“Understanding Re Y and pondering horizontality” or “Why I need a lie down”

In the time it has taken me to chew the fat and mouth off extensively on twitter about Re Y [2014] EWCA Civ 1287 everyone else has actually written their blog posts on the topic. And very good they are too.

Firstly, there is Sarah Phillimore, who wrote a blog post entitled The Curious Incident of Article 8 in the Night Time, that I then sat on, because I wanted to publish it simultaneously with this one (sorry Sarah, I thought I'd get round to this sooner).

Secondly there is David Burrows' post: Forget Convention Rights in Private Children Proceedings.

Thirdly there is Laura Vickers post on the Leicester and Leicstershire Family Justice Board: Human Rights & Private Law: Is Re Y right? [spoiler : the answer is no].

So this judgment has caused myself and others a good deal of angst. When a judge of the Court of Appeal says something that makes you sit up and say “Hunh? But I thought that…[diametric opposite of what said judge has just said]” it rather causes a crisis of confidence. I *thought* that this judgment unearthed a rather large “training issue” in my understanding of human rights, but I’m fortified to find that if I had it wrong, so did everyone else I’ve spoken to.

Here is the bit we've all been (t)wittering on about.

"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 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.  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."

What I *thought* was that s6(3) Human Rights Act 1998 was pretty clear – in its own terms and insofar as it has been applied in practice by other courts, including the Court of Appeal and Supreme Court. The court is a public body. It must act compatibly with the Convention rights, including articles 6 and 8 – both in terms of process and decision. I *thought* that amounted to horizontal effect. I was pretty sure that lots of cases in both public law and private law family were consistent with that, and indeed relied upon that basic proposition being correct.

However, when the Court of Appeal says something that suggests that your understanding is fundamentally wrong, what you do is go and check it. And ask the legal community for reassurance or help in understanding where it is precisely that you have gone wrong. Twitter in this instance was a pretty effective way of establishing pretty quickly that it wasn’t just me who was head scratching. Everyone else was doing the same. “No, I thought that too” we all tweeted. “Perhaps he meant this?” and “But he didn’t SAY that!” and “isn’t it inconsistent with this case?”… Until we all worked it through and came to a consensus. Is this what you call collaborative law?

So, with apologies for coming late to the blogging party – here is my understanding of Re Y. When I mentally wrote this blog post and even when I started typing it I thought (like Laura Vickers) that what Ryder *said* just can’t be correct in law. Well, thought I - he might have meant something different to what he said, but the submissions we as practitioners will potentially be responding to as a result of this judgment will be based upon what the judgment says. This is the traditional mechanism through which precedent operates, subject of course to later “clarificatory” judgments of the “No, no, no – you misunderstood me. When I said A I meant B. How could you have not seen that?” variety. But now I'm not so sure.

What Ryder LJ said (in a rather derisory fashion) was that in private law cases *of course* horizontality does not apply. He said so with no reference to either authority or the Act itself. Which is rather astonishing because there is a whole heap of authority which suggests that it DOES. Take, for example the following sample of cases:

A (A Child) [2013] EWCA Civ 1104, about which I wrote here. That case follows hot on the heels of Re B (A Child) [2013] UKSC 33. The lead judgment in A (A Child), delivered by Macfarlane LJ, makes plain that Article 8 applies. Paragraph 43 says this:

“In Re G (A Child) [2013] EWCA Civ 965 at paragraphs 32 to 35 I purported to summarise the impact of the Supreme Court's decision in Re B in the appellate context. Re B concerned decisions under the CA 1989 and the Adoption and Children Act 2002 making public law orders relating to children which plainly engaged the right to family life protection enshrined in ECHR, Article 8. 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.”

So, at the serious end of the spectrum at least, it is pretty clear that article 8 is engaged (one can argue about how far down the spectrum one has to go before it can be said article 8 is not engaged, but that is for another day). But “the impact of article 8 is by no means confined to public law orders”. BANG! (That’s McFarlane LJ and Ryder LJ banging heads. Or so it seems. It might just be Ryder LJ doing a #headdesk at our collective denseness)

In Q v Q [2014] EWFC 31 the President was operating on the basis that the court’s s6(3) duties may extend so far as to require the court to fund a parties’ legal representation in order to prevent a breach *by the court* of its own article 6 duties. I’ll say no more about that case now because I am involved in it and it is ongoing.

The privacy cases which were decided in the years following implementation of the Act are also significant in this context. See for example Campbell v MGN Ltd [2004] UKHL 22, pa 132, where Baroness Hale sums it up:

"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."

So this is where I had got until today. Much head scratching. Much discussion. Much focus on the disavowal of horizontal effect and the apparent incompatibility of these passage of Re Y with a raft of recent appellate authority.

And then I went back over it again. And interestingly, before his remarks about horizontality Ryder LJ says this:

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.”

Did we all have collective amnesia about this? Insofar as that paragraph is concerned Ryder LJ appears to go further than Macfarlane LJ was prepared to do in A (A Child) i.e. rights engaged in any application. More importantly, isn't this a description of horizontality?

The answer to the conundrum lies in the definition of horizontality and in the facts of the appeal in question.

In this case the court was being asked to consider a ground of appeal based upon the failure to consider the article 8 rights of a non-subject sibling as well as the 2 subject children (it was a leave to remove case in which there was a risk of a split of the siblings if permission were not granted). S1 CA 1989 of course renders paramount the best interests of the subject children only. I *think* (although I confess it is not entirely clear) that what Ryder LJ was objecting to was any suggestion that the court was required to conduct a specific balancing of the article 8 rights of the non-subject child as against the subject children (or adults). However Ryder LJ has already acknowledged that this child’s rights were (hypothetically at least) engaged, and that the court was under a duty to act compatibly with the child’s rights (i.e. not to interfere with them unless necessary and proportionate etc). He appears to object to the suggestion that carrying out the s1 exercise, with reference to “all the circumstances” (including the facts relating to the siblings) and specifically the welfare checklist is not enough.

The suggestion that harm w/could arise from a sibling split is not controversial for Ryder LJ, and he does not see the third child’s article 8 rights as adding anything – that is to say the risks are the same for all 3. All of that I understand.

But still we come back to what Ryder LJ means when he refers to “horizontality”. His paragraphs 40 and 41 are, as far as I can tell, a description of horizontality, and an acknowledgment of their application in all family proceedings. And yet he goes on to expressly disavow the existence of horizontality and to say that somehow things are different in private law proceedings.

Horizontal effect is the concept of the court having to act compatibly when dealing with private law (in the broadest sense) disputes - the getting-in sideways of human rights. But as Baroness Hale says "The 1998 Act does not create any new cause of action between private persons." You have to have a cause of action to start with in order to engage the court's duties towards you (or I suppose you have to be the defendant / respondent where someone else asserts such a cause of action). In Re Y the ground specifically being considered was a non-subject child's article 8 rights. That child was neither party nor subject of the proceedings, although their circumstances were one of the circumstances to be factored into a decision about the actual subject children. That non-subject child may have had rights that were engaged, but the court was not resolving a dispute being litigated between that child and any other private party. And I think that is what Ryder LJ means when he says there is no horizontality. The ECHR has direct horizontal effect only insofar as the court is engaged as arbiter between private person A and private person B. It does not have effect insofar as person C, a stranger to the litigation may be affected. I don't know how that squares with paragraphs 40 and 41 which acknowledge that the rights of strangers to the litigation might be engaged and that therefore the court's own duties of compatibility might be triggered. I'd like to think that this aspect of Re Y is distinguishable in that it is a decision relating to the court's duties to non-subject children.

I confess I find all this quite difficult to comprehend. I am straining to find a formulation which makes sense. I think, looking back at the paragraphs preceding the disavowal, Ryder LJ cannot mean to undercut Re A or other s8 / private law authorities in which article 8 has been prayed in aid and specifically considered. I think he is making a much more specific and limited point relating to the non-subject child who neither has nor is pursuing a cause of action / application through which his article 8 rights can be given voice as against other private individuals.

I cannot however, understand the basis for suggesting that the court’s own duties in respect of human rights are different depending upon whether or not the proceedings are categorized as “private” or “public law proceedings”. As we've established, and as Ryder acknowledges, there is *always* a public body to whom article 8 duties apply in any sort of family (or non-family) proceedings – because the court is the public body in question. But nowhere in Re Y is there any explanation for the proposition (which is implicit in the rationale of it) that s6(3) HRA operates differently on the court as a public body depending on the context of “public” or “private”. On a different level why is it that an interference with a parent or child’s family life should be afforded greater or lesser protection depending on whether the interference is by a public body or through a public law order or not?

Even the categorization is murky here. What are “public law consequences”? Isn’t re B about the authorizing of a severing of family relationships as much as the identity of the person or body doing the severing? What about private law orders at the instigation of the state, for example the making of a SGO or a “living with’ s8 order to a non-parent in circumstances where the LA is funding or ushering forwards the proposed carer to apply, or where there is an implicit or explicit threat to initiate proceedings if such orders are not made or not agreed to? What about care proceedings by the back door, about which such anxiety has recently – and rightly – been expressed? These are public law consequences aren’t they? Why should a vulnerable parent, under pressure to agree to s20 accommodation or a residence order, be stripped of the protections of article 8? And if they were, how does that affect Ryder LJ’s argument that the court is in any event acting compatibly simply by its correct application of the welfare checklist?

The reality is that if a judge carefully follows the welfare checklist her decision is highly likely to be compatible with the convention in many if not most cases, because the decision will set out reasons for any interference with article 8 rights, which will amount to a necessary and proportionate interference. And in such circumstances it doesn’t add much to rehearse (in the style of Magistrates' pro forma reasons) the “window dressing” of them having considered the parties' article 8 rights and being satisfied etc etc….

I *think* this is probably what Ryder LJ meant i.e. that the rehearsal for the sake of it of a proportionality exercise, will not add anything or produce a different answer in most cases. But no matter how many times I read the passage, it remains stubbornly the case that this isn't actually what he said. What he said is firstly : ratio not obiter, and secondly : is expressed as a principle of wide application. Which is really just rather annoying.

But as A (A Child) and cases like Re W [2012] EWCA civ 999 make plain, there are cases where it is necessary to specifically consider whether article 8 adds something, to go through that proportionality testing exercise. Finely balanced cases. Cases where the outcome sought or attained is a severe curtailment of a family life or an effective severing of it. Definitely cases where “no contact” or “no direct contact” is on the table – and I would suggest rather more cases than that. And it is in those cases where an advocate will now, for the time being at least, need to be prepared to articulate what Re Y does and does not say, how it can be distinguished in favour of other Court of Appeal (or higher) authority, or why (say it softly) it is wrong.

I would welcome any illumination that anyone from other disciplines can throw upon this whole issue. Dinah Rose QC tweeted this week that any Human Rights point worth making can be made in a sentence. If this blog post shows nothing else it is that the more words I write on this topic the less I understand.

After all that tortuous meandering however, I need a bit of horizontality. So I'm off to bed for a lie down. Wake me up when you've all worked out the answer.

2 thoughts on ““Understanding Re Y and pondering horizontality” or “Why I need a lie down”

  1. My best guess is that Ryder LJ meant that an appeal brought on the basis that a Judge had failed to expressly consider whether the decision and order was article 8 compliant would fail. Just as (I forget the reference) the Courts have previously said that we must assume that Judge’s know and apply the law so for example a failure to explicitly set out the welfare checklist or state that has been considered does not fatally sink the judgment for appeal purposes.

    I further think that what Ryder LJ was hinting at was that (as you’ve said) that if a Judge follows section 1 of the Children Act 1989 she or he will inevitably end up making an order that is proportionate and necessary, so why spell it out again?

    Well, the problem for me there is twofold :- firstly the ‘proportionate’ bit is bound up in the ‘least interventionist order’ principle which actually isn’t in section 1 or the Act at all and is case law driven (though most people forget that) and secondly, the justification for interference with article 8 is prescribed and fairly narrow.

    “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.”

    So, just as we have been demanding of magistrates, it seems to me that where the Court makes an order which is an interference with family life, they should set out why this is a justifiable – and the four ingredients here are that it is (1) lawful (2) proportionate (3) necessary and (4) that it is either for the protection of health or morals, or for the protection of the rights and freedoms of others.

    I would not want Re Y to be taken to mean that Courts should forget all about their article 8 duties.

    Ryder LJ’s possible point that failure to spell it out should not warrant an appeal on that sole point is, I think, covered by the raft of authorities that say where counsel considers that the Judge has made a mistake in the law in the judgment, they should draw that to the Judge’s attention and allow them the opportunity to correct it.

    It might have been better for him to simply refuse the appeal on that basis.

    Also, thank you for saving me from having to write on Re Y…

  2. Why should we be surprised by this ?
    I have long pointed to the failings of not having guardianship since the CA 1989 changes abolished it for fathers and substituted it with the much diluted ‘parental responsibility’. One can only conclude that courts now ‘licence’ parents to parent their children, i.e. they are the final arbiter.
    I have long maintained that the CA 1989 is more to do with ‘public’ law rather than private and that judges carry over this mindset into private law decision making together with a gender bias of yesteryear – can we really imagine a mother being prevented in this way ?

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