Family ties

The human rights act will have major implications for family law, as Kathryn Hughes reports

The Human Rights Act 1998 is intended to 'give further effect to the rights and freedoms guaranteed under the European Convention on Human Rights'.

It does not create any more human rights; rather, it provides easier access to rights.

Prior to implementation, individuals who wished to obtain redress were forced to proceed to the European Court of Human Rights in Strasbourg.Now, so far as possible, primary and subordinate legislation must be read in a way which is compatible with Convention rights.The higher courts will be able to make declarations of incompatibility.

Where an incompatibility issue arises in the family proceedings court or the county court, the case should be transferred to the High Court.The minister concerned will be given the chance to make representations.

Thereafter, in an appropriate case, Parliament may provide for changes in domestic law.

Local authorities and courts must not act in a way incompatible with Convention rights.

The Convention has been described as 'a living instrument which must be interpreted in the light of present-day conditions'.

As a living instrument, the value of case precedent will alter and increasingly diminish.

The most recent Convention cases are the most important; trends will be observed from these cases.Many Convention articles are relevant to family lawyers.

They, and the 1998 Act, need to be read.Section 1(1) of the Act provides that 'Convention Rights' means the rights and fundamental freedoms set out in:l Articles 2 to 12 and 14 of the Convention;l Articles 1 to 3 of the First Protocol;l Articles 1 and 2 of the Sixth Protocol as read with Articles 16 to 18; of the Convention.But how might our work be affected? Many practitioners deal with private family law disputes but not public law, or public law rather less frequently.

For those practitioners, contact is ripe for further consideration.

Contact has been dealt with in Strasbourg already, by way of example only, Hokkanen v Finland (1994) 19 EHRR 139, but we will now see our courts dealing with contact and the human rights issues it raises in ways it has not been dealt with to date.

The cases which have exercised Strasbourg in my view make uncomfortable reading.

Domestic courts may in the past have come to the right decision, but I query whether we have as practitioners considered the human rights aspects as thoroughly as we should have.

These are, as stated, not new rights.The Convention does not expressly make children's interests the paramount consideration, and the European Court, in interpreting the right to family life (Article 8), has stated that the rights and freedoms of all concerned must be taken into account and a fair balance struck.

While there is some authority in this area, it will be raised again after October 2000.Article 8 actually provides as follows:l Everyone has the right to respect for his private and family life, his home and his correspondence;l There should be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.Article 6 (the right to a fair trial) will raise its head as frequently as Article 8 with reference to contact disputes.

Article 6 provides, amongst other things:l In the determination of his civil rights and obligations...

everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of 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.Delays, for example delays where cases are not listed through lack of court resources, will be quite unacceptable under the Convention.

Having said this, delays in other European jurisdictions are such that some UK delays may not seem that unreasonable.

Nevertheless, lack of resources is no justification for delay.

The court has a duty to act compatibly with the Convention.

It will be under a duty to raise points, whether of an administrative or legally substantive nature of its own motion.

'Family life' goes beyond the traditional family and may be established between children and individuals not necessarily their parents.

Once family life is established, the fact that a parent is not married will be of no significance.A right of effective access to the courts is guaranteed in Article 6 and a right to an oral hearing may be relevant to an application for leave pursuant to s.10(8) of the Children Act 1989.

It has to date been left to the Court of Appeal to deliver its judgments, albeit anonymised, in public.

All this may change.

While hearings in respect of children will continue to be dealt with in private, judgments suitably edited to protect confidentiality may well start to be delivered in the lower courts in public.

There is, of course, already a different regime in the family proceedings court, where the press are allowed access.

Turning now more specifically to public law and the local authority's position, one assumes that they have been preparing for implementation for a very long time.

They certainly need to have done, as the effect on them of this extra jurisdiction will be catastrophic if they are not properly prepared.

Guardians ad litem in some cases may fall into a similar category to local authorities.

Their position is a little uncertain presently.

They are undoubtedly presently considering the implications of the Convention so far as their own responsibilities are concerned.

As for secure accommodation applications, reference needs to be made to Article 5.

This article concerns the right to liberty and security which everyone has the right to.

No one should be deprived of this liberty save in certain cases.

The second limb of Article 5(1)(d) allows the lawful detention of a child for the purpose of bringing him before the competent legal authority.

Article 5(4) provides that everyone deprived of their liberty shall be entitled to a speedy court decision on the lawfulness of their detention.

I suspect that secure accommodation order applications will be looked at more carefully than previously, particularly with reference to the renewal of interim orders made.

Procedural requirements must be fair and comply with Article 6.Care proceedings proper will invite questions over family life and its disruption.

Interference cannot be justified when another family might simply provide a better home, and the aim of care proceedings will usually be the re-unification of the family as soon as possible.

Care plans where adoption is the plan for the future will accordingly require very special justification.

In Johansen v Norway (1996) 23 EHRR 33, the European Court stated: 'The applicant had been deprived of her parental rights and access in the context of a permanent placement of her daughter in a foster home with a view to adoption by the foster parents.

These measures were particularly far-reaching in that they totally deprived the applicant of her family life with the child and were inconsistent with the aim of re-uniting them.

Such measures should only be applied in exceptional circumstances and could only be justified by an overriding requirement pertaining to the child's best interests.'Care plans generally will provoke further argument in due course.

Can they be compatible with the Convention? Presently, once the court has approved the plan, the court is redundant.

If the court refuses to approve the care plan, it may be unable to protect an individual's Convention rights - not only the right to family life but also the right to a fair trial.

Might these Convention rights not enable a court ultimately to hold on to some of the control it lost when wardship disappeared and the Children Act was born?In the discharge of care applications, it will no doubt be argued that continued interference in family life can no longer be justified and efforts should now be made to re-unite.

Individual human rights remedies will, in the first instance, be positive action by the court.

Claims for damages are a possibility but will be made separately.

The family court does not have the power to award damages itself.After 1 October 2000, actions taken by public authorities must be Convention compliant whether the order being investigated ispre-October or post.

What about divorce and judicial separation? What about ancillary relief and cohabitation disputes? What about occupation orders? I suspect that human rights issue points will not be made so frequently in relation to financial aspects, though I may be wrong.

While there are no reported cases in relation to UK ancillary relief and the Convention, any attempt to deny access to the courts, to deny a proper and full final hearing, to deny a final hearing with judgment being delivered with reasons will be unacceptable from a Convention standpoint.

Article 6 must be complied with.

Might domestic legislation have to change to accommodate an improved financial situation for unmarried parties? Yes in the longer term, if not immediately.As the Court of Appeal has recently made clear, poor points and bad arguments, will not be tolerated.

I end as I began: there are no further rights available to us, but existing rights will be further developed, and not unimaginatively.

This is just the beginning of bringing existing rights home.

Kathryn Hughes is a family law partner at Blackburn firm Farleys