The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed. Held: The appeal succeeded. The Act did not seek to replicate the regime on the divorce of a married couple, and … Continue reading Gow v Grant: SC 24 May 2012
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into private lives and sexual activity were intrusive, and given the excessive consequences following, were also striking … Continue reading Smith and Grady v The United Kingdom: ECHR 27 Sep 1999
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the Convention, that the deputy controller was not an independent tribunal and that the … Continue reading Greenfield, Regina (on the Application of) v Secretary of State for the Home Department: HL 16 Feb 2005
On an applicatin for ancillary relief on divorce, the sherriff thought that the spouses could share equally in the increase in the value of the matrimonial property after the date when they separated. That could not be done under the rules laid down by the statute. So he refrained from making any order for a … Continue reading Lightbody (Or Jacques) v Jacques: HL 28 Nov 1996
The parties had lived together, but remained unmaried. The relationship broke down and Ms Gow claimed under the 2006 Act. Mr Grant now appealed. Held: The appeal succeeded. Mrs Gow’s application for an award of a capital sum was refused. There had been a number of cases which disclosed varying and contradictory approaches to the … Continue reading Gow v Grant: SCS 22 Mar 2011
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed in its article 2 duty to respect her right to life. Held: The decision … Continue reading Rabone and Another v Pennine Care NHS Trust: CA 21 Jun 2010
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in the United Kingdom as an illegal immigrant, another Albanian national named … Continue reading Kapri v The Lord Advocate (Representing The Government of The Republic of Albania): SC 10 Jul 2013
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the exemption continued until the papers were destroyed, or for 20 years under the 1958 Act. Held: The … Continue reading Kennedy v The Charity Commission: SC 26 Mar 2014
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed her a positive obligation to protect life under Article 2. Held: The claimants’ appeal succeeded. The … Continue reading Rabone and Another v Pennine Care NHS Foundation: SC 8 Feb 2012
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on licence but then recalled to custody. The other appeals (Booth and Reilly) were indeterminate sentence prisoners … Continue reading Osborn v The Parole Board: SC 9 Oct 2013
Prisoner’s death – need for full public enquiry The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death. Held: There had been a police investigation and trial … Continue reading Amin, Regina (on the Application of) v Secretary of State for the Home Department: HL 16 Oct 2003
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods were taken lawfully. Held: The segregation was not authorised by the applicable legislation: ‘rule 45 . . (1) enables the governor … Continue reading Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice: SC 29 Jul 2015
(Outer House) Application for payment of a capital sum from the defender following the cessation of cohabitation between the parties. Citations: [2013] ScotCS CSOH – 29, 2013 SLT 483, 2013 GWD 8-175, 2013 Fam LR 30 Links: Bailii Statutes: Family Law (Scotland) Act 2006 28(2)(a) Jurisdiction: Scotland Family Updated: 22 July 2022; Ref: scu.471063
Inherent High Court power may restrain Publicity The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to be applied to avoid … Continue reading In re S (a Child) (Identification: Restrictions on Publication): HL 28 Oct 2004
Presumption in Favour of Open Proceedings There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt. Held: The House equated the contempt to a breach of an injunction … Continue reading Scott v Scott: HL 5 May 1913
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the Supreme Court, applications were also now made to lift the anonymity orders. Held: The … Continue reading In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others: SC 27 Jan 2010
The House considered claims that the 2002 Act, which set out to make unawful the hunting of wild mammals with dogs unlawful, infringed the claimants’ human rights, in that it contravened international treaties requiring the support for traditional practices and cultures. Held: Any interference with the appellants article 11 rights was justified. The Act was … Continue reading Whaley and Another v Lord Advocate: HL 28 Nov 2007
Citations: [2006] ScotSC 59 Links: Bailii Statutes: Family Law (Scotland) Act 1985 Jurisdiction: Scotland Family Updated: 07 July 2022; Ref: scu.243217
No anonymity for investigation suspect The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting publication of his name and involvement in the inquiry. Held: (Kerr and … Continue reading PNM v Times Newspapers Ltd and Others: SC 19 Jul 2017
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention proceedingsThe requirements identified as flowing from the phrase ‘in accordance with the law’ include this: ‘A norm cannot be regarded as a ‘law’ … Continue reading Olsson v Sweden (No 1): ECHR 24 Mar 1988
(Scotland) The valuation of the matrimonial home was to be taken as at the date of the couple’s separation. The House affirmed the decision of the Court of Session. Judges: Lord Keith of Kinkel Citations: Times 05-Aug-1993, 1993 SC (HL) 49, [1993] UKHL 16, [1993] EG 148 (CS), 1993 SLT 1348, 1993 SCLR 800 Links: … Continue reading Wallis v Wallis: HL 5 Aug 1993
The statutory purpose set out in the Act does no more than reflect the reality that cohabitation is a less formal, less structured and more flexible form of relationship than either marriage or civil partnership. Judges: Sheriff A D Miller Citations: 2010 Fam LR 156 Statutes: Family Law (Scotland) Act 2006 28 Cited by: Cited … Continue reading Lindsay v Murphy: 2010
The effect of section 10(3)(b) of the 1985 Act was that the whole of the wife’s share of the increase in its value after the date of separation which passed to the husband as a result of the sheriff’s order had to be left out of account in the computation of the amount of the … Continue reading Wallis v Wallis: SCS 1992
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its property rights. It was also argued that it was not possible to make a declaration … Continue reading Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2): HL 10 Jul 2003
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act. Held: The House allowed the Hospital’s appeal. The policy was lawful. Seclusion was to be seen as … Continue reading Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz: HL 13 Oct 2005
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was caustive of the death by suicide. Held: Police and … Continue reading Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased): HL 15 Jul 1999
The applicant, a minor, complained about his committal to a child psychiatric ward of a state hospital at his mother’s request. The question was whether this was a deprivation of his liberty in violation of article 5. The applicant said that it was, as the ward in which he was placed was a closed ward, … Continue reading Nielsen v Denmark: ECHR 28 Nov 1988
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to share information was outwith the powers of the Parliament. It extended the information to be … Continue reading The Christian Institute and Others v The Lord Advocate: SC 28 Jul 2016
Citations: [2017] ScotCS CSOH – 151 Links: Bailii Statutes: Family Law (Scotland) Act 2006 Jurisdiction: Scotland Family Updated: 04 April 2022; Ref: scu.605061
Police Obligations to Witnesses is Limited A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2. Held: The House was asked ‘If the police are alerted to a threat that D … Continue reading Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police: HL 30 Jul 2008
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if the suffering of psychiatric injury by the parent was a foreseeable result of making it and … Continue reading JD v East Berkshire Community Health NHS Trust and others: HL 21 Apr 2005
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended in the light of the case of ZH. Held: HH and PH’s appeals … Continue reading HH v Deputy Prosecutor of The Italian Republic, Genoa: SC 20 Jun 2012
Recognition of illegitimate children The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. A recognised ‘illegitimate’ child’s rights of inheritance on … Continue reading Marckx v Belgium: ECHR 13 Jun 1979
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him in an intolerable situation. Held: To enforce the order would be an unjustifiable interference … Continue reading Neulinger And Shuruk v Switzerland: ECHR 6 Jul 2010
Power to call in is administrative in nature The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights to a fair hearing before … Continue reading Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others: HL 9 May 2001
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious faiths. Held: A distinction was to be made between domestic cases involving actions within … Continue reading Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department: HL 17 Jun 2004
Each appellant complained of the disclosure by the respondent of very old and minor offences to potential employers, destroying prospects of finding work. Two statutory schemes were challenged, raising two separate questions, namely whether any interference with Article 8 ECHR is: (1) ‘in accordance with the law’ (‘the legality test’) and (2) ‘necessary in a … Continue reading Gallagher for Judicial Review (NI): SC 30 Jan 2019
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to disclose the warnings given to him violated the same right. Held: The … Continue reading T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another: SC 18 Jun 2014
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right to a fair trial. The right not to give evidence … Continue reading Stott (Procurator Fiscal, Dunfermline) and Another v Brown: PC 5 Dec 2000
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result would be disproportionate. The court was asked whether in order to found such … Continue reading Norris v Government of United States of America: SC 24 Feb 2010
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now appealed a finding that he might nevertheless be liable in a … Continue reading Ashley and Another v Chief Constable of Sussex Police: HL 23 Apr 2008
Appellate Roles – Human Rights – Families Split The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own request refused but that of his family had … Continue reading Huang v Secretary of State for the Home Department: HL 21 Mar 2007
Same Sex Partner Entitled to tenancy Succession The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy. Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law … Continue reading Ghaidan v Godin-Mendoza: HL 21 Jun 2004
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with HIV. Z’s doctors had been required to give evidence about her medical condition in … Continue reading Z v Finland: ECHR 25 Feb 1997
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story showing a picture of her leaving a drug addiction clinic, along with … Continue reading Campbell v Mirror Group Newspapers Ltd (MGN) (No 1): HL 6 May 2004
Fairness of SIAC procedures Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this would not happen. Held: Though in each case, SIAC had considered special materials, the … Continue reading RB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same: HL 18 Feb 2009
Fairness on Division of Family Capital The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital. Held: The 1973 Act gives only limited guidance on … Continue reading Miller v Miller; McFarlane v McFarlane: HL 24 May 2006
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2. Held: The SSD’s appeal succeeded. ‘jurisdiction’ within the meaning of Article … Continue reading Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening): SC 30 Jun 2010
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1. Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion by state agents into the private sphere within which they expected to be … Continue reading Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another: HL 28 Nov 2007
No Presumption of House for both Parties When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be reluctant to allow repeated appeals … Continue reading Piglowska v Piglowski: HL 24 Jun 1999
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life. Held: The appeals against extradition failed. The appeal was competent in that proper human rights issues arose. The allegations were of … Continue reading BH and Another v The Lord Advocate and Another: SC 20 Jun 2012
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the restraint which had been imposed infringed the human right of free speech. When the 1998 Act was brought in, … Continue reading Cream Holdings Limited and others v Banerjee and others: HL 14 Oct 2004
cm_stsSCS2008 The pursuer sought payment of substantial sums, having been disadvantaged by ceasing work to care for the parties’ children. She also asserted that the defender had been advantaged by her taking the care of the children. The parties were not married but had lived together, and a sum could now be claimed on cessation … Continue reading CM v STS: SCS 2 Sep 2008
No General ty of Care Owed by Police The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members of the public who might … Continue reading Hill v Chief Constable of West Yorkshire: HL 28 Apr 1987
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .
(Scotland) The power to detain a person suffering from a mental illness, in order to ensure the safety of the public, and even though there was no real possibility of treatment of the mental condition in hospital, was not a disproportionate . .
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
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