Convention rights in child relocation proceedings

It is fashionable nowadays in certain circles to knock the Human Rights Act 1998. In Re Y (Children) [2014] EWCA Civ 1287 Ryder LJ (with whom Longmore and Patten LJJ agreed) rejected an appeal by a father (F) who sought to relocate to the Missouri with his second wife (S), whose family were there. The judge had refused him permission. He had ‘residence’ (as we must now not call it) of the parties two children (aged 11 and 7) by consent. He and S had another child (C). The question arose as to whether the European Convention 1950 Art 8 rights (only, it seems) of that child arose in the proceedings.

Acting in person before the judge the father had argued that C’s Art 8 rights were engaged. Ryder J disagreed (though I do not say he specifically ‘knocked’ the 1998 Act):
[40] Ms Sparrow [appearing pro bono for the father] was right to be circumspect in relation to the Article 8 claim.  It is self-evident that in any application under the Children Act 1989 the Article 8 rights of the subject children and the parents are engaged and the court is a public body whose decisions may interfere with those rights.  On the facts of a particular case the application may engage the Article 8 rights of others, for example the father’s wife [S] and a non-subject child [C].
[41] Let me assume for the purposes of this discussion that on the facts of this case the youngest child [C]’s Article 8 rights were engaged.  Any interference with those rights has to be justified in accordance with Article 8(2).  The interference has to be, (1), in accordance with the law; (2) be necessary in a democratic society; and, (3), be proportionate to the object to be achieved.  Where a child’s Article 8 rights have to be balanced against an adult’s, the interests of the child will prevail.

Convention rights of all involved in the proceedings
In these two paragraphs Ryder LJ has reduced Convention rights engaged by the father’s application to C and to Art 8 only. It will be argued here that others, and their rights, are engaged by this case.

In cases such as this the starting point is often taken to be Re S (Identification: Restrictions on Publication) [2004] UKHL 47 – and this applies in any relevant family litigation – where Lord Steyn said:

[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. This is how I will approach the present case.

It is relevant to consider this passage for reasons which will emerge; for Ryder LJ proceeds as follows:

[43] … Parliament has provided a legislative mechanism for [a Children Act 1989 s 8 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.  Ms Sparrow 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.
Here I must respectfully part company from Ryder LJ; and I do so on Supreme Court and Court of Appeal authority, both of which he is bound by.

As between M and F in respect of F’s application relating to A and B, the children of the family: yes, Children Act 1989 has provided each of them with remedies and the opportunity for a trial of the issues between them. However, neither S nor C are parties to these proceedings. Yet in respect of M’s opposition to the plans of F and S with the three children in their household, neither S nor C have a trial at all, let alone a fair trial. This may be as it should be, and as Parliament intended; but does it in reality make Children Act 1989 Part 2 Human Rights Act 1998 compliant? Even if it does, it does not mean that a public body decision-maker – like a judge – can simply ignore their rights (as I understand Convention rights).

Human rights: Children Act 1989 Part 2

The leading recent case on the need for family courts to have European Convention 1950 issues in mind in Part 2 proceedings is A (A Child) [2013] EWCA Civ 1104 where the recalcitrance of a mother had prevented a father having contact with his daughter over a very long period of time. McFarlane LJ’s concludes the part of the judgment which deals with human rights as follows:

[63] On the question of quite when or how it is that the proceedings as a whole have been conducted in a manner that is in breach of the family life rights of M and her father it is neither right nor possible to do more than point to these matters as being of relevance. Again, in the context of the proceedings [below], there is no one occasion about which it is possible to say that a clear breach of any Art 6 or Art 8 procedural rights occurred. That said, and despite the goodwill and best intentions of the judge, the various officers of CAFCASS and NYAS and those agencies themselves, which I take as read, the resulting process cannot be regarded as a sound or timely procedure for determining the issues that the father had brought before the court in 2011.

Of a case involving a witness (‘X’) – that is a non-party like S in Re Y – in Re A (A Child) [2012] UKSC 60, Lady Hale defined the rights of those involved. This was contact proceedings where X had made serious allegations about the father of a little girl. Lady Hale said:

[25] It is common ground that several Convention rights are, or may be, in play in this case. There are the article 6 rights of all three parties to the proceedings, A, M and F, to have a fair trial in the determination of their civil rights. The right to a fair trial is absolute but the question of what is fair may depend upon the circumstances of the case. There are the article 8 rights of A, M and F to respect for their private and family lives. There is also the article 8 right of X to respect for her private life. Article 8 rights are qualified and can be interfered with if it is necessary in a democratic society in order to protect the rights of others.

H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 concerned whether or not a mother should be deported. Her three children were not directly in issue. Though the children were not a party to, nor the subject of, the proceedings – exactly like C – the court was concerned that their rights be recognised. Lord Kerr explained how this should be dealt with in practice: by identifying rights and then identifying whether the court was entitled to interfere with such rights:
[144] … As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests. It also ensures a structured approach to the application of article 8…. where a child’s interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open-ended inquiry can be avoided.

[145] Lady Hale (in para 14 above) has correctly described my statement in para 46 of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 as expressing more strongly than other members of the court the importance that should be attached to their best interests in reaching decisions that will affect children. In suggesting that these should be given a primacy of importance, I did not intend to stoke the debate about the distinction between “a factor of primary importance” and “the factor of primary importance”….

European Convention 1950 and child arrangements

With all due respect to Ryder LJ, I cannot see that in Children Act 1989 Part 2 proceedings (sometimes called ‘private law’) there is any difference than the states of affairs described above; and two of the cases involved were Part 2 proceedings.

All those affected by any decision-maker’s decision – whatever the public authority – have rights. Despite what Ryder LJ says at para [43] above, all decision-makers – social workers and judges included – must comply with their duties under Human Rights Act 1998. Where articles which are engaged by a decision conflict, they must be balanced with all children (whose interests may conflict) being taken into account. A proportionality test – is interference justified? – should be applied where Convention rights are to be interfered with. This applies to Children Act 1989 Part 2 as to any other decision-making.

The judges concerned in Re Y may have felt that the rights of S and C were vestigial; though I wonder if they really were? On these facts I would suggest they should have been in the balance and the court’s interference expressly justified.