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Human rights and wrongs

In a series of case updates, we have considered Article 3 and Article 5 of the European Convention on Human Rights. We now look at two recent cases…

In a series of case updates, we have considered Article 3 and Article 5 of the European Convention on Human Rights (the Convention). We now look at two recent cases dealing respectively with Article 6 (right to a fair trial) and Article 8 (right to private and family life).

In RE N (A Child) [2019] EWCA Civ 1997, the appeal court was concerned with the findings of fact of the family court in relation to non-accidental injuries suffered by a two-year old girl. The judge had concluded that either the mother or her partner had caused the injuries and the non-perpetrating party had been aware of the other’s culpability. In the course of the hearing, the judge had been concerned about the mother’s cognitive functioning. After the hearing it was confirmed that the mother had problems with cognitive functioning. However, the judge refused the mother’s application for a rehearing. The mother successfully appealed and the Court of Appeal made the following findings:-

  • The mother was a vulnerable witness.
  • The Family Procedure Rules Part 3A contained specific provisions for vulnerable witnesses in order to ensure a fair trial. This included a requirement for a ‘ground rules hearing’ that had not happened in this case.
  • A wholesale failure to apply the Part 3 procedure to a vulnerable witness would make it ‘highly likely’ that the resulting trial will be judged unfair.
  • A ground rules hearing would have put in place special measures to allow the mother to give her best evidence (to include the benefit of an Intermediary).
  • The mother’s Article 6 rights were therefore not protected and she did not have a fair trial.

The local authority argued that the judge had been alive to the mother’s difficulties, had done all she could to ameliorate them and that there was nothing to suggest that a rehearing would lead to any different outcome. However, the court confirmed that this was “not the point”. The mother stood to lose both her children and her right to Article 6 protection was absolute. She had been “deprived of the detailed and rule-based assistance to which she was entitled as a vulnerable witness”. There was therefore a fundamental breach of her Article 6 rights and she was denied a fair trial.

In RE G (Children) [2019] EWCA Civ 1779, the Court of Appeal was again concerned with a decision of the family court. The mother had a number of children placed with her at home but under care orders. The local authority subsequently gave notice that it intended to remove the children. To prevent this, the mother applied to discharge the care order.

A judge gave directions for a hearing and in the interim made an injunction under s.8 of the HRA 1998 to prevent their removal. At the subsequent hearing, the judge was concerned that the case was not ready for determination. She found that (i) there had not been sufficient deterioration to warrant removal of the children, (ii) she did not have jurisdiction to continue the injunction order under the 1998 Act and (iii) whilst the children were still at risk in the mother’s care, the care order should be discharged.  

The local authority successfully appealed. In short, the judge was wrong that the injunctive power was only available to the High Court. The power to grant relief under HRA may be exercised by all courts since, under s.6(3), all courts are “public authorities”. It was well-established that the court has the power, in appropriate circumstances, to grant injunctions under HRA in the course of care proceedings to prevent a local authority unlawfully interfering with Article 8 rights.

As our series of updates confirm, Convention rights and the scope for their protection domestically under HRA remain a central plank of our law, whether as the primary basis of a cause of action against a public body or to underscore the manner in which cases are conducted by the court. 

If you have any questions or would like to more know about our update, please contact Peter Wake, Partner, on 0151 242 6866, or peter.wake@weightmans.com.

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