Without getting too party
political in this piece, it is the policy of this current Government to revoke
the Human Rights Act 1998, and to replace it with a British Bill of Rights. We
don’t yet know what will be in that Bill of Rights. (The pedant in me says that when
that is passed it ought to be the British Act of Rights, otherwise we are going
to have a British Bill of Rights Bill and later a British Bill of Rights Act…)
I personally think that it is
a shame that the Conservatives don’t feel the sense of ownership and pride
about Human Rights that Labour feel about the NHS. The concept and design was
assembled by Winston Churchill, and Sir Maxwell Fyfe QC (one of the greatest
lawyers this country ever produced). But that’s by the by.
The purpose of this piece is
to think about what will happen to the law that we follow if the HRA is
The statutes themselves
aren’t a problem. The Children Act 1989 will remain the Children Act 1989, the
Adoption and Children Act 2002 will remain the Adoption and Children Act 2002
and the Children and Families Act 2014 will remain a crushing disappointment to
Given that so much of our
actual law derives from case law though, how easy is it going to be to work out
those decisions which would still stand, and those where the decision was
significantly affected by the Human Rights Act 1998 which will cease to have
I don’t like mayonnaise. My hatred and disgust
for mayonnaise knows no bounds, to be candid.
When I order a sandwich, I stress with great import and some venom that
mayonnaise should be no part of it.
Nonetheless, mayo sometimes creeps in. And if it is in there, the entire
sandwich is contaminated. You can’t carefully remove every trace of it the way
that you might be able to remove lettuce or slice tomato. It can’t be removed.
So, for important case law
decisions, is Human Rights a tomato, that can be removed and leaving the
decision (sandwich) intact, or is it mayonnaise that means that the whole
sandwich is ruined?
The atom-bomb solution is for
the British Bill of Rights Act to say that all case law between 1998 and the
enactment of the BBoRA (and I’m coining 'Barbara' for it RIGHT HERE, RIGHT NOW.
Shotgun) to be null and void.
That is going to involve a
LOT of re-litigation on things, so I doubt that this will be the approach.
Rather, it will be sifting through cases piecemeal, looking for tainted
I really don’t know whether
the approach of the Courts will be to assert the integrity of the original
decisions (many of which are the fundamental planks of modern child protection
law) or whether they will have to concede that those foundations built on Human
Rights need to be torn up and rebuilt.
What I do know is that there are going to be tricky arguments about all of
Let’s look at some of the big
Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075– Supreme Court on
adoption – the 'nothing else will do' case – the whole thrust of that case is
proportionality, Art 8 and ECHR case law.
Article 8 appears in the first 30 words of the case. There’s
more mayo than sandwich in that mix. So it goes, and that has a domino effect
on all of the cases decided subsequently with reference to it. Which means
every placement order, adoption order, leave to oppose case since 2013.
Perhaps the principles will
be restored by an early Court of Appeal case, or perhaps not. You might have a peculiar situation of people
dashing to get adoption cases decided before Barbara comes into force, since the Re B caselaw is helpful to
parents. You might also have situations where a judge makes a decision on Re B
principles, but is then appealed post Barbara.
Emergency Protection Order
X Council v B  EWHC 1622 (Fam), 1
FLR 482, the dominant case law on Emergency Protection
Orders, which raised the bar from a simple two line statutory test to a set of
fourteen principles – including (i) An
EPO, summarily removing a child from his parents, is a ‘draconian’ and
‘extremely harsh’ measure, requiring ‘exceptional justification’ and
‘extraordinarily compelling reasons’. Such an order should not be made unless
the FPC is satisfied that it is both necessary and proportionate and that no
other less radical form of order will achieve the essential end of promoting
the welfare of the child. Separation is only to be contemplated if immediate
separation is essential to secure the child’s safety: ‘imminent danger’ must be
is punctuated throughout by
references to article 6, article 8 and proportionality. It is a mayo sandwich.
All of the separation cases,
that moved from a simple two stage test of 'is threshold met?' and 'Is an ICO
better for the child than making no order' arose after the Human Rights Act,
and are heavily reliant on the principles of Art 8 and Art 6.
So, on day one of Barbara, what’s the test?
The legal framework that an
EPO or ICO should be the route for removal of a child save in situations where
it would be unsafe for a child to take that course, in which case Police
Protection powers can be used, is all developed from Langley v Liverpool City Council  EWCA Civ 1173,  1 FLR 342. And yes, Art 8 and Art 6 are
major players in that decision. All the
other cases that flow from that have at their heart, human rights.
The misuse of s 20 is a
major theme of the High Court over the last 3 years, and that all began
with Re CA (a baby)  EWHC 2190,  2 FLR 987 (Fam) All of the subsequent cases cite it and
rely upon it, or on each other.
Well, Re CA was a Human
Rights Act claim, so if there’s no HRA, the principles of the case are now in
Re CA put together really
valuable and important protections for parents about misuse of s 20 and
improper pressure – the later cases emphasised that s 20 should not be
used as a longer term measure to avoid Court.
society must be willing to tolerate very diverse
standards of parenting, including the eccentric, the barely adequate and the
inconsistent. It follows too that children will inevitably have both very
different experiences of parenting and very unequal consequences flowing from
it. It means that some children will experience disadvantage and harm, while
others flourish in atmospheres of loving security and emotional stability.
These are the consequences of our fallible humanity and it is not the
provenance of the state to spare children all the consequences of defective
parenting. In any event, it simply could not be done.
How many decided cases have
cited that authority? (Re B for one.)
But the very next paragraph
makes it problematic in a post Barbara world.
Such an approach is clearly consistent with Art 8 of
the European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950. Article 8(1) declares a right of privacy of family life but it
is not an unqualified right. Article 8(2) specifies circumstances in which the
state may lawfully infringe that right. In my judgment, Art 8(2) and s 31(2)
contemplate the exceptional rather than the commonplace. It would be unwise to
a degree to attempt an all embracing definition of significant harm. One never
ceases to be surprised at the extent of complication and difficulty that human
beings manage to introduce into family life. Significant harm is fact specific
and must retain the breadth of meaning that human fallibility may require of
it. Moreover, the court recognises, as Lord Nicholls of Birkenhead pointed out
in Re H and others that the threshold may be comparatively low. However, it is
clear that it must be something unusual; at least something more than the
commonplace human failure or inadequacy.
On even a quick run-through,
there are problems or uncertainties with:
When an EPO can
protection can be used
How and when
s 20 can be used
When an Interim
Care Order with a plan of separation can be made.
In case I’m being too subtle (not something I’ve
ever been accused of), that’s EVERY SINGLE ROUTE whereby a child moves out of
parents care, and every single protection and safeguard that is currently in
place in question.
I honestly don’t know how the
Courts will resolve these matters – it could easily be that an early test case
takes all of the authorities and decides that they stand, or that they fall.
But that’s the problem.
On day one of Barbara , babies are going to be born,
mother’s are going to be asked to sign section 20 documents, applications for
Interim Care Orders are going to be heard. But on what tests?
We need to have some idea of
what happens to the mayonnaise-affected case law, otherwise we could end up in