OK, it’s not exactly an original title, but it still fits with what I am about to say.
Whilst it did not, as some hoped, include a British Bill of Rights to replace the Human Rights Act, the Queen’s Speech yesterday did say that proposals for a British Bill of Rights “will be brought forward”. Quite when this might be, Her Majesty did not say.
Still, in the light of this continued commitment by the government, I thought it would be useful just to have a little look at which human rights are relevant to family law, and how they can work in practice.
As I’m sure most are aware, the Human Rights Act 1998 had the effect of incorporating the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (usually more simply known as the ‘European Convention on Human Rights’) into English law. This meant that English law must be compatible with the Convention, and it was no longer necessary to apply to the European Court of Human Rights in order to enforce Convention rights against the State.
The Convention sets out the fundamental rights and freedoms that it guarantees. Of those, the following are of particular relevance to family law:
Article 2 – The right to life: Surely the most fundamental right of all. We see this come into operation, for example, in those difficult Court of Protection cases involving the question of whether or not potentially life-saving medical treatment should continue, such as in the case Re W (Medical Treatment: Anorexia), that I wrote about in this post.
Article 5 – The right to liberty: This states that no one shall be deprived of their liberty, save in the particular cases set out in Article 5, and in accordance with a procedure prescribed by law. In the family law context Article 5 can be relevant when a court is considering whether to commit a person to prison for breach of an order, or where an application has been made for a judgment summons.
Article 6 – The right to a fair trial: This one crops up frequently in a family law context. For example, back in February in the case S (Children) a father argued that he had been denied the right to a fair trial under Article 6 because the court decided that a child who had accused him of sexually abusing her should not give evidence.
Article 8 – The right to respect for private and family life: This is obviously relevant to family law, and again crops up frequently. Just last week in Local Authority X v HI & Others we saw how a teenage boy’s right to respect for private life under Article 8 had to take precedence over the father’s and step mother’s rights, when the High Court declared that information disclosed to a social worker by the boy should be withheld from his parents, in line with his wishes.
Article 10 – The right to freedom of expression: Not, perhaps, a right that one would think particularly relevant to family law. However, it can be very relevant, as it was recently when the Court of Protection extended a reporting restriction in relation to the case of the woman who refused life-saving dialysis treatment because she no longer wished to live, after losing those aspects of her life which had previously ‘sparkled’. In that case, the court had to consider the Article 10 rights of the media, i.e. the freedom of the press.
Article 12 – The right to marry and found a family: I’m not sure I need to say anything about this one.
In conclusion, I think it is clear from just this extremely brief overview that human rights has done a lot for family law. Certainly, any reasonable person would agree that all of the above rights are so fundamental that they must surely be kept if the government ever does get around to amending human rights laws. Which some might say rather makes the government’s plans seem a pretty futile exercise…