Category: Children

IQ v JP: ECJ 10 Jul 2018

(Opinion) Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction in matters of parental responsibility – Reference to a court better situated to deal with the case – Concept of ‘courts of a Member State competent to hear the substance of the case’

Citations:

ECLI:EU:C:2018:552, C-478/17, [2018] EUECJ C-478/17 – O

Links:

Bailii

Jurisdiction:

European

Children

Updated: 25 April 2022; Ref: scu.620023

A Local Authority v M and N (Female Genital Mutilation Protection Order – FGMPO): FD 19 Apr 2018

Local Authority’s application for a Female Genital Mutilation Protection Order (FGMPO) to prevent N who is an infant, travelling to the Sudan with her mother. The mother (M) is a British citizen born in Sudan, habitually resident in the UK where she has lived for over a decade. The mother has a British passport only.

Citations:

[2018] EWHC 870 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 24 April 2022; Ref: scu.618397

Medway Council v Root: FD 15 Mar 2018

Applications for injunctions prohibiting the publication of information relating to two children who are now both over 18 years, concerning care proceedings in 2011 when they were made the subject of care orders.

Citations:

[2018] EWHC 1298 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children, Information, Media

Updated: 24 April 2022; Ref: scu.618395

JP v LP and Others: FD 5 Mar 2014

Applications were made for orders under section 8 after and informal surrogacy arrangement. The child was now 33 weeks old.
Held: King J said: ‘When the matter came before the High Court it was agreed by all parties . . s54(3) says that the parties must apply for the order during the period of 6 months beginning with the day on which the child is born. There is no provision within the Act to provide for a discretionary extension to the statutory time limit and no one sought to argue that the court could, or should, whether by means of the use of its inherent jurisdiction or otherwise, seek to circumnavigate the mandatory provisions of the statute.
It was recognised by the parties that the policy and purpose of parental orders is to provide for the speedy consensual regularisation of the legal parental status of a child’s carers following a birth resulting from a surrogacy arrangement. Such a policy does not fit comfortably with extensions of time which inevitably result in the continued involvement over a protracted period of the surrogate mother in the lives of the commissioning couple and their child.
A parental order is not therefore an option for this family.’

Judges:

Eleanor King DBE J

Citations:

[2014] EWHC 595 (Fam)

Links:

Bailii

Statutes:

Children Act 1989 8

Jurisdiction:

England and Wales

Cited by:

Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 20 April 2022; Ref: scu.522290

Medway Council v JB and Others: FD 26 Oct 2015

The court was asked as to the extent to which the wishes and feelings of children are relevant when considering whether the criteria for transferring jurisdiction pursuant to Art 15(1) of Council Regulation (EC) No 2201/2003 (BIIa) are met.

Judges:

MacDonald J

Citations:

[2015] EWHC 3064 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children, International

Updated: 20 April 2022; Ref: scu.554417

S v S: FD 26 Feb 2014

Application by the applicant father dated 18 December 2013, seeking the summary return to Bermuda of the parties’ only child, L born in March 2011, now age 2 years 11 months. The application is made pursuant to the Inherent Jurisdiction following the respondent mother’s retention of L in this jurisdiction in October 2013, after an agreed holiday. The mother objects to L’s return.

Judges:

Theis J

Citations:

[2014] EWHC 575 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 20 April 2022; Ref: scu.521973

In re W (Children) (Care proceedings: Disclosure): FD 11 Jul 2003

The authority had received confidential information from the police about mistreatment of a child by a father. The allegation was unknown to the mother. It sought directions from the court as to the extent to which it could breach that confidentiality in order to protect the child.
Held: The authority was under a duty to investigate so far as it could. Non-disclosure in care proceedings should only be ordered when the case for it was compelling. The mother’s solicitor should be made aware of the activities in the background subject to an undertaking as to the details. The mother should be made aware since she herself had child protection responsibility, and would be obliged to keep matters disclosed to her confidential under the 1960 Act.

Judges:

Wall J

Citations:

Times 21-Jul-2003, Gazette 18-Sep-2003

Statutes:

Administration of Justice Act 1960 12

Jurisdiction:

England and Wales

Citing:

Cited – Official Solicitor to the Supreme Court v K HL 1965
Legal representatives of a party were entitled to have disclosed to them of ‘behind the scenes’ investigation in a care matter in which their client was involved, but should be requested to undertake not to pass on details to their client. . .
Cited – Re M (Disclosure) FD 20-May-1998
Children proceedings must not become overburdened by expert evidence which vastly increase expense. Closer case management was urged by courts as urged. Disclosure of background reports to a legal adviser under conditions of confidentiality was . .
Lists of cited by and citing cases may be incomplete.

Children, Local Government

Updated: 20 April 2022; Ref: scu.184727

In re J (a Child) (Care Proceedings: Disclosure): FD 9 May 2003

A report had been prepared by the local authority into the way in which it had handled the proceedings. The guardian sought to inspect the report and the authority resisted, claiming public interest immunity.
Held: The report had been prepared in connection with the matters underlying the proceedings. By virtue of the Act, the child’s guardian had the right to inspect all such documents irrespective of any rule of law or enactment otherwise preventing disclosure. The child had been removed from the home and medically examined, but the mother had not been given the true reasons for the action. Later, before the guardian was appointed, the authority also misled the court. An order for disclosure had been made by the magistrates court, but resisted by the authority. Questions of Public Interest Immunity simply did not arise. Confidentiality would not be lost by disclosure to the guardian.

Judges:

Wall J

Citations:

Times 16-May-2003, Gazette 14-Aug-2003

Statutes:

Children Act 1989 42(3)

Jurisdiction:

England and Wales

Citing:

Applied – In Re R (A Child) (Care Proceedings: Disclosure) CA 18-Jul-2000
A guardian ad litem, representing one child, was entitled to see a report, prepared by the child protection committee of the local authority, which related to the death of the child’s sibling. Such a report constituted a report prepared by the . .
Lists of cited by and citing cases may be incomplete.

Children, Local Government, Information

Updated: 20 April 2022; Ref: scu.182217

In re A (a Child) (Foreign contact order: Jurisdiction): FD 2 Dec 2003

A Spanish court had given the mother permission to remove the child to England and for contact. That order had been made final in Spain. The father now sought here to amend it, and to enforce the contact element.
Held: The Spanish proceedings had been concluded by the rejection of the father’s appeal in Spain. The convention allowed that further proceddings might be appropriate where children are concerned. However the father could still apply to enforce the order here or to apply within the UK’s own jurisdiction.

Judges:

Sumner J

Citations:

Times 10-Dec-2003, Gazette 22-Jan-2004

Jurisdiction:

England and Wales

Children, Jurisdiction

Updated: 20 April 2022; Ref: scu.188705

Re B (Parentage): FD 1996

A mother applied for financial provision for her twin children under 1989 Act Sch 1. The father asked whether he was their parent within the Schedule. They had been born by artificial insemination. He accepted that he was the donor of the sperm and the biological father, but said that whilst he willingly donated the sperm, by the time the insemination took place he had parted from the mother and was at that stage not asked to consent to the actual insemination.
Held: The court considered the effect of the provisions of paragraph the 1990 Act with regard to ‘receiving treatment services together.’ On the facts the ‘father’ had gone to the hospital for the beginning of the procedure together with the mother and it was part of a plan in which they were both willing and anxious to produce a child with the father’s sperm. Although the father’s relationship with the mother had ended by the time the actual insemination was carried out, he was a willing consenting party to the treatment which they had commenced together when the sperm sample was taken and he had not subsequently withdrawn his deemed consent. The exception to the requirement for written consent applied.

Judges:

Bracewell J

Citations:

[1996] 2 FLR 15

Statutes:

Human Fertilisation and Embryology Act 1990 Sch3 5(3), Children Act 1989 Sch 1

Jurisdiction:

England and Wales

Cited by:

Cited – AHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B QBD 26-Feb-2003
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents . .
Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .
Cited – In Re R (Parental responsibility: IVF baby); D (A Child), Re HL 12-May-2005
The parents had received IVF treatment together, but had separated before the child was born. The mother resisted an application by the father for a declaration of paternity.
Held: The father’s appeal failed. The Act made statutory provision . .
Lists of cited by and citing cases may be incomplete.

Children, Health, Child Support

Updated: 20 April 2022; Ref: scu.182940

In re F (otherwise A) (A Minor) (Publication of Information): FD 1976

Citations:

[1976] 3 All ER 274, [1976] 3 WLR 307, [1977] Fam 47

Statutes:

Administration of Justice Act 1960 12(1)(a)

Jurisdiction:

England and Wales

Cited by:

Appeal from – In re F (otherwise A ) (A Minor) (Publication of Information) CA 1977
An allegation of contempt was made in proceedings related to the publication by a newspaper of extracts from a report by a social worker and a report by the Official Solicitor, both prepared after the commencement and for the purpose of the wardship . .
Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Lists of cited by and citing cases may be incomplete.

Children, Media, Contempt of Court

Updated: 20 April 2022; Ref: scu.182818

In re R (Care: disclosure: nature of proceedings): FD 2002

In care proceedings, unproved allegations of harm were abandoned, before being rejected by the court. The threshold criteria were satisfied on a different ground, namely, neglect and emotional harm.
Held: As matters stood the local authority and the court should assess risk on the basis that the allegations of sexual abuse were just that and nothing more. Part of the background, and relevant as such, was that the allegations had been made. Also part of the background, and likewise relevant, was the fact that the allegations had not been proved and, as matters stood, would not be proved. It would be wrong for the local authority to deal with the family on the basis that it believed the children had been sexually abused. That overall approach accorded with the current reality.
Charles J said: ‘general statements that one sees in textbooks and hears that social work records are covered by public interest immunity, which is a widely stated class claim, should now be consigned to history.’

Judges:

Charles J

Citations:

[2002] 1 FLR 755, [2001] EWHC Fam 8, [2002] Fam Law 253

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – In re O and N (Minors); In re B (Minors) (Care: Preliminary hearing) HL 3-Apr-2003
The appeals were from conflicting decisions in care applications where one or other or both parents were guilty of lack of care, but there was no evidence to say which was responsible.
Held: The threshold criteria had been met, and the court . .
Cited – In re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
Cited – Durham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .
Cited – Durham County Council v Dunn CA 13-Dec-2012
The claimant wished to begin a claim alleging historic sexual abuse while he had been at an institution run by the defendants. The claimant sought pre-trial disclosure of various documents and the court now considered the principle applicable, and . .
Lists of cited by and citing cases may be incomplete.

Children, Information

Updated: 20 April 2022; Ref: scu.180423

Re T (A Child): CA 4 Oct 2018

The appellant was 15 years old and subject to a full care order. The local authority proposed that she be detained in a unit which was not an approved children’s home, and sought authority from the High Court for the restriction of the child’s liberty, relying upon the inherent jurisdiction.
Held: The Court pointed to the shortage of approved secure children’s homes. There were ‘many applications being made to place children in secure accommodation outside the statutory scheme laid down by Parliament’

Judges:

Sir Andrew Mcfarlane
(President of the Family Division)
Lord Justice Moylan
And
Lord Justice Peter Jackson

Citations:

[2018] EWCA Civ 2136, [2019] 1 FLR 965, [2020] Fam 1, [2019] 1 FCR 322, [2019] 2 WLR 1173

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Re T (A Child) SC 30-Jul-2021
This appeal concerns a particular aspect of the use of the inherent jurisdiction of the High Court to authorise a local authority to deprive a child of his or her liberty. . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 19 April 2022; Ref: scu.625423

Re H-B (Contact): CA 22 Apr 2015

F’s appeal against orders made on his application for contact refusing him direct contact.
Sir James Munby P said: ‘. . parental responsibility is more, much more than a mere lawyer’s concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child.’

Judges:

Black LJ , Sir James Munby P

Citations:

[2015] EWCA Civ 389, [2015] Fam Law 634, [2015] 2 FCR 581, [2015] 2 FCR 581

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Makhlouf v Secretary of State for The Home Department SC 16-Nov-2016
(Northern Ireland) The appellant (born in Tunisia) was made subject to a deportation order. He had married a UK citizen and they had a child. After moving to the UK, at various times, the relationship broke down and he was convicted of several . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 19 April 2022; Ref: scu.545698

Regina v Gyngall: 1893

The father of the child (a girl of about 15) was dead and it was the mother who was the guardian, it seems by operation of the Guardianship of Infants Act 1886. The decision of the first instance court not to return the girl to her mother, despite there being no misconduct on the part of the mother derogating from her right to custody, was interpreted as an exercise of the Chancery jurisdiction, taking into account the welfare of the child, rather than an exercise of the common law habeas corpus jurisdiction. ‘In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded.’

Judges:

Kay LJ

Citations:

[1893] 2 QB 232

Jurisdiction:

England and Wales

Cited by:

Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Mentioned – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 19 April 2022; Ref: scu.213653

In Re C (A Minor) (Medical Treatment: Court’s Jurisdiction); Re C (Detention: Medical Treatment): FD 21 Mar 1997

A children’s clinic is not secure accommodation, and the court may make orders for his or her treatment whilst in the clinic. The court discussed whether the state had power if necessary to detain a child using its parens patriae powers to give necessary medical treatment. Wall J analysed the permissible use of force in the case of children. As to submissions made on behalf of the child: ‘I take the force of these submissions, and entirely agree with Mr Wood that if it is appropriate to make an order under the inherent jurisdiction in this case, the order should be time-limited, and have built into it stringent safeguards to protect the interests of C. I am also of the view, however, that C’s best safeguard is legal representation and access to the court through her lawyers. Clearly any order must contain liberty to apply on short notice.’ He went on to identify considerations which should be borne in mind by the court when deciding whether, and if so on what terms, to make an order under the parens patriae jurisdiction directing the detention of a child in a specified institution for the purposes of medical treatment: ‘. . (3) Any order the court makes must be based upon and justified by convincing evidence from appropriate experts that the treatment regime proposed
(a) accords with expert medical opinion, and
(b) is therapeutically necessary.
(4) Any order the court makes should direct or authorise the minimum degree of force or restraint, and in the case of an order directing or authorising the detention of the child the minimum period of detention, consistent with the welfare principle.
(5) Any order directing or authorising the detention of the child should
(a) specify the place where the child is to be detained,
(b) specify (i) the maximum period for which the detention is authorised and, if thought appropriate, (ii) a date on which the matter is to be reviewed by the court, and
(c) specify, so far as possible, a place whose location imposes the minimum impediments on easy and regular access between parents and child.
(6) Any order directing or authorising the detention of the child should contain an express liberty to any party (including the child) to apply to the court for further directions on the shortest reasonable notice.’

Judges:

Wall J

Citations:

Gazette 03-Apr-1997, Times 21-Mar-1997, [1997] 2 FLR 180

Statutes:

Children Act 1989 25

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (Howard League for Penal Reform) v Secretary of State for the Home Department QBD 29-Nov-2002
The League challenged the respondent’s statement in the Prisons’ Handbook that children held in young offender institutions were not subject to the protection of the 1989 Act.
Held: Neither the Prison Act and Rules excluded the Prison . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 19 April 2022; Ref: scu.81787

Regina v Secretary of State for the Home Department Ex Parte A: HL 27 Jan 2000

A youth had been remanded into the care of the local authority pending his trial. He was eventually made subject to a custodial sentence and sought to have the period of remand deducted from his sentence. The period in care had not been in a secure environment but a strict regime of curfews and otherwise had applied. The court held that such a remand did not operate to restrict his liberty and the time was not to be deducted.

Judges:

Lord Nicholls of Birkenhead Lord Nolan Lord Steyn Lord Hope of Craighead Lord Clyde

Citations:

Times 28-Jan-2000, Gazette 10-Feb-2000, [2000] UKHL 4, [2000] 2 AC 276, [2000] 1 All ER 651, [2000] 2 WLR 293, [2000] Crim LR 321, [2000] 2 Cr App Rep (S) 263, (2000) 164 JP 141, [2000] Prison LR 13

Links:

House of Lords, Bailii

Statutes:

Criminal Justice Act 1967 Part III

Jurisdiction:

England and Wales

Cited by:

Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Children

Updated: 19 April 2022; Ref: scu.85524

In re D (The Father): FD 21 Dec 2010

The court was asked whether to order a fact finding hearing in respect of the father’s alleged involvement in the death of a child K (who was never part of the family group, the subject of this application) following his acquittal of her murder or manslaughter.

Judges:

Hedley J

Citations:

[2010] EWHC 3342 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Children

Updated: 18 April 2022; Ref: scu.440455

Hewer v Bryant: CA 1969

The issue was the meaning of ‘in the custody of a parent’ in the Limitation Act 1954.
Held: A 15-year-old living away from home and working as an agricultural trainee was not in the custody of a parent for this purpose. ‘Custody’ in the Limitation Act meant the actual exercise of powers of control.
The parental right to custody is: ‘a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.’
One facet of the right to custody is the right to refuse consent to the issue of a passport.
As to the case of Agar-Ellis: ‘That case was decided in the year 1883. It reflects the attitude of a Victorian parent towards his children. He expected unreasoning obedience to his commands. If a son disobeyed, his father would cut him off with a shilling. If a daughter had an illegitimate child, he would turn her out of the house. His power only ceased when the child became 21.’
Sachs LJ expressly referred to the parent’s ‘ability to restrict the liberty of the person’, which lasted until the age of discretion, and distinguished between the parental power and the court’s power, which lasted until the age of majority
Lord Denning MR put it this way: ‘the legal right of a parent to the custody of a child . . is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.’

Judges:

Lord Denning Mr, Sachs LJ

Citations:

[1970] 1 QB 357, [1969] 3 All ER 578

Statutes:

Limitation Act 1954

Jurisdiction:

England and Wales

Citing:

Horrendous – In re Agar-Ellis (No 2) CA 24-Jul-1883
A father has a legal right to control and direct the education and bringing up of his children until they attain the age of twenty-one years, even although they are wards of Court, and the Court will not interfere with him in the exercise of his . .

Cited by:

Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 18 April 2022; Ref: scu.238338

In Re K (A Child) (Secure Accommodation Order: Right to Liberty): CA 29 Nov 2000

An order providing that a child should stay in secure accommodation, was an order which restricted the child’s liberty. A justification for such a restriction had to be brought within the exceptions listed in article 5.
Held: Detention for educational supervision was permitted, and such supervision was not restricted to education in the sense of tuition in a school setting, but could be extended to include education in the more general sense of the exercise of parental rights by an authority in whose care the child was. Such an order did not therefore conflict with the child’s article 5 right.
The order was in conformity with the Convention as it came within the wide language of Article 5(1)(d) as being detention of a minor by lawful order for the purpose of educational supervision.
Judge LJ said: ‘There was some interesting discussion about the way in which parents restrict the movements of their children from time to time by, for example, putting young children into bed when they would rather be up, or ‘grounding’ teenagers when they would prefer to be partying with their friends, or sending children to boarding schools, entrusting the schools with authority to restrict their movements. All this reflects the normal working of family life in which parents are responsible for bringing up, teaching, enlightening and disciplining their children as necessary and appropriate, and into which the law and local authorities should only intervene when the parents’ behaviour can fairly be stigmatised as cruel or abusive. . . If the restrictions necessarily imposed on K for his own safety and that of others were imposed on an ordinary boy of 15, who did not pose the problems requiring a secure accommodation order, in my view, there would be a strong case that his parents were ill-treating him. As it is the local authority have been obliged, as a ‘last resort’, to seek authorisation to impose restrictions on the boy’s liberty which would otherwise be unacceptable, whether imposed by his parents or anyone else. That, as it seems to me, is the point of the unequivocal statutory language. The purpose is to restrict liberty, and there would be no point in such a restriction or the need for it to be authorised by the court, if it were not anticipated that much more was involved than ordinary parental control . . In short, although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation order does not represent normal parental control . .
Therefore the restriction in Article 5(1)(d) is specifically directed to the situation of those minors who are beyond such normal control. Prosecution and punishment do not invariably present the most efficacious solution to the behavioural problems of children and young persons, and their long term development, whether viewed entirely as a matter of their own self-interest or the general benefit of the community as a whole. There is much to be gained if the underlying causes of the misbehaviour of a child or young person can be examined and addressed. Hence the need to allow restrictions on the liberty of minors with such problems, which goes beyond normal parental control and allows for the educational supervision.’
Butler-Sloss P said: ‘A child can be the subject of a secure accommodation order in circumstances in which the local authority does not share parental responsibility with the parents. It is a benign jurisdiction to protect the child as well as others: see In re W (Secure Accommodation Order: Attendance at Court) [1994] 2 FLR 1092, 1096 per Ewbank J, but it is none the less restrictive. If a parent exercised those powers by detaining a child in similar restrictive fashion and was challenged to justify such detonation, for my part I doubt whether the general rights and responsibilities of a parent would cover such an exercise of parental authority. It might be permissible for a few days but not for nearly two years.’

Judges:

Dame Elizabeth Butler Sloss P, Thorpe LJ

Citations:

Times 29-Nov-2000, Gazette 15-Dec-2000, [2001] 1 FLR 526, [2001] Fam 377, [2001] 2 WLR 1141

Statutes:

European Convention on Human Rights A5, Children Act 1989 25, Children Secure Accomodation Regulations 1991 (1991 No 1505)

Jurisdiction:

England and Wales

Cited by:

Cited – M (A Minor), Re Judicial Review QBNI 30-Jan-2015
The judicial review application is concerned with the lawfulness of the arrangements which have been made by the Trust in respect of M’s placement at X Care Home. These arrangements have arisen from the particular circumstances and background of M. . .
Cited – Re D (A Child) CA 31-Oct-2017
The court considered an order effectively depriving child D of his liberty. . .
Cited – RK v BCC and Others CA 20-Dec-2011
A young woman aged 17 suffered from autism, attention deficit hyperactivity disorder and severe learning difficulties, as well as epilepsy. She had been looked after at home for nearly 16 years but was then accommodated by the local authority under . .
Cited – Re D (A Child ; Deprivation of Liberty) FD 31-Mar-2015
The child, now 15 suffered several conditions which led to his challenging behaviour. He had been voluntarily admitted for assessment, and awaited placement in the community, but the Health trust now sought directions confirming the lawfulness of . .
Cited – Birmingham City Council v D CoP 21-Jan-2016
D was a young adult with several disorders presenting challenging behaviour. The Hospital sought arrangements allowing control over him for his care and education. . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Education, Children, Human Rights

Updated: 18 April 2022; Ref: scu.81968

The Christian Institute and Others v The Lord Advocate: SC 28 Jul 2016

(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 shared about a child without her consent beyond those maters necessary to protect her vital interests, to where it would benefit her wellbeing.
Held: The appeal succeeded. The Scotland Act cannot sensibly be interpreted as meaning that an enactment ‘relates to’ the subject-matter of the DPA, and is therefore outside the powers of the Scottish Parliament, merely because it requires or authorises the disclosure of personal data. On the other hand, an enactment does not have to modify the DPA in order to relate to the subject-matter of that Act. The court was not persuaded that the provisions of Part 4 relate to the subject-matter of the DPA and the Directive. However, the information-sharing provisions of Part 4 of the Act and the RDSG as currently drafted do not meet the article 8 criterion of being ‘in accordance with the law’.
The broad challenge was that the compulsory appointment of a named person to a child involves a breach of the parents’ article 8 rights unless the parents have consented to the appointment or the appointment is necessary to protect the child from significant harm. The narrower challenge focusses on the provisions in sections 26 and 27 for the sharing of information about a child.
‘There are thus very serious difficulties in accessing the relevant legal rules when one has to read together and cross refer between Part 4 of the Act and the DPA and work out the relative priority of their provisions.
Of even greater concern is the lack of safeguards which would enable the proportionality of an interference with article 8 rights to be adequately examined. Section 26(5) requires an information holder, when considering whether information ought to be provided in the exercise of the duties in section 26(1) or (3), ‘so far as reasonably practicable to ascertain and have regard to the views of the child or young person’. But there is no such requirement in relation to a service provider’s discretionary power to share information under section 26(8). There the test is merely that the provision of the information is necessary or expedient for the purposes of the exercise of any of the named person functions. Moreover, there is no statutory requirement, qualified or otherwise, to inform the parents of a child about the sharing of information. The RDSG is only guidance, speaks of ‘routine good practice’, and leaves it to the discretion of the information holder whether to involve the parent or parents. It is thus perfectly possible that information, including confidential information concerning a child or young person’s state of health (for example, as to contraception, pregnancy or sexually transmitted disease), could be disclosed under section 26 to a wide range of public authorities without either the child or young person or her parents being aware of the interference with their article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to ascertain and have regard to their views.
‘the information-sharing provisions of Part 4 of the Act (a) do not relate to reserved matters, namely the subject matter of the DPA and the Directive, (b) are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not ‘in accordance with the law’ as that article requires, (c) may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information, and (d) are not incompatible with EU law in any way which goes beyond their incompatibility with article 8 of the ECHR. We are satisfied that it is not possible to remedy this defect by reading down the provisions under section 101 of the Scotland Act 1998. Conclusion (b) therefore means that the information-sharing provisions of Part 4 of the Act are not within the legislative competence of the Scottish Parliament.’

Judges:

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Hodge

Citations:

[2016] UKSC 51, 2016 SCLR 448, [2016] ELR 474, [2016] HRLR 19, 2016 GWD 22-401, (2016) 19 CCL Rep 422, 2016 SLT 805, UKSC 2015/0216, 2017 SC (UKSC) 29

Links:

Bailii Summary, Bailii, SC, SC Summary

Statutes:

Children and Young People (Scotland) Act 2014, Scotland Act 1998 29(1), Data Protection Act 1998, European Convention on Human Rights 8, Human Rights Act 1998 6

Jurisdiction:

Scotland

Citing:

Appeal from – The Christian Institute, Family Education Trust and similar, Mcintosh and Thomas v The Scottish Minister SCS 3-Sep-2015
(Second Division, Inner House) The petitioning charities challenged the validity of the 2014 Act saying that it was an unwarranted intrusion on the private lives of families in Scotland. . .
At Outer House – In The Petition of The Christian Institute and Others for Judicial Review of The Children and Young People (Scotland) Act 2014 SCS 22-Jan-2015
The claimants challenged the 2014 Act saying that in appointing a nominated professional individual for every child, the human rights of the family had been disproportionately interfered with. . .
Cited – Martin v Her Majesty’s Advocate SC 3-Mar-2010
The claimant challenged the law extending the power of Sheriffs sitting alone to impose sentences of up to one year.
Held: The defendants’ appeal failed (Lord Rodger and Lord Kerr dissenting). The change was within the power of the Scottish . .
Cited – Imperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Cited – Agricultural Sector (Wales) Bill (Attorney General for England and Wales, Reference) SC 9-Jul-2014
‘Her Majesty’s Attorney General for England and Wales has referred to this Court under section 112(1) of the Government of Wales Act 2006 the question of whether, on the proper construction of section 108 and Schedule 7 to the GWA 2006, the . .
Cited – Criminal proceedings against Lindqvist ECJ 6-Nov-2003
Mrs Lindqvist had set up an internet site for her local parish containing information about some of her colleagues in the parish. She gave names, jobs, hobbies and in one case some of the person’s employment and medical details. The Court decided . .
Cited – South Lanarkshire Council v The Scottish Information Commissioner SC 29-Jul-2013
Commissioner’s Approach not in Breach
In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His . .
Cited – Pierce v Society of Sisters 1925
(Supreme Court) Justice McReynolds said: ‘The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(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 . .
Cited – Gillan and Quinton v The United Kingdom ECHR 12-Jan-2010
The claimants had been stopped by the police using powers in the 2000 Act. They were going to a demonstration outside an arms convention. There was no reason given for any suspicion that the searches were needed.
Held: The powers given to the . .
Cited – Olsson v Sweden (No 1) ECHR 24-Mar-1988
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 . .
Cited – Nielsen v Denmark ECHR 28-Nov-1988
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, . .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
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 . .
Cited – Z v Finland ECHR 25-Feb-1997
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 . .
Cited – El-Al Israel Airlines Ltd v Danielowitz, National Labour Court 30-Nov-1994
(Israel) ( Supreme Court sitting as the High Court of Justice) Justice Barak said: ‘The factual premise is that people are different from one another, ‘no person is completely identical to another’ . . Every person is a world in himself. Society is . .
Cited – MS v Sweden ECHR 27-Aug-1997
Hudoc Sweden – communication, without the patient’s consent, of personal and confidential medical data by one public authority to another and lack of possibility for patient, prior to the measure, to challenge it . .
Cited – X v Commission ECJ 5-Oct-1994
(Judgment) 1. The right to respect for private life, which is embodied in Article 8 of the European Convention on Human Rights and which derives from the common constitutional traditions of the Member States, is one of the fundamental rights . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
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 . .
Cited – I v Finland ECHR 17-Jul-2008
The processing of information relating to an individual’s private life comes within the scope of article 8 and that personal information relating to a patient ‘undoubtedly belongs to his or her private life’ . .
Cited – Silver And Others v The United Kingdom ECHR 25-Mar-1983
There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were . .
Cited – Roberts, Regina (on the application of) v Commissioner of Police of the Metropolis and another SC 17-Dec-2015
The Court considered the validity of suspicionless stop and search activities under s 60 of the 1994 Act, by police officers.
Held: The claimant’s appeal failed. The safeguards attending the use of the s 60 power, and in particular the . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
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 . .
Cited – MM v The United Kingdom ECHR 6-Oct-2010
. .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Cited – Volker Und Markus Schecke v Land Hessen (Approximation Of Laws) ECJ 9-Nov-2010
ECJ (Grand Chamber) Protection of natural persons with regard to the processing of personal data – Publication of information on beneficiaries of agricultural aid – Validity of the provisions of European Union . .
Cited – Schrems v Data Protection Commissioner, Digital Rights Ireland Ltd ECJ 6-Oct-2015
ECJ Grand Chamber – Judgment – Reference for a preliminary ruling – Personal data – Protection of individuals with regard to the processing of such data – Charter of Fundamental Rights of the European Union – . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
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 . .
Cited – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
Cited – Google Spain Sl v Agencia Espanola De Proteccion De Datos (AEPD) Gonzalez ECJ 25-Jun-2013
Right to be forgotten by Search Engine
ECJ Opinion – World Wide Web – Personal data – Internet search engine – Data Protection Directive 95/46 – Interpretation of Articles 2(b) and 2(d), 4(1)(a) and 4(1)(c), 12(b) and 14(a) – Territorial scope of . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

Cited by:

Cited – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
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 . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
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 . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
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 . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights, Constitutional, Information, European

Updated: 18 April 2022; Ref: scu.567720

In re AB (A Child : Deprivation of Liberty): FD 28 Jul 2015

The court was asked who, as between the parents and the local authority, could consent to an order depriving a child in residential care, of his liberty.
Held: A local authority with parental responsibility by virtue of a care order or interim care order, or with any other statutory responsibilities for a child, cannot supply a valid consent to the confinement of a child

Judges:

Keehan J

Citations:

[2015] EWHC 3125 (Fam), [2015] WLR(D) 432, [2016] 1 WLR 1160, [2016] 2 FLR 601, [2015] Fam Law 1464

Links:

Bailii, WLRD

Statutes:

Human Rights Act 1998 6, Children Act 1989 20 25 33(3) 100(4)

Jurisdiction:

England and Wales

Cited by:

Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 18 April 2022; Ref: scu.554070

Agar-Ellis, In re: ChD 1878

Citations:

(1878) 10 ChD 49

Jurisdiction:

England and Wales

Cited by:

See also – In re Agar-Ellis (No 2) CA 24-Jul-1883
A father has a legal right to control and direct the education and bringing up of his children until they attain the age of twenty-one years, even although they are wards of Court, and the Court will not interfere with him in the exercise of his . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 18 April 2022; Ref: scu.180531

Re D (A Child ; Deprivation of Liberty): FD 31 Mar 2015

The child, now 15 suffered several conditions which led to his challenging behaviour. He had been voluntarily admitted for assessment, and awaited placement in the community, but the Health trust now sought directions confirming the lawfulness of its actions.

Judges:

Keehan J

Citations:

[2015] EWHC 922 (Fam), [2015] 3 FCR 60, (2015) 144 BMLR 210, [2015] Fam Law 636, [2016] 1 FLR 142, [2015] COPLR 209

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Citing:

Cited – In Re K (A Child) (Secure Accommodation Order: Right to Liberty) CA 29-Nov-2000
An order providing that a child should stay in secure accommodation, was an order which restricted the child’s liberty. A justification for such a restriction had to be brought within the exceptions listed in article 5.
Held: Detention for . .
See Also – Re D (A Child ; Deprivation of Liberty) FD 31-Mar-2015
The child, now 15 suffered several conditions which led to his challenging behaviour. He had been voluntarily admitted for assessment, and awaited placement in the community, but the Health trust now sought directions confirming the lawfulness of . .

Cited by:

See Also – Re D (A Child ; Deprivation of Liberty) FD 31-Mar-2015
The child, now 15 suffered several conditions which led to his challenging behaviour. He had been voluntarily admitted for assessment, and awaited placement in the community, but the Health trust now sought directions confirming the lawfulness of . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Children, Health Professions, Torts – Other, Human Rights

Updated: 18 April 2022; Ref: scu.545014

Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security: HL 17 Oct 1985

Lawfulness of Contraceptive advice for Girls

The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the advice infringed her rights as a parent, and would lead to what would be an unlawful assault.
Held: ‘It is abundantly plain that the law recognises that there is a right and duty of parents to determine whether or not to seek medical advice in respect of their child, and, having received advice, to give or withhold consent to medical treatment.’ Nevertheless, the policy was capable of being lawful. A court could correct unlawful advice given by a government department. A doctor could give such advice to a girl under 16 where she would understand it, where she could not be persuaded to involve her parents, she was likely to have sex irrespective of advice, her health was at risk, and it was in her nest interests. A parent’s rights of control over a child diminished as that child’s understanding grew approaching adulthood.

Judges:

Lord Fraser of Tullybelton, Lord Scarman, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Lord Templeman

Citations:

[1985] 3 All ER 402, [1986] AC 112, [1985] 3 WLR 830, [1985] UKHL 7, [1986] 1 FLR 229

Links:

lip, Bailii

Statutes:

National Health Service (Family Planning) Act 1967 1, National Health Service Reorganisation Act 1973 4, National Health Service Act 1977 5(1)(b), Family Law Reform Act 1969 8(1)

Jurisdiction:

England and Wales

Citing:

Applied – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
Reversed – In re Agar-Ellis (No 2) CA 24-Jul-1883
A father has a legal right to control and direct the education and bringing up of his children until they attain the age of twenty-one years, even although they are wards of Court, and the Court will not interfere with him in the exercise of his . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Cited – In re P (A Minor) 1981
. .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
At first instance – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security QBD 1984
The court refused an injunction and a declaration requested by the plaintiff against the respondents as to the possibiliity of contraceptive advice and treatment being offered to her daughters under 16 without the plaintiff’s express consent. . .
Appeal from – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security CA 1985
The court granted to the claimant a declaration as to the unlawfulness of guidance to Health Authorities that it was possible to provide contraceptive advice and treatment to her daughters when under 16 and without her express consent. . .

Cited by:

Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .
Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
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 . .
Cited – Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD 27-May-2005
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – Wyatt and Another v Portsmouth Hospital NHS and Another CA 12-Oct-2005
The appellants’ daughter had been born with very severe disabilities. Her doctors obtained an order allowing them a discretion not to ventilate her to keep her alive if necessary. She had improved, but the family now sought leave to appeal an order . .
Binding – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Cited – Bailey v Warre CA 7-Feb-2006
The claimant had been severely injured in a road traffic accident. His claim was compromised and embodied in a court order, but later a question was raised as to whether he had had mental capacity at the time to make the compromise he had.
Cited – MAK and RK v The United Kingdom ECHR 23-Mar-2010
mak_ukECHR10
When RK, a nine year old girl was taken to hospital, with bruises, the paediatrician wrongly suspecting sexual abuse, took blood samples and intimate photographs in the absence of the parents and without their consent.
Held: The doctor had . .
Cited – AVS v A NHS Foundation Trust and Another CA 17-Jan-2011
The claimant contracted sporadic Creutzfeldt Jakob’s Disease disease. He executed a Lasting Power of Attorney in favour of his brother, expressing to him that he should do whatever was possible to protract his life. The brother now sought treatment . .
Cited – Equality and Human Rights Commission v Prime Minister and Others Admn 3-Oct-2011
The defendant had published a set of guidelines for intelligence officers called upon to detain and interrogate suspects. The defendant said that the guidelines could only be tested against individual real life cases, and that the court should not . .
Cited – Re D (A Child) CA 26-Mar-2014
F appealed against the removal of his parental responsibility for his son. M and F were not married, but F had been named on the birth certificate. He had later been convicted of sexual assaults against two daughters of M by an earlier relationship. . .
Cited – Jogee and Ruddock (Jamaica) v The Queen SC 18-Feb-2016
Joint Enterprise Murder
The two defendants appealed against their convictions (one in Jamaica) for murder, under the law of joint enterprise. Each had been an accessory when their accomplice killed a victim with a knife. The judge in Jogee had directed the jury that he . .
Cited – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Health, Children, Administrative

Leading Case

Updated: 18 April 2022; Ref: scu.178638

ZN and Another, Regina (on The Application of) v Bromley Youth Court: Admn 9 Jul 2014

The applicants, both aged 16, sought permission to bring judicial review of a decision to commit thme for trial at the adult Crown Court on theft charges along with a co-defendant adult (though 18).
Held: Permission was granted.
Hayden J said: ‘the Administrative Court will normally not interfere with a public authority’s assessment of evidence or facts but it is generally recognised that review of fact had been permitted in circumstances; a) where the existence of a set of facts is a condition precedent to the exercise of a power (See eg. R v Secretary State of the Home Department ex parte Khawaja [1984]1 AC 74); b) where there has been a misdirection, disregard or mistaken material fact; c) where the decision is unsupported by substantial evidence.
It does seem to me to be additionally at least arguable that in the initial decision the Justices either disregarded or mistook a material fact, namely the existence of an adult Co- Defendant which had the effect of vitiating the rationality of their decision on jurisdiction rendering it reviewable. Of course it is not that decision that is being reviewed, it is the District Judge’s decision to rectify it that is in focus here. These are merely two potentially arguable lines of defence, the DPP has not yet had the opportunity to formulate her arguments properly.

Judges:

Hayden J

Citations:

[2014] EWCh 2300 (Admin)

Links:

Bailii

Statutes:

Magistrates’ Court Act 1980 24A

Jurisdiction:

England and Wales

Citing:

Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Regina (Director of Public Prosecutions) v Camberwell Green Youth Court ex parte C W K and A QBD 5-Dec-2003
Magistrates have no Power to redo Mode of Trial
The prosecutor appealed against a refusal of the magistrates to revisit their decision on mode of trial.
Held: The court had no inherent jurisdiction to revisit their decision, and nor did the sections referred to grant any. Craske would have . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
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 . .
Cited – W (A Minor), Regina (on The Application of) v Leeds Crown Court Admn 28-Jul-2011
The Claimant aged 14 appeared before the Magistrates’ Court with a 20 year old Co-Defendant. The Magistrates declined jurisdiction in his case and the Claimant indicated Not Guilty pleas. The Magistrates concluded that it was in the interest of . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Children

Updated: 15 April 2022; Ref: scu.533960

In re JSB; Chief Executive, Ministry of Social Development v S and B: 4 Nov 2009

(New Zealand High Court) The child was alive but severely brain damaged, having been injured by his mother. There was a dispute between his grandparents, who were caring for him, and his birth parents as to the funeral arrangements if he were to die.
Held: Although on the facts before him an order would be premature, a jurisdiction did exist before a child’s death to decide appropriate funeral arrangements after death. However, the court had no jurisdiction to make guardianship orders which would take effect only on death, as on death guardianship responsibilities end: ‘Parens patriae and administration are two manifestations of the inherent jurisdiction. Together, they demonstrate the existence of jurisdiction applying to a continuum, from the beginning of life until after its end. While the former is directed to the living and the latter to the dead, s.16 of the Judicature Act draws no distinction between aspects of the inherent jurisdiction. The existence of the continuum favours this Court’s ability to do such things as are necessary to protect the interests of the living child, after death.
Viewed as a continuum, the inherent jurisdiction covers the very situation that has arisen in this case. Provided that there is justification for the view that an order is required, while JSB is alive, to protect his best interests after death, I hold that the inherent jurisdiction can be used to make such an order. The fact that any order might deal with a topic at the intersection of the two relevant aspects of the inherent jurisdiction is, in my view, irrelevant. The continuum approach militates against a sharp distinction between different aspects of the Court’s jurisdiction. Power to make an order arises from a single source: the inherent jurisdiction.’

Judges:

Heath J

Citations:

[2010] 2 NZLR 236, [2009] NZHC 2054

Links:

Nzlii

Jurisdiction:

New Zealand

Cited by:

Applied – Re JS (Disposal of Body) FD 10-Nov-2016
Child’s Wish for post-mortem cryonic Preservation
JS, a child of 14, anticipating her death from cancer expressed the desire that her body should receive cryonic preservation in the hope that one day a treatment might be available to allow her to be revived, and proceedings were issued. Her parents . .
Cited – Takamore v Clarke and others 18-Dec-2012
Supreme Court of New Zealand – The deceased was Tuhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tuhoe whanau moved his body to the Bay of Plenty and . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 13 April 2022; Ref: scu.571416

T P and K M v United Kingdom: ECHR 31 May 2001

A failure by a local authority to disclose a video tape of an interview deprived the applicant of their right to a fair trial in court proceedings. A child had been placed in care despite when, being interviewed, she had exculpated a relevant member of the household. By refusing to allow access to the tape or a transcript, the mother had not had adequate opportunity to become involved in the decision making process, in breach of the right to family life under article 8. The family had also been denied an adequate remedy on the courts, in that compensation was not available for the failure.

Citations:

Times 31-May-2001

Statutes:

European Convention on Human Rights

Children, Human Rights

Updated: 10 April 2022; Ref: scu.89674

Regina v B (Child: Mode of trial for indecency): CACD 27 Feb 2001

A boy aged fourteen should not have been tried in the Crown Court for allegations of indecency when the complainants were also child witnesses. Such a procedure was not in the interests either of the defendant nor of the complainants. In this case also it could not have been thought that the sentencing powers of the Youth Court would be inadequate.

Citations:

Times 27-Feb-2001

Children, Criminal Practice

Updated: 10 April 2022; Ref: scu.88376

Regina v Northavon District Council ex parte Smith: HL 18 Jul 1994

Local Authority is under no obligation to provide permanent housing for a family with children save as provided under the Act. The Children Act not to be used as a way around homelessness decisions and rules. A Social Services request to house children did not revive any claim made on behalf of the family as a whole. A child without accommodation is a child in need.

Judges:

Lord Templeman

Citations:

Gazette 19-Oct-1994, Independent 21-Jul-1994, Times 18-Jul-1994

Statutes:

Housing Act 1985 Part III, Children Act 1989 22 27

Citing:

Appeal from – Regina v Northavon District Council, ex parte Smith CA 4-Aug-1993
A local Authority has a duty to act upon a housing request for children even though the family were intentionally homeless. . .

Cited by:

Cited – Regina v London Borough of Barnet ex parte G; Regina v London Borough of Lambeth ex parte W; Regina v London Borough of Lambeth ex parte A HL 23-Oct-2003
The applicants sought to oblige the local authority, in compliance with its duties under the 1989 Act, to provide a home for children, and where necessary an accompanying adult.
Held: There were four hurdles for the applicants to cross. They . .
Lists of cited by and citing cases may be incomplete.

Housing, Children

Updated: 09 April 2022; Ref: scu.87471

Regina v Director of Public Prosecutions, Ex Parte C: QBD 7 Mar 1994

The doli incapax assumption that a child does not have a guilty mind, is no longer an appropriate presumption for a 12 year old youth. A prosecutor must act in accordance with the guidelines issued pursuant to the Act.

Citations:

Gazette 07-Sep-1994, Times 07-Mar-1994

Statutes:

Prosecution of Offenders Act 1985 10

Cited by:

See Also – C (A Minor) v Director of Public Prosecutions QBD 30-Mar-1994
The 12 year old defendant held the handlebars of a motorcycle allowing a second boy to try to remove the chain and padlock securing it. He appealed against his conviction.
Held: The presumption of doli incapax for a 10-14 year old child is no . .
Lists of cited by and citing cases may be incomplete.

Crime, Children, Criminal Practice

Updated: 09 April 2022; Ref: scu.86549

Regina v Barnet London Borough Council Ex Parte B and Others: QBD 17 Nov 1993

A Local Authority has to balance its duties to provide nurseries against financial constraints. The section sets out duties of a general character which are intended to be for the benefit of children in need in the local social services authority’s area in general. The other duties and the specific duties which then follow must be performed in each individual case by reference to the general duties which the section sets out. The subsection sets out the duties owed to a section of the public in general by which the authority must be guided in the performance of those other duties. The guidance issued under section 7 of the Local Authority Services Act 1970 entitled The Children Act 1989 Guidance and Regulations, vol 2: Family Support, Day Care and Educational Provision for Young Children indicated that the duties under Part III of the 1989 Act fell into two groups, those which are general and those which are particular, and that the general duties are concerned with the provision of services overall and not to be governed by individual circumstances.

Judges:

Auld J

Citations:

Independent 17-Nov-1993, [1994] ELR 357

Statutes:

Children Act 1989 817(1)

Cited by:

Cited – Regina v London Borough of Barnet ex parte G; Regina v London Borough of Lambeth ex parte W; Regina v London Borough of Lambeth ex parte A HL 23-Oct-2003
The applicants sought to oblige the local authority, in compliance with its duties under the 1989 Act, to provide a home for children, and where necessary an accompanying adult.
Held: There were four hurdles for the applicants to cross. They . .
Lists of cited by and citing cases may be incomplete.

Children, Local Government

Updated: 09 April 2022; Ref: scu.86095

Regina (A) v Lambeth London Borough Council: QBD 25 May 2001

The duty imposed by section 17 of the Act on local authorities to safeguard and promote the welfare of children is a general duty only, and is not capable of being enforced for the benefit of a particular child by way of judicial review. As a so called target duty decisions made by the local authority pursuant to it were not open to challenge by review. Other sections may give rise to specific duties which might be so challenged, but not the general obligation.
courtcommentary.com Duty placed on social services authority under Children Act 1989 s17 is a target duty owed to children in general and not justiciable by judicial review – no duty in law to meet assessed needs by providing alternative accommodation for the whole family

Judges:

Baker

Citations:

Times 03-Jul-2001, CO/3698/2000, (2001) LGR 513

Links:

courtcommentary.com

Statutes:

Children Act 1989 17 20

Citing:

Appealed to – Regina (A) v Lambeth London Borough Council CA 5-Nov-2001
The provisions requiring local authorities to look to the welfare of children within their area was a general one, and was not enforceable to secure the interests of individual children. It was not the case that a ‘target’ duty crystallised into an . .

Cited by:

Cited – Regina (on the Application of J) v London Borough of Enfield and Another Admn 4-Mar-2002
The mother and child were destitute, and sought to oblige the local authority to provide accommodation and support.
Held: The duty to a child under the section could not be extended to include a duty to accommodate and support the child and . .
Appeal from – Regina (A) v Lambeth London Borough Council CA 5-Nov-2001
The provisions requiring local authorities to look to the welfare of children within their area was a general one, and was not enforceable to secure the interests of individual children. It was not the case that a ‘target’ duty crystallised into an . .
Lists of cited by and citing cases may be incomplete.

Children, Local Government, Judicial Review

Updated: 09 April 2022; Ref: scu.85947

Re N (A Minor): CA 22 Feb 1993

The application of Hague Convention to child abduction was a statutory function. If the facts fell within the statute, the order should be made. In such cases the interests of the particular child may not be paramount because of the need to protect other children by enforcement of the Act. Such proceedings are neither adversarial, nor inquisitorial, but sui generis

Citations:

Ind Summary 22-Feb-1993

Statutes:

Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Children, International

Updated: 09 April 2022; Ref: scu.85840

Regina v Tameside Metropolitan Borough Council ex parte J: QBD 22 Oct 1999

Where a child had been placed with a local authority for care on a voluntary basis, parental responsibility remained with the parents, and accordingly the authority was not able to override the parent’s wishes in order to place the child with foster parents. Parental responsibility included the right to choose where a child lived.

Citations:

Times 22-Oct-1999

Children

Updated: 09 April 2022; Ref: scu.85582

Regina v Hammersmith and Fulham London Borough Council ex parte Damoah: QBD 31 Dec 1998

A local authority, having once decided that a child was in need of welfare assistance, could not withdraw that, after the mother refused assistance to return to her own country, where the child’s long terms interests could properly be served by such assistance.

Citations:

Times 31-Dec-1998, Gazette 13-Jan-1999

Statutes:

Children Act 1989 Part III

Children, Local Government, Benefits

Updated: 09 April 2022; Ref: scu.85291

Regina v Cornwall County Council, Ex P L: QBD 25 Nov 1999

A local authority did not have the right to exclude solicitor representatives from child protection case conferences, and must provide minutes of any part of a meeting from which the parent is excluded. To do so would be to fail to follow the guidelines set out by the Secretary of State, which the authority was bound to follow.

Citations:

Times 25-Nov-1999, Gazette 25-Nov-1999, Gazette 17-Dec-1999

Statutes:

Children Act 1989 37, Local Authority Social Services Act 1970 7(1)

Local Government, Legal Professions, Children

Updated: 09 April 2022; Ref: scu.85201