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Human Rights Day by John Bolch

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You may have missed it, but Tuesday was Human Rights day 2013. I thought I would take the opportunity to do a short post looking at the impact of human rights upon family proceedings.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (more often referred to as simply the ‘European Convention on Human Rights’) guarantees various ‘fundamental rights’. Of the rights guaranteed, the following are particularly relevant to family law:

  • The right to life (Article 2)
  • The right to liberty (Article 5)
  • The right to a fair trial (Article 6)
  • The right to respect for private and family life (Article 8)
  • The right to freedom of expression (Article 10)
  • The right to marry and found a family (Article 12)

The Human Rights Act 1998 incorporated the Convention into English law. Accordingly, English law must be compatible with the Convention, and it is not necessary to apply to the European Court of Human Rights in order to enforce rights under the Convention. In other words, all courts in this country must comply with the Convention.

Obviously, the courts apply law made by Parliament, but all new statutes are drafted to be compliant with the Convention. Indeed, some statutes that pre-date the Human Rights Act were redrafted to comply, such as the Children Act 1989.

Let’s look at a couple of the rights in a little more detail, and see how they can operate in practice.

Probably the most important rights so far as family law is concerned are Articles 6 and 8 – the right to a fair trial and the right to respect for private and family life.

An example of Article 6 being invoked occurred in the case Re H last year. The case involved a father’s appeal against a decision to reduce his contact with his son. One of the grounds for the appeal was that the father claimed that he had not had a fair trial as, prior to the hearing, the barristers in the case had had a private discussion with the judge in her chambers. As he was not present at this discussion, the father felt that his right to a fair trial had been breached.

The Court of Appeal dismissed the father’s appeal. The discussion between the judge and the barristers had related to how long the hearing was likely to take – something the judge needed to know, so that she could decide whether to give the parties more time to negotiate. The Court of Appeal considered that what the judge had done was not only permissible but sensible. Accordingly, the father’s Article 6 rights had not been breached.

Meanwhile, an example of Article 8 being invoked occurred in Dawson v Wearmouth, a case I have mentioned here previously. This case concerned a dispute between the parents about the surname to be given to their child.

The county court had ordered that the child should have the father’s surname of ‘Dawson’. However, the mother appealed against that order and the Court of Appeal allowed her appeal. The father then appealed against that decision, to the House of Lords.

It was claimed on behalf of the father that chaning his son’s surname was a breach of his right to respect for private and family life under Article 8. The House of Lords, however, disagreed – the issue related to the welfare of the child, not to the rights of the father.

Whilst in both of these cases claims that human rights had been breached by the courts failed, it should not be considered that human rights are of little importance in family law matters. On the contrary, they are taken into account in most family cases (either directly or indirectly) and are of crucial importance to family law generally.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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