Family lawBy David Burrows, David Burrows, Bristol

Rights of prisoners and their familiesTwo recent decisions make creation of a family and family life the more difficult for prisoners and raise questions for the state's respect for 'private and family life' within the terms of article 8 of the European Convention on Human Rights.

R v Secretary of State for the Home Department, ex parte Mellor (2001) The Times,1 MayIn R v Secretary of State for the Home Department, ex parte Mellor the Court of Appeal held that the Home Office's refusal to permit Mr Mellor artificially to inseminate his wife was lawful.One purpose of imprisonment was punishment, said the Master of the Rolls, and to enable a prisoner to start a family in this way was inconsistent with that.

Deliberately to create a situation where a child would start life in a single-parent family gave rise to legitimate concerns.

Refusal to permit Mr and Mrs Mellor to procreate in this way did not breach article 8.

Mrs Mellor had been a prison officer.

She met Mr Mellor while he was serving a life sentence, had left the Home Office's employment and subsequently married Mr Mellor while he was still in prison.

It is not know whether these facts played any part in the proceedings or the Home Office's original decision.

Mr Mellor's earliest release date is unlikely to be before 2006.

R (P) v Secretary of State for the Home Department (2001) The Times, 1 JuneIn R (P) v Secretary of State for the Home Department the Divisional Court (the Lord Chief Justice, Lord Woolf, and Mr Justice Lightman) held that it was lawful for the prison service to remove children from their prisoner mothers' care at the age of 18 months.

The mother had contended that to remove a child at a specific date was in breach of sections 1 and 17 of the Children Act 1989 and article 8 of the Convention on Human Rights.

The court rejected any application of the 1989 Act; and held that the application of article 8 was tempered by article 8(2), which enables the state to interfere in family life where justified by such factors as public safety and the prevention of crime and disorder.

Echoing ex parte Mellor the court held that the impairment of family life was justified by the punitive aspect of imprisonment (a passing reference to rehabilitation does not seem to have been pursued).It was not practical for the needs of children to be put before the policy of the Home Department which was that 18 months was the appropriate time to start the cut-off for removal of a child from his/her mother.Residence orders: do chambers hearings constitute a fair trial?B v United Kingdom, P v United Kingdom (Application Nos 36337/97 and 35974/97) (2001) The Times, 15 May, ECHRWhen the European Convention of Human Rights was directly applied to English and Welsh law from October last year, there was a question as to whether the English rule that children hearings generally take place in private might be under threat.

That doubt has been resolved by these two applications.

That children proceedings were held in private and the judgment was not delivered in open court did not breach the applicants' right to a fair trial under article 6(1).Family Proceedings Rules 1991, rule 4.16(7) provides that children proceedings 'shall be in chambers' unless the court directs otherwise.

By contrast, article 6(1) of the convention provides that a fair trial requires a public hearing, subject to the proviso that: '...the press and public may be excluded....

where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice'.In B v United Kingdom, P v United Kingdom both applicants were fathers who sought residence of their children.

B's case was heard in chambers and he was told he could not publish documents which were used in the case (Family Proceedings Rules 1991, rule 4.23); while of P's applications, one was heard in chambers and the other heard in open court.The proceedings in question both concerned the residence of children.

The court considered such proceedings to be prime examples of what the convention was aimed at when it mentioned privacy of parties or the interests of children.

To enable the judge fully to consider evidence of options available for a child, it was essential that parents and witnesses (if any) should be able to express themselves frankly about personal issues without fear of publicity or comment.While there might be an overriding rule of publicity, the court found no objection to there being a general class of cases which could provide an exception to the general rule; and English law in children proceedings provided an example of such a general exception.

There remained a discretion for the judge to hold proceedings in open court.Should judgment be pronounced in open court? The court noted that copies of judgments could often be obtained by interested individuals and many judgments of higher courts were published.

The court concluded that the privacy sought to be preserved by denial of an open hearing would to a large degree be frustrated if judgment must be public.A further complaint by B related to his being threatened with contempt proceedings if he published court documents.

The court held that it was consistent with its findings on privacy that parties should be prevented from disclosing papers outside the court process (save the exceptions in rule 4.23).Wasted costs: pursuing a hopeless caseHarley v McDonald (2001)The Times, 15 May, PCIn a case from New Zealand, Harley v McDonald, the Privy Council stressed the point made by Sir Thomas Bingham in Ridehalgh v Horsefield [1994] Ch 205, [1994] 2 FLR 194, CA that pursuit of a difficult or hopeless case does not alone justify a wasted costs order.

Provided the application or defence are justifiable and it is pursued with competence and upon instructions properly given, then the lawyer should be able to proceed without fear of a wasted costs order.Housing benefit and the single 'former' partnerR (Painter) v Carmarthernshire County Council Housing Benefit Review Board (2001) The Times, 16 May, Mr Justice LightmanIn R (Painter) v Carmarthernshire County Council Housing Benefit Review Board, R (Murphy) v Westminster County Council two men lodged with their landladies, then cohabited with them, then converted the relationships back to those of lodgers once again.This did not enable them to resume their former receipt of housing benefit, said Mr Justice Lightman, for they continued to occupy 'dwelling' with their former partner (contrary regulations).A modest business venture suggests itself: an exchange scheme to allow former cohabitants to convert their status as lodgers and thus revive their applications for housing benefit.