The curious incident of Article 8 in the Night time

This post was written by Sarah Phillimore of St John’s Chambers, Bristol. Sarah blogs at Child Protection Resource and tweets as @svphillimore.

  1. Re A (A Child) [2013] EWCA Civ 1104. McFarlane LJ considered an appeal from the decision of a Circuit Judge from a long running and acrimonious private law dispute, which had left the Circuit Judge extremely despondent about the failings of the family law system. The ‘bald facts’ of the case were described thus (para 52):

this is an unimpeachable father, who has been prevented from having effective contact with a daughter who has enjoyed seeing him, in circumstances where the child’s mother and primary carer has been held to be implacably opposed to that contact. In ECHR terms, there can be no dispute that the issues in this case engaged the Art 8 right to family life of M and each of her parents. No facts have been established to support a finding that, in terms of Art 8(2), it was ‘necessary’ or proportionate to refuse contact in order to protect the ‘health’ or ‘the rights and freedoms’ of others. HHJ Goldsack was right to express a profound feeling of failure on the part of the Family Justice system. Other than matters relating to the mother, her physical health, her mental health and/or personality, there has been no valid reason to limit or curtail the relationship between M and her father, yet the court process has concluded, after more than ten years, with an order denying the father any direct contact with his daughter.

  1. At paras 43 and 44 McFarlane LJ said:

It may well be that not all orders under CA 1989 relating to children will be of sufficient import to engage Art 8 (for example an order which merely defines the time of day and/or place for contact), but the impact of Art 8 is by no means confined to public law orders. There will be a range of private law children orders which engage Art 8 and which must now be approached on appeal in the manner established by the majority of the Supreme Court in Re B. It is not necessary for the purposes of this judgment to establish where the outer limit of this ‘range’ may be, and I expressly do not intend to do so, but an order refusing all direct contact between parent and child must plainly be on the Re B side of the boundary.

  1. And at para 53:

The conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges. But, courts and judges do have a responsibility to utilise such substantive and procedural resources as are available to them to determine issues relating to children in a manner which affords paramount consideration to the welfare of those children and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.

  1. The appeal was allowed.

Drawing matters together, whilst I do not conclude that the outcome ordered by the judge is, of itself, wrong and therefore to be set aside, I am sufficiently concerned about the process of these proceedings as a whole, which I have held has violated the Art 8 rights of both M and her father, and also by the deficits in the judge’s analysis which I have now identified, to conclude, in the words of CPR, r 52(11)(3), that the outcome is ‘unjust because of a serious procedural or other irregularity’. For the previous systemic failure to end in a hearing which itself was highly unsatisfactory and where the judge has failed to conduct a sufficiently thorough analysis, makes it almost inevitable that this court will consider that it has a duty to intervene with the aim of establishing an effective and full rehearing.

  1. We now turn to the decision of Ryder JL in Y (Children) [2014] EWCA Civ 1287. This was a decision by the Court of Appeal, dismissing an appeal against a refusal to permit one parent to leave the jurisdiction with the children. One ground of appeal was 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,”
  1. Ryder LJ dismissed this ground of appeal. He held that the court was not required to undertake a proportionality assessment in private law children proceedings.

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.

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 principal 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….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.?

  1. There may not usually be ‘public law consequences’ in private law cases (but the possibility is always there) but this does not mean that we can conclude that it is only the parents who are seeking to interfere with each other’s Article 8 rights.
  1. The court itself is clearly an agent of the state and the court’s own failures to hear private law cases in a timely manner or impose proper sanctions on defaulting parents can be a seriously contributing factor to a breach of Article 8. This was explicitly recognised by MacFarlane LJ in allowing the appeal in A (A Child). He did not consider the Ciruit Judge’s decision ‘wrong’ but the failure of the court over very many years to provide timely resolution to the dispute between the parents, constituted a serious procedural irregularity and a breach of Article 8.
  1. Thus the attempt by Ryder LJ to dismiss the need for an evaluation of proportionality in private law cases on the basis that there is no state agent involved seems odd, to put it mildly.
  2. It has been an uncontroversial part of the jurisprudence of the European Court over many years that the State (often through its courts) has a positive obligation to ensure that Article 8 rights of its citizens are recognised and protected. This appears to be explicitly recognised in A (A child). But because the parents are engaged in private law proceedings in Y Children, the fact that the Article 8 rights of the children to have a relationship with each other was not apparently evaluated is not to be criticised because ‘In private law applications it is a person with parental responsibility who seeks to interfere with the Article 8 rights’.
  3. How can this possibly absolve the court of its positive obligations to recognise and protect Article 8 rights? I don’t see how A (A Child) and Y(Children) can sit together.






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