USDAW And Wilson v WW Realisation 1 Ltd, in liquidation: ECJ 30 Apr 2015

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Collective redundancies – Directive 98/59/EC – Article 1(1)(a) – Meaning of ‘establishment’ – Method of calculating the number of workers made redundant

T von Danwitz, P
C-80/14, [2015] EUECJ C-80/14, ECLI:EU:C:2015:291
Bailii
Directive 98/59/EC 1(1)(a)
European

Employment, Insolvency

Updated: 09 November 2021; Ref: scu.546229

In re C (A Child): CA 29 Jul 2016

Publication of care hearings

The court was asked whether a judgment in earlier care proceedings held in private should now be made public. The father had since been convicted of the murder of C. Reporting restrictions were imposed pending his trial, and immediately after the trial order had been continued to protect his right to a fair trial. He had said that he intended to appeal. The media organisations now appealed against the latter order.
Held: The redacted judgment should be published.
Lord Dyson MR said that in terms of jurors remembering publicity about a trial or the people involved in it, the ‘staying power of news reports is very limited’.

Lord Dyson MR, McFarlane, Burnett LJJ
[2016] EWCA Civ 798, B4/2016/2680, [2016] Fam Law 1223, [2017] 2 FLR 105, [2016] 1 WLR 5204, [2016] WLR(D) 448
Bailii, Judiciary, WLTD
England and Wales
Citing:
Judgment now publishedLondon Borough of Sutton v Gray and Butler FD 30-Jun-2016
(Redacted) The Borough sought a care order.
Held: The father was respnsible for the death of the sister, and the surviving child was in need of the kind of care which would not lead to her following her mother’s path. . .

Cited by:
CitedSarker, Regina v CACD 13-Jun-2018
The defendant was to face trial under the 2006 Act. He applied for an order under section 4(2) of the 1981 Act postponing the reporting of the proceedings on the grounds that knowledge by the jury of the inquiry and police investigation would be . .

Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 01 November 2021; Ref: scu.567802

Hassan v The United Kingdom (GC): ECHR 16 Sep 2014

Grand Chamber – The applicant alleged that his brother was arrested and detained by British forces in Iraq and was subsequently found dead in unexplained circumstances. He complained under Article 5-1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities failed to carry out an investigation into the circumstances of the detention, ill-treatment and death.
Held: ‘the powers of internment under the Third and Fourth Geneva Conventions, relied on by the Government as a permitted ground for the capture and detention of Tarek Hassan, are in direct conflict with Article 5 – 1 of the Convention. The Court does not have any legitimate tools at its disposal, as a court of law, to remedy this clash of norms. It must therefore give priority to the Convention, as its role is limited under Article 19 to ‘[ensuring] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto’. By attempting to reconcile the irreconcilable, the majority’s finding today does not, with respect, reflect an accurate understanding of the scope and substance of the fundamental right to liberty under the Convention, as reflected in its purpose and its historical origins in the atrocities of the international armed conflicts of the Second World War.’

Dean Spielmann, P
29750/09 – Grand Chamber Judgment, [2014] ECHR 936, [2014] ECHR 1162
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Coroners, Armed Forces, News

Updated: 01 November 2021; Ref: scu.536666

Secretary of State for The Home Department v ZAT and Others (Syria): CA 2 Aug 2016

Entry from Calais for Asylum Applicants

The Secretary of State appealed against orders granting entrance to seven respondents ordering that they be admitted to the UK from Calais with a view to determining their refugee status.
Held: The tribunal had failed to apply the correct test.

Moore-Bick, Longmore, Beatson LJJ
[2016] EWCA Civ 810, C2/2016/071
Bailii, Judiciary
Europran Convention on Human Rights 8
England and Wales

Immigration, News, Human Rights

Updated: 31 October 2021; Ref: scu.567882

Tyrrell v HM Senior Coroner County Durham and Darlington and Another: Admn 26 Jul 2016

The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which was clearly from natural causes. The cause of death was established and then confirmed on post-mortem examination. There was no indication of state involvement in his death of the sort that would trigger the procedural obligation under article 2 ECHR. The coroner was right to conclude that the procedural obligation was not engaged.
The positive obligations under article 2 encompass a duty to account for the cause of any death which occurs in custody. The procedural obligation arises only in circumstances where the responsibility of the state is engaged in the sense that there is reason to believe that the substantive positive obligations have been breached by the state. In the case of deaths in custody the procedural obligation will be triggered in the case of all suspicious deaths, including apparent suicides.
References: [2016] EWHC 1892 (Admin), CO/3068/2015
Links: Bailii, Judiiary
Judges: Burnett LJ, Lang J
Statutes: European Convention on Human Rights 2, Coroners and Justice Act 2009 1(2)
Jurisdiction: England and Wales
This case cites:

  • Cited – Regina v North Humberside and Scunthorpe Coroner ex parte Jamieson CA 27-Apr-1994 (Times 28-Apr-94, Independent 27-Apr-94, [1995] QB 1, [1994] 3 All ER 972, [1994] 3 WLR 82, (1994) 158 JP 1011;, (1994) 19 BMLR 35)
    The deceased prisoner had hanged himself. He had been a known suicide risk, and his brother said that the authorities being so aware, the death resulted from their lack of care. The inquest heard in full the circumstannces leading up to the death, . .
  • Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004 (, [2004] UKHL 10, Times 12-Mar-04, [2004] 2 AC 182, , [2004] 2 WLR 800, [2004] UKHRR 501, [2004] 2 All ER 465, (2004) 79 BMLR 51, [2004] Lloyds Rep Med 288, [2004] 17 BHRC 49, (2004) 168 JPN 479, (2004) 168 JP 329)
    The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
  • Cited – Osman v The United Kingdom ECHR 28-Oct-1998 (Times 05-Nov-98, 23452/94, 87/1997/871/1083, , [1999] 1 FLR 193, , [1998] ECHR 101, 5 BHRC 293, (2000) 29 EHRR 245, [1999] Fam Law 86, [1998] HRCD 966, [1999] Crim LR 82, (1999) 163 JPN 297, (1999) 11 Admin LR 200)
    (Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
  • Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001 (Times 18-May-01, 24746/94, 37715/97, 30054/96, [2001] 11 BHRC 1, [2001] 37 EHRR 52, 28883/95, (2002) 34 EHRR 20, , [2001] ECHR 323, , [2001] ECHR 324, , [2001] ECHR 325, , [2001] ECHR 327, , [2001] ECHR 328, , [2001] ECHR 329, , [2001] ECHR 330)
    Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
  • Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008 (, [2008] UKHL 20, Times 10-Apr-08, [2008] 2 WLR 879, , [2008] 1 AC 1356, [2008] UKHRR 822, [2008] HRLR 27, [2008] 3 All ER 1)
    The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
    Held: The . .
  • Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008 (, [2008] UKHL 68, , Times 02-Dec-08, [2009] UKHRR 415, [2009] 2 All ER 521, [2009] 1 AC 588, [2009] HRLR 9, [2008] 3 WLR 1325)
    The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
    Held: There existed a similar duty to hold an enhanced . .
  • Cited – Slimani v France ECHR 27-Jul-2004 (57671/00, , [2004] ECHR 396, , (2006) 43 EHRR 49)
    A Tunisian was committed to a psychiatric hospital on several occasions. He died while detained in a detention centre awaiting deportation. The applicant complained that there had been a violation of article 2 on two grounds: the detention centre . .
  • Cited – Goodson v HM Coroner for Bedfordshire and Luton Admn 17-Dec-2004 (, [2004] EWHC 2931 (Admin), [2005] 2 All ER 791, [2006] 1 WLR 432, [2005] Lloyds Rep Med 202, (2005) 84 BMLR 72, [2005] Lloyd’s Rep Med 202)
    A patient had died in hospital following an operation. The NHS Trust submitted that ‘There is a real distinction between cases of medical negligence, which were specifically addressed as a discrete area in Calvelli, and cases of intentional killing . .
  • Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005 ([2006] 1 WLR 461, , [2005] EWCA Civ 1440, Times 08-Dec-05)
    Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
  • Cited – Tarariyeva v Russia ECHR 14-Dec-2006 (4353/03, , [2006] ECHR 1096, [2007] Prison LR 270, [2008] Inquest LR 209, (2009) 48 EHRR 26)
    A complaint was made that the authorities had failed in their duty to protect a prisoner’s life. The authorities had him in custody for two years and knew of his health problems. He was not properly treated in the penal colony. When he had acute . .
  • Cited – Kats and Others v Ukraine ECHR 18-Dec-2008 (, [2008] ECHR 1742, 29971/04, (2010) 51 EHRR 44)
    The applicants were the parents and son of a prisoner who died in custody of an HIV related illness. They complained of her treatment in custody.
    Held: If someone dies in custody an explanation of the cause of death must be provided, including . .
  • Cited – Daniel and Another v St George’s Healthcare NHS Trust and Another QBD 19-Jan-2016 (, [2016] EWHC 23 (QB), [2016] WLR(D) 28, [2016] 4 WLR 32, [2016] Med LR 75)
    The claimants as PR’s of a deceased prisoner claimed under the 1998 Act as to his treatment whilst in prison.
    Held: The Claimants failed to establish violations of Articles 2 or 3 and their claim against both Defendants was dismissed. . .
  • Cited – 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 (, [2010] UKSC 29, , [2010] WLR (D) 165, , , [2010] 3 WLR 223, [2010] 3 All ER 1067, [2011] 1 AC 1, [2010] Inquest LR 119, [2010] UKHRR 1020, [2010] HRLR 28, 29 BHRC 497)
    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.

These lists may be incomplete.
Last Update: 23 October 2020; Ref: scu.567656

Rapisarda v Colladon (Irregular Divorces); FC 30 Sep 2014

References: [2014] EWFC 35
Links: Bailii
Coram: Sir James Munby P FD
The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Held: It had been asserted that the English court had jurisdiction to entertain the petition in accordance with the Council Regulation on the basis that the petitioner was habitually resident and had been resident in England and Wales. In all but one case there was in fact no reason to think there had been any UK residence. The English court was deceived; the English court was induced by fraud to accept that it had jurisdiction to entertain the petition. It was apparent that an Italian had been offering a service providing UK divorces to Italian nationals.
Petitions not having reached the stage of decree had now been dismissed. The decrees must be set aside as being void for fraud. In each case the underlying petition must be dismissed. This is not a matter of judicial discretion; it is the consequence which follows inexorably as a matter of law from the facts as I have found them. It made no difference if one or other or both of the parties have re-married or even had a child.
Sir James summarised the law: ‘i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;
ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;
iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;
iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.’
Statutes: Domicile and Matrimonial Proceedings Act 1973 5(2), Council Regulation (EC) No 2201/2003, Matrimonial and Family Proceedings Act 1984, Family Procedure Rules 2010 7.5(1), Matrimonial Causes Act 1973 8
This case cites:

  • Cited – Ali Ebrahim -v- Ali Ebrahim (Queen’s Proctor intervening) ([1983] 1 WLR 1336)
    . .
  • Cited – Sheldon -v- Sheldon (The Queen’s Proctor Intervening) ([1865] EngR 180 (A), Commonlii, (1865) 4 Sw & Tr 75)
    Practice. – Dismissal of Petition – No Evidence produced -The Queen’s Proctor intervened in a suit for dissolution in which the respondent did not appear, and alleged collusion and the petitioner’s adultery. No evidence being tendered in support of . .
  • Endorsed – Crowden -v- Crowden (The King’s Proctor showing cause) ((1906) 23 TLR 143)
    The normal practice of the Queen’s Proctor is not to adduce evidence in support of the plea on intervening in a divorce petition, and there is no need for him to do so where there is no answer to the plea. . .
  • Endorsed – Clutterbuck -v- Clutterbuck and Reynolds (Queen’s Proctor showing cause) ([1961] 105 Sol Jo 1012)
    The court considered the proper practice where the Proctor intervened in a divorce petition, but no answer was received from the parties. . .
  • Cited – Wiseman -v- Wiseman ([1953] P 79)
    A decree absolute of divorce which would otherwise be void, will still be void even though one of the parties has subsequently remarried and had a child. . .
  • Cited – Bater -v- Bater CA ([1906] P 209)
    The judgment of a divorce court dissolving a marriage is a judgment in rem, conclusively established the new status of the parties to the suit. A decree obtained in a foreign country by false evidence or by collusion in regard to the matrimonial . .
  • Cited – Lazarus Estates Ltd -v- Beasley CA ([1956] 1 QB 702, [1956] 1 All ER 341)
    There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . .
  • Cited – Callaghan -v- Hanson-Fox (Andrew) ([1992] Fam 1, [1991] 2 FLR 519)
    H sought to have set aside a decree absolute obtained on the petition of his now deceased wife on the ground of fraud, in that the petitioner had falsely sworn in her affidavit verifying the petition that the marriage had broken down irretrievably . .
  • Cited – Moynihan -v- Moynihan (No 2) FD ([1997] 1 FLR 59)
    The Queen’s Proctor applied to have set aside a decree absolute of divorce obtained by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The particulars set out in the petition were false in a number of material respects; the . .
  • Cited – S -v- S (Ancillary Relief: Consent Order) FD (Gazette 11-Apr-02, [2002] 3 WLR 1372, [2003] Fam 1, [2002] 1 FLR 992, [2002] IDS Pensions Law Reports 219)
    An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
  • Cited – Marinos -v- Marinos FD (Bailii, [2007] EWHC 2047 (Fam), [2007] 2 FLR 1018)
    The court was asked as to points of both law and fact under Article 3 of Council Regulation (EC) No 2201/2203, commonly known as Brussels II (revised). The greek father and english mother and their children had lived in Greece and England. W began . .
  • Cited – Kearly -v- Kearly FD ([2009] EWC 1876 (Fam), [2010] 1 FLR 619)
    . .
  • Cited – Leake -v- Goldsmith FD (Bailii, [2009] EWHC 988 (Fam), [2009] 2 FLR 684)
    . .
  • Cited – V -v- V FD (Bailii, [2011] EWHC 1190 (Fam), [2011] 2 FLR 778)
    The court was asked as to its jurisdiction to hear a divorce petition under the Regulation Brussels II Revised. . .
  • Cited – Tan -v- Choy CA (Bailii, [2014] EWCA Civ 251)
    This appeal concerns the fifth indent of Article 3(1)(a) of the Regulation, which provides that ‘[i]n matters relating to divorce . . jurisdiction shall lie with the courts of the Member State (a) in whose territory . . the applicant is habitually . .

Regina v Patel; 7 Nov 2014

Links: Judiciary
Coram: Singh J
Crown Court at Southwark. Remarks of Singh J on the sentencing of the defendant for acquiring a biological toxin, namely Abrin. A first package had been obained via a website, but was discarded. He sought a second package, but by then the seller had been arrested and US police conducted negotiations and he in turn was arrested.
Held: This was the first time an offence under the section of the Act had come for sentencing. 3 years was imposed.
Statutes: Biological Weapons Act 1974 1

In re P and Q (Children: Care Proceedings: Fact Finding); FC 19 Mar 2015

References: [2015] EWFC 26
Links: Bailiii
Coram: Pauffley J
The mother and her partner had accused many people of the satanic ritual abuse of her children. The children had since retracted their complaints.
Held: The complaints by the children had been prompted and manufactured by the mother’s partner and the mother. None of the allegations, after substantial and careful investigation, were proved true. The mother and her partner had caused immense harm to both the children and the many people they had falsely accused, and had made that damage continuing by the publication, in probable contempt of court, of many details about the case. Those persisting with the allegations were acting either maliciously or foolishly.
Pauffley J summarised her conclusions: ‘Neither child has been sexually abused by any of the following – RD, teachers at CP School H. the parents of students at that school, the priest at the adjacent church, teachers at any of the H or H schools, members of the Metropolitan Police, social workers employed by the London Borough of X, officers of Cafcass or anyone else mentioned by Ms D or Mr C.
The children’s half brother, his father and stepmother – X and Y D – are likewise exonerated of any illicit or abusive acts involving the children.
There was no satanic or other cult at which babies were murdered and children were sexually abused.
All of the material promulgated by Ms Draper now published on the internet is nothing other than utter nonsense.
The children’s false stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is the most accurate way to describe what was done by Mr C in collaboration with Ms D.
Both children were assaulted by Mr C by being hit with a metal spoon on multiple occasions over their head and legs, by being pushed into walls, punched, pinched and kicked. Water was poured over them as they knelt semi-clothed.
The long term emotional and psychological harm of what was done to the children is incalculable. The impact of the internet campaign is likely to have the most devastating consequences for P and Q.’
This case cites:

  • Cited – In In Re T (Abuse: Standard of Proof) CA (Bailii, [2004] EWCA Civ 558, [2004] 2 FLR 838, [2004] Fam Law 709)
    Dame Elizabeth Butler-Sloss P said that in abuse cases, evidence: ‘cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an . .
  • Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL (Bailii, [2008] UKHL 35, [2008] 2 FLR 141, HL, [2009] 1 AC 11, [2008] 3 WLR 1, [2008] Fam Law 837, [2008] 2 FCR 339, [2008] Fam Law 619, [2008] 4 All ER 1)
    There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
  • Cited – In re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence) SC (Bailii, [2010] UKSC 12, SC, UKSC 2010/0031, SC Summ, Times, [2010] Fam Law 449, [2010] 2 All ER 418, [2010] 1 FLR 1485, [2010] PTSR 775, [2010] 1 FCR 615, [2010] 1 WLR 701, Bailii Summary)
    The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to . .