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Human Rights and Family Law Summer Update 2011

Deirdre Fottrell, Barrister, of Coram Chambers and Lecturer in Law at the Human Rights Centre, University of Essex, reviews recent family law cases in which human rights issues have been of special importance

Deirdre Fottrell, Barrister, of Coram Chambers and Lecturer in Law at the Human Rights Centre, University of Essex

This update which covers the period November 2010 – July 2011 considers cases which arose in the following areas:

Child abduction and the ECHR
In Re E (Children) [2011] UKSC 27 the Supreme Court considered the interplay between the ECHR and the Hague Convention following the ECtHR in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122.  The appellant also raised a wider issue about the applicability of the best interests principle found in Article 3 of the UNCRC to the consideration of an Article 13(b) defence in this jurisdiction.

The case concerned two young girls who were removed from Norway by their mother and returned with her to this jurisdiction.  The mother was a UK national.  In her defence to the father's application under the Hague Convention for the return of the children the mother alleged that the father had been violent and abusive in the relationship and she relied on Article 13(b). She argued that the return of the children to Norway would place them at grave risk of harm owing to the intolerable situation in which she herself would be placed if she returned.

While the appeal focused on wider issues regarding the parameters of Article 13(b) which are not of relevance to this case summary, the Court gave detailed consideration to the interrelationship between the core principles of the ECHR and the Hague Convention as set out by the ECtHR in Neulinger. 

Delivering the judgment of the Court, Hale LJ and Wilson LJ provided clear guidance about the application of the ECHR to Hague cases and the correct  interpretation to be given to Neulinger.  The key points of the judgment in that respect are as follows;

Surrogacy, parental orders and the Human Rights Act 1998
In A and A v P and others [2011] EWHC 1738, decision of 8th July 2011 Mrs Justice Theis used s.3 of the Human Rights Act 1998 to arrive at an interpretation of the Human Fertilisation and Embryology Act 2008 which facilitated the court making a parental order to a deceased parent.

The case involved an application for a parental order under s.54 of the HFEA.  The applicants had entered into a surrogacy agreement in India.  The commissioning father was the biological father of the child and the commissioning mother may have been genetically related to the child.  The applicants returned to the UK with the child when he was 3 months old and issued their application. Before the application could be determined the male applicant died. 

The issue in the case was whether the court could make a parental order to a deceased parent under s.54(4) and (5), the relevant provisions of the HFEA which stipulated that at the time of the making of the order the child's home had to be with the applicants and that the applicants must have reached the age of 18.  The interpretation of the term 'applicants' was therefore crucial to the court's determination of the case.

The court considered that the key issue in the case was the question of whether the term 'applicants' required both applicants to be alive at the time of the making of the order.  Theis J noted that the applicants were both over 18 (although not alive) and that both had lived with the child before the order was made. 

In making the parental order Theis J took the view that the consequence of not making the order would be a denial of the child's right to respect for his family life under Article 8 (1) of the ECHR if there was no legal recognition of his defacto relationship with his father [para 26].  She further noted that the state has a positive obligation under Article 8(1) to ensure that active steps are taken to promote the recognition of family relationships.

Interestingly the court took the view that the application also involved consideration of the child's right to identity as recognised under Article 8 of the UN Convention on the Rights of the Child and concluded that a combined reading of Article 8 of the ECHR and Article 8 of the UNCRC imposed an obligation on the court to seek an interpretation of the HFEA which would protect those rights [para 28 and 29]

A further factor which persuaded the court to make the parental order was that if the order was not made there were no alternative routes to securing the legal relationship between the child and the father.  An adoption order would not include the deceased father.  The court noted that it was undesirable that the consequence of the father's death was that the child would have no legal relationship with him despite the common intention of the parents at the time they entered the surrogacy arrangement and at the time the application was issued to secure such a relationship with a legal order.

Having reached the view that absence of a parental order would result in breach of the child's Article 8(1) right to respect for his family life with his parents, the court considered that s.3 of the HRA 1998 permitted it to arrive at an interpretation of the term 'applicants' in s.54 (4) and (5) of the HFEA.  Following the guidance of the House of Lords in R v A [2001] UKHL 25 and Ghaidan v Godin Mendoza [2004] UKHL 30 the court took the view that it was incumbent upon it in this case to seek to adopt any possible construction of s.54 of the HFEA which was compatible with and avoided a breach of the child's Convention rights.

The court therefore decided that the term 'applicants' in s.54 could be read in such a way as to include a deceased parent and a parental order was made in respect of both the mother and father.

ECHR and domestic violence
In two decisions A v Croatia [2010] ECHR 55164/08, (decision of 14th October 2010) and in Hajduova v Slovakia [2010] ECHR 2660/03 (decision of 30th November 2010), the European Court of Human Rights found a breach of the positive obligation arising under Article 8 of the ECHR in circumstances where the state had failed to take adequate measures to protect a woman from a violent partner.  These cases developed the principles articulated by the court in Opuz v Turkey [2009] ECHR 33401/02 (decision of 9th June 2009), its landmark judgment in which it found that domestic violence can constitute a breach of Articles 2 and 3 if the State fails to exercise due diligence in the prevention, investigation and punishment of domestic violence.    The significance of these two judgements lies in the consideration of the parameters of the right to respect for private life under Article 8 (1) in domestic violence cases and in particular the positive obligation and due diligence duties on the State which arose as a consequence.

In A v Croatia the applicant had separated from her husband after a violent marriage and was living in hiding with their child.  The abuse had been both physical and mental.  He had subjected her to numerous violent attacks which had caused her injuries and psychological harm.  The applicant's child was present on a number of occasions and she had also been violently attacked by her father.

In addition the husband had made repeated threats and intimidated the applicant.  He had on an occasion also threatened a police officer.

The husband had been diagnosed as having mental health problems.  Between 2004 and 2009 there had been seven sets of proceedings regarding the husband's violent and threatening conduct.  On one occasion he was sentenced to serve a custodial sentence. However the government authorities reported that there was no room available for him in prison and the sentence was not enforced.  Following another set of proceedings he had been ordered by the court to undergo psychiatric treatment.  This had also not occurred. He breached court orders and managed to find the applicant's location.  At the time of the application to the ECHR he was incarcerated.

The facts in Hajduova involved a marriage in which there had been a long history of violence which had led the applicant to leave her husband with her children and move to a refuge.  He had attacked her physically and verbally and had left her with minor injuries. The husband had repeatedly threatened to kill the applicant which caused her to be in fear for her life and her safety.  He had been convicted four times in ten years for violent offences against his wife. 

In a criminal prosecution for his threats to kill the applicant expert evidence established that he suffered from a personality disorder and the court accepted a recommendation that he be ordered to undergo psychiatric treatment at a suitable hospital. This order was made instead of imposing a custodial sentence. 

The husband was released by the hospital after a week and he had not been treated in the terms of the order.  He then proceeded to threaten the applicant again and intimidated and harassed her and her lawyer.   The applicant was forced to make a further criminal complaint against him which led to a second trial.  At the conclusion of the second trial a similar order for psychiatric treatment was made and the husband was on that occasion treated as ordered.

The issue before the court was whether the failure to treat the husband on the first occasion constituted a breach of the Article 8(1) rights of the applicant in particular with regard to her physical and psychological integrity which was an aspect of her private life.

In both cases the court found that Article 8 was violated owing to the failure of the State to actively protect the applicant. The court gave the following reasons:

Parental contact with children and the ECHR/HRA
A recent decision of the ECtHR provides guidance as to the circumstances in which potential or prospective family life creates a positive obligation on the state.  This is relevant in cases where the parent has not established a family life per se with the child.

In Anayo v Germany [2010] ECHR 20578/07 (decision of 30 November 2010) the ECtHR revisited the extent to which family life could be said to exist under Article 8 (1) between a father and children whom he had not met.  In the case there is an expansion by the ECtHR of the meaning of the term 'family life' where a parent and a child had no actual established relationship.  The decision indicates that a detailed examination of each factual situation is necessary.

The case involved an application by a biological father of twins who had been born following an extramarital relationship between him and the child's mother.  The relationship had been ongoing for some two years.  The child's mother was raising the children with her husband and they opposed any contact between the children and their biological father.  There was no issue in the case as to the paternity of the children in that it was accepted by all three adults that the applicant was the biological father.  However under German law the father was unable to acknowledge paternity so as to become the children's legal father.

In the domestic proceedings the applicant had been granted contact with the children by the court at first instance.  That contact was to be supervised and was only monthly for one hour.  On appeal the decision to grant contact was quashed.  A complaint to the Constitutional Court that the decision breached his Convention Rights was dismissed without reasons.

The ECtHR considered its previous jurisprudence on the concept of family life under Article 8 and noted that the concept of family life extended to 'family ties' between children and parents who were not living together.  Children who are born out of wedlock are 'ipso jure' part of a family unit from the moment of birth [paragraph 55].  However it noted that biological kinship between children and parents will not in and of itself constitute 'family life' in the absence of further legal or factual elements which pointed to the existence of a close personal relationship [paragraph 56].

The court noted that as a rule cohabitation was a requirement for a relationship to amount to 'family ties' but that in exceptional circumstances other factors, such as legal orders and intention of the parties might also serve to create de facto family ties within the meaning of Article 8(1) [paragraph 57].

Of particular interest in this case is the consideration by the court of whether 'intended family life' could fall within the ambit of Article 8(1).  The court identified the nature of the relationship between the parents and found that there was a demonstrable interest and commitment by the father over time to the children which was evidence in support of an assertion that family life existed in this case [paragraph 61].  The court also noted that the case concerned consideration of the private life of the father and the children as issues around paternity and identity came within the ambit of that right under Article 8(1).

Concluding that for legal and practical reasons which were not of his making the father had been unable to meet his children and to establish family ties with them in the factual sense, the ECtHR nonetheless found that in this exceptional case intended family life fell within the ambit of Article 8(1).  It could not be argued, as the State had sought to do, that the applicant lacked a genuine interest in his children which amounted to family life and invited the protection of Article 8(1) rights by the State [paragraph 61].  In the alternative the court considered that the determination of legal relations which flowed from paternity between the applicant and his children came within the meaning of the term 'private life' and thus required the State to meet its positive obligations under Article 8(1) [paragraph 62].

It concluded therefore that Article 8 was violated by the failure of the State to examine properly the question of whether contact between the children and the father was in their best interests.  Further by excluding his application on the basis that he did not have any legal right to apply for contact, the State had also breached his right to respect for his Article 8 rights and had failed to strike the correct balance between the protection of the existing family life between the children and their mother and her husband and the potential family life between the children and their biological father.

Disclosure to a father of the existence of a child and the HRA
A decision of the Court of Appeal reconsidered the question of when a father should know of the existence of a child whom the mother proposed placing for adoption.

In M v F and Others. [2011] EWCA Civ 273, 1 FCR 533, (decision of 17th March 2011) the Court of Appeal upheld a decision of Mostyn J in the High Court in which he had refused an application by a mother for a declaration that the father of the child should not be informed of its birth owing to her plan to place the child for adoption.  The issue in the case was whether the court at first instance had been correct to conclude that a robust reading of Articles 6 and 8 required that a very 'high degree of exceptionality' was to be demonstrated before a court could permit a mother to deny a father information about the existence of his child and her plan to place the child for adoption.

The facts in the case involved a married couple who were from Afghanistan and had been granted asylum in the UK.  The father suffered from PTSD after his sister and other members of his family were killed by the Taliban.  This caused him ongoing mental health problems and he was under psychiatric care during his time in the UK.  The mother described his behaviour as unpredictable and frightening and he was said to be abusive and threatening to the extent that the police had been called on occasion.  The couple had three children who were adults at the time of the application.  The mother became pregnant and decided in consultation with her adult daughters to place the child for adoption owing to the difficult life she had with the father.  She did not tell the father of her pregnancy.  She contacted the local authority to make arrangements for the child to be adopted.  It took the view that the father should be informed of the child's birth and the planned adoption.  The mother relinquished the child who was made subject to interim care orders and placed with foster carers.  She sought declarations which would permit her to lawfully place the child for adoption without informing the father.  The local authority opposed her plan.  During the proceedings the court gave leave for expert reports to be filed.  This included an assessment of the father's mental health which suggested that his condition might be adversely affected were he to be informed of the child's birth.  It was described by the court as a 'guarded' opinion.

In the High Court Mostyn J considered previous case law including Re G (a child) (adoption; disclosure) [2001] 1 FLR 646. The judge in that case had concluded that a putative father had no right to be informed of the birth of a child.  But he distinguished between cases where children were the result of brief affairs, and thus there was no issue of family life, and this case where the parents were married with children already. He concluded that in this case the Article 8 rights of the father were engaged because there was a full family life in existence and that the positive obligation under Article 8(1) required exceptional circumstances to justify withholding the fact of the child's birth from the father.  Mostyn J further found that the father's Article 6 fair trial rights were also engaged to the extent that if there was to be a legal process which determined that his child be placed permanently outside the family. He was entitled to participate fully in that process and to challenge the decision. 

Having satisfied himself that Articles 8 and 6 were engaged, Mostyn J noted also that 'a very high degree of exceptionality is required' to negate those rights which in the instant case would require the mother to demonstrate that there was a significant physical risk of harm to her or the child were the information to be disclosed to the father.  Finally Mostyn J had concluded that the father's consent would have to be dispensed with if the child was to be adopted and he could not see how a court could determine whether the welfare of the child required it without the father having a proper opportunity to participate in the proceedings.

The issue before the Court of Appeal was therefore whether Mostyn J had correctly concluded that where a mother sought to withhold the fact of a child's birth from the father or to dispense with service upon him of proceedings this could only be permitted in 'exceptional circumstances'owing to the positive obligations under the Human Rights Act.  A further issue was whether he was correct to conclude that Article 8 was engaged in this case.  An additional challenge was made to his construction of exceptional circumstances requiring a significant physical risk.

The Court of Appeal [per Thorpe LJ, Black LJ and Longmore LJ] dismissed the appeal on the following grounds:

Compatibility of s.35(2) of the Adoption and Children Act 2002 and the HRA
In the case of DL and Another v LB of Newham [2011] EWHC 1127 (Admin), decision of 1st June 2011, Charles J sitting in the Administrative Court found that s.35 (2) of the Adoption and Children Act 2002, which permitted a local authority to remove child from prospective adopters having given seven days notice, was compatible with the Human Rights Act 1998.  The case is notable because of the application for a declaration of incompatibility under s.4 of the Human Rights Act 1998.  Such applications are unusual and have the effect, if successful, of requiring the state to remedy the defect if such a declaration is made, usually by way of legislation. 

The challenge in this case arose in circumstances where a child had been placed with adopters for approximately 14 months.  Before the prospective adopters made an application the local authority instructed an independent social worker to undertake an assessment of them as carers owing to concerns about such issues as attachment and allegations that they had a tempestuous relationship which could place the child at risk.  The assessment led the local authority to decide to issue to the prospective adopters a notice for removal under s.35 of the ACA.    The prospective adopters returned the child to the agency.  Their application to adopt, which was made after the child had been returned, was subsequently dismissed by a judge in the county court.

The application for a declaration of incompatibility was refused on the following grounds:

In the instant case, however, the application for judicial review was granted on the basis that the adoption agency removed the child without properly consulting the prospective adopters and, in particular, they had not been provided with the opportunity to challenge the local authority concerns which led to the removal.