23 October 2000
The Human Rights Act 1998
The Human Rights Act 1998, which came into force on 2 October this year, incorporates into domestic law the rights set out in the European Convention on Human Rights (ECHR). Of particular significance to family lawyers are the convention rights in Article 6 of the right to a fair hearing, and Article 8's right to respect for family life.
All private and public law children cases involve Article 6 and Article 8 rights. Practitioners wishing to rely upon a Strasbourg authority in the Children Act 1989 proceedings must comply with the Practice Direction: Human Rights Act 1998 (24 July 2000), which provides that any authority cited must be "an authoritative and complete report". Printouts from the ECHR database will be sufficient.
The procedure for arguing human rights points in family cases is set out in the new rule 10.25, Family Proceedings Rules 1991 (as amended by SI 2000 No 2267). Any person who seeks to rely on any right arising under the Human Rights Act 1998 or seeks a remedy under the act shall state that fact in their originating document (application) or answer, giving precise details of the convention right that has allegedly been infringed, and stating the relief sought, including whether or not a declaration of incompatibility is sought. The court cannot make a declaration of incompatibility without giving a 21-day notice period to the Crown.
Issues of particular concern to family lawyers include, in relation to Article 6(1), the right to a fair hearing, whether or not family cases and judgments should be heard in private or public. In Re PB  2 FLR 765, the Court of Appeal took the view that Children Act 1989 hearings in private were within the spirit of the convention. However, in the recent decision of B v UK (hearing in private)  2 FCR 97, a complaint by a father that his Article 6(1) rights were breached when the hearing of a Section 91(14) Children Act 1989 application and the giving of judgment took place in private, has been declared admissible. A further decision from Strasbourg is awaited.
The welfare checklist has come under intense scrutiny, as it appears to come into conflict with the provision in Article 8 that everyone is entitled to respect for family life. The convention does not place the rights of children above those of their parents. However, in Dawson v Wearmouth , Lord Hobhouse stated that there was nothing in the convention that required the courts to act otherwise than in the interests of the child. Strasbourg case law has recently stated in Scott v UK  that consideration of the best interests of the child is always of "crucial importance". As Strasbourg and domestic case law seem to converge ever closer, the need for welfare to be revisited appears increasingly unlikely.
It does not appear that the Human Rights Act will have the impact anticipated on applications for leave to remove children from the jurisdiction. Lord Justice Ward in Re A (permission to remove from jurisdiction: human rights)  2 FLR 225 (decided before 2 October 2000), noted that a departing mother had a right to respect for her private life, which had to be balanced with the father's right to family life. He concluded that he thought it very doubtful that the act would make any difference to established case law.
Contact and domestic violence
The Court of Appeal has extensively reviewed the law on the extent to which domestic violence should impinge upon the presumption of contact with a child's parents. In Re L (contact: domestic violence)  2 FLR 334, an amalgamation of four appeals by fathers against indirect contact orders when direct contact had been sought, the court sought the assistance of the official solicitor, who in turn instructed two leading consultant child psychiatrists to report on the matter.
Lord Justice Waller summarised the position as follows:
1. The legal profession and judiciary may have underestimated the effects on a child of exposure to domestic violence.
2. If domestic violence is raised as an issue it should be properly investigated by the court before making any order in relation to the child.
3. The extent to which the perpetrator of the violence has acknowledged and sought to correct the wrong will be relevant to the outcome of the proceedings.
4. There should be no presumption against contact in cases involving domestic violence, though it may be a highly material factor to take into account in balancing the child's welfare.
While the guidelines are extremely useful, the inevitable result will be that, where violence is raised, the courts will have to make findings following a proper investigation of the allegations leading to increased time estimates for contact hearings. Moreover, at the interim stage, where this detailed investigation cannot be carried out, it is of concern that contact may now be improperly denied.
Siamese twins case
On 22 September this year the Court of Appeal decided that conjoined twins Jodie and Mary could undergo an operation to separate them. The operation would not be unlawful. The case raised moral and legal dilemmas, and the Court of Appeal considered submissions not just from the lawyers, but also from the Archbishop of Westminster, leading academics and interest groups. At the time of writing, the operation has yet to take place.
The twins share some organs and, importantly, a common aorta. Mary is unable to support herself and has survived because her sister circulates oxygenated blood for both of them. Without separation, both girls will die within six months. If separated, Mary will die and Jodie will have the chance at a relatively normal life. The parents could not bring themselves to consent to the operation because of the inevitable consequence of Mary's death, so doctors sought a declaration that what they were doing in separating the twins was lawful.
At first instance, Judge Johnson concluded that separation would be in the best interests of both twins, and that it would be lawful. The Court of Appeal decided that while an operation to separate was clearly in Jodie's best interests, it could not be in Mary's best interests to bring her life to an end prematurely. Their Lordships found that Mary is a person in her own right, despite being incapable of independent life.
The court faced an irreconcilable conflict between the paramountcy of the welfare of Jodie, which dictated an operation, and the paramountcy of the welfare of Mary, which clearly did not. Leaving aside the wishes of the parents (to which the court accorded great respect, but ultimately dismissed as subordinate to the welfare of the twins), the court took the approach of striking a balance between the best interests of the two children. In other words, the court had to choose the "lesser of two evils" (as per Lord Justice Ward).
The judges looked at the physical condition of the girls and assessed whether or not it would be worthwhile to treat them. The balance was in favour of Jodie. Their Lordships considered that Mary was, in a sense, killing her healthier sister because of the parasitic nature of her relationship with her. Effectively, the judges decided that Jodie's interests prevailed over Mary's.
The court also decided that the operation would be lawful, notwithstanding that the doctors performing it would know Mary's death would be the inevitable consequence. The doctors also knew that Jodie and Mary's death would, during the next six months, be the inevitable consequence of failing to separate them. The court drew no distinction between a positive act by the doctors and a failure to act, and held that the doctors had to perform a balancing exercise similar to the court's and choose the "lesser of the two evils".
The judges considered the Human Rights Act 1998, but concluded that there was nothing in the new act which called for a different answer to the problem.
It is easy to understand the court's utilitarian approach. How the decision may be used in future cases where there are competing interests between children at stake remains an open question for family lawyers. Is it fair to assume that the paramountcy principle is qualified by a new principle that means, where there is a conflict between children, the welfare of the child who is more likely to benefit in the long term from a proposed course of action prevails?
Geoffrey Kingscote, Simon Webster and Rebecca Wood are barristers at 1 Mitre Court Buildings.
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