EDUCATION AND TRAINING

Human Rights & Private Law: Is Re Y right?

A recent – at first blush, seemingly relatively innocuous – Court of Appeal decision to refuse an appeal by a “resident” Father against a decision to refuse him permission to relocate with his two boys (11 and 7), new wife and their daughter (2) to the USA has caused some understandable controversy and consternation among commentators.

The full judgment in Re Y (Children) (Removal from the Jurisdiction: Failure to Consider Family Segmentation) [2014] EWCA Civ 1287 can be read here.

The CA, and more precisely, Ryder LJ, made some sweeping – and many would no doubt find surprising – comments in respect of the Court’s obligations in respect of the ECHR Article 8 rights of parties in private law proceedings.

The appeal had been mounted on several grounds. These were mixed factual and legal challenges, it appears largely because the appellant Father was acting as a litigant in person at the permission hearing (although was represented by Counsel at the substantive appeal). Various grounds of appeal were refused and are not significant for these purposes.

The principle grounds of interest were the grounds upon which the Father was granted permission to appeal. They were twofold: First, that the Judge failed to give consideration to the potential break up of the family unit if the appeal were granted. The CA concluded on the evidence that the Judge had given sufficient consideration to this possibility and carried out a proper balance of harm exercise.

The second ground is set out below at para.36 of the Judgment:

[36]  The second ground of appeal is, of course, closely interwoven with the first, namely whether adequate consideration was given to the circumstances of the couple’s new child. Ms Sparrow, who appears today for the father, makes her own submissions with rather more care than did the father when he was in person but the essence is the same and is as follows: (a) that the impact on the couple’s new child should have included a more formal consideration of that child’s best interests, and (b) 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.

For most practitioners, this way in which this ground of appeal is pleaded may not appear particularly controversial. However, this is what Ryder LJ had to say about it (emphasis added):

[37]  This is a ground with mixed factual and legal considerations. As to the facts, the submission is dependent on the first ground; that is the extent to which the family unit might be fragmented. I have dealt with that. The case put in relation to the youngest child was no different on the facts from that put in relation to the two subject children: all would suffer from distress and indeed harm if there were to be a separation of the family unit.

[38]  It is trite law that a judge must have regard to all the circumstances of the case in coming to a welfare decision of this kind. He is mandated to do so by the factors set out in section 1(3) of the Children Act 1989. Those circumstances include a close consideration of the position of a non subject child who is part of the same family unit as the children whose welfare is being considered. That is not the same as elevating that child’s best interests to the point where a paramountcy determination has to be made about her such that the court balances the best interests of a non subject child with the best interests of the subject children. That is not the law and Ms Sparrow was careful not to suggest that it was.

[39]  The impact of the decision on the non subject child, like the impact of the decision on the family unit, is a fact and/or a value judgment of considerable importance. But that is where it rests. The authorities that father refers to are simply examples of the importance of sibling relationships within family units. Of course they are important but the interests of the non subject child are not a determinative legal question having regard to the best interests of the subject children.

[40]  Ms Sparrow 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 and a non subject child.

[41]  Let me assume for the purposes of this discussion that on the facts of this case the youngest child’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.

So far, so good. But then:

[42]  There is no suggestion that the 1989 Act, and in particular sections 1 and 8 and the principles extracted from them, are inconsistent with the Convention. Far from it. There is ample jurisprudence to support the proposition that domestic law, as applied by the judge in this case, is Article 8 compliant.

[43]  If that is the case, what does the submission made by Ms Sparrow amount to? It 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. 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.

[44]  In my judgment, there are no factual issues relating to the youngest child which provide sufficient complaint for a ground of appeal to be pursued, and the legal basis for that ground is either insubstantial or flawed and accordingly I would reject it.

It is this passage which may come as a surprise to many family lawyers and, the writer suggests, must be wrong. The comments cannot be said to be obiter as they are the Lord Justice’s reasons for refusing a pleaded ground of appeal. (Note: it is understood that there is not to be any further appeal of this decision to the Supreme Court).

Some of the comments and reasoning given by Ryder LJ could perhaps be open to interpretation: does he mean his comments to specifically relate only to the rights of the youngest child of the family, who was not subject to the proceedings? He appears to refer to her explicitly in paras 40 and 44, stating that the facts of a particular case may engage the Article 8 rights of other family members, and that that there are no factual issues here to give ground for complaint. But if that were so, why then go on to make such sweeping comments as he does in para. 43, which appear to apply to all private law applications?

Did Ryder LJ mean that in each private law case it is simply not normally necessary for the Court to demonstrate explicitly in its judgment that it has carried out the appropriate human rights balancing exercise in respect of the rights of all of the parties and the child, albeit that the exercise should undertaken? If so, why make the clear distinction between public law proceedings (in which we know that proportionality, particularly in the light of Re B [2013] UKSC 33, is so paramount) and private law proceedings which have no “public law consequences”?

If the authority is to be applied with general effect to so-called “private law” proceedings, it is submitted that it must be wrong for the following three principal reasons:

1. Ryder LJ has misconstrued the role of the Court as a public authority;
2. It is wrong to say that simply because the primary legislation – namely, the Children Act 1989 – is “human rights compliant”, then that is sufficient;
3. The “principle of horizontality” already applies and is in effect in family and many other areas of law.

Article 8 of the European Convention of Human Rights is a protected right in accordance with s.1 Human Rights Act 1998.

S.6 of the same act reads:

Acts of public authorities.

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if—

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section “public authority” includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

Article 8 ECHR:

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.

The “interference by a public authority” in private law proceedings comes from the Court making a decision – albeit in the light of “human rights compliant” legislation, previous decisions of the European Court of Human Rights and domestic case law – to impose upon the parties an order, or refusing to allow an application. It is a complete misstatement to say that “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”.

Once the Court is seized of an application, the Court becomes the public authority and must not act in a way which is incompatible with a Convention right. Any such interference must be “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” and, of course, proportionate. It is during the course of the Court’s decision-making process – it is submitted – that this exercise must be carried out.

Simply because the case does not have a public law consequence, does that mean that Article 6 – enshrining the parties’ right to a fair hearing – does not apply either?

Ryder LJ identifies that parliament has provided a legislative mechanism which is “human rights compliant”, and seems to suggest that therefore no further consideration of Convention compliance is required. If that were the case, why then does he accept that such consideration is required in public law cases? “Public law” cases which bring proceedings for safeguarding and placing children outside of their family of origin are not merely administrative acts taken by Local Authorities; they are applications brought before the Family Court pursuant to the relevant statutes – most commonly the Children Act 1989 and Adoption and Children Act 2002 – for determination by the Court. The primary legislation is “human rights compliant” in the same way that the relevant sections of the Children Act 1989 which relate to “private law” proceedings are.

It is submitted by the writer that there can be no distinction between the process of application by the Court of the relevant principles of the legislation to its decision-making based on whether the originating application was brought by a public authority, as in public law cases, or by a private individual, as in private law cases. Again, as set out above, the public authority then “interfering” with the parties’ Article 8 right is the Court, and its duties to act in a way which is complaint with the Convention remain the same.

Ryder LJ suggests that to apply Convention principles as between parties in private law is to “impose a concept of horizontality” in private law cases. “Vertical” direct effect is the doctrine that all acts of the State and its emanations (public authorities) must act in a way complaint with the Convention rights and European case law. “Horizontal” direct effect means to apply the same principle between private individuals when an issue between them is determined by the Court. It is submitted that such a principle already exists and is well-established in family law. The Article 8 rights to a family life which the Court balances in public law cases are not rights existing between the Local Authority on the one hand and the lay parties – parents, children and other family members – on the other; it is purely a balancing exercise between the rights of the family members, i.e. the “private” parties.

Campbell v Mirror Group Newspapers [2004] UKHL 22 held that “The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights.” Therefore, while plainly there could never be a free-standing claim for declaratory relief or for damages by one private party against another, when they have a proper claim in law – including pursuant to s.8 Children Act 1989 – the Court must act in a way which is compatible with both parties’ Convention rights, applying all the principles set out above.

There have been numerous cases already determined by the Family Court which do not necessarily involve public authorities, but which involve a weighing up of the competing Convention rights of the parties. The rights often in conflict are, of course, Article 8, but also commonly Article 6 (right to a fair trial) and Article 10 (right to freedom of expression).

The same must apply in this case. One can hardly imagine a case in which the Article 8 rights of all parties – and non-parties – are engaged more obviously than in applications to the Family Court for orders pursuant to the Children Act 1989. The same must be particularly so in the present case, in which the Court was required to consider all the circumstances of two families and an application for permission to relocate to another jurisdiction; every case must require a very careful balancing of all factors, including, it is submitted their rights to a family life.

As there is unlikely to be any appeal to the Supreme Court in the present case, it is unclear what effect this precedent will have. It would be a brave advocate who seeks to persuade a Judge in the light of this decision that the Court ought not to balance the parties’ Article 8 rights in a private law case. The writer suspects that it will not be too long before we have another CA decision which clarifies what Ryder LJ actually “meant to say”…

LAURA VICKERS

Barrister

No5 Chambers