Private Lives and Public Sorrows
Family lawyers are getting to grips with the Human Rights Act 1998. This Act incorporates into domestic British law the provisions of the European Convention on Human Rights. It is usual to continue to refer to Articles, used in the ECHR.
Three Articles are proving popular.
- The right to a fair trial under Article 6. Judges must be particularly vigilant to protect families, and particularly children, who become involved in the Family Justice System. This becomes increasingly difficult for many families following the very severe curtailment of the right to legal aid.
- Under Article 8, private individuals have a right to respect to their private and family lives. On the whole justice is dispensed in private in Family Courts. This is especially the case where the welfare of children is involved.
- We know what happens in courts largely because of the exercise of rights under Article 10, the right to freedom of expression. The growth of campaigning groups and skilled use of social media make it increasingly important that accurate reporting from accredited media representatives is widely available. The scheme for attendance of such representatives can be found in the Family Procedure Rules 2010 part 27. Since the Practice Guidance issued by Munby P on 16th January 2014, promoting the publication of suitably anonymised judgments, the public has had access (usually on the internet) to a growing number of law reports.
So far, so clear. Why are these rights so important in family law in the 21st century?
Three recent cases demonstrate the creativity of lawyers in using the Act.
The first case is Akhter v Khan  EWFC 54, the “Sharia marriage” case. Ms Akhter claimed that even though their marriage was not registered under civil law, she was entitled to a decree of nullity and could claim financial remedies. Mr Khan disagreed. The Attorney General intervened as an interested party. The judgment of Williams J ranges widely over the Human Rights involved, including Articles 6, 8 and 12 (the right to marry without interference of the State) and he also heard submissions on Article 3 of the United Nations Convention on the Rights of the Child. The judgment skilfully incorporated these rights into his finding that the marriage fell with section 11 of the Matrimonial Causes Act 1973 and was indeed void. The case for Ms Akhter was argued by the late and much missed Valentine Le Grice QC.
The second case reached the Supreme Court. In R (Steinfeld & Anr) v Secretary of State for international Development  UKSC 32, lawyers for Rebecca Steinfeld and Charles Keidan relied on Article 8 as an opposite sex couple. They should be able to have a civil partnership as same sex couples who can either marry or have civil partnerships. On the first day of the hearing, the Government conceded that Article 8 applied, saying that more time was need to evaluate the impact on social policy. Including the provisions of Article 14 which provides protection from discrimination, the Supreme Court made a declaration that the current law is incompatible with the Human Rights Act. We are promised amending legislation.
The third case is very recent. On 15th February 2019, the Court of Appeal ruled in favour of the lifting of a reporting restriction placed by HHJ Levey in October 2018, in a case involving a young child. An earlier decision in the case was published as M (A Child)  EWCA Civ 240. There was considerable public and Press interest.
Citing Article 10, an independent reporter appealed against the restriction. Immediately before the appeal hearing, the parties had agreed the restriction should not have been made in the way it had. Sir Andrew McFarlane, President of the Family Division, sat with Lady Justice King (as he had when dealing with the sad case of Alfie Evans in 2018, the little boy in a vegetative state). The restriction was lifted. The President recognised the difficulty when judges have to balance the right to privacy of the mother and child under Article 8 and the freedom of the Press under Article 10. He promised revised guidelines on reporting restrictions so that judges, parties to the case and also the Press are clearer on this issue.
It’s all rather difficult. Social media provides a platform for immediate dissemination of private information, some of it illegally published. The responsible Press have an important role in guarding the rights of the public to know what is happening in courts. In the recent Court of Appeal case, permission was given for live tweeting during the hearing. Controlled reporting is vital. The Press are the eyes, ears and finger tips on whom we rely for this.
Family law cases are increasingly heard in open court, particularly those about financial claims. Anyone can go to the hearing. But sensitive cases regarding vulnerable people, and particularly children, have an expectation of privacy.
We look forward to more cases using the Human Rights Act and to the new guidance from the President.
This article was originally published in Family Law Week and can be accessed here.