Section 3(1) of the 1998 Act is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute. The judge’s task is to interpret, not to legislate. The proposed ‘starring system’ was inconsistent in an important respect with the scheme of the Children Act 1989, and the proposed system had far-reaching practical ramifications for local authorities.
Lord Nicholls of Birkenhead said: By virtue of the Human Rights Act 1998 the right to respect for private and family life which is guaranteed by article 8 of the Convention is now part of a person’s civil rights in domestic law for the purposes of article 6(1). The provisions of the CA 1989 are compliant with the Convention and the Act was framed so as to take account of the Convention.
Lord Nicholls said: ‘a right guaranteed by Article 8 is not in itself a civil right within the meaning of Article 6(1).
Although a right guaranteed by Article 8 is not in itself a civil right within the meaning of Article 6(1), the Human Rights Act has now transformed the position in this country. By virtue of the Human Rights Act Article 8 rights are now part of the civil rights of parents and children for the purposes of Article 6(1). This is because now, under section 6 of the Act, it is unlawful for a public authority to act inconsistently with Article 8 . . the court remedies provided by sections 7 and 8 should ordinarily provide effective relief for an infringement of Article 8 rights.’
Lord Nicholls of Birkenhead, Lord Mackay of Clashfern
[2002] UKHL 10, [2002] 2 AC 291, [2002] 2 All ER 192, [2002] UKHRR 652, [2002] BLGR 251, [2002] HRLR 26, [2002] 1 FLR 815, [2002] 2 WLR 720, [2002] Fam Law 413, [2002] 1 FCR 577
Bailii
Human Rights Act 1998 3, Children Act 1989, European Convention on Human Rights 8
England and Wales
Cited by:
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – MB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Secretary of State for the Home Department v JN CA 14-May-2008
The Secretary of State appealed against a declaration that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3. The clause was said to restrict the Home Secretary from considering anything beyond the country . .
Cited – GC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
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. . .
Lists of cited by and citing cases may be incomplete.
Children, Human Rights
Leading Case
Updated: 31 October 2021; Ref: scu.184025