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the article 8 right is to family life, not a happy family life

Posted on May 5, 2014 by suesspiciousminds

 

Another case involving unregulated artificial conception of a child, and the difficulty in resolving the fall out afterwards

 

L v C 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1280.html

 

L and C were a same sex female couple. L was English, C Irish. They decided to have a baby together, and a male donor was found. C conceived and had a baby, G.   G was born in October 2013.

Between August and December 2013, L and C lived together in England, and from Oct-Dec 2013 they shared in the care of G.  They then split up, rather acrimoniously. C took G back to Ireland to live, and L has not seen her since.  L made an application in the English Courts – believing that she would have no rights to make any applications in Ireland.

 

    • For permission to apply for a residence order and a contact order under the Children Act 1989.

 

 

  • For declarations that at the point of G’s departure from England, L v C was acting as her ‘psychological parent’ and that they shared family life within the meaning of Article 8 of the European Convention on Human Rights

 

Before the Court could hear the application on residence and contact, they had to consider jurisdiction. At the time the application was issued, G was back in Ireland with C, her biological mother.

 

  • Jurisdiction in respect of the Children Act application falls under the Family Law Act 1986 and the Council Regulation (EC) No. 2201/2003 (‘Brussels II Revised’ or ‘BIIR’) which, as its title states, concerns among other things ‘matters of parental responsibility’.

 

 

 

 

  • The effect of this regime is that this court will only have jurisdiction to entertain the application if G was habitually resident here on 25 February: Family Law Act 1986 ss. 2 and 3 and Arts. 8 and 16 BIIR.

 

 

 

 

  • If the court concludes that it does not have jurisdiction, and that the Irish court does, it must declare that it has no jurisdiction: Art. 17 BIIR.

 

 

 

 

  • If G’s place of habitual residence cannot be established, the Irish court will have jurisdiction on the basis that she is present there: Art. 13 BIIR.

 

 

 

 

  • The meaning of habitual residence has been considered by the European Court of Justice, by the Supreme Court and by the Court of Appeal.

 

 

 

 

  • In Re A (Jurisdiction: Return of Child) [2013] UKSC 60, the Supreme Court reviewed the European decisions in the cases of Re A (Area of Freedom, Security and Justice) (Case C-523/07) CJEU and Mercredi v Chaffe (Case C-497/10) CJEU. Baroness Hale, summarising at [54], emphasised that habitual residence is a question of fact and not a legal concept. The test is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends on numerous factors. The environment of an infant or young child is shared with those upon whom she is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

 

 

 

 

  • In Mercredi v Chaffe the European Court referred to the factors that must be taken into consideration as including, first, the duration, regularity, conditions and reasons for the child’s stay in the State in question and for the mother’s move there and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections that the mother and child have with that State.

 

 

 

 

  • The facts of the Supreme Court case of Re A are not at all similar to the present case. However, the facts of Mercredi v Chaffe are. A French mother and a British father cohabited until five days after the birth of the child. The father did not have parental responsibility. When the child was two months old, the mother unilaterally took him overseas. The father began proceedings in England and the mother began proceedings in France. Following the reference to the European Court, the Court of Appeal (at [2011] EWCA 272) held that the removal of the child had been lawful, that the English court’s jurisdiction was at best doubtful and in any event should not have been exercised in competition with that of the French court.

 


 

  • Applying the guidance to be found in these decisions, I find that when L v C’s proceedings were issued G was not habitually resident in England and Wales:

 

 

 

    • G had by then been living in Ireland for over seven weeks, a significant period for a baby then aged four months.

 


    • She was dependent on her mother, who was then habitually resident in Ireland, to which she had returned with the intention of remaining permanently and where she has deep, longstanding family and social connections.

 

 

  • G’s removal to Ireland by Ms C was lawful, a fact conceded by L v C.

 

 

  • I reach this conclusion despite accepting that:

 

 

 

    • Ms C was quite possibly habitually resident in England between August 2013 and G’s removal. (For what it is worth, the facts do not appear to sustain her argument that this four-month period of residence in England was the result of duress. Duress requires a complete overbearing of the will: see Re T [2010] EWHC 3177 (Fam) at [31]. That is not alleged here.)


    • G had not been outside England for the first 11 weeks of her life and was very likely habitually resident here during that period.

 

 

    • L v C has been habitually resident in England throughout.

 


    • L v C had had full parental involvement in G’s life up to the point of her removal.

 

 

 

  • In accordance with Art. 17 BIIR, I must therefore declare that this court has no jurisdiction in relation to matters of parental responsibility concerning G

 

Because G was not habitually resident in England at the time of the application and had not been unlawfully removed, the Court had no jurisdiction on residence or contact.  (I think that where the judgment says “L v C” it means “L” and this has been some sort of find-and-replace snafu in anonymising the document)

 

That left the issue of whether L had acquired family life (and thus article 8 rights) with G in the period between October-December 2013.

 

There was firstly the argument about jurisdiction to consider – C was arguing that as all matters regarding G ought to be dealt with in the Irish Courts, the English court should stay out of this.

Ms Guha argues that the court does not have carte blanche to consider L v C application. She raises two objections. The first (which I shall call the ‘territorial’ objection) is a submission that the court cannot interfere in matters that are properly within the province of the Irish courts. The second (the ‘procedural’ objection) is that the court cannot make a free-standing declaration of human rights in the absence of substantive proceedings concerning the child. Ms Guha further argues that even if jurisdiction exists it should not be exercised in the circumstances of the case, and that if the court was considering doing so it would need to hear oral evidence.

 

On the ‘territorial’ argument, the Judge found against C

 

  • What is at issue here is the competence of this court to rule upon a specific situation that existed in England in respect of a child who had never lived anywhere else, involving the nationals of two contracting states, one of them English and all of them resident in England at the material time. As to the existence of an alternative forum, I entirely accept that this court should not trespass upon matters that would fall within the territorial jurisdiction of the Irish court. For example it would, as I have already held, be improper for this court to make orders about future arrangements for the child. But I do not accept that the declaration that is being sought would encroach upon the Irish court’s territorial jurisdiction. In fact there is as yet no indication that there will be proceedings in Ireland, that jurisdiction not having been invoked by either party at this point. And even if proceedings were taken in Ireland, their central focus would be on the child’s actual situation and not upon declarations as to past events. Nor do I accept that the issue of Art. 8 rights can only be determined by a court considering substantive remedies relating to the child. As discussed below, I would hold the question of whether such rights existed to be independently justiciable.

 

 

 

 

  • In the circumstances, while I understand the logic of Ms Guha’s objection, I would hold that there is no territorial obstacle to L v C’s application for a declaration being considered by this court.

 

 

That left the ‘procedural’ argument, that the Court could not consider article 8 rights purely in isolation with no substantive application. The Court was more sympathetic on that, but found against C

 

  • I turn then to Ms Guha’s ‘procedural’ argument. This is that the court cannot make a free-standing declaration of human rights in the absence of substantive proceedings. The argument is based upon s.7(1) of the Human Rights Act, which provides that a person who claims that a public authority has acted (or proposes to act) unlawfully may bring proceedings against the authority under the Act in the appropriate court or tribunal, or rely on the Convention right in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. It is argued that L v C’s application falls outside the ambit of s.7 because she is not claiming unlawfulness by a public authority, nor relying on her Convention rights in any substantive proceedings.

 

 

 

 

  • The relief L v C actually seeks is a free-standing declaration as to her Art. 8 rights. This is not a claim falling within s.7 of the Act, even though her claim has on a number of occasions been described as being brought ‘under the Human Rights Act’. Likewise, Ms Markham has suggested that the court could invoke its inherent jurisdiction to enable it to hear the application. In my view, recourse to the inherent jurisdiction would not add anything of substance. Lastly, the suggestion that the application for a declaration might gain a sound jurisdictional foundation as a result of being made alongside the ill-founded Children Act application cannot be right.

 

 

 

 

  • I therefore have some sympathy for Ms Guha in having had to respond to these distractions from the main point: that is whether a free-standing declaration as to human rights is possible or whether s.7 prevents this.

 

 

 

 

  • It is true that the Human Rights Act is normally deployed to challenge allegedly unlawful acts by public authorities (s.6) by making the claim within judicial proceedings (s.7) for a specific remedy (s.8). This provides a route for the enforcement of Convention rights, but it does not provide a statutory route by which their existence can simply be asserted in an appropriate case.

 

 

 

 

  • The whole tenor of the Human Rights Act is the protection of Convention rights domestically. There being nothing explicit within the Act to state that declarations cannot be granted in the absence of proceedings brought under s.7, there is no good reason to infer such a restriction. (I would add that I do not find that s.11, entitled ‘Safeguard for existing human rights’, assists on this issue. Its purpose is not procedural in relation to Convention rights but protective of rights arising outside the Convention.)

 

 

 

 

  • My overall conclusion is that the terms of the Act do not exclude the court’s power to make free-standing declarations as to Convention rights in appropriate cases and that such an application can be approached in the same manner as any other application for a declaration.

 

 

 

 

  • Rule 40 of the Civil Procedure Rules 1998 provides that the court may make a binding declaration whether or not any other remedy is claimed, or can be claimed. As stated in Financial Services Authority v Rourke [2002] C.P. Rep. 14 (Neuberger J), the power to make declarations is discretionary. The court can grant a declaration as to their rights, or as to the existence of facts or as to a principle of law. When considering whether to grant a declaration, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why the court should or should not grant the declaration.

 

 

  • Standing back, a conclusion that this court is impotent to make human rights declarations arising from past events occurring within its territorial jurisdiction would to my mind be capable of leading to a denial of justice. This casts doubt upon the correctness of such a conclusion.

 

 

 

 

  • For the above reasons, I would therefore hold that this court has procedural jurisdiction to entertain L v C’s application for a free-standing declaration.

 

 

All that this means is that the Court could legitimately consider L’s application for a declaration that she and G had family life, not that it had agreed that she had.  That comes next

 

 

  • The first matter of relevance to the question of justice to the parties and to G is the degree of cogency of L v C’s argument in favour of her family rights. As to that, it is to be noted that there is no precise definition of ‘family life’ in Convention case law. It is a question of fact and one of substance, not form. There need to be close personal ties but these need not yet be fully developed provided there is potential for them to develop. There is no pre-determined model and family life must be interpreted in the light of modern trends. (See Clayton and Tomlinson ‘The Law of Human Rights’ 2nd ed. 13.04 -13.06). With less conventional family structures, the courts have taken a broad purposive approach. So it was held that a family relationship did exist in X, Y and Z v UK 1997 24 EHRR 143 between a woman, her female-to-male transsexual partner and the child she had conceived by artificial insemination. The court emphasised that the notion of family life is not confined to families based on marriage and can depend on a number of factors including whether the couple lived together and whether they demonstrated their commitment to each other by having children or by any other means (see Clayton and Tomlinson at 13.134 and 13.145 and Lester, Pannick and Herberg ‘Human Rights Law and Practice’, 3rd Ed. at 4.8.49).

 

 

 

 

  • Applying these principles to the present case, L v C’s claim that family life existed is a compelling one. A balancing of these rights against the Art. 8 rights of Ms C and G is not a precondition to determining the rights of L v C. The fact that all such rights are qualified and would have to be balanced against each other in any welfare determination should not be confused with the question of whether they exist in the first place.

 

 

 

 

  • I next consider the question of fairness to Ms C and to G. Ms C undoubtedly dislikes any recognition of L v C’s role, saying hyperbolically that ‘she destroyed my and my baby’s family life’, but this does not translate into any unfairness towards her arising from the court evaluating the circumstances objectively. G’s own position is of great importance and in my view fairness to her calls for the circumstances of her conception and neonatal period to be reflected as accurately as possible amidst the adult discord.

 

 

 

 

  • This is also relevant to the question of whether a declaration would serve a useful purpose. There are two ways in which it might: first, as an objective contribution to G’s future wellbeing, and secondly as a record that may be useful to any other court considering her situation. Ms Guha argues that such a declaration would be meaningless in isolation from substantive proceedings in respect of the child. I accept that this might be the case, but it equally might not and I cannot see any detriment arising from the existence of an accurate declaration, any more than it would arise from an accurate judgment.

 

 

 

 

  • In the course of her argument, Ms Markham submitted that one reason why a declaration should be granted is that there would otherwise be a lacuna in English law in failing to protect L v C’s rights, and that there is positive obligation on the State to remedy this. I am not influenced by this argument. There is in my view no such gap in the law. Had the matter come before the court at a time when G remained in England, there are a number of legal remedies that might have been available to L v C, whether or not she had the support of Ms C. Nor can it persuasively be said that the law is failing in its treatment of the non-biological partner (male or female) of a biological parent who conceives as a result of informal arrangements. There would be many difficulties in seeking to equalise the legal consequences of licensed and unlicensed arrangements, fuller consideration of this issue being far beyond the scope of this judgment.

 

 

 

 

  • The international element is undoubtedly a special feature of the case, but I do not find that it provides a reason for declining to make a declaration. As stated above, the matter arises from events in England. It has been capably argued before this court, and there are no existing proceedings in Ireland. The limited nature of the declaration in question would not trespass on any potential Irish proceedings, and might even assist if there were any. It is said on Ms C’s behalf that an alternative legal remedy is available to L v C in the Irish courts, but this rests on the doubtful assumption that she has the emotional and financial resources to pursue that course in practice.

 

 

 

 

  • I do not consider that oral evidence is required to enable a decision to be reached in this matter. There is a mass of written material from which the picture is clear in all material respects. Both women speak of unhappy features of their relationship and ascribe responsibility for them to the other. But given the extent of the agreed facts, this difference in perception cannot colour the question of whether family life existed. What is in issue is the existence of family life, not the existence of happy family life, nor the reasons for unhappiness.

 

 

 

 

  • Drawing all these matters together, I shall refuse L v C’s applications except to the extent that I declare that at the date of G’s removal from England on 3 January 2014 family life within the meaning of Article 8 of the European Convention on Human Rights existed between G and L v C.

 

 

It is another important example that if you are in a situation where a child is being concieved by non-traditional means, you should think long and hard about how everyone involved feels about it, what they want, whether they should play a role in the care of the child, whether they should have parental responsibility, how legally you would acquire that, and what might happen if your non-nuclear family breaks up at some point in the future.

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Jumping the gun

Posted on February 14, 2013 by suesspiciousminds

A consideration of the High Court decision in Re RCW v A Local Authority 2012 , and the need to be very careful when making decisions to remove a child from prospective adopters

 

 

There is an excellent summary and discussion of the case at Family Lore, and is actually so good that I nearly didn’t write this piece, but I thought I might be able to find something fresh to say, even if it won’t be so pithy.

 

http://www.familylore.co.uk/2013/02/rcw-v-local-authority-unusual-and.html

 

 

 

In essence, it related to a challenge by a woman who had been intending to adopt a child. The child had been with her for 10 weeks (this being the exact period of time that the child would need to be placed with prospective adopters before the formal adoption application could be lodged) and then the carer had an operation, having slightly earlier been diagnosed as having a brain tumour, and that operation tragically left her without sight.

 

The LA decided that they would wish to remove the child from her care. As a matter of strict law, prior to the prospective adopter making an application for adoption, they believed that they were able to do so.

 

The timing was very tight – the carer lodged her application for adoption, and on the same day received a letter from the LA indicating that they proposed to move the child.  (The LA decision therefore pre-dated, though only just, the carer applying for an adoption order)

 

 

[The removal is under s35(2) of the Adoption and Children Act 2002

 

  1. Section 35(2) of the ACA 2002 provides that:

“Where a child is placed for adoption by an adoption agency, and the agency –

(a) Is of the opinion that the child should not remain with the prospective adopters, and

(b) gives notice to them of its opinion

The prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency”.

 

 

And the provision which protects a carer who has LODGED an adoption application is s35(5) of the same Act

 

  1. Section 35(5) provides:

“Where –

(a) an adoption agency gives notice under subsection (2) in respect of a child,

(b) before the notice was given, an application for an adoption order … was made in respect of the child, and

(c) the application (…) has not been disposed of

Prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders.”

 

And the timing here was so critical that it might be said that the adoption application was after the s35(2) decision to remove, so there was not necessarily protection under s35(5)

 

Hence the prospective adopter seeking an injunction under the Human Rights Act to prevent them removing the child, which was the only avenue open to her.

 

She had not been involved in any discussions or meetings with the Local Authority about this change of plan, which of course came at a god awful time for the woman; she learning of it on the day of her discharge from hospital.

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/235.html

 

 

The Judge, Mr Justice Cobb, you will be pleased to hear (unless you are a reader from the LA in question, in which case sorry to rub salt in the wounds) granted the injunction, preventing the LA from removing the child, and was critical of the decision-making process.

 

 

The Judge concluded additionally, that the carer had the shield of section 35 (5) of the Adoption and Children Act 2002, principally because the notice has to be in writing, so although she had been told in a telephone call that the LA proposed to remove BEFORE her adoption application had been lodged, the written notice came AFTER.  Her prompt action in lodging the application got her that protection.

 

But the Judge went further, and said that regardless of the timing and sequence of events, the process by which the LA reached their decision to give notice of their intention to remove under s35(2) was flawed

 

 

  1. A decision to remove a child who has been placed with prospective adopters is a momentous one. It has to be a solidly welfare-based decision, and it must be reached fairly. LBX discussed its plans to remove SB from the care of RCW at two meetings referred to in the chronology above; the decision was made on 30 January 2013 and communicated to RCW shortly thereafter by telephone. I have not yet seen the minutes of the planning meetings at which the decision to remove SB was made (it has been indicated that Mr M’s notes can be made available forthwith, and they should be). But it is difficult to identify on what material LBX could truly contend that it had reached a proper welfare-based evaluation; there had been limited direct observation and assessment by that time, no apparent discussions with the friends and supporters, and little knowledge of RCW’s condition or, more pertinently, its likely prognosis.
  1. I do not believe that RCW was invited to either of the meetings at which the future placement of SB was discussed (indeed, she was still in hospital at the time of the first meeting). There is nothing in the statements before me which indicates that RCW’s specific views about her ability to care for SB for the future, her support network, or the impact of her condition on her life were sought or obtained; it does not appear that RCW was given any opportunity to make representations at the meeting.
  1. On the information before me I am satisfied that LBX failed to give RCW a full and informed opportunity to address its concerns about the future care arrangements for SB. In this respect, LBX had acted in breach of the procedural rights guaranteed by Article 8 and Article 6, and of the common law principle of fairness.
  1. LBX’s difficulties in defending its decision on fairness grounds are substantially compounded by its acknowledgement that when reaching its decision to remove SB it did not know (and does not know) whether RCW’s visual impairment is temporary or permanent. If the disability proves to be temporary, and RCW is able to resume her life as she led it prior to 8 January 2013, LBX would have no basis for intervening in the care arrangements.

 

 

 

The argument of course, would be that had the carer been involved in the process and her views and position taken into account, that she may well have been able to advance a plan for caring for the child which would meet the child’s needs, notwithstanding her visual impairment; and that the LA had effectively jumped the gun in just unilaterally deciding that if she was sightless she could not care for the child.

 

  1. Visual impairment does not of itself disqualify an adult from being a capable loving parent. In my judgment, the ability for RCW to provide good emotional care for SB (probably with support) needs to be properly assessed. It was not fairly assessed on 24 January 2013 when the social worker visited RCW’s home so soon after RCW’s discharge from hospital. LBX can only point to one example (from the visit on that day) where they maintain that SB’s needs were not being met.
  1. I do not accept that this observation necessarily supports the proposition that RCW is unable to meet SB’s needs; even if it did, it would be grossly unfair to make any judgment about the long-term ability of RCW to meet the needs of SB on the basis of an assessment made on the day on which RCW left hospital and returned home. One can only imagine the tumult of emotions which RCW must have been feeling on that day – joy and relief to be home and with SB; sickening anxiety and possibly despair at her new disability.
  1. In my judgment, LBX’s decision to remove SB was reached on an incomplete assessment of the current situation, and in a manner which was unfair to RCW. I stop short of finding that the assumptions which the authority has made about parenting by a carer who is blind are discriminatory, but in ruling RCW out as a prospective carer so summarily, LBX has shown a worrying lack of enquiry into the condition or the potential for good care offered by a visually impaired parent.

 

Of course, the very agency which was to provide this carer with support and assistance as a result of her new-found disability was the Local Authority, albeit under different legislation, and rather than getting together with such supportive provisions to see what could be done to preserve the situation and allow the carer to care for the child, the LA had reached the decision that the child could not remain there.

 

 

The Court referred to the earlier decision of Mr Justice Charles in DL and Another v London Borough of Newham 2011 

 http://www.bailii.org/ew/cases/EWHC/Admin/2011/1127.html  

 

in which the Court considered that before issuing a notice under s35(2) the LA ought properly to discuss their concerns and reasons for contemplating this with the carers.   

 

The Courts have also established that not only an article 6 right exists in relation to such decisions, but that the carer has an article 8 right to family life which must be taken into account.

 

 

I know that it is often said, and I sometimes say it myself (though more verbosely) that the law is an ass, but sometimes, as in this case, the law gets it very right, and prevents a terrible injustice happening.

 

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