Human Rights Act 1998 and family law in 2019

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Tories and European Convention 1950

 

Recent press comment has gone back to concerns about the Tories getting rid of Human Rights Act 1998 (if they ever find time with all their Brexit distractions): . What does this mean, in the context (mostly) of family law?

 

I would hate to see our Human Rights Act 1998 being repealed; but I do not wish to sound complacent. In many cases, repeal of the Act is little more than a cheap political gesture – ‘sound and fury signifying nothing’ (Macbeth); well, nothing very much. If the Tories repeal the Human Rights Act 1998 in its entirety, not an enormous amount would change in most cases where European Convention 1950 principles are cited.

 

Human rights law

 

English human rights law (which is a much wider subject than the 1998 Act) is permeated by three deep running seams:

 

  • (1) Human Rights Act 1998 itself
  • (2) European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘European Convention 1950’)
  • (3) Common law

 

If the Act goes, the vast majority of each of law represented by these seams will remain and will be treated as part of our common law. For a recent example, see discussion of the term ‘likely’ after American Cyanamid v Ethicon [1975] AC 396 and Human Rights Act 1998 s 12(3) on the question of interim (yes, Lord Hain, ‘interim) injunctions in ABC & Ors v Telegraph Media Group Ltd [2018] EWCA Civ 2329 (23 October 2018). An interim reporting restrictions injunction was granted to complainants to protect their identity in relation to confidentiality agreements which all concerned had signed in exchange for, in the case of the complainants, substantial damages.

 

European Convention 1950 is deep in the psyche of most judges and other practising lawyers. It will outlast even the most sustained assault by any politician. It was drafted by leading English common lawyers after the Second World War. It has had an ineradicable influence on our common law.

 

Privacy: a human rights law for all

 

The example which is always mentioned by lawyers as to the influence of European Convention 1950 jurisprudence is the modern law of privacy: see eg Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1 through Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 to the very recent Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) (18 July 2018), Mann J; mix in JK Rowling’s case for her son Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446,  [2008] 2 FLR 599, [2009] Ch 481 and you see how fundamental to our common law has been the influence of European Court of Human Rights law on our common law. That will not change; and it is likely that the developing tort of breach of privacy will survive any political attack on human rights.

 

But let it not be thought that this aspect of human rights law is just for ‘celebrities’ (whatever that word means). It is important for all of us. I act for a child who has just found out that her father has accessed, and has taken (without telling her), all her communications with solicitors who want to help her (‘hacked’ her computer?). He then produced the lot in court. That is a plain breach of respect for her private life by her father (European Convention 1950 Art 8); and it may deny her rights to a fair trial (Art 6: the emails contain material from solicitors instructed by her which are, on the face of it, covered by legal professional privilege).

 

Human rights and a ‘child’

 

A more public child rights case which shows the importance of balancing human rights principles is Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949 Munby J. This shows a judge who combines massive legal knowledge with very human principles and European Convention 1950. He applied thee to Angela Roddy’s wish to publicise her story about her treatment and that of her adopted child.

 

In 1999, when 12 years old, Angela became pregnant. In December 2003, when judgement was given, she was 17. Munby J ranged widely in his review of the law on competence of children following Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 and of the rights of a ‘child’ of Angela’s ag; but also balancing the Convention of Angela against those of the media and of members of Angela’s own family, of her adopted child and of the child’s family. Judicial analysis like that will survive any assault on Human Rights Act 1998. With or without a clear statute on human rights, the common law will continue to recognise that child’s rights (which, in themselves, are recognised by United Nations Convention on the Rights of the Child 1989).

 

‘Ultimate balancing test’ and human rights

 

In a variety of contexts the Lord Steyn ‘ultimate balance’ test in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 will survive. He explained freedom of the press (Art 10) in a case which crosses over from criminal law (a mother as on trial for her assault on a small child), to children law (the mother’s anonymity was in issue before the House of Lords: should it be protected to protect her child? No said Lord Steyn); and affects media law and freedom of expression, open justice principles and so on.

 

Lord Steyn explained how a court should balance, one against the other, Convention Articles which conflict in a particular case:

 

[17] … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test….

 

The value for all of us – adviser and judge alike – is of a set of factors to bear in mind (such as Articles in European Convention 1950: Arts 6, 8 and 10 in the case of Re S). And with those factors in mind the value of Lord Steyn’s balancing test cannot be overstated.

 

Even if you the politicians – legislature and executive alike – repeal the Human Rights Act 1998 the influence of European Convention 1950 running deep through the English common law will not go away. It is likely to survive the life-time even of the youngest reader of this post; and probably as long as the common law (ie the English High Court judiciary) lives on….

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One thought on “Human Rights Act 1998 and family law in 2019

  1. Reblogged this on | truthaholics and commented:
    The indelibility of the HRA 1988 and the ECHR, as part of the fabric of our common law by treaty obligations, represents red lines which politicians of all stripes should not cross, despite the rising tides of ethnocentricism welling up, because they exist to ensure that these human rights are not merely ‘theoretical and illusory’ but accessible ie, able to be engaged and secured in practice for the very citizens the law is meant to serve and deliver justice to.

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