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Family Law Week Email SubscriptionAlpha BiolabsCoram Chambers1 Garden Court

No need for human rights proportionality evaluation in private law children proceedings

Legislative mechanism for such decisions is ‘human rights compliant’

In Re Y (Children) [2014] EWCA Civ 1287 Lord Justice Ryder, in the Court of Appeal, has stated that it is neither necessary nor appropriate for the Family Court in ordinary private law applications where there are no public law consequences to undertake a separate human rights proportionality evaluation balancing the effects of the interference on each person's Article 8 rights so as to evaluate whether its decision is proportionate.

The Court had heard an appeal from the decision of a deputy circuit judge dismissing an application to permanently remove two children, age 11 and 7, from the jurisdiction. The father and the children's mother had separated in 2009, the father had been the primary carer, and in 2011 a residence order (as it then was) had been made in the father's favour. The father had remarried and he and his wife had had a third child, now aged 2. This youngest child was not the subject of any application before the court. The father's wife was from the USA and was said to be unhappily isolated in the UK. The father and his wife sought permission to move the two children permanently to the wife's home town in the USA as part of the family unit comprising the father, the father's wife, the two subject children and their young half-sibling. The subject children's mother had successfully opposed the father's application.

Ryder LJ found that the deputy circuit judge had not misdirected himself and had made his decision on the basis of a value judgement as he was entitled to do. The appeal was dismissed.

In respect of a submission that "the judge failed to consider the Article 8 ECHR rights of all of the children, i.e. including the child who is not the subject of the relocation application," (para 36) Ryder LJ held that the court was not required to undertake a proportionality assessment in private law children proceedings. That submission, it was said:

"[…] can only be an attempt to impose the concept of 'horizontality' into private law children cases where the agency of the state is not the principle actor seeking to interfere in the family or the private life of those concerned.  If that is right, the submission is misguided.  In private law applications it is a person with parental responsibility who seeks to interfere with the Article 8 rights of the other relevant persons, be they other adults with parental responsibility or the children themselves. Parliament has provided a legislative mechanism for such a decision that is human rights compliant.  It is neither necessary nor appropriate for the Family Court in ordinary private law applications where there are no public law consequences to undertake a separate human rights proportionality evaluation balancing the effects of the interference on each person's Article 8 rights so as to evaluate whether its decision is proportionate.  [Counsel for the father] could point to no jurisprudence to suggest otherwise.  That position is quite distinct from public law applications where such an evaluation is required by reason of the fact that a local authority applicant is a public authority seeking itself to interfere in the rights that are engaged." (para 43)

For the judgment and summary by Marlene Cayoun of 1 Garden Court Family Law Chambers, from which this news item is derived, please click here.

16/10/14