article 8 essay

Child Protection Resource

Collecting information, resources and support for everyone involved in the child protection system in the uk, proportionality and article 8 of the echr, what does this mean and why is it important, to protect individuals against arbitrary interference by public authorities, the european convention and the human rights act 1998.

‘Proportionality’ is the key concept to understanding how family law operates.  This comes from Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

The Convention is protected by the European Court of Human Rights, which was established in 1959. For a useful introduction to the ECHR see this infographic from Rights Info  which discusses the basic structure of the European Court, who it protects and why it matters.  For further information and discussion about the scope of Article 8, see the ECHR on-line site . You can get the form to make an application to the European Court  and read the guide on how to make the application. 

Prior to the implementation of the   Human Rights Act 1998   (HRA), if you were complaining about a breach of the ECHR, you had to apply directly to the European Court in Strasbourg. Now, the HRA allows the ECHR to take ‘direct effect’ in domestic legislation.

Section 6 of the HRA and makes it clear that ‘public authorities’ – which includes local authorities who want to make applications for care orders – cannot act in a way which is incompatible with the ECHR, unless they are following statute law which they can’t interpret in a way to make it compatible.

If a Judge agrees that statute law is incompatible with the ECHR, he or she can make a ‘declaration of incompatibility’ which means the Government will have to think seriously about amending that statute.

For useful discussion about how Parliament in the UK and the European Court interact, see this discussion  from the House of Commons Library blog about parliamentary sovereignty and the European Convention.  

There has been much recent debate about whether or not the UK should keep the Human Rights Act; the perception of some is that we are subject to excessive interference from Europe in the way we want to manage our country. The fears of excessive interference are not reflected by the number of times the UK has been subject to criticism in the European Court of Human Rights. The House of Commons blog says:

Since the Court of Human Rights was established in 1959, it has delivered around 17,000 judgments. Nearly half of these concerned five Member States (Turkey, Italy, the Russian Federation, Poland and Romania) …  from 1959 to 2013, (and in purely numerical terms) the UK was responsible for 2.96% of the total violations found by the court (compared to Turkey who has been the worst offender, responsible for 17.75%).

A note of caution – disappearance of ‘human rights’ from the ‘Working Together’ guidance.

‘Working Together to Safeguard Children’ is very important government guidance for all professionals in this field. It was first published in 1999. The 2010 edition contained useful and explicit mention of human rights and reminded professionals that data protection principles often engaged individual human rights.

However, some commentators have noted with concern that the most recent edition of the guidance contains only one reference to ‘data protection’ and no reference whatsoever to ‘human rights’. There is legitimate concern that the boundary is becoming blurred between children who are ‘in need’ and require help and children who are ‘at risk’ and require protection and the ‘air brushing’ out of any reference to human rights in the guidance is thus regrettable.

As Allan Norman comments:

If social workers stop caring about human rights, isn’t that like doctors stopping caring about health or lawyers about justice?

Article 8 – Right to respect for private and family life

The two most frequently encountered Articles of the ECHR in care proceedings are Article 6 – the right to a fair trial – and Article 8. There is clearly some overlap between the two – if your right to a fair trial is compromised in care proceedings, this may have implications for your family life.

Article 8 provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. 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.

Therefore, we can see that Article 8 rights are not ‘absolute’ but can be over ruled when:

• it is lawful to do so;
• it is necessary to do so, for example, to protect health or morals.

The ambit of Article 8 rights

In Pretty v UK (2002) 35 EHRR 1 at paragraph 61 the ECtHR made the following comment about the ambit of Article 8:

As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of the person. It can sometimes embrace aspects of an individual’s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established any such right to self determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.

With regard to the ambit of ‘family life’ Article 8 covers:

Article 8 ECHR provides that everyone has the right to respect for family life. The European Court of Human Rights interprets the term ‘family life’ autonomously. Forms of cohabitation or personal relationships which are not recognized as falling in the ambit of ‘family life’ in the jurisdiction of a contracting state can still enjoy protection by article 8; family life is not confined to legally acknowledged relationships. The Court is led by social, emotional and biological factors rather than legal considerations when assessing whether a relationship is to be considered as ‘family life’ .

How do we decide if Article 8 rights should be over-ruled in a particular case?

This is where proportionality comes into play. It cannot be ‘necessary’ to breach someone’s rights if they way you propose to breach them is well in excess of what is needed to prevent harmful consequences.

For example, in some cases, there are worries that a parent is finding it hard to cope at home and this is having a bad impact on the children. The LA are considering care proceedings, but family and friends offer to help. In those circumstances it probably would not be ‘proportionate’ to demand that this parent give up his or her children for adoption or even  have the children go to live with foster carers for a short time.

A more proportionate response would be for everyone to meet and discuss what they could do to keep the children safe at home.

However, if a child is seriously injured at home and his parents can’t or won’t say what happened, then it probably will be proportionate to remove the child immediately from his parents’ care.  

See our post on interim removals and emergency protection orders.

The issue of proportionality was discussed by the Supreme Court in Re B i n 2013  when considering an appeal against the trial judge’s decision that it was proportionate to remove a child for adoption.

115. Into all of this discussion, however, must come the question of proportionality. Significantly different considerations are in play when the proportionality of the decision is in issue. A decision as to whether a particular outcome is proportionate involves asking oneself, is it really necessary. That question cannot be answered by saying that someone else with whose judgment I am reluctant to interfere, or whose judgment can be defended, has decided that it is necessary. It requires the decision-maker, at whatever level the decision is made, to starkly confront the question, “is this necessary”. If an appellate court decides that it would not have concluded that it was necessary, even though it can understand the reasons that the first instance court believed it to be so, or if it considered that the decision of the lower court was perfectly tenable, it cannot say that the decision was proportionate.

For an example of a case where the Court of Appeal thought removing children was not a proportionate response, see K (Children) [2014].

Is the Children Act 1989 compatible with Article 8 of the ECHR?

Short answer – yes. For a recent example of when the UK was challenged by Latvia over the legitimacy of its care proceedings, see this post. 

When the Human Rights Act came into force, there was a lot of interest in testing the Children Act 1989 to see if it was compatible with the ECHR.

One challenge was to the fact that once  a care order is made, it is up to the LA to decide how to make it work and the court does not have any power to interfere with those decisions. The House of Lords (as they were then called; they are now the Supreme Court) considered whether or not this was compatible with Article 8 in the case of In re S [2002] UKHL 10.  The lawyers argued that the court should continue to oversee what the LA was doing by way of ‘starred care plans’ – which identified issues in the care plan which should be kept under review and brought back to court if necessary.

The House of Lords rejected that argument and held that introducing this new supervisory role for the courts would go far beyond simply ‘interpreting’ the Children Act; it would be introducing a new role for the courts and only Parliament had the power to do that. To entrust a local authority with the sole responsibility for a child’s care, once the ‘significant harm’ threshold has been established, is not of itself an infringement of article 8.

53. The essential purpose of this article is to protect individuals against arbitrary interference by public authorities. In addition to this negative obligation there are positive obligations inherent in an effective concept of ‘respect’ for family life: see Marckx v Belgium (1979) 2 EHRR 330, 342, paragraph 31. In both contexts a fair balance has to be struck between the competing interests of the individual and the community as a whole: see Hokkanen v Finland (1994) 19 EHRR 139, 168-169, paragraph 55. 54. Clearly, if matters go seriously awry, the manner in which a local authority discharges its parental responsibilities to a child in its care may violate the rights of the child or his parents under this article. The local authority’s intervention in the life of the child, justified at the outset when the care order was made, may cease to be justifiable under article 8(2). Sedley LJ pointed out that a care order from which no good is coming cannot sensibly be said to be pursuing a legitimate aim. A care order which keeps a child away from his family for purposes which, as time goes by, are not being realised will sooner or later become a disproportionate interference with the child’s primary article 8 rights: see paragraph 45 of his judgment. 55. Further, the local authority’s decision making process must be conducted fairly and so as to afford due respect to the interests protected by article 8. For instance, the parents should be involved to a degree which is sufficient to provide adequate protection for their interests: W v United Kingdom (1987) 10 EHRR 29, 49-50, paragraphs 62-64. 56. However, the possibility that something may go wrong with the local authority’s discharge of its parental responsibilities or its decision making processes, and that this would be a violation of article 8 so far as the child or parent is concerned, does not mean that the legislation itself is incompatible, or inconsistent, with article 8. The Children Act imposes on a local authority looking after a child the duty to safeguard and promote the child’s welfare. Before making any decision with respect to such a child the authority must, so far as reasonably practicable, ascertain the wishes and feelings of the child and his parents: section 22. Section 26 provides for periodic case reviews by the authority, including obtaining the views of parents and children. One of the required reviews is that every six months the local authority must actively consider whether it should apply to the court for a discharge of the care order: see the Review of Children’s Cases Regulations 1991 (SI 1991 No. 895). Every local authority must also establish a procedure for considering representations, including complaints, made to it by any child who is being looked after by it, or by his parents, about the discharge by the authority of its parental responsibilities for the child. 57. If an authority duly carries out these statutory duties, in the ordinary course there should be no question of infringement by the local authority of the article 8 rights of the child or his parents. Questions of infringement are only likely to arise if a local authority fails properly to discharge its statutory responsibilities. Infringement which then occurs is not brought about, in any meaningful sense, by the Children Act. Quite the reverse. Far from the infringement being compelled, or even countenanced, by the provisions of the Children Act, the infringement flows from the local authority’s failure to comply with its obligations under the Act. True, it is the Children Act which entrusts responsibility for the child’s care to the local authority. But that is not inconsistent with article 8. Local authorities are responsible public authorities, with considerable experience in this field. Entrusting a local authority with the sole responsibility for a child’s care, once the ‘significant harm’ threshold has been established, is not of itself an infringement of article 8. There is no suggestion in the Strasbourg jurisprudence that absence of court supervision of a local authority’s discharge of its parental responsibilities is itself an infringement of article 8.

Reforms following this decision

However, although the House of Lords rejected the idea of ‘starred care plans’, they were troubled by the absence of any identified individual who would oversee and intervene if a LA were not offering good enough care to children after the court hearing was over. This could be particularly serious if a child had no parent who was willing or able to make complaints on their behalf and could lead to an infringement of the child’s human rights.

Lord Nicholls said at paragraph 106:

I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal’s initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities’ discharge of their parental responsibilities would bring about an overall improvement in the quality of child care provided by local authorities. Answering this question calls for a wider examination than can be undertaken by a court. The judgments of the Court of Appeal in the present case have performed a valuable service in highlighting the need for such an examination to be conducted without delay.

• The Independent Reviewing Officer

The Government responded with Section 118 of the Adoption and Children Act 2002 which amended section 26 of the Children Act 1989 and established the role of Independent Reviewing Officer (IRO).

The job of the IRO is to improve outcomes for looked after children by reviewing each child’s care plan and ensure that the child’s wishes and feelings are considered. They must:

• monitor the local authority’s performance of their functions in relation to the child’s case
• participate in any review of the child’s case
• ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the appropriate authority
• perform any other function which is prescribed in regulations.
• promote the voice of the child
• ensure that plans for looked after children are based on a detailed and informed assessment, are up-to-date, effective and provide a real and genuine response to each child’s needs
• identify any gaps in the assessment process or provision of service
• making sure that the child understands how an advocate could help and his/her entitlement to one
• offer a safeguard to prevent any ‘drift’ in care planning for looked after children and the delivery of services to them
• monitor the activity of the responsible authority as a corporate parent in ensuring that care plans have given proper consideration and weight to the child’s wishes and feelings and that, where appropriate, the child fully understands the implications of any changes made to his/her care plan.

See our post about the role of the Independent Reviewing Officer for more information. 

Further reading/listening

June 2016 – Podcast from barrister David Bedingfield of 4 Paper Buildings ‘ Proportionality and Public Law Children Cases’. 

33 thoughts on “ Proportionality and Article 8 of the ECHR ”

This is a really helpful explanation of Article 8 in care proceedings, thanks. Also useful for students!

It might be worth adding that although the House of Lords rejected the Court of Appeal’s idea of a starred care plan, they did identify some potential gaps in processes whereby plans could be reviewed and challenged after the order. This led to the establishment of the role the independent reviewing officer (IRO), I believe.

Thanks – good point and will amend post to include.

Have amended post to include reference to the Independent Reviewing Officer – hope this is helpful.

The saddest thing about Article 8 is the way uk judges have turned it on its head to frustrate the purposes for which it was formulated ! Clearly those who drafted an article stating that all should have the right to a private family life undisturbed by public authority intended it to be a protection for the family against unecessary interference by the State. When I studied law more than 50 years ago I was taught that statutes should be interpreted as far as possible to give effect to the purposes for which those who drafted the law intended ; Uk judges have instead against all logic turned article 8 into a weapon used by the State to silence protesting families in case by protesting publicly they breached the privacy of the baby or child in question ! Article 8 protects the UK State against families !! By gagging parents who try to protest publicly against a perceived injustice they contravene the purpose of the Act which was to protect families from the State not vice versa and I find that very sad………..

You may have studied law a very long time ago but I assume your reading comprehension levels remain adequate to allow you to read the text of Article 8. Having done so, you will quickly discover that it is NOT an absolute right as you seem to state in your comment.

It can and it should be ‘disturbed’ by the state when it is found that the vulnerable are at risk.

It is always a matter of interest to me that objections to the current system appear largely based on anger that anyone should dare to presume to ‘meddle’ with the family and the rights of the adults in that family to do whatever they like and treat children however they wish and only the criminal law could or should stop them.

The anger is that a law passed to protect families from the State has been misinterpreted by the judges to gag the parents and so protect the Stare any families who dare to protest publicly ! Sarah you do love to misquote others (not only me) and then demolish the absurd misquotations made by yourself ! But what a sterile way to pusue an argument…….. I never said that anything was an absolute right , and I never said adults should be able to treat children how they like with only criminal law to stop them. I do say children should never be taken for adoption or long term fostercare from law abiding citizens;Minor misdemeanours (slapping but not bruising for example) deserve minor forms of correction,parenting classes maybe?

I apologise if I misquoted you. I am glad you recognise Article 8 is not absolute. But you have repeatedly said that only parents convicted of crimes should have their Article 8 rights infringed by removal of their children. If you don’t accept that some children need to be removed from parents who are not convicted of crimes, what do you propose to safeguard them?

No children should be removed from sane law abiding citizens but other measures such as parenting classes can be taken in some cases. My main point however is that judges use a measure intended to protect parents from the state to protect the State from outraged parents by gagging them because of alleged privacy !

What is your experience of the efficacy of ‘parenting classes’ for parents with drug/alcohol addiction/mental illness/serious learning disabilities?

Judges and lawyers deliberately deceive parents !

If at the conclusion of the case the family court judge as says the usual “I refuse leave to appeal”that is not final at all though both the judge and your lawyers would like you to think it is .They rarely tell parents the truthful position and later judges remark that the parent FAILED TO APPEAL as though this mean’t they accepted the loss of their children. Do not hesitate therefore to ignore the judge’s initial refusal. Just go back to the court and apply for an oral hearing asking for permission to appeal !

In the case of Vicky Haigh; L.J.Wall (at that time President of the family court) deceived the public when he claimed that Vicky had refused supervised contact with her daughter who had accused her father of sexual abuse and therefore was justifiably deprived of any future contact whatever ! What he omitted to say was that she merely refused to sign an agreement with the “SS” stating that she was quite content for her daughter to remain in full exclusive custody of her father and only because she refused to sign that document was she deprived of all contact direct and indirect with her daughter for many years right up to the present day.Later when she met met with the father and her daughter at a petrol station where the father had pulled up to fill up his car, she was sentenced to 3 years jail for speaking to her own daughter as this mean’t she was breaking the court order forbidding her contact of any kind ! Wall also mentioned speaking of the earlier case “she did not appeal” failing to mention that as in so many cases the lawyers had failed to do so despite their client’s instructions . (too much like hard work?)

The court did not accept that Vicky Haigh ‘innocently’ just happened upon her daughter at a petrol station. This is the same child that Vicky Haigh deliberately brainwashed to say that her father had sexually abused her, when he had not. This is the same child who does not have any contact with her mother, because of her mother’s own appalling behaviour.

the fact that you wave a flag for Vicky Haigh, a child abuser, is not surprising. I assume its the same flag you wave for Marie Black.

How much money have you given Vicky Haigh?

I ask Sarah’s advice here as I am uncertain how much value our Family Court puts on ‘invisible’ provisions of the Law. This is an extract from ECHR advice sheets.

PROPORTIONALITY

There are several invisible provisions of the Convention- concepts and rights which are not to be found expressly anywhere in the wording of the text but which have become over the years an integral part of Convention Law.

Of these PROPORTIONALITY is the most significant and is at the heart of all justification for interference with Convention rights.There are a number of key tests which can be applied to any Convention question:

1. Have ” relevant and sufficient reasons” been advanced for any interference with a convention right? Is it necessary in a democratic society”/ Does it correspond to a ” pressing social need”?

2. Is there an alternative which would have interfered less? Has it been considered? Have relevant and sufficient reasons been given for rejecting it?

3. Were procedural safeguards both in place and observed so as to avoid the possibility of abuse?

4.Does the interference operate so as to ” impair the very essence of the right “?

The test of proportionality therefore needs to be added to those tests already familiar to English lawyers and in particular to the concept of Wednesbury unreasonableness. ______________________________________

As a layman, I would say that no.3 is fairly absolute and supports my view that appeal is the only remedy when the Local Authority fails to conduct a case correctly. In respect of no. 4, I would say that removing children from natural family disproportionally certainly “impairs the very essence of the right ”

All comments welcome.

Yes, lawyers and courts are generally very well aware of all the implications of Article 8 – there are very many reported cases now discussing all angles and I would think any family lawyer/judge who wasn’t fully aware of these principles would be incompetent.

The problem is that ‘proportionality’ will inevitably involve some subjective assessment. Ian Josephs for example, clearly has a high tolerance regarding issues of violence in the home and does not think a child should be removed unless a parent has been convicted of a criminal offence regarding such violence. He does not think it is ‘proportionate’ to remove a child who is frequently exposed to violence in the home and whose parents cannot or will not take action to keep the child safe. However, there is no judge that I am aware of who would agree with him. It is entirely ‘proportionate’ and hence lawful in their eyes to remove these children. Given that the Children Act 1989 has not been successfully challenged in the European Court, it would appear that our approach is approved by those who enforce the European Convention.

Hopefully I will have time today to cut and paste some of your comments to form a post so that the points you make do not get lost.

Can any decision be proportionate if:-

a) Procedural safeguards are not in place,or b) they are not observed?

Yes. Particularly if situation is urgent. But you would have to examine such a decision very carefully. Lack of compliance with procedure does not automatically render a decision unlawful. Just as correct compliance with procedure does not automatically confer lawfulness.

So what about the key question of the possibility of abuse? Surely lawyer fully understand that when safeguards aren’t observed by sw’s ,on the balance of probabilities they are abusing the system. It probably renders a decision unlawful.Perhaps okay in less serious cases but not in those where removal to be considered.

If safeguards not enforced scrupulously in family courts then that goes against High Court ( common law), many will think. The High Court considers that removal rarely necessary then only when all safeguards followed.

Family Courts which regularly allow safeguards to be compromised not fit to hear serious cases or to hand out sanctions that exceed any which normal courts can. No criminal judge would tear a family apart permanently even if he or she gaoled a parent for ten years! If safeguards were not observed,a retrial would be ordered,I presume,as is proportionate with serious cases. Sarah, what about this compromise? In the criminal justice system ,there are two levels.In a serious case, a suspect can ask to be dealt with in Crown Court. How about two levels of Family Court?

1:-Note the observation of Supreme Court Judge Baroness Hale of Richmond JSC (para 143):“We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs

.2:-Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course is possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails” – Munby LJ(now President of the family courts) in Re B

3:-MR JUSTICE MOSTYN said”PARA 35. The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious.” ii.Link – http://www.bailii.org/ew/cases/EWHC/Fam/2014/3388.htm

4:-I also remind readers of the wise words of Hedley J in Re L (Threshold Conditions) [2007] 1 FLR 2050:“Many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.”

5:-Lord Templeman inRe KD 1988:

The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature

ii.WHAT OTHER JUDGES SAY :-

1: Lord Justice Thorpe said There is nothing more serious than a removal hearing, because the parents are so prejudiced in proceedings thereafter.

2: Lord Justice Wall (the former Senior family court judge) said that the determination of some social workers to place children in an “unsatisfactory care system” away from their families was “quite shocking”.

3: In a separate case on which Sir Nicholas Wall also sat, Lord Justice Aikens described the actions of social workers in Devon as “more like Stalin’s Russia or Mao’s China than the West.”

What’s your point? Yes, society can’t police every single inadequate parents. That is why the test is significant harm. But you don’t think what Vicky Haigh did to her child was ‘significant harm’. You are wrong.

Let us say that Vicky Haigh was guilty as charged and (for the sake of argument) did harm her daughter by coaching her so that the father was given custody..The question of proportionality then should be considered. There is no way that she and her daughter should be fobidden to communicate with each other by phone, email or even a birthday card(for which Vicky was briefly jailed). To sentence her to 3 years jail for speaking to her daughter( whom she had not seen for 2 years,) at a petrol station in defiance of a court order forbidding mother and daughter to converse was so excessive it was reduced by 5 months on appeal but still was inhuman.It should have been clearly stated in court that there was no way that Vicky could have known that her ex husband was going to fill up with petrol at that station at that time and on that day.He probably did not know it himself ! Before Sarah goes on about Christopher and myself banging the drum for the likes of Vicky Haigh and Marie Black I can only say yet again that we bang on when a court acts unfairly or contrary to home office guidelines and never do you hear us shout that a verdict was wrong ,only that the verdict was unsafe or the sentence excessive, because of the way the court was conducted in both cases.

never do you hear us shout that a verdict was wrong ,only that the verdict was unsafe or the sentence excessive. Interesting. So Vicky Haigh DID abuse her daughter and Marie Black IS a child rapist – you just don’t think either of them should be prevented having children in their care?

The court did not accept Vicky Haigh ‘innocently’ chanced upon her daughter. the court found it was deliberate harassment and breach of a previous order. This little girl now doesn’t want to see her mother because of what her mother has done to her.

It is indeed a tragic situation for all, but the fact that Vicky Haigh went to prison and doesn’t see her child is the fault of nobody but herself – and whichever irresponsible idiots have been encouraging her along the way to behave so badly and with so little understanding of her daughter’s needs.

It would be great Sarah if you read what I actually wrote not what you imagine I might have written ! I never said Vicky abused her daughter and I never said Marie was a rapist. I never said they should have children in their care if they were guilty. Neither you nor the court can explain how Vicky was supposed to know that her ex would choose to fill up with petrol at that service station and at that time. with their daughter in the car ! It is an abuse of the children to deprive them of all indirect contact with their mothers and their is no evidence that Vick’s daughter does not wish to see her. Jail for sending a birthday card that never got there?

Carla, You say the test is significant harm. Please clarify it. Do you mean the test for the issue of a care-order or other order or are you saying that it is the test for permanent removal?

I don’t know who Carla is but I can answer that question.

Before the state is allowed to interfere in family life it has to show that its actions are necessary, lawful and proportionate. The test in care proceedings is – is the child suffering or at serious risk of suffering significant harm? If the answer to that is ‘yes’ the court must decide what order best protects the child – so it could be a care order, a supervision order or even no order at all.

If it is dispute between parents then the court takes the child’s welfare as paramount and asks itself which parents is the best able to meet the child’s needs, including his need to have a relationship with both parents. That is why Vicky Haigh can’t have a relationship with her daughter – because she abused her by telling her shocking lies about her father and attempting to destroy that relationship. the court wouldn’t let her do that, rightly so.

I repeat that Vicky was never convicted of any criminal offence except that of speaking to her daughter contrary to a court orcer.NO fact finding found that she had coached her daughter .She did not deny however that she believed what her daughter had reported to her teacher (who believed it too) and to the police and that was enough to forbid her from any contact of any kind whilst the mother of baby P happily saw her surviving children in jail befor setting out with a new name and an anonymous new life and new job at vast public expense; Vicky now trains racehorses in France (which she could not do if she was “undesirable” let alone a criminal) and cares for her youngest three year old daughter born in France and safe from UK social services. Lastly ,because neither Christopher or I dispute verdicts it certainly does not mean we agree with them.It does mean that we often think they are unsafe usually because of the outrageous behaviour of the family courts and social services and that a fair retrial should take place.

Ian, The Social Workers will continue as long as Lawyers allow them to get away with it! The lawyers have double standards. They will protest immediately when a parent breaks a court order (when they represent the LA’s) yet they are pussycats( when working for parents) apparently. LA’s can flout procedures AND court orders seemingly more or less at will.Have any been gaoled recently? Please forgive me for ‘thinking’ such things if I am wrong and they have,readers.

No they can’t. And there is a wealth of case law to show that when LA flout orders, the court holds them to account.

I am so pleased to hear sw’s are being held to account nowadays Are they gaoled? Are they sacked? Are they sent for retraining, demoted and moved to ‘light’ duties even? Sarah, I am sorry for asking these questions but parents guess they aren’t.

If you go to the Community Care site, they report frequently on what happens to SW who are found to lie etc. They are usually struck off. I don’t think many are sent to prison. If they are not struck off then re-training is recommended.

Not always!!!!! Not sure if enough exclamation marks

If the LA are FOUND to have acted in appropriately the court will ALWAYS hold them to account. this is the rule of law. the problems arise if parents assert that the LA HAVE acted wrongly but the court refused to recognise that or the court don’t think the misbehaviour is so serious.

Sarah phillimore you are a mindless legal robot for a wicked and corrupt “legal” system {Snore. Abuse. Redacted. Come back when you have something to say}

Actually Sarah has done a tremendous amount over the years to highlight abuse and the shortcomings in the system. She doesn’t always agree with parents but she does give them a voice. I do understand your anger; I hope you eventually find some peace. I speak as a parent, who has been through the wringer like yourself.

Comments are closed.

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Article Contents

• 1. INTRODUCTION
• 2. THE EUROPEAN COURT OF HUMAN RIGHT’S STATEMENT OF DOCTRINE IN ARTICLE 8 DEPORTATION CASES: THE ÜNER CRITERIA
• 3. ARTICLE 8 IN THE EUROPEAN COURT’S JURISPRUDENCE: INDIVIDUAL RIGHT OR COMMONLY HELD RIGHT?
• 4. THE FOUR CONCERNS OF THE ARTICLE 8 BALANCING EXERCISE IN THE JURISPRUDENCE: VALUE, GRAVITY, IMPORTANCE AND SEVERITY
• 5. POLITICS OF DEPORTATION AND THE BEST INTERESTS OF THE CHILD
• 6. CONCLUSION
• ACKNOWLEDGMENTS
• < Previous

Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest

• Article contents
• Figures & tables
• Supplementary Data

Jonathan Collinson, Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest, Human Rights Law Review , Volume 20, Issue 2, June 2020, Pages 333–360, https://doi.org/10.1093/hrlr/ngaa015

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This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘ Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.

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Law Notes European Human Rights Law Notes

Article 8 Notes

Updated article 8 notes.

European Human Rights Law

European Human Rights law notes fully updated for recent exams at Oxford and Cambridge, UK. These notes cover all the major European Human Rights cases and are perfect for anyone doing an LLB , or masters level legal study in the UK. Due to the international element to this subject, these notes will be an excellent supplement for those doing LLBs abroad....

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European Convention on Human Rights - Article 8

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. 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.

EU Charter of Fundamental Rights

Article 7 - Respect for private and family life

Article 8 - Protection of personal data

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UK Human Rights Blog - 1 Crown Office Row

Another critique of the new Immigration Rules’ codification of Article 8

4 February 2013 by Rosalind English

The Upper Tribunal has concluded that new Immigration Rules do not adequately reflect the Secretary of State’s obligations under Article 8 of the ECHR.

This is the second determination of the “fit” between the immigration rules, introduced last year, and the UK’s obligations under Article 8 of the Convention. I covered the Upper Tribunal’s assessment of the rules in MF (Article 8–new rules) Nigeria [2012] UKUT 00393 (IAC) in a previous post  and it will be remembered that the Tribunal held there that the new rules fall short of all Article 8 requirements.

The claimant was a Nigerian national who had raised a claim to private and family life under Article 8 of the European Convention on Human Rights as part of a claim for asylum. She had travelled to the UK previously, with periods of overstaying and having obtained employment by using false identity papers. Whist in the UK she met her husband, a dual British/Nigerian citizen and argued that her removal would interfere with her right to family life under Article 8.

The Secretary of State refused her asylum application and gave consideration to her family life claim. This was considered with reference to the new Immigration Rules (HC 194) and also under Article 8. The Secretary of State refused her application, stating that there were no insurmountable obstacles to family life continuing outside the UK.

On appeal, the Immigration Judge considered her claim to family life with reference solely to Article 8. The appeal was allowed on the basis that it would be unreasonable to expect her husband to leave the UK and to travel to Nigeria in order to continue the family life.

The Secretary of State appealed the determination of the Immigration Judge on a number of grounds, principally on the basis that the Judge should have considered the appeal with reference to Appendix FM (Family Members) of the Immigration Rules and that the Judge was wrong to impose a test of ‘reasonableness’ when the Judge ought to have considered whether there were any ‘insurmountable obstacles’ preventing the family life from continuing outside the UK.

The Secretary of State submitted that the new Immigration Rules

provide a clear basis for considering immigration family and private life cases in compliance with Article 8 of the European Convention on Human Rights.

The Upper Tribunal rejected this particular argument in relation to the Rules, but  accepted that the Secretary of State’s decision to turn down the claimant was in accordance with the rules and the applicable policy and is not unlawful.  Her decision was taken in support of a legitimate aim of protecting public order and the rights and freedoms of others, was a  proportionate  and fair balance in all the circumstances and thus a justified interference with Article 8 rights. The Secretary of State’s appeal was therefore upheld.

Reasoning behind the Upper Tribunal’s ruling

The Immigration Rules, as statements of executive policy, cannot override the legal duty imposed by statute (such as the Human Rights Act 1998) or the existing case law of the higher courts and the Upper Tribunal itself. This was established in the earlier decision in MF Nigeria [2012] UKUT 00393 (IAC).

Whilst the Tribunal concluded that Appendix FM does not adequately reflect the obligations placed on Immigration Judges under Article 8 and the established case law, the Immigration Rules will still be taken into account when considering whether the immigration decision is a justified interference with the right to family and/or private life:

the provisions of the rules or other relevant statement of policy may again re-enter the debate but this time as part of the proportionality evaluation. Here the judge will be asking whether the interference was a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests…. The weight to be attached to any reason for rejection of the human rights claim indicated by particular provisions of the rules will depend both on the particular facts found by the judge in the case in hand and the extent that the rules themselves reflect criteria approved in the previous case law of the Human Rights Court at Strasbourg and the higher courts in the United Kingdom.

The Tribunal did not accept that the criteria set out in the new rules accord with the criteria  for an Article 8 assessment established by the existing case law. Once such issue was the best interests of any minor resident children, a principle which is not reflected in the provisions of the Appendix FM.

The more the new rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality…’

The Secretary of State submitted that  Parliament’s approval of HC 194 seemed to be an attempt to approximate the rules to a statutory assessment of the balance between competing interests. The Tribunal on the other hand could not accept such an elevation, for several reasons:

• The Immigration Rules and supplementary instructions are not the product of active debate in Parliament
• Only the Parliamentary process for primary legislation permits a clause by clause discussion of the measures, with opportunity for amendments and revision.
• The procedure adopted here provided a weak form of Parliamentary scrutiny
• There may have been a debate about the new rules in the House of Commons but Commons is not Parliament and it has long been the law that a resolution of the House of Commons is not given supremacy akin to primary legislation by the court

A claimant who relies on Article 8 will by definition have failed to succeed under the rules but may succeed under the law on Article 8 grounds despite the provisions of the rules.  A failure to comply with the rules thus remains the starting point of the Article 8 inquiry and not its conclusion.

For a human rights exception within Appendix FM of the Immigration Rules to apply, the Secretary of State submitted that the claimant must show that there are ‘insurmountable obstacles’ to the family life from continuing outside the UK.  The UT objected to this “one size fits all” approach.  It is not possible to apply one set of criteria, such as whether there are ‘insurmountable obstacles’ to these divergent cases, where the case law indicates that a fact sensitive assessment is necessary.  The House of Lords deprecated the test of exceptional circumstances in   Huang [2007] UKHL 11 .

There is no test of insurmountable obstacles under Article 8 of the ECHR:

In our judgment, to reject a claim under Article 8 because the test of insurmountable obstacles is not met as the Secretary of State did at [17] above is to fail to comply with principles of the established law [53].

It was thus “the degree of difficulty the couple face” rather than the ‘surmountability’ of the obstacle that is the focus of judicial assessment but again as a factor rather than a test. So there could be no  presumption that the Rules would normally be conclusive of the Article 8 assessment or that a fact sensitive inquiry is not normally needed. Indeed, the conclusion under the Rules may often have little bearing on the judge’s own assessment of proportionality. The Secretary of State may decide to only grant leave to remain in cases where there would be insurmountable obstacles to the family relocating to any country but the judge is unlikely to give weight to that factor in the proportionality assessment if he or she concludes that the obstacles to relocation are substantial and in the circumstances it would not be reasonable to expect the other family members to relocate there, whether for reasons of nationality, length of residence, the best interest of the child or otherwise. If there is no presumption that the provisions of the rules reflect and apply the balance between the competing considerations, “exceptional circumstances cannot be the test to be applied under the law”.

On the facts of this particular case, the UT took into account that the claimant’s husband held dual British and Nigerian nationality and he had maintained ties with his home country. In those circumstances the UT concluded that although there would be some hardship in relocating to Nigeria, there was nothing to suggest that he would be unable to follow his wife there.  Given the circumstances in which the relationship arose (during the time when the claimant’s immigration status was precarious) the UT concluded that it would not be unreasonable for the husband to have to decide between retaining his residence in the United Kingdom and following his wife to Nigeria for the time being to continue family life there.

In any event, the fact that it may not be reasonable to expect the other family members to relocate does not mean that in every case deportation or removal is disproportionate or not justified.

There were other factors in this case which militated against the claimant being allowed to stay in the UK.  In addition to breaching immigration control she had employed false documents to obtain unlawful employment. She was prosecuted for this conduct. She had maintained strong ties to Nigeria, returning there regularly. The decision under appeal was taken after her application for entry clearance as a spouse had been rejected and when she was seeking to enter the UK from Nigeria. As in the case of  Nunez v Norway [2011] ECHR 1047  this combination of factors meant that weighty reasons existed to refuse her entry and justify her removal to Nigeria.

 The strength of the public interest in removal and the weakness of the right to respect for family life established in these circumstances, was such that any properly self-directed judge was bound to conclude that the Secretary of State had justified refusal of admission as a proportionate measure in the interests of prevention of crime and disorder, irrespective of the consequences to claimant and her husband [80]

So, although determined not to be boxed in by the Rules, the Tribunal in effect is declaring that it will make its decisions on the facts before it under what it understands Article 8 to require, and it may well be in some cases that the claimant has not cleared the high hurdles set by the Rules in order to be allowed to stay. A British spouse will still have to establish that it would be unreasonable for him or her to travel outside the EU to continue family life for the purposes of Article 8. It is worth remembering, in all this, that the Strasbourg Court itself has stated that

Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory. ( Rodrigues da Silva and Hoogkamer v Netherlands[ 2006] ECHR 86  at [39]

and both national courts and the Strasbourg Court will take a dim view of sham marriages to obtain the benefits of Article 8:  the consideration of whether family life was created at a time when the persons involved were aware of the “precarious” immigration status of one of them. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member would constitute a violation of Article 8 ( Mitchell v. the United Kingdom (dec.), no. 40447/981998] ECHR 120 )

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• Upper Tribunal confirms the legitimacy of the new rules, but questions their completeness
• Article 8-and-a-half – wider than thought, but will it work?
• Article 8 and a half
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One accepts the proportionality principle, in that cases must be determined case by case as facts will no doubt differ on a given matter. However, notwithstanding if I read the case correctly, that the applicant being a dual citizen then does that not entitle him to apply for a visa later for his spouse to join him in the UK, even if this decision goes against him at first instance?

More over, one should always consider and reflect on parties actual intent on an application. However, merely having a dual nationality cannot obviously be determinate factor, but simply a factor in the context of the whole facts.

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Article 8: Right to Seek Justice

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted [them] by the constitution or by law.

Student TEXT

You have the right to seek justice and remedy (repair) if your rights are not respected.

Lesson Plan

Time: 60 minutes Ages: 14-18 (Grades 9-12) Overview of activities: Students will…

Use the reverse jigsaw strategy to both learn and teach their peers about the right of a person to seek justice if their human rights are violated

Complete an exit card asking them to reflect on the ways in which they can uphold the right to seek justice for themselves and others

Accompanying slides are available via Google Slides

Introduction to the UDHR

Woven Teaching believes that human rights education is essential for students to understand and assert their own rights and to protect the rights of others. As a result, the Universal Declaration of Human Rights (UDHR) lies at the core of Woven Teaching’s materials. The document’s 30 articles outline fundamental human rights: basic rights and freedoms which every human being is entitled to, regardless of the person’s race, religion, birthplace, gender, sexual orientation, or other characteristics. Although its articles are not legally binding, the UDHR serves as the moral compass for the international community. Article 8 of the UDHR outlines the right to effective remedy (repair) – a person’s right to seek justice and remedy if their rights have been violated.

• Financial or other compensation
• Changing laws or procedures
• Release from incarceration
• A public apology
• The aftermath of the Holocaust or other genocides
• Landmark U.S. Supreme Court cases (e.g. Brown vs. Board of Education, Plessy v. Ferguson, Obergefell v. Hodges, etc.)
• Reparations for the descendants of enslaved Africans

Collaborative Learning (50 Minutes)

Students will use the reverse jigsaw strategy to both learn and teach their peers about the right of a person to seek justice if their human rights are violated.

• justice: fairness in the way that people are dealt with, particularly after harm or a crime has been committed; fair behavior or treatment
• Article 8: You have the right to seek justice and remedy (repair) if your rights are not respected.
• Instruct students to break up into at least four groups. Assign each group a different case study and ask them to choose one spokesperson for their group. Explain that the spokesperson for each group will be the only person in that group that moves and works with the other groups. Note: If breaking into more than four groups, case studies will be repeated.
• How are rights being violated in this case study?
• Whose rights are being violated, and who/what is violating their rights? (These might include rights covered in other UDHR articles–see UDHR Resources .)
• Has anyone in your community ever had to seek legal help/remedy when their rights were violated? Have you ever heard about something like this on the news? Elaborate.
• What might justice look like in this case?
• Each spokesperson will give a summary of their original group’s case study to their new group.
• The new group will share about its case study with the spokesperson.
• After 5 minutes, instruct the spokespeople to move to the next group. The process should be repeated, with the spokespeople moving clockwise until they have worked with every other group.
• After working with each group, ask the spokespeople to return to their original group where they should spend a few minutes sharing new insights about their case study that they learned through discussion with the other groups.
• Prior to this lesson, did you know that you have the right to seek justice and remedy if your rights have been violated?
• What do you think some barriers people might encounter when trying to seek justice after their or their loved one’s rights have been violated?

Encourage students to offer realistic ideas about protecting this right. Ideas generated during this session could allow students to make tangible change in their communities.

Closing (10 Minutes)

• Before distributing the exit cards, ask students to brainstorm ways that ordinary people can become involved in protecting the right to justice and remedy. Write their responses on the board.
• What is one thing that you learned today?
• What is one action that you can take today to promote these rights in your community?
• What are some of the challenges you might face in promoting these rights?
• How can you look to each other or others in your community for support?

Collaborative Learning Case Studies

In 1951, a Black man named Oliver Brown filed a lawsuit against the Board of Education of Topeka, Kansas. He was upset because his daughter, Linda Brown, was not allowed to attend Topeka’s all-white elementary schools. Instead of attending the school closest to their home, Linda was forced to ride the bus to an all-Black school farther away.

Brown’s lawsuit also included twelve other Black families from Topeka. They claimed that Topeka’s schools for Black children were lower in quality than the schools for white children. The lawsuit argued that segregation violated the so-called “equal protection” clause of the U.S. Constitution–that Black children did not have equal treatment under the law. The case eventually made it to the U.S. Supreme Court.

In May 1954, the U.S. Supreme Court issued a unanimous decision: all nine judges ruled in favor of the Black families, stating that separate schools for Black and white children were inherently unequal. Brown vs. Board of Education was a landmark case in the United States, essentially ending legal segregation in schools. The ruling did not, however, provide any guidelines for how or when schools should be desegregated.

Milan is a Roma man from Czech Republic who is currently living in Germany. The Roma are the largest minority group in Europe. Roma people like Milan often have little access to education, employment, or services like running water and sanitation services. Roma face discrimination in many areas, but most do not seek legal remedy.

Recently, German authorities took Milan’s grandson Denis away from him and put him in a children’s home. They said that Denis does not speak German well enough. Milan and Denis moved to Germany three years ago and both of them are still trying to learn the language, so Milan does not understand why they took his grandson away.

Before they took Denis away, the authorities forced Milan to sign paperwork, but did not provide a translation in Czech, his primary language. They also subjected Denis to medical examinations but would not let Milan in the room while the exams were happening. Milan says that none of it felt right, but he did not know what to do. A month later, they took Denis away and refused to tell Milan where he was.

Milan filed a formal objection with the court. They were supposed to provide him with a lawyer, but the lawyer never showed up to court. The judge denied Milan’s request to get his grandson back. Activists from the Sinti-Roma-Pride Initiative, a local activist group, are working hard to raise money so that Milan can hire a lawyer and get Denis back.

In January 2019, USA Powerlifting instituted a policy banning transgender* athletes from competing against their cisgender** peers. The organization claimed that transgender athletes may have a “competitive advantage” (e.g. if a lifter who was assigned male at birth competes with women). JayCee Cooper, a trans woman, filed a discrimination claim with Minnesota’s human rights office, arguing that the organization was discriminating against her and other trans athletes.

The following year, USA Powerlifting announced that it would create a separate division for transgender people. Cooper pushed back, arguing that this did not offer a chance to compete. In 2021 she filed a lawsuit against USA Powerlifting, arguing that banning transgender athletes from competing is gender discrimination.

In 2023, a judge ruled that banning transgender athletes from competing with cisgender athletes does amount to discrimination. By taking the organization to court, Cooper advocated for her rights and forced USA Powerlifting to change its policy.

*transgender: related to a person whose gender identity does not correspond with the sex they were assigned at birth **cisgender: related to a person whose gender identity corresponds with the sex they were assigned at birth

Freddy Alberto Navas López is a peasant leader in Nicaragua. He is coordinator of the Movimiento Campesino y Aliados de Nicaragua (Peasant Movement and Allies of Nicaragua), which was founded in 2013 in opposition to a canal-building project through Nicaragua. He is a human rights defender that protects both land rights and the rights of peasants in his country.

In July 2021, the National Police arrested López along with two other peasant leaders and two student leaders. López and the other four detainees were not the only activists to be arrested for their opposition to the government and its projects. At least 21 others–including businesspeople, opposition leaders, activists, and journalists–were detained in the weeks after.

The National Police claim that these arrests are linked to crimes allegedly committed during protests in 2018, but the alleged crimes are very vague. López has not been able to contact his family since he was arrested. He has also not had access to a lawyer of his own choosing. Both the Organization of American States and the Office of the UN High Commissioner for Human Rights have called for the government of Nicaragua to end its human rights violations.

Article 8 in the News

Further Learning

Universal Declaration of Human Rights Full text of the Universal Declaration of Human Rights, a milestone document in the history of human rights and international relations

Universal Declaration of Human Rights – Amnesty International Overview of the UDHR by Amnesty International, an international NGO supporting human rights

30 Articles on the 30 Articles – Article 8: Right to Remedy Explanatory articles on each right contained in the United Nations’ Universal Declaration of Human Rights

Explainer Video – Article 8: Right to Remedy Short videos about each of the UDHR’s 30 articles by the Platform of European Memory and Conscience. Each video includes testimony from a witness to atrocities by European totalitarian regimes.

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