Tag: Northern Ireland

The Christian Institute and Others, Re Application for Judicial Review: QBNI 11 Sep 2007

The Claimants opposed the Regulations which prohibited discrimination or harassment on grounds of sexual orientation on the grounds inter alia that they offended orthodox Christian beliefs and violated rights under the ECHR.
Held: The outlawing of harassment in the case of sexual orientation may well involve interference with the freedom to manifest a religious belief. On the facts, the teaching or maintaining that homosexuality was sinful, was engaged and overlapped with the right to free expression under art.10. An assessment of the balance of interests required close consideration of issues such as the actions of the parties, the measures in question, the value of the policy promoted and the right diminished. Individual issues when raised should be decided by the County Court on a case-by-case basis.
Weatherup J said: ‘In general the applicants contend that the Regulations have the effect that the protection afforded to sexual orientation in accordance with the right to respect for private life under Article 8 and Article 14 of the Convention outweighs the protection afforded to the manifestation of religious belief under Article 9 and 14 of the European Convention so that there is a lack of fair balance between the respective rights.
On the other hand the respondent contends that this Court should not undertake an examination of the Regulations in the abstract as civil liability . . will be fact specific and should be determined on a case by case basis . . in the County Court.’ Interference with the Applicants’ rights and justification for it and the balance of interests in play required the close multi-factorial consideration for which the Respondent argued.’

Weatherup J
[2007] NIQB 66, [2008] IRLR 36
Bailii
Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, European Convention on Human Rights 8 9 14
Northern Ireland
Cited by:
Cited – Hall and Another v Bull and Another Misc 4-Jan-2011
(Bristol County Court) The claimants, homosexual partners in a civil partnership, sought damages after being refused a stay at the bed and breakfast hotel operated by the defendants, who said that this was their home, and that they were committed . .
Cited – Bull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Discrimination

Updated: 02 November 2021; Ref: scu.261743

Pepper (UK) Ltd (T/A Engage Credit) v Fox (P/A Barry Fox, Solicitors): ChNI 14 Jan 2016

Application by Pepper (UK) Ltd t/a Engage Credit against Emma Jane Fox practising as Barry Fox, Solicitors for the delivery up of all papers, documents and title deeds in the possession and custody of the Solicitors and belonging to the plaintiff relating to mortgage business in respect of a mortgage and premises in County Tyrone. The solicitors said that certain documents related to advice given to the mortgagor’s wife and were confidential to her. The lender said that having acted for them in the matter, all documents were to be disclosed.

Horner J
[2016] NICh 1
Bailii
Citing:
Cited – Leicester County Council v Michael Faraday and Partners CA 1941
The Court rejected a claim for production of all documents, books, maps and plans in possession of rating valuers who were employed by the County Council to give advice and held that the relationship of the County Council and the valuers was that of . .
Cited – Chantrey Martin v Martin CA 1953
The professional working papers of a firm of accountants were held not to be the property of the client, but letters and other papers created by accountants as agent for client were the client’s property: ‘Working accounts and other papers which . .
Cited – Mortgage Express Ltd v Bowerman and Partners (A Firm) CA 1-Aug-1995
A solicitor acting for both a lender and a borrower was under a duty to disclose relevant information to the lender client. An incident of their duty to exercise reasonable care and skill, solicitors are obliged to advise their lender client in . .
Cited – Nationwide Building Society v Various Solicitors ChD 20-Jul-1999
The case draws a distinction in group and consolidated actions between costs incurred on the general points which have been common to the parties and which brought the actions together and costs incurred in dealing with matters specific to the . .
Cited – The Mortgage Business Plc and Bank of Scotland Plc (T/A Birmingham Midshires) v Thomas Taggart and Sons ChNI 30-Apr-2014
. .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Legal Professions

Updated: 01 November 2021; Ref: scu.564915

Kirk Session of Sandown Free Presbyterian Church, Re Judicial Review: QBNI 22 Mar 2011

Ban on Gay Condemnation was Infringement

The church claimant was prohibited by the ASA from publishing a one page advert in a national newspaper condemning homosexuality. As well as stating that ‘the act of sodomy is a grave offence’ and ‘an abomination’, the banned advert had encouraged people to peacefully protest at a forthcoming ‘Gay Pride’ parade.
Held: The ban was disproportionate under Article 10(2) because of the importance of freedom of expression: ‘The applicant’s religious views and the biblical scripture which underpins those views no doubt cause offence, even serious offence, to those of a certain sexual orientation. Likewise, the practice of homosexuality may have a similar effect on those of a particular religious faith. But Art 10 protects expressive rights which offend shock or disturb… the respondent has failed to convincingly establish the necessity for such restriction which, in my view, disproportionately interferes with the applicant’s freedom of expression. In making this assessment I have taken into account the very particular context in which the advertisement was placed, the fact that the advertisement did not condone and was not likely to provoke violence, contained no exhortation to other improper or illegal activity, constituted a genuine attempt to stand up for their religious beliefs and to encourage others to similarly bear witness and did so by citing well known portions of scripture which underpinned their religious faith and their call to bear witness…’

Treacy J
[2011] NIQB 26, [2011] NI 242
Bailii
European Convention on Human Rights 10
Northern Ireland
Citing:
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Media

Leading Case

Updated: 31 October 2021; Ref: scu.440639

Down Lisburn Health and Social Services Trust and Another v H and Another: HL 12 Jul 2006

The House considered when adoption law would allow an adoption without the consent of the birth parent where there had been some continuing contact between that parent and the child.
Held: (Baroness Hale dissenting) The appeal against the adoption was dismissed. The judge’s opinion had been expressed strongly but he had expressed the law accurately, and applied it. His decision was within the range of proper decisions.
Baroness Hale pointed out that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.

Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell
[2006] UKHL 36
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Adoption (Northern Ireland) Order 1987 18(1)
Northern Ireland
Citing:
Cited – In re W (An Infant) HL 1971
The court considered the reasonability of parental disagreement in applications for adoption: ‘Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as . .
Cited – Re C (A Minor) (Adoption Order: Conditions) HL 1988
The House considered the question of conditions to be applied to any continued contact with a child after adoption. Lord Ackner said: ‘The cases rightly stress that in normal circumstances it is desirable that there should be a complete break, but . .
Cited – Yousef v The Netherlands ECHR 5-Nov-2002
In ‘judicial decisions where the rights under article 8 of parents and of a child are at stake, the child’s rights must be the paramount consideration.’ . .
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – Re G (Children) CA 20-May-2002
. .
Cited – Re C (a Minor) (Adoption: Parental Agreement: Contact) CA 1993
Where adoption is to be considered against the will of the parent, the court should recognise when asking whether the opposition was unreasonable that the test is objective and supposes that this person is endowed with a mind and temperament capable . .
Cited – In re E (A Minor) (Care Order: Contract) CA 1994
The court considered the benefits to a child of continuing parental contact while the child remained in care.
Simon Brown LJ said: ‘I recognise of course that the threshold criteria for a care order under section 31 of the 1989 Act require the . .
Cited – P, C and S v United Kingdom ECHR 2002
The local authority had obtained the issue of an Emergency Protection Order under the 1989 Act to remove a child at birth.
Held: Where the possibility of harm arose from the mother introducing something into the child’s system (such as a . .
Cited – K And T v Finland ECHR 27-Apr-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; No violation of Art. 13; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings; Costs and expenses . .
Cited – In re L (An Infant) CA 1962
That a proposed adoption of a child would be in the child’s best interests is not necessarily an indication that the parent’s opposition to the adoption is unreasonable: ‘A reasonable mother surely gives great weight to what is better for the child. . .
Cited – In re D (An Infant) (Adoption: Parent’s Consent) HL 1977
The father opposed adoption of a child by the mother and her new husband. The House was asked whether his opposition was unreasonable.
Held: Lord Wilberforce said: ‘What, in my understanding, is required is for the court to ask whether the . .
Cited – In re E (Minors) (Adoption: Parental Agreement) 1990
Aa application for a freeing order was premature. . .
Cited – In re KLA (An Infant) 2000
Sir John MacDermott considered the purpose of freeing orders. The purpose was: ‘to find out if a child would be available for adoption before prospective adopters were found and their hopes frustrated if the adoption court ruled that consent was not . .
Cited – In re C (Minors) (Adoption) 1992
. .
Cited – In Re P (Minors) (Adoption: Freeing Orders) FD 25-Jul-1994
A judge should not order continued contact after the making of freeing orders which were made without the consent of the mother. . .
Cited – In Re A (A Minor) (Adoption: Contact Order) CA 24-Jun-1993
A contact order had been properly granted with an order freeing the child for adoption. Butler-Sloss LJ: ‘The effect of an order freeing a child for adoption is to extinguish parental responsibility of those previously endowed with it and thus to . .

Lists of cited by and citing cases may be incomplete.

Adoption

Leading Case

Updated: 31 October 2021; Ref: scu.243080

Mclaughlin’s Application: QBNI 9 Feb 2016

The claimant appealed from refusal of payment of Bereavement Benefit and Widowed Parent’s Allowance on the grounds that she had neither married nor been civil partner of her deceased partner. She applied for judicial review of that decision on the ground that the relevant legislation was incompatible with the ECHR.
Held: That claim succeeded in part. Treacy J made a declaration of incompatibility under section 4(2) of the Human Rights Act 1998, that section 39A(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 is incompatible with article 8 of the ECHR in conjunction with article 14 ‘insofar as it restricts eligibility for Widowed Parent’s Allowance by reference to the marital status of the applicant and the deceased’. He rejected the claim in relation to the bereavement payment.
Treacy J
[2016] NIQB 11
Bailii
Social Security Contributions and Benefits (NI) Act 1992 36A 39A, European Convention on Human Rights 8
Northern Ireland
Cited by:
Appeal from – Mclaughlin, Re Judicial Review CANI 13-Dec-2016
Widowed parent’s allowance. The Court of Appeal unanimously held that the legislation was not incompatible with article 14, read either with article 8 or with A1P1 . .
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.564938

N and R, Re Application for Judicial Review: QBNI 8 Dec 2005

The Official Solicitor as next friend of a child N and a child R both of whom are subjects of pending Care Order proceedings before a Family Proceedings Court issued by a Community Hospital Trust seeks the following relief:
(i) A declaration that the learned Resident Magistrate hearing this case had no jurisdiction to make an Order of 22 June 2005 ordering that the guardian ad litem make disclosure of her notes of conversations with the mother of these children and with the children themselves to the mother and to the other parties in the proceedings .
(ii) Further, or in the alternative, if the learned Resident Magistrate did have jurisdiction to make the said Order for disclosure, a declaration that he erred in law in exercising his discretion to order disclosure against the guardian ad litem (‘gal’) to the extent that he did or at all.
(iii) An Order of Certiorari to remove into this Honourable court and quash the said decision.
(iv) An Order of Mandamus to compel the learned Resident Magistrate to consider the application for disclosure according to law.
[2005] NIQB 75
Bailii
Northern Ireland

Updated: 28 July 2021; Ref: scu.239074

The Attorney General for Northern Ireland and Another v The Northern Ireland Human Rights Commission: CANI 29 Jun 2017

Appeal by the Attorney General and Department of Justice against an Order declaring that sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act were incompatible with Article 8 of ECHR insofar as it is an offence:
(i) to procure a miscarriage at any stage during a pregnancy where the foetus has been diagnosed with a fatal foetal abnormality;
(ii) to procure a miscarriage up to the date when the foetus is capable of being born alive where a pregnancy arises as a result of rape or incest.
Lord Chief Justice, Sir Declan Morgan, suggested that it was possible to construe the words, ‘for the purpose only of preserving the life of the mother’ so as to include circumstances where the mother’s life ‘was significantly adversely affected’: ‘I accept that the grain of the 1861 Act and the 1945 Act was intended to provide substantial protection for the foetus but in my view the phrase ‘for the purpose of preserving the life of the mother’ cannot in present circumstances be interpreted reasonably as confining protection for the mother by way of abortion to those circumstances where it is likely that she will be a physical or mental wreck. I have had the benefit of affidavits sworn in these proceedings by Sarah Ewart and AT [Ashleigh Topley]. Some aspects of the effect on these women of the prohibition of abortion in this jurisdiction in their circumstances have been described in [earlier paras of the judgment]. The present law prioritises the need to protect to a reasonable extent the life that women in these emotionally devastating situations can enjoy. In my opinion that requires the court to determine what is reasonably tolerable in today’s society. That is not to be defined by the values of the 1930s. I conclude that circumstances such as those described in those affidavits fall within the scope of the Bourne exception interpreted in accordance with that test. I consider that in each case the effects on these women were such that the option of abortion in this jurisdiction after appropriate advice should have been open. That conclusion is not dependent upon the state of health of the foetus.’
Gillen LJ expressed disagreement with these statements. He considered that it was ‘institutionally inappropriate’ for the court to ‘change the effect of the legislation and its interpretation in R v Bourne’.
Morgan LCJ, Gillen LJ and Weatherup LJ
[2017] NICA 42
Bailii
Offences against the Person Act 1861 58 59, Criminal Justice Act (Northern Ireland) 1945 25, European Convention on Human Rights 8
Northern Ireland
Citing:
Cited – Family Planning Association of Northern Ireland v Minister for Health Social Services and Public Safety CANI 8-Oct-2004
A termination of pregnancy is lawful when its continuation would threaten the woman’s life or when it would probably affect her physical or mental health but only if the effect would be serious and, in particular, permanent or long-term . .

Cited by:
Appeal from – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2021; Ref: scu.605108