"Children and the Human Rights Act 1998"
Children and the Human Rights Act 1998 The First Six Months in England and Wales Andrew McFarlane QC One Kings Bench Walk Temple London Article 6: Right to a Fair Trial Rights of a McKenzie Friend to object to refusal to allow him to act Dr Pelling, ‘an experienced participant in family disputes’, sought judicial review of the decision of the judge at Bow County Court not to allow him to act as a McKenzie Friend. The QBD Ct dismissed the application, holding that a person seeking to act as a McKenzie Friend had neither the right to be present in chambers nor the right to impugn the exercise of judicial discretion to exclude him. In open court any party has the right to have a McKenzie Friend. Dr Pelling therefore had not locus standi to bring judicial review proceedings. Dr Pelling appealed to the Court of Appeal which, following Re G (above), dismissed the appeal. R v Bow County Court ex parte Pelling  2 FLR 1126 [CA] ECHR hold that current practice in children cases does not breach Art 6 In November 2000 the ECtHR heard the applications of Dr Pelling and Mr B claiming that the system for children cases in England and Wales breached Article 6 in that the hearing was not in public and did not result in public pronouncement of judgment. Mr B also complained that he was prevented from disclosing any part of the judgment to his parents (who had independently received worrying information contained in an affidavit in related proceedings) on pain of contempt proceedings (in breach of Article 10 – freedom of expression). On Mr B’s behalf it was argued that: - The correct approach should be that, on a case-by-case basis, the court asks the question: ‘is there a public interest in holding this hearing in private’ – if not, then the case should be conducted in public as a matter of course. The domestic court should consider two subsidiary questions: (1) is there a public interest in excluding the public and (2) if so, when and for how long (exclusion should not automatically be for the full hearing). - The provision in Article 6 requiring public judgment is unqualified within its own terms. - The exceptions permitted by Article 6, though they appear directly after reference to the right to have judgment pronounced publicly, are expressly limited to exclusion of the public from the “trial” and no more. - The margin of appreciation has only limited application and relates only to the method of publication and not the principle of whether judgment should be public. - It was accepted that the rights of the child and the mother should be balanced against the Art 6 rights. - The approach in England and Wales is in contrast to the more open rules of procedure applying in Scotland. The ECHR held [5 to 2] that there had been no breach of the Convention in the case of either applicant. It is not inconsistent with Art 6 for a State to designate an entire class of case as an exception to the general rule where it is considered necessary for one of the legitimate reasons contained in Art 6(1). The ability of the English court to exercise its discretion to hear a case in public was noted. With regard to hearing cases in chambers, it was held that if judgment were pronounced publicly that would to a large extent frustrate the aims of holding the proceedings in chambers. It was noted that anyone who can establish an interest may consult or obtain a copy of the full text of the orders and/or judgments of first instance courts in child residence cases. The UK judge, Sir Nicolas Bratza, delivered a separate, concurring, opinion on the issue of public pronouncement of judgments. He held that Art 6 should be interpreted in a manner which was consistent with the differently worded companion provision in Art 14 of the International Covenant on Civil and Political Rights. He also observed that to publish an anonymised version of the judgment would be unlikely to serve the aim of public scrutability of judicial proceedings. 1 B v UK and P v UK (Apps: 36337/97 and 35974/97) Judgment 24/4/01 for admissibility decision see: B v UK  2 FCR 97 Ex parte orders: HRA 1998 compatible? An ex parte order was made directing that a mother return her child to the jurisdiction. The mother sought to set the ex parte order aside on the basis that it had been made without notice to her and she had thus been deprived of a fair trail under ECHR, Art 6. The Court of Appeal held that, whilst it was certainly possible for there to be a breach of art 6 if no opportunity to challenge an ex parte order existed, but here (as in most cases) the mother had the opportunity to apply to the court to have the order set aside and to be heard at the substantive hearing. Re J (Abduction: Wrongful Removal)  1 FLR 78. Section 34(4): decision by LA after court leave is compatiable Wall J considered an appeal from Justices who had made an order under CA 1989, s 34(4) in care proceedings giving leave to the local authority to terminate contact between the children and their mother. As part of her appeal, the mother argued that, once the order had been made, the actual decision to terminate would be taken administratively by the local authority and she would have no meaningful remedy against it thereby breaching her rights under Arts 6 and 8. Wall J said that, while the 1989 Act had to be read and given effect in a way that was compatible with the Convention rights, it was for the English courts applying English criteria of fairness and justice to decide whether those rights have been breached. In the present case the care plan of adoption and no contact was both proportionate and correct in the circumstances. Wall J said that he would be disappointed if the Convention were to be routinely paraded in such cases as a makeweight ground of appeal, of if there were to be in every case extensive citation Strasbourg authorities, particularly where reliance was placed on pre CA 1989 cases. Re F (Care: Termination of Contact)  1 FLR 481 Department of Health “Consultancy Service Index” A former childcare worker was dismissed following allegations that he had sexually assaulted a foster child and his own children. His application for unfair dismissal, and subsequent appeal, failed. In 1997 the Department of Health informed him that his name was to be entered on the Consultancy Service Index, used to inform prospective employers of the suitability of candidates for work with children. His representations to the DOH did not prevent the inclusion of his name. He then applied for judicial review of the DOH, questioning the vires of the Index, and the procedure adopted. Richards J dismissed the application. It was not unlawful for the DOH to operate the index, notwithstanding that it had not been established under direct statutory powers. The DOH did not have to establish a tribunal to determine issues of fact before placing a name on the Index. There was no breach of ECHR, Art 6 (right to fair and public hearing). The Court of Appeal dismissed his appeal: maintaining the Index was not unlawful under the Common Law (future statutory authority would be provided by the Protection of Children Act 1999 – now in force from 5th June 2000). R v Secretary of State for Health ex parte C  1 FLR 1073 (QBD) R v Secretary of State for Health ex parte C  1 FLR 627 (CA) Judge should not hear case where there is a real danger, or possibility, of bias The Court of Appeal (Bingham CJ, Woolf MR and Scott VC) considered five unrelated civil appeals where the issue was the impartiality of the judge and the possibility of breach of Art 6 right to a fair trail. - A judge is automatically disqualified from hearing a case where the outcome of the case could realistically affect the judge’s interest. - A party may waive their right to object, but such a waiver must be clear and unequivocal. 2 - Rule should be that judge will be disqualified if on examination of all of the relevant circumstances the court concludes that there is a real danger (or possibility) of bias. - Where the judge is unaware of the allegedly disqualifying interest there would be no real danger of bias. Objection based on religion, gender, ethnic origin, age, class, means or sexual orientation are most unlikely to be sustained. Nor, ordinarily, could objection be soundly based on social or educational, service or employment history; membership of sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances; or previous receipt of instructions to act for or against a party; or membership of the same Inn, chambers, law society. Locabail (UK) Ltd v Bayfield Properties Ltd (and other cases)  UKHRR 300 See also Scottish ‘Temporary Sheriff’ case: Hugh Latta Starrs and Chalmers v Ruxton  1 UKHRR 78 Court of Appeal: ‘single judge’ not barred from sitting on subsequent hearing Where permission to appeal has been refused by a single Lord Justice, and a subsequent oral hearing takes place, the original single judge was not barred from taking part in the oral hearing. The practice, by which it was the norm for the single judge to be part of the court at the oral hearing, was not in breach of Article 6 ECHR. The single judge’s decision is a provisional decision and the subsequent oral hearing is not therefore an appeal against the earlier view. Khreino v Khreino  1 FLR 578. Section 91(14): limited access to court is compatible It was submitted that CA 1989, s 91(14) may infringe Article 6(1) by depriving the litigant of the right to a fair trial. The Court of Appeal dismissed this suggestion on the basis that the applicant is not denied access to the court. What he is denied is an immediate inter-partes hearing. Re P (Section 91(14) Guidelines) (Residence and Religious Heritage)  2 FLR 573 Joining non-PR father as adoption respondent to prevent later Art 6 claim The Court of Appeal upheld a judge’s decision joining a natural father as a respondent to an adoption application, notwithstanding the father’s unpromising history of lack of involvement and violence to the mother. Where there is a history of some, albeit transitory, involvement it wise for the court to ensure that at least the father has notice of the proceedings. It is better to give the father an opportunity to be heard rather than to store up potential Art 6 claims for the future. Re R (Adoption: Father’s Involvement)  1 FLR 302. sub nom: Re S (Adoption Proceedings: Joinder of Father)  1 FCR 158 When should a non-PR father be informed of adoption proceedings The President heard applications in two separate where the issue was whether the non-PR natural father should be informed of pending adoption proceedings. In the first case she directed that the LA should take steps to identify and consult the father, where he was the father of the mother’s eldest child, with whom he had contact, but the mother had concealed the subsequent pregnancy from him in order not to damage her relationship with him. It was held that he had established Art 8 ‘family life’ with the child. In the second case, The President directed that it was lawful for the LA to take no further steps to identify the father, where the mother wished to conceal the existence of the baby from him and from her own family, and her relationship between the father (during which they had been engaged but not cohabited) had totally ended. On the facts, the father had not established Art 8 ‘family life’ and thus no Art 6 rights to be considered. Not every natural father has an Art 8 right to respect for his family life with regard to every child of whom he may be the father. It is essentially a question of fact. As a matter of general principle, courts and LA’s should inform natural father’s of pending adoption proceedings unless, for good reason (eg history of rape or serious domestic violence), it was 3 inappropriate to do so. Whilst a mother’s desire for confidentiality would carry more weight in some cases, in the majority of cases it ought not to deprive the father of his right to be informed. Re H; Re G (Adoption: Consultation of Unmarried Fathers)  1 FLR 646 Example of case where natural father should not be informed of pending adoption Bodey J, having accepted that the general rule was that a natural father should be informed about adoption proceedings, held that the father should not be informed on the facts of the particular case which established that the father was a violent and dangerous man. There was corroboration of the mother’s allegations against the father. The father was unaware of the child’s existence. There was no established Art 8 family life rights with respect to the child as the parents had never had a meaningful relationship at any time relevant to the child’s birth. If the father did have family life, there was a strong case for saying the proposed interference was proportionate. Re M (Adoption: Rights of Natural Father)  1 FLR 745 Ancillary relief – equality of arms: provision within mps for legal costs Holman J made an order for maintenance pending suit to include £4,000 per month towards legal costs backdated to the date of discharge of the legal aid certificate. The argument in favour of making such an order was strengthened by consideration of Art 6 and the jurisprudence relating to equality of arms. A v A (Maintenance Pending Suit: Provision for Legal Fees)  1 FLR 377 Judgment summons to enforce ancillary relief order = Art 6 criminal proceedings The Court of Appeal held that although an application under the Debtors Act 1869 could originate in family proceedings, it was a procedure that subjected the respondent to the risk of criminal sanctions and consequently Art 6 applied in full. The respondent therefore had the right to a presumption of innocence, the right to the precise articulations of the charge to be met, adequate time to prepare a defence and a right to examine any evidence adduced in support of the summons. Murbarak v Murbarak  1 FCR 193 No breach of Art 6 where parents left to present their own case in care proceedings An appeal by parents was dismissed on the basis that the loss of legal representation on the first day of care proceedings (leaving them to present their own case) was not a breach of Art 6. The parents had had skilled legal advice in the preparation of the case and the judge had supported them at the final hearing. The judge, in refusing an adjournment, not only had a duty to the parents, but also to the children who were entitled to an early determination of their future. Re B and T (Care Proceedings: Legal Representation)  1 FLR 485 NB: an application in a case which is similar to Re B and T has been received by the ECHR and communicated to the UK government: P, C and S v UK. Father who delayed application to be made a party: no breach of ECHR A natural father without PR had been given notice of care proceedings, and had been encouraged by the court and the GAL at each directions hearing to seek legal representation. At the final directions hearing the father applied to be joined as a party, claiming that a refusal to join him was a breach of his rights under Arts 6 and 8. Connell J refused his application. Joining the father would delay the resolution of the care hearing. That aim was a legitimate and proportionate reason justifying denying his right of access to the court. Re P (Care Proceedings: Father’s Application to be Joined as Party)  1 FLR 781. Increased use of guardians for children in private law proceedings Contact proceedings were pending. The mother relied on allegations of sexual abuse of the child and his siblings. The mother approached NYAS who sought leave to intervene and to act as the child’s guardian ad litem. The judge refused the application and NYAS appealed. The Court of Appeal [President, Hale and Potter LJJ] allowed the appeal holding it was appropriate for the child to be separately represented in the light of the problems facing both parents, the allegations of sexual abuse, and the potential conflict of interests between the parents and the child. The HRA 1998 was likely to lead to an increased use of 4 guardians in private law proceedings. [nb the CAFCASS amendments to the FPR require the welfare officer to specifically consider separate representation]. In order to avoid any perception of bias resulting from the fact that NYAS had been brought in by the mother, the OS would be appointed to act as guardian ad litem. Re A (Contact: Separate Representation)  1 FLR 715 Article 8: Right to Respect for Family Life Welfare Welfare of the child is paramount: impact of the ECHR In the course of a leading decision on domestic violence and contact, The President considered submissions to the effect that the child’s welfare may not be the paramount consideration under ECHR Art 8. In the course of her judgment The President said: ‘Although a decision on the point in not yet strictly relevant, there was no failure, in my view, by the judge, under Article 8(1), to have proper respect for family life. Article 8(2) provides the crucial protection for the child, T, who also has rights and interests under the Convention (see Marckx v Belgium (1979) 2 EHRR 330; Hokkanen v Finland (1994) 19 EHRR 139). In Hendricks v Netherlands (1982) 5 EHRR 223 the Court held that where there was a serious conflict between the interests of a child and one of its parents which could only be resolved to the disadvantage of one of them, the interests of the child had to prevail under Article 8(2). The principle of the crucial importance of the best interests of the child has been upheld in all subsequent decisions of the European Court of Human Rights. The observation by the Court in Johansen v Norway (1996) 23 EHRR 33 is particularly apposite to this appeal. The Court said: ‘In particular … the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development.’ Re L; Re V; Re M; Re H (Contact: Domestic Violence)  2 FLR 334 Removal from jurisdiction: current approach compatible with ECHR In the Court of Appeal [Ward and Buxton LJ] considered an application to remove a child from the jurisdiction. Child was 10 months and mother was seeking to return to the USA to work as a musician, having been trained there. Ward LJ said: ‘The difficulty for the father in advancing his human rights argument is that, whereas Article 8 undoubtedly gives him and (the child) their right to family life, Article 8(1) also gives the mother a right to her private life. Article 8(2) requires the Court, not only to act in accordance with the law, but to bring into the balance those conflicting rights. It is necessary to have regard to the rights and freedoms of others. In this case, it is the right of the mother and her freedom to live her private life as she wishes and to have the freedom to work where reasonably she chooses to do so. Therefore, for my part, I can see no prospect of this court at this stage interfering with the established line of authority, which binds us at the moment … I am very doubtful indeed that matters will be any different in October when the Convention comes into force of law.’ Buxton LJ went on to consider the difference between: a. those cases under the ECHR where the ECtHR is considering a clash between a right to family life on the part of the family as a whole and a national, economic or political policy [eg Berrehab v The Netherlands  11 EHRR 322]; and b. the case (such as the present case) where the conflict is between the rights and interests of individual family members with respect to their family/private life. 5 Buxton LJ went to observe that the balance in the two classes of dispute is quite different: ‘I think it doubtful, and no case has been put before us to suggest otherwise, whether difficult balancing questions of that sort [(b) above] fall within the purview of the Convention at all. But one does not need to decide the point. The point is that the judge had asserted before him a series of rights, all of them family rights, all of them rights to family life, and all of them falling in principle under Article 8. In those circumstances, he had to balance out the interests of the parties, and, more particularly, the interests of the child in the way that he did.’ Re A (Permission to Remove Child from Jurisdiction: Human Rights)  2 FLR 225 ECHR does have ‘horizontal’ effect; ‘leave to remove’ approach is ECHR compatible The Court of Appeal [The President, Thorpe and Robert Walker LJJ] observed that the decision in Re A (above) was ‘obviously persuasive’ on the question of whether the well established approach to ‘leave to remove’ cases was compatible with the ECHR. Thorpe LJ went on to point to the applicant parent’s right to mobility which, in another case, might be said to be disproportionately restricted by the embargo on removal from the jurisdiction created by CA 1989, s 13(1)(b). Regarding the welfare of the child, Thorpe LJ said: ‘The acknowledgement of the child’s welfare as paramount must be common to most if not all judicial systems within the Council of Europe. It is of course enshrined in Article 3(1) of the UN Convention on the Rights of the Child. Accordingly the jurisprudence of the ECtHR inevitably recognises the paramountcy principle, albeit not expressed in the language of our domestic statute.’ The President confirmed that ECHR case law is in line with the principles set out in CA 1989, and the implementation of the HRA 1998 has not affected the principles the courts should apply in dealing with these difficult issues. Both The President and Thorpe LJ commented that the observations of Buxton LJ on the question of ‘horizontality’ seemed no longer sustainable in the light of the ECtHR approach in Glaser v UK  3 FCR 193 and in the light of Douglas, Zeta-Jones and Northern Shell plc v Hello plc (21/12/00). Payne v Payne  1 FCR 425 Residence application dismissed because of father’s homosexuality = breach The Lisbon Court of Appeal allowed a mother’s appeal and awarded custody to her having held that homosexuality was an abnormality and that the children should not grow up in the shadow of abnormal situation. The ECHR held that this approach was not acceptable under the Convention and did not reflect proportionality between the means and the objective. There had therefore been a breach of Art 8 taken in conjunction with Art 14. Salgueiro da Silva Mouta v Portugal  1 FCR 653. Contact Strasbourg decision: breach where contact denied without expert report An unmarried father had had contact to his son until the age of 5 years. Thereafter, contact was denied. The court refused to grant contact on the basis that the child and the mother were strongly opposed to it. The court did not obtain a psychological report, despite the ‘Youth Office’ recommending that this be done. The father’s appeal was dismissed without a hearing. The ECtHR held that there had been an unjustified violation of the father’s Art 8 rights. The combination of the lack of an expert report or a hearing before the appeal court revealed an insufficient involvement of the father in the decision making process. These factors also amounted to a breach of Art 6. Damages [DEM 35,000] and costs awarded. Elsholz v Germany  2 FLR 486 6 Strasbourg decision: UK not in breach regarding failure to enforce contact order A father complained that his Art 8 rights were breached by a failure of the English and Scottish courts to take adequate measures to enforce contact orders in the face of the mother’s persistent non-compliance. The ECtHR dismissed the application. The obligation on national authorities to take measures to facilitate contact was not absolute. In the present case there was an effective and coherent mechanism to enforce contact within the UK and between Scotland and England. The initiative in pursuing enforcement was primarily upon the father and not the state. Glaser v UK  1 FLR 153 Care Proceedings Strasbourg decision: need for proportionate approach to care proceedings A mother, K, who suffered from schizophrenia, had the care of one of her children, M (born 1988). She was married to T, who was not M’s father. K’s health fluctuated and at times she required compulsory admission to hospital. At other times her condition was well contained in the community. K became pregnant in late 1992. At that time there were concerns about the child M’s mental health. He was ‘accommodated’ with a view to placement in a children’s home. On the 18th June 1993, the mother gave birth to J, who was immediately removed from her care at the hospital and made the subject of ‘provisional public care’. The authorities also placed M under provisional public care at the same time. There then followed a process of care proceedings and long-term placement decisions. The applicants complained of violations of their Art 8 rights. The court approached the case on the basis that ‘consideration of what is in the best interests of the child is in every case of crucial importance’. The Court held that M was already in a safe environment at the children’s home, where he could be protected, and J was at the hospital where she could also be protected. In the circumstances the Court did not find that the care order was the only option for securing the safety of the children. Other measures should at least have been tried first. The Court also found that the reasons given and the methods used by the authorities were arbitrary and unjustified. The parents were given no chance of even beginning their family life with J and care proceedings for M could not be reasonably justified. The applicants were not informed of the decision in advance, even though the authorities had prepared the decisions well in advance. The reasons used to justify a care order were not sufficient and the methods used were excessive. Accordingly a breach of Art 8 was found (unanimously). The court also considered complaints about the authorities refusal to terminate the care orders and to consider reunification of the family: ‘In this regard a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development.’ The court was critical of the authority’s failure to provide access to the baby in the first days of life and failure to give any serious consideration to reunification, this latter failure, despite some evidence of improvement in the parent’s position, amounted to a lack of fair balance between the various interests involved so as to constitute a further breach of Art 8. K and T v Finland  2 FLR 79 7 Importance of full consideration at interim stage and proper use of interim orders In an appeal against the making of care orders with respect to two children, Hale LJ, describing the requirements of s 31 by using the language of the European Convention on Human Rights [ECHR], stressed the importance of full consideration being given to a case at early interim hearings. The brief facts of the case were that two very young children were the subjects of applications for care orders based upon findings in earlier proceedings relating to the parent’s care of their older children. The previous findings had apparently related to harm to the eldest child’s intellectual and social development, however the court dealing with the younger children was in difficulty in that there was no record of the findings in the earlier case. Following the birth of the eldest of the two babies, the court sought a s 37 report and as a result the local authority obtained an interim care order removing the child from her parents at the age of 10 months. The youngest child was removed shortly after birth under an emergency protection order and subsequent interim care orders. The interim hearings, whilst contested, were dealt with on submissions only, without any testing of the evidence. Based upon the history, the county court judge found that each of the babies was likely to suffer significant emotional harm, made care orders, together with orders permitting the termination of contact under CA 1989, s 34(4), and approved the local authority plan for their adoption. The judge also made an order under CA 1989, s 91(14), prohibiting the parents from applying for contact or to discharge the care order for a period of two years. The parents appealed to the Court of Appeal. Hale LJ observed that the evidence supporting any findings in the previous proceedings was not at anything approaching the most severe end of the scale. The most worrying parental behaviour related to a period when the mother suffered a mental breakdown, which was associated with a period of harassment from neighbours, a temporary break up in the parents relationship and burglaries at the family home. The principle of proportionality must be applied: ‘The principle has to be that the local authority works to support, and eventually reunite, the family, unless the risks are so high that the child’s welfare requires alternative family care.’ Referring to ECHR, Art 8, Hale LJ went on to observe: ‘Intervention in the family must be proportionate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child and their family is only justified by the overriding necessity of the interests of the child.’ The case was remitted for hearing before a High Court judge. Re C and B (Children) (Care Order: Future Harm)  2 FCR 614;  1 FLR 611. Is greater use of ICO required by HRA 1998? In March 2001 the Court of Appeal [Thorpe, Hale and Sedley LJJ] heard two related appeals against the making of a full care order in care proceedings. The court requested that the DOH be represented at the hearing. The appeals raise the question of whether or not the HRA causes a revision of the previous approach to the stage at which a full care order should be made. In addition the question of how a parent or a child in care can challenge the implementation of a care plan, once a full care order is made is under consideration. Judgment has been reserved and is expected before the summer vacation. 8 Limits on power of police and local authority to disclose information Mr LM owned a bus company. His contract with the LEA was terminated after police and the LA exchanged information relating to two unrelated and unproven allegations of past sexual abuse. LM sought a contract for school bus work with another LEA. The police and local authority refused to give an assurance that they would not disclose the information to the new LEA. Dyson J allowed LM’s applications for judicial review and quashed the decisions of the police and the LA. The principles governing the power of authorities to disclose relevant information were laid down in R v Chief Constable of North Wales Police ex parte Thorpe  2 FLR 571. Disclosure should only take place if there is a pressing social need and should be the exception and not the rule. In the absence in this case of real and cogent evidence of a pressing need, disclosure was irrational. R v Local Authority and Police Authority in the Midlands ex parte LM  1 FLR 612. Care Order or Supervision Order Criteria for choosing between a care or a supervision order Hale J reviewed the authorities: (a) the wide range of LA powers under CA 1989, Part III and Sch 2, coupled with CA 1989, s 1(5) meant that the court should begin with a preference for the less interventionist approach unless there are cogent reasons to the contrary; (b) care orders do not allow the court to assist in the ongoing care of the child, whereas a supervision order does permit the court to do so; (c) court should consider the LA duties under CA 1989, s 17, Sch 2 + s 22(3)(a) Hale J held that justices should, in the particular case, have been prepared at least to see the effect of supervision orders before going straight to the most Draconian order permitted under the CA 1989. Re O (Care or Supervision Order)  2 FLR 755 Care or supervision order Following her earlier decision of Re O (Care or Supervision Order)  2 FLR 755, Hale J has given further guidance upon the choice between the two orders. Where a local authority do not seek a full care order, whilst the court has power to force the more Draconian order upon them, the court should only make a care order if there are strong and cogent reasons for doing so. It is wrong to impose a care order simply in order to encourage the LA by placing statutory duties upon them. Where a child is to be placed at home, it should be remembered that Parliament intended the very serious step of removing a child from home only to occur when circumstances warranted it and normally via independent judicial authority, rather than as a result of a purely administrative decision. Oxfordshire County Council v L (Care or Supervision Order)  1 FLR 70 Not wise to rely on pre HRA 1998 authority on choice between care/supervision Hale LJ dismissed a LA appeal against the making of a supervision order where the child was to remain at home. A care order would have been too severe in three aspects: power to the LA to remove the child from parents without resort to the court, power of the LA to have PR and control and the long period of time for the discharge of any order. Cases decided before the HRA 1998 might not be appropriate to post-HRA care order applications and the LA were unwise to rely on earlier authorities. Any intervention of the state between parents and children should be proportionate to the legitimate aim for the protection of family life. Re O (A Child) (Supervision Order)  1 FCR 289 Adoption Adoption by unmarried father in order to exclude the mother not justified The mother of a child born after a brief relationship wished for the baby to be adopted and had no desire to have any contact with her. The father applied to adopt, and was supported by the mother and the LA. 9 The purpose of the adoption was to remove the mother’s parental responsibility. The OS opposed the application and recommended a residence order with ancillary orders restricting the mother’s exercise of PR. At first instance, Bracewell J granted the order on grounds of exceptional circumstances. On appeal (The President and Hale LJ) the decision was overturned. The permanent exclusion of the mother by this means was unjustified and disproportionate. A residence order was substituted with power to the father to apply for a passport, to take the child out of the jurisdiction without restriction, and an all encompassing CA 1989, s 91(14) order. The President also urged local authorities to make strenuous efforts to find natural fathers and inform them of adoption proceedings (see also Re H: Re G  Fam Law 175). B v P (Adoption by Unmarried Father)  2 FLR 717 – first instance Re B (Adoption by One Natural Parent to Exclusion of Other)  1 FLR 589 [NB: The House of Lords has given leave to appeal in this case] Mother’s wish that her family not be informed of birth upheld in adoption proceedings A mother, who had concealed her pregnancy from her family, did not wish the LA, GAL or court to inform the family about the child or to investigate placement within the family. The GAL sought guidance from the court. Holman J held that there was a strong social need for some mothers to make discreet, dignified and humane arrangements for their child without their family’s knowledge. There was no legal duty on the LA or others to inform the family. The court had no power to prevent the GAL from telling the relatives. In course of his judgment, Holman J accepted, for the purposes of argument, that Article 8 ‘family life’ existed between the child and the father or other close relatives following Marckx v Belgium (1979) 2 EHRR 330. [nb: this interpretation of ‘family life’ may be too generous. The existence of family life with respect to the extended family will depend on the facts of each case]. Z County Council v R  1 FLR 365 General Points Secure accommodation scheme is compatible with ECHR The Court of Appeal held that secure accommodation under CA 1989, s 25 was not incompatible with the ECHR and was justified under Art 5(1)(d) [educational supervision]. The court relied heavily upon the timely judgment of the ECtHR in Koniarska v UK (unreported 12/10/00) which declared inadmissible a similar challenge to the legality of s 25. Re K (Secure Accommodation Order: Right to Liberty)  1 FLR 526. Child in secure accommodation application entitled to the Art 6(3) basic rights A child appealled against an ICO and a secure accommodation order. The FPC had dispensed with service on the child’s solicitor (the GAL’s solicitor had been served). The child claimed that a secure accommodation order should be classed as a criminal charge for the purposes of Art 6 and that there had been a breach of Art 6(2)+(3). Johnson J dismissed the child’s appeal. The Court of Appeal held that dispensing with service had not, on the facts, been wrong. Thorpe LJ reject the submission that the proceedings involved a ‘criminal charge’ under Art 6. It is a protective jurisdiction and, under the ECHR, there is no entitlement to rights beyond Art 6(1). However, any child facing such proceedings, should be afforded the five specific minimum rights in Art 6(3). The court stressed the need to follow fair procedures in secure applications. Family specialists should advance ECHR submissions without the use of a second junior counsel. Re M (A Child) (Secure Accommodation)  EWCA Civ 458;  1 FCR 692 Citation of ECHR Case Law The President has issued a Practice Direction requiring that Strasbourg case law is cited in an authoritative and complete report. The court must be provided with copies of the reports either as part of 10 the bundle, or at least two days before the hearing. Copies of the original texts issued by the ECHR may be used (including copies downloaded from the internet HUDOC site). Practice Direction (HRA 1998: Citation of Authorities)  2 FLR 429 Andrew McFarlane QC One Kings Bench Walk, Temple, London 30th April 2001 Article 6 – Right to a fair trial 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicly would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b. to have adequate time and facilities for the preparation of his defence; c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free where the interests of justice so require; d. examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court. Article 8 – Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 11