Right to fair trial - statutory restriction on parent's right to enforce child maintenance assessment - convention rights not engaged or breached

R (Kehoe) v Secretary of State for Work and Pensions: CA (Lords Justice Ward, Latham and Keene): 5 March 2004

The claimant sought child maintenance from her former husband.

Section 8 of the Child Support Act 1991 operated to restrict her right of access to the courts, the responsibility for assessment and collection passing to the Child Support Agency.

In proceedings for judicial review the claimant maintained, among other things, that 'in the determination of [her] civil rights' she was denied a fair trial in breach of article 6(1) of the European Convention on Human Rights.

The judge held that the claimant's inability personally to enforce maintenance arrears engaged her civil rights under article 6, before concluding on other grounds that she was not entitled to a declaration that the 1991 Act was incompatible with her convention rights.

The secretary of state appealed; the claimant cross-appealed.

Robert Jay QC and David Forsdick (instructed by Solicitor, Department of Work and Pensions) for the secretary of state; Richard Drabble QC and Ramby de Mello (instructed by Hodge, Jones & Allen) for the claimant.

Held, allowing the appeal and dismissing the cross-appeal, that the general rule was that article 6 was concerned with disputes recognisable under domestic law; that (Lord Justice Ward dissenting) the scheme of the 1991 Act, preventing the claimant from asserting any arguable substantive right entitling her to a determination by a court, did not operate to engage her civil rights for the purposes of article 6(1) of the convention; and that, in any event, if the claimant's article 6 rights had been engaged and her right of access to the courts was restricted, the restrictions satisfied the test of proportionality and therefore involved no breach of convention rights.

Criminal Injuries Compensation Scheme - scheme making no provision for payment costs of representation - no infringement of convention rights

C (A Child) v Secretary of State for the Home Department and another: CA (Dame Elizabeth Butler-Sloss President of the Family Division, Lords Justice Clarke and Sedley): 3 March 2004

The claimant applied for judicial review of the refusal by the Criminal Injuries Compensation Authority (CICA) to pay the costs of legal representation in her part 8 claim for compensation under the Criminal Injuries Compen-sation Scheme 1995, in respect of injuries she had suffered at the hands of her mother's boyfriend when ten months old.

The judge held that, since under paragraph 20 of the scheme where a claims officer considered an examination to be necessary it became the duty of the CICA to arrange it, the costs properly incurred by the claimant's representative in furnishing that material had to be defrayed by CICA but beyond that the scheme left costs to lie where they fell.

The claimant appealed on the grounds that the limited provision for the costs of examination and legal represen-tation under paragraphs 18 to 20 of the scheme was incompatible with her rights under articles 6, 8 and 14 of the European Convention on Human Rights.

Timothy Lamb QC and Guy Opperman (instructed by FDC Law, Frome) for the claimant; Jonathan Crow and Ruth Downing (instructed by the Treasury Solicitor) for the defendants.

Held, dismissing the appeal, that articles 8 and 14 were not engaged; and that, since the claimant had a recognised and effective right of access to CICA, the fact that the scheme made no provision for paying the expenses of legal representation obtained to ensure that the award was as full as it should be did not constitute an interference with the claimant's convention rights under article 6.

Jurisdiction to order mediation despite unwillingness of one party - no jurisdiction to order attendance of named individual - court not willing to stay proceedings pending conclusion of mediation - parties' rights at risk of infringement if stay ordered

Shirayama Shokusan Co Ltd and others v Danovo Ltd: ChD (Mr Justice Blackburne): 26 February 2004

The defendant occupied premises under a sub-underlease from the claimants.

The claimants commenced proceedings, seeking injunctions and damages and the defendant counterclaimed.

On application by the defendant, the court ordered that the parties attempt to resolve their disputes by mediation despite the unwillingness of the claimants to follow such a course.

Preparations for mediation came to a halt after the defendant learned that the claimants would not secure the attendance of a named non-party, whose presence the defendant thought was essential to the exercise.

The defendant applied to the court for a stay of proceedings pending the conclusion of the mediation at which the non-party would be summoned in order to represent the claimants.

Murray Rosen QC and Nicholas Taggart (instructed by Winward Fearon) for the claimants; Andrew Hochhauser QC and Andrew PD Walker (instructed by Davies Arnold Cooper) for the defendant.

Held, refusing to stay the proceedings, that by ordering a stay for the reason of ensuring the attendance of a non-party at a mediation might infringe article 6 of the European Convention on Human Rights and have the effect of denying the parties' right to a fair trial; that although the court had jurisdiction to order mediation and to render that mediation effective by ordering that the parties were adequately represented, it could not direct that a particular person attend the mediation, particularly where that person was a non-party to the proceedings.