compromise the supremacy of Parliament; and that the executive measures of the 1972 Act were not subject to repeal by implication but through express and specific decisions, before reminding the parties that:

“Parliament cannot bind its successors, and that is a requirement of legislative sovereignty.”

A v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The unlawful detention of individuals suspected of terrorist activity is central to this collective appeal amidst the unprecedented attacks of September 11th 2001 in New York, when in light of this historic event the United Kingdom took swift measures to derogate from their commitment to the European Convention on Human Rights (ECHR) and the Human Rights Act 1998.

Following a number of arrests, there were nine men of various nationalities detained under section 23 of the Anti-terrorism, Crime and Security Act 2001.

In order to facilitate such action, the Home Secretary had worked closely with Parliament to both execute and enact Part 4 of the 2001 Act, which provided powers to issue freezing orders upon those suspected of threats to the stability or security of the country.

To further support this measure, statutory instrument SI/2001/3644 (also known as the ‘Derogation Order’) was drafted as to allow for specific actions peripheral to the Human Rights Act 1998, where those suspected were subject to the terms of the 2001 Act.

Prior to this amendment, it was only possible under para.2(2) of sch.3 of the Immigration Act 1971 for the Secretary of State to detain non-British nationals while awaiting deportation, and such action was only deemed justifiable for a reasonable period of time, as this allowed the United Kingdom to remain fully compliant with its obligations to the ECHR, in particular art.5(1) (Right to liberty and security).

However, in Chahal v United Kingdom, Parliament attempted to circumvent article 3 of the Convention (No one shall be subjected to torture or to inhuman or degrading treatment or punishment) in order to excessively detain and deport a Sikh separatist on grounds of an affiliation to terrorism, but were overruled by the EU Commission on democratic principles.

In this instance, the appellants were challenging the derogation from ECHR principles for the purposes of detainment and deportation of foreign nationals, on grounds that the United Kingdom was not in a state of public emergency as required by article 15(1) of the Convention, and that further clarification of that article had been found in The Greek Case, where the Commission had explained that:

“Such a public emergency may then be seen to have, in particular, the following characteristics: (1) It must be actual or imminent. (2) Its e­ffects must involve the whole nation. (3) The continuance of the organised life of the community must be threatened. (4) The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.”

The Greek Case

Thus, it was contended that none of the above elements were visible when derogating from the ECHR and applying the terms of the Anti-terrorism, Crime and Security Act 2001 in order to both arrest and detain the appellants, and further noted that recent ministerial statements indicated that the United Kingdom was under no immediate threat; and so, while alert to international attacks they had no evidence to suggest otherwise.

Having considered the voluminous evidence provided by both sides, and the decision taken by the Court of Appeal, the House of Lords reemphasised the course of action taken by the Secretary of State, who had countered that failure to adopt a pre-emptive state of emergency was tantamount to a breach of national security.

And so, while no immediate evidence suggested imminent danger to the general public and economic infrastructure, proportionate measures taken outweighed the argument for adherence to Convention policy, despite overwhelming disagreement by the European Commission. 

There was also discussion around unlawful use of the Special Immigration Appeals Commission (SIAC) as provided for in section 24 of the 2001 Act, who were granted exclusive jurisdiction over the rights and appeals of detainees, as opposed to referral to the courts, which was another obvious attempt to circumvent due process under principles of national security.

With knowledge of deviant use of policy and a flagrant appreciation of the English judicial system, the House unanimously allowed the appeals, while quashing the Derogation Order and declaring section 23 of the Ant-terrorism, Crime and Security Act 2001 incompatible with articles 5 and 14 of the ECHR on grounds of discrimination through the use of immigration status, before reminding the parties that:

“[A] non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country and is not charged with any crime, may not under article 5(1)(f) of the Convention and Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security.”

GHAIDAN v GODIN-MENDOZA

Smith, Philip Henry; Flats, 1960; Williamson Art Gallery & Museum; http://www.artuk.org/artworks/flats-1960-67888

Same-sex relationships and the discrimination of landlords under death of secured tenants, provokes the wisdom of the judiciary when the progressive interpretation of existing statute is the only salient answer to a claim for devolved rights by the freeholder.

After living together in a committed homosexual relationship for over thirty years, the respondent had been left facing continued occupancy of the flat under the terms of an assured rather than secure tenancy following the death of his partner and secure tenant, thus by falling subject to the lesser of the two tenancies, the respondent had become vulnerable to potentially increased rents and no legal rights to challenge repossession should the freeholder decide to remove him.

Having sought enforcement under schedule 2 paragraph 1 of the Rent Act 1977 the appellant landlord argued that same-sex relationships were precluded from the enjoyment of direct succession of statutory tenancy as prescribed, however those surviving death could remain in occupation under an assured tenancy, as was held in Fitzpatrick v Sterling Housing Association Ltd.

Whereupon the respondent argued that as that case was raised prior to the Human Rights Act 1998 (HRA), devolution of rights through the application of the 1977 Act constituted a direct violation of articles 8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (ECHR), therefore he was free to remain in occupation under the same rights bestowed those in schedule 1 paragraphs 1, 2 and 3 of the 1977 Act, which stated that:

“1.Paragraph 2 or, as the case may be, paragraph 3 below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling-house by succession after the death of the person (in this Part of this Schedule referred to as “the original tenant”) who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of his previous protected tenancy.

2. If the original tenant was a man who died leaving a widow who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling-house as her residence.

3. Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence.”

Rent Act 1977

Historically the courts viewed paragraph 3 of the Rent Act 1977 as designed to treat unmarried women as family members in order to allow assured tenancies to permit continuous occupancy when no marriage or family previously existed; however, Fitzpatrick widened the scope of entitlement when the House of Lords had held that:

“[T]wo people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”

FITZPATRICK v STERLING HOUSING ASSOCIATION LTD

In the first hearing, the court awarded for the respondent on principle that overt discrimination was not a virtue welcome in English law, while the Court of Appeal upheld the previous judgment, before the matter wound up before the House of Lords.

Here, the facts were given equal attention before the House dismissed the appeal on grounds that the time was right to embrace the universal nature of close and loving bonds and the freedoms of the Convention without a need for Parliamentary involvement, while further holding that:

“[T]he social policy underlying the 1988 extension of security of tenure under paragraph 2 to the survivor of couples living together as husband and wife is equally applicable to the survivor of homosexual couples living together in a close and stable relationship.”

RE S (CARE ORDER: IMPLEMENTATION OF CARE PLAN)

Re S (Care Order: Implementation of Care Plan)

In this conjoined appeal case, there were two matters in need of address, and both involved a local authority and the issuing of final care orders for families in need of reunion.

The first, was re S (Minors) (Care Order: Implementation of Care Plan) and the second, re W (Minors) (Care Order: Adequacy of Care Plan) as shown below:

Re S (Minors) (Care Order: Implementation of Care Plan) 

As the mother of three children aged fourteen, eleven and ten, to two fathers, the oldest of them was raised by the father of his younger siblings, and over a course of almost a decade became subject to both emotional, physical and sexual abuse on an almost routine basis.

Having run away from his home, the victim explained his suffering and was subsequently placed into foster care; whereupon, the stepfather denied all allegations with the full support of the victim’s mother; yet, when challenged, he displayed threatening behaviour before the local authority and was later sentenced to community service.

In light of those events, the two younger children were also placed into foster care, while the parents separated in order to obtain their return to the family home, despite recommendations by professional experts that the father remained an unacceptable risk to the children.

Following a hearing in the local court, the father was found guilty of sexually abusing the eldest child, while both parents were held to have been physically and emotionally abusive towards all three children, with particular regard to the eldest sibling, while the local authority responded by seeking care orders for the three children.

While it was agreed that the eldest was to remain in foster care, the younger children were designated a care plan involving their return to the mother; however, there was a degree of anxiety surrounding the absolute power of local authority decisions in such circumstances.

And so, mention was made of the potential human rights violation should the mother and children not retain a tenable relationship, along with the proposal of interim care orders to provide assurances to the family.

At the hearing the judge granted final care orders for all three children; and yet, over time the promises of the social workers and appointed guardians dissolved into disappointment, after none of the proposed programmes materialised.

Having been presented to the Court of Appeal, it was held that the local authority had abjectly failed on its promise to provide care, but was acquitted under arguments of monetary cuts and a reduction in public resources; whereupon, the mother contended that the court had erred in not considering her suggestions for interim care orders, and the children’s guardian sought relief under sections 6 (Acts of public authorities) and 7 (Proceedings) of the Human Rights Act 1998 (HRA); however, both arguments were dismissed.

Re W (Minors) (Care Order: Adequacy of Care Plan)

In this instance, the welfare of two boys aged ten and twelve years of age rested upon the intervention of the mother’s grandparents, who themselves resided in the United States of America.

Having met overseas, the parents returned to live in the United Kingdom, in order to marry before starting a family; however, during the course of their childhood, the boys had been subjected to numerous separations and reconciliations, and also spent considerable time living apart from one another while remaining in contact with both parents.

This chaotic existence had later given rise to questions concerning the ability of the parents to meet the needs of the children, in large part due to the deteriorating mental health of the mother, who had made insubstantial allegations against the father prior to the local authority applying for an emergency protection and interim care order.

Having established a care plan, it was agreed by the County Court that the two boys would be placed into foster care before the arrival of the American grandparents, who planned to live with them in the United Kingdom, despite reservations by the judge that their migration would materialise, and that the proposed therapy and marital management programmes would succeed, with particular emphasis on the mother’s diagnosed imbalances.

Upon challenge by the local authority in the Court of Appeal, it was held that the care plan had been prematurely executed; and so, the final care order was replaced with an interim order, while referring the case back to the awarding judge, an alteration which instigated reluctance by the grandparents to assume care of the boys unless under definite conditions.

This prompted the reissue of a final care order with the full support of the parents, albeit in argument that they would apply to have the order discharged if their reunion was not provided in due course.

For clarity, under section 33 of the Children Act 1989 an acting local authority is granted parental responsibility (PR) for the duration of the assigned care order and can therefore determine the rights of the parents in relation to their children; while under section 100, the courts are expressly denied interference with those powers; however, section 6 of the HRA 1998 prevents a public authority from acting in a way that proves incompatible with a Convention right, while section 7 allows those victim of such actions, to bring proceedings against them.

Section 8 (Judicial remedies) further enables the court to decide how best to provide legal remedy, or issue powers appropriate to its jurisdiction, which translates that where a local authority infringes art.8 of the HRA 1998 (Right to respect for private and family life), the deciding court can lawfully grant relief to those affected. 

More interestingly, under the Review of Children’s Cases Regulations 1991, a local authority is required to consider the possible discharge of a care order on a six-monthly basis (subject to the views and consideration of the child(ren) and parents), while section 3(1) of the Children Act 1989 provides that parents retain the same rights, duties, powers and parental responsibilities as before an order was made, therefore their civil rights are affected, but not wholly compromised.

Finally, section 38 of the Children Act 1989 provides the court with powers to issue interim care orders in order to provide safety and security for vulnerable children for a determined period.

With both cases put before the House of Lords, it became evident that in the first case, the Court of Appeal had introduced a ‘starring’ mechanism as a means of preventing failure to implement care plans, whereby each plan was marked with progressive indicators that when not reached in the agreed period, triggered automatic rights to reactivate the consultation process in order to avoid missed or overlooked public body requirements.

In the second case, no such mechanism had been used, which had prompted intervention by the Secretary of State for Health, who received claims that sections 31, 33(3),38 and 100 of the Children Act 1989 were incompatible with existing Convention rights, while the local authority had appealed against the alteration of the care order and the broadening of judicial powers to award interim orders.

Examination of the Children Act 1989 and suggested incompatibility with Convention rights after the introduction of ‘starring’, drew immediate reference to the overlapping rights of courts when care orders are in effect, and while the House appreciated that the inventive use of rudimentary measures was a decision privy to Parliament, and that while there was stark evidence to support legislative reform, it was simply ultra vires for the Appeal Court to act without restraint. 

An so, with regard to the overextension of the interim care orders when faced with an ill-prepared care plan, the House upheld the appeals bought by both a ministerial and public body, while taking time to remind the parties that:

“Where a care order is made the responsibility for the child’s care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority’s discharge of its responsibilities. That was the intention of Parliament.”

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