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02 JUN 2015

View from the Foot of the Tower: Taking the mayonnaise out of the sandwich – what might happen if the Human Rights Act is revoked?

View from the Foot of the Tower: Taking the mayonnaise out of the sandwich – what might happen if the Human Rights Act is revoked?
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 revoked.

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 everyone.

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 effect?

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 mayonnaise.

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 it.

Let’s look at some of the big ones then.


Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 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 [2007] EWHC 1622 (Fam), [2008] 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 ‘actually established’.

is punctuated throughout by references to article 6, article 8 and proportionality. It is a mayo sandwich.

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Interim Care Order and separation

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?

Police protection

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 [2005] EWCA Civ 1173, [2006] 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.

Section 20

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) [2012] EWHC 2190, [2013] 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 question.

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.

All now under question.

And then there’s Re L.

Re L (Care: Threshold Criteria) [2007] EWHC 3527 (Fam), [2007] 1 FLR 2050 - My favourite authority.

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 be sought
  • When police 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 a Barbara-Ella.

[I’m here all week, try the chicken.]
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