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Human Rights and Family Law Spring Update 2013

Deirdre Fottrell, barrister of Coram Chambers, reviews recent cases involving human rights issues which are of significance to family lawyers.

Deirdre Fottrell, barrister, Coram Chambers

Deirdre Fottrell, Barrister, Coram Chambers

This update considers the following matters:

Injunctions under the Human Rights Act
RCW v A Local Authority
[2013] EWHC 235 (Fam)
A child was placed with a prospective adopter under a placement order in October 2012.   The prospective adopter was a single woman with a career. 

The prospective adopter began to experience difficulties with her sight and was found to have a brain tumor.  This required immediate surgery in late 2012. At the time the child had been in her care for 10 weeks and she was therefore entitled to make an application to adopt the child.

After her surgery RCW had lost her vision. It was not clear if that was temporary. She had made arrangements for friends to assist her in caring for the child. A local authority in whose borough RCW resided offered to provide support and assistance. No agreement had been reached between the local authority and the placing authority.

Following a number of social worker visits the placing authority decided to remove the child from RCW's care. She was informed of the decision by telephone. Her solicitor issued an application to adopt the child.  The local authority then sent her written notice of its intention to remove the child from her care. The applicant sought an injunction under section 7(1) (a) of the Human Rights Act 1998 to prevent the local authority from removing the child.

In granting the injunction, Cobb J considered that RCW had not been properly involved in the decision-making process. In particular she had not been told that the local authority had convened a meeting to decide whether to remove the child and she had not been invited to the meeting. Cobb J considered that in doing so the local authority may have failed to have due regard to her right to fair trial under article 6.  Further the court considered that the local authority had been aware that the child would spend much of his time during the day in nursery while RCW was at work and therefore the concern about the child being cared for by others was not sufficient reason to remove the child and was potentially a breach of the rights of the child and RCW to respect for their family life under article 8.

Child Abduction
Raw and Others v France [ECtHR Application No 10131/11, judgment of March 7th 2013]
The case concerned an application made under the Hague Convention on Child Abduction in France.  The parents had lived in France and had three children born in 1995, 1997 and 2000 in that jurisdiction.  When the parents separated the mother moved with the children to the United Kingdom. A judgment given by the French court following the divorce provided for the children to live with their mother in the UK with the father having regular contact.

In 2008 while the children were visiting their father over Christmas he took them to a police station and made a complaint that they were being maltreated by the mother. In January 2009 on the application of the father a court in France subsequently awarded him temporary custody of the children. In the interim the mother issued Hague Convention proceedings in the UK.  With the Hague proceedings the High Court in London warded the children and made orders for their return. In addition the application under the Hague Convention itself was transmitted by the central authority to a French court. In February 2009 a French court ordered the return of the children to the UK, finding that the January order of the French court did not negate the fact that the father had unlawfully retained the children in France contrary to the Hague Convention.

Between April 2009 and July 2010 the mother repeatedly sought to implement the order for the return of the children which had been made by the French court. Her attempts to do so however were unsuccessful because the French authorities refused to use the police or any other agency to execute the order. The mother eventually secured the return of one of the children by meeting him secretly at his request. The other child owing to the passage of time fell outside of the jurisdiction of the convention itself in January 2011.

The European Court of Human Rights followed its earlier jurisprudence on the Hague Convention. In particular it reiterated the importance of the positive obligations imposed on states by article 8 which require active steps to be taken to toward the reunification of children and parents. In this particular case the Court found that the French authorities had acted speedily and that the decision about summary return had been made by the French court within a commendably short period of time.   However the Court considered that coercive measures could have been taken against the father and in particular when it became apparent that the judgment was not going to be executed it was necessary to involve other agencies to secure enforcement. As such the Court concluded that the French authorities had not taken all of the measures they could reasonably be expected to take as a result of which the order for the return of the children was never properly executed. The Court found in violation of the right to respect for family life of the applicant and the children under article 8.

The decision clearly reiterates the now well-established rule that a failure to adhere to the fundamental principles of the Hague Convention can in and of itself give rise to breaches of the right to respect for family life which is protected by article 8 of the ECtHR. 

For an article which focuses on this decision, see Facilitating the Return of Abducted Children – the judgment of the European Court of Human Rights, by Esther Lieu and Adam Weiss. 

Same-sex Step Parent Adoption
X v Austria, decision of the Grand Chamber ECtHR, Application No 19010/07, 19th February 2013.
The applicants were a lesbian couple and the biological child of one of the women.  The non-biological mother applied to adopt her partner's child under the second parent adoption. Austrian law permitted second parent adoption by unmarried and married couples of the opposite sex only. The decision of the European Court is considered significant because previous applications concerning the right of gay and lesbian applicants to adopt had been made by single applicants (see Frette v France 2002].

In X the applicants complained that the exclusion of same-sex couples from second parent adoption was discriminatory and was thus in breach of article 14 of the ECHR when read in conjunction with article 8.  The Court considered that the applicants were treated differently from a heterosexual couple and the difference in treatment was to their detriment. In keeping with its jurisprudence the court requires the state to provide an objective and reasonable justification for the difference in treatment.

In considering whether article 14 had been breached the court reiterated that differences in treatment which are based on sexual orientation will require particularly serious and weighty justification. In the instant case the result was that the state was afforded only a narrow margin of appreciation. Applying a dynamic approach to the interpretation of the Convention led the Court to conclude that while there was no obligation on a state under article 8 to extend the right for second parent adoption, if that right was available within the state then it should be available to all persons regardless of their sexual orientation. The Court did not accept that it was appropriate to distinguish between eligibility of couples based on a desire to uphold a principle that adoption essentially aims to protect the 'traditional' and biological family.  The Court found that this was not a weighty and convincing reason because the law permitted second parent adoption by a heterosexual but unmarried couple. It therefore concluded that the law was discriminatory and in breach of article 14.

The case should be read essentially as an equality decision.  The Court did not conclude that article 8 requires the state to permit gay and lesbian applicants (be they single or partnered) to adopt. But it is clear that any distinction between applicants to adopt which is based on their sexual orientation is likely to breach article 14.  This is therefore a highly significant decision.

Establishing Paternity
Roman v Finland, Application no. 13072/05
, decision of 29th January 2013
This is one of a series of cases in which paternity legislation in Finland was considered by the Court.  The applicant was born out of wedlock and she was registered under her mother's maiden name. In 1956 her mother married and in 1961 the applicant's name was changed to that of her mother's husband (who was not the biological father). The applicant's mother and her husband had agreed that the biological father was not to be acknowledged or mentioned thereafter.

In 1976 the Paternity Act came into force and it required that paternity proceedings in respect of a child born before 1976 had to be initiated within 5 years and not later than October 1981.

In or around 2001 the applicant began to question her biological origins and on investigation she discovered church records which indicated that her biological father was not her mother's husband. In February 2003 the applicant initiated paternity proceedings in a Finnish court but her claim was dismissed as time-barred because she had failed to make it within the 5 year time limit set down by the legislation. An appeal against the decision based on the fact that she had not known until approximately 2001 that her mother's husband may not be her father was also unsuccessful. The appeal court considered that she had been an adult at the time the Act was passed and therefore in a position to make the application. In 2007 the applicant commissioned a DNA test which proved with 99.99% certainty that she was a child of her biological father. In 2008 her biological father died.

The applicant claimed that the decisions of the Finnish courts and the legislation   breached her right to respect for private life and in particular her right to know her biological identity under article 8.   The Government argued that the legislation was motivated by a strong desire to provide legal certainty and that the Act retrospectively protected the right to identity of children conceived before it came into force. 

While the Court accepted that the policy behind the Act pursued a legitimate aim it required the state to strike a fair balance between the general interest of the community as a whole and the applicant's need to understand her biological origins.   It was particularly struck by the consequence of the operation of the legislation, namely that a legal presumption had been allowed to prevail over biological and social reality.  The imposition of the rigid time limit to circumstances where the applicant had no possibility of pursuing an action under the Paternity Act owing to her lack of awareness of her own factual history 'impaired the very essence of the right to respect for one's private life under Article '8'.  The Court found that the Convention had been violated.

See also Laasko v Finland (application no 7361/05) decision of January 15th 2013, in which the Court found a violation of article 8 in similar circumstances. 

Re A (A Child) [2012] UKSC 60, decision of 12th December 2012
The appeal arose within private law proceedings concerning a child born in 2002.  The parents separated and the father returned to Australia to live.  He applied for contact with the child and an order was made in February 2009.

The appellant, X, had alleged in 2009 that she had been sexually abused as a child by the father.  The disclosure was made to adults she knew and subsequently to children's services at the local authority.  Social workers investigated and concluded that the allegations could be true.  The appellant wanted no further steps taken and did not want her identity to be revealed to anyone. 

In March 2010 the local authority informed the mother in the appeal that allegations had been made against the father by X.    The mother applied to vary the order as a result of the allegations.  The local authority was ordered to disclose the information it held regarding the allegations.  The local authority resisted because X wanted her identity to remain confidential and there was a risk of harm to her if her identity was revealed.    Evidence from a psychiatrist noted that there was a high risk of harm to X if she was required to give evidence and/or if her identity was revealed.

In the interim the mother and the child's guardian had discovered X's identity inadvertently. 

In the High Court Jackson J had refused to order disclosure of the local authority's records.  That decision was overturned on appeal.  X appealed to the Supreme Court.

The appellant relied on article 3 of the ECHR and argued that disclosure would subject her to inhuman and degrading treatment.  In the alternative she argued that the right to respect for private life under article 8 could be met by the court allowing a closed material procedure which could be tested by special advocate appointed to protect the parents' interests.

The Court considered the extent to which well established common law principles on disclosure set out in Re B (A Minor) (Disclosure of Evidence) [1993] Fam 142 are altered or informed by the Human Rights Act 1998.  Further the factual scenario in this case was whether disclosure could be restricted to protect the human rights of someone other than the subject child. 

An issue was whether the disclosure in and of itself could give rise to a breach of article 3 or whether the minimum level of severity required to cross the article 3 threshold would only occur if X was required to give evidence.    Jackson J had found only the latter would breach article 3.  In considering this argument the Court had regard to the ECtHR case law regarding the context in which treatment takes place and the impact of that on any analysis as to the consequent severity of suffering experienced by the victim.    The Court concluded that disclosure in the context of her being able to avail of high levels of medical and other professional support did not breach article 3.

The Court accepted that the disclosure would breach her right to respect for her private life but rejected the proposal that limited disclosure by means of the special advocate could ensure the interference with the competing rights of the father, mother and child was minimal.  The Court considered that the restriction which that would place on the fair trial rights of the father under article 6 did not merit such an unusual procedure.  It was not satisfied that the father could challenge the allegations via a special advocate in a way which would not reveal X's identity.   It concluded that the family life interests and associated fair trial rights of the father, mother and child in the case justified the interference with X's rights.