Resolution national conference keynote address


13 Mar 2010

What have human rights done for family justice?

Keynote address: Mr Justice Andrew Moylan

Thank you for the giving me the great pleasure of addressing this annual conference of Resolution.

Before I come to the topic I have chosen for my speech, I want to take this opportunity to express my appreciation for all each of you do in the cause of family law and family justice.

As James Munby notably commented, since the abolition of capital punishment the powers exercised by the family courts are amongst the most drastic available to any court, including as they do the power to remove a child from their parents[1].

However, all the powers exercisable and exercised daily by family courts have considerable significance because of their importance for family life and consequently for our society. The work the family courts undertake plays a central role in supporting and maintaining family life usually at a time of crisis within the family.

There is no escaping the fact that whilst the volume and complexity of family cases is increasing, we are in financially straightened times. However, the importance of the work you undertake in and outside our courts demands that those areas of family justice which are publicly funded are given a proper share of the available resources so as to ensure that the system operates effectively to the benefit of those families who require legal assistance. It is a demand led service because most of those who require assistance are not there by choice but because circumstances have led them there. The system would not be able to operate without family lawyers. In particular, the pressure on family courts is already considerable but it would become even greater if we found more cases being dealt with by parties themselves. This is not to criticise those who appear in person, it is to acknowledge the simple fact that professional assistance aids the efficient administration of justice.

Turning now to the subject of my speech – What have human rights done for family justice? I propose, in seeking to answer this question, to focus on the period since the implementation of the Human Rights Act 1998 (“the Act”) on 2nd October 2000.

In that seminal work of history “1066 And All That”[2] - which will be known at least to those of you who studied history in (or before) the 1960s - events and people were divided, I must accept somewhat adventitiously, into “good things” and “bad things”. So, the question I ask is whether the Act has been a “good thing” or a “bad thing” for family justice? An alternative way of expressing the same question and adapted from “What did the Romans do for us?”, is what has this Act done for family justice?

I appreciate that phrasing my subject in this way might seem rather simplistic or even frivolous when the Act and, to give it its full title, the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) are neither. However, I do so in part because it provides me with a mechanism to address whether, from a family justice perspective, the Act and the Convention merit the criticism they sometimes receive.

In Lady Justice Arden’s 2009 Hailsham Lecture, in which she considered the impact of the Act on the law of tort, she started with two quotations which I repeat.

First, from Lord Irvine of Lairg, then Lord Chancellor, in his 1997 Tom Sargent Memorial Lecture:

“As we move away from the traditional Diceyan model of the common law to a rights based system, the effects will be felt throughout the common law and in the very process of our judicial decision making. This will be a healthy and dynamic development in our law”.

Secondly, from Lord Hope’s speech in ex parte Kebeline[3]:

“It is now plain that the incorporation of the (Convention) into our domestic law will subject the entire legal system to a fundamental process of review and, where necessary, reform by the judiciary”.

These remarks might be mistaken as clarion calls for judicial activism but they do no more than reflect those essential elements in the Act, namely:

(i) That “so far as it is possible to do so … legislation must be read and given effect in a way which is compatible with the Convention rights (section 3, my emphasis). This provision invests the courts with a significant power. As Lord Nicholls has said: “It is … apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it European Convention compliant”[4]; and

(ii) That public authorities, including courts, have to act compatibly with Convention rights save where constrained by incompatible primary legislation (section 6).

This is what Parliament has enacted and we would not be doing our job properly if we did not adhere to these obligations[5].

However, the two principal questions raised by Lord Irvine’s and Lord Hope’s remarks are:

(1) Has the family justice system been subjected to a fundamental process of review and, where necessary, reform by the judiciary?

(2) Have we moved towards a rights-based system in family justice?

I propose to address the broad issue of whether the Act has been a “good thing” for family justice under the umbrella of these two specific questions. I aim to demonstrate that the answer to this broad issue will depend on whether the answer to the first question is positive but that the second question – have we moved to a rights-based system – requires a more nuanced answer.

The Convention

To put these questions in context, we need to look at the Act’s scope for potential engagement with family justice. The most relevant Convention articles are well-known:

(a) Article 8: by virtue of this provision, family life is given “special protection”[6]. The protection is without defined limit; it includes both substantive protection and procedural requirements. As to the latter: “the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8”[7]. The procedural requirements inherent in Article 8 cover administrative procedures as well as judicial proceedings and are “ancillary to the wider purpose of ensuring proper respect for family life”[8];

(b) Article 6 is engaged only if “civil rights and obligations” (or a criminal charge) are being determined but it is well-established that it “covers all proceedings the result of which is decisive for private rights and obligations”[9]. Further, decisions which may “vitally affect the parent-child relationship” or which are of a “fundamental nature regarding (a) child’s future” are decisions which attract a “high degree of judicial control”[10]. In was in this latter context that Lord Nicholls doubted that the remedy of judicial review would be sufficient;

(c) Article 10 is engaged significantly because much of family justice is conducted at private hearings, a position challenged but accepted by the European Court of Human Rights[11].

Such a wide scope for potential engagement provides a ready platform for a fundamental review of family justice and for the development of a rights-based system in family justice.

(1) Has the family justice system been subjected to a fundamental process of review and, where necessary, reform by the judiciary?

Turning to my first question, as an overview, there can be no doubt that the implementation of the Act has resulted in these three Convention Articles permeating many aspects of family law to the extent that they have become common features in family proceedings. This is a significant practical change from the position that existed prior to 2000, even though this country had ratified the Convention in 1951, even though many of the concepts in the Convention were familiar to family lawyers and even though, for example, the provisions of The Children Act 1989 “were informed by the United Kingdom’s obligations under” Articles 6 and 8[12].

This can be demonstrated, loosely and simplistically, by the fact that in the 17th edition of Rayden and Jackson on Divorce, published in 1997, human rights do not feature in the index at all, whereas in the 18th Edition, published in 2005, it is given a whole chapter of its own of 73 pages. I also propose to demonstrate this by reference to four short passages from cases decided either side of the Act although I acknowledge that my reliance on these is slightly tendentious as they do not necessarily support the point I am making; I refer to them for other reasons as well.

The two from before 2000 are:

(i) First, from 1978 and that great family jurist Ormrod LJ who, in an appeal by a mother who argued that there should be no contact between the child and the father, said: “(The Judge at the hearing) took the point at an early stage in the judgment, when he came to deal with the law, that it was a mistake to talk … in terms of rights, and he was undoubtedly, in my judgment, correct in what he said. The word ‘rights’ is a highly confusing word which leads to a great deal of trouble if it is used loosely, particularly when it is used loosely in a court of law”[13].

(ii) Second, from Dawson v Wearmouth[14] which was decided by the House of Lords not long before the 1998 Act came into force. The case concerned an application by a father to change a child’s surname from that registered unilaterally by the mother to his own surname. The appeal was argued by James Munby QC who, given his subsequent part in embedding human rights in family law, perhaps not surprisingly relied on the Convention. He argued that the father’s rights under Article 8 were being infringed. Lord Hobhouse robustly rejected this argument, saying that there was “no basis for this submission”. He went on to say,

“The present case is concerned with the welfare of the child not with the rights of the father. There is nothing in the Convention which requires the courts of this country to act otherwise than in accordance with the interests of the child. Insofar as the father has an interest in having his paternity of the child recognised and being granted appropriate access to the child, those interests have been accommodated in the consent orders made in the county court”.

The two from after 2000 are:

(i) First, Wall LJ from 2009 when he said: “The message from this case, which must be sent out load and clear, is that this court applies a tolerant and human rights based rule of law”[15].

(ii) Second, Ward LJ from 2010 when he said in a case concerning the meaning of “significant” in the phrase “significant harm” in section 31 of the Children Act: “the harm must …be significant enough to justify the intervention of the State … At all times the spectre of Art 8 of the European Convention … hangs over us all”[16].

Since I could not set out all those areas of family justice which have been subject to review “through the prism”[17] of the Convention, I confine myself to selected examples which I consider under three headings – The Convention as a Framework; Proceedings under the 1998 Act; and Financial Claims.

A: The Convention as a Framework

In several areas of child law, the fundamental review process instigated by the 1998 Act has provided the courts with an opportunity to implement a framework of analysis which has ensured that the rights of all those involved in the process are considered and appropriately weighed in the balance. A very recent example is the Supreme Court’s decision of W (Children) given on 3rd March 2010[18], but I start with an early example from 2001.

In Re B (Disclosure to Other Parties)[19] a mother sought to limit the amount of information which had to be disclosed to a father for the purposes of his application for contact, alleging that it would violate her and the child’s privacy. Munby J’s judgment is an early example of the court reviewing previous practice – the case, he said, “raised the important question of the extent to which, if at all, the decision of the House of Lords in Re D (Minors) (Adoption Reports: Confidentiality)[20] requires to be re-visited in the light of” the Act. It was argued before Munby J (a) on behalf of the father that, as a matter of law, it was only the children’s interests which could be taken into account when determining whether he was to be denied access to any documents; and (b) on behalf of the mother that in the light of the Act and, in particular, Article 8, Re D could no longer stand as authority for the proposition that only the child’s interests could be taken into account.

Munby J decided that the interests which could be relied on to deny a litigant access to documents extended not just to those of the children but to those of “anyone else who is involved, whether as victim, party or witness, and who can demonstrate that their Art 8 rights are sufficiently engaged”. Domestic law, insofar as it was different, could no longer stand. Balancing the Article 6 and Article 8 rights of all those involved, Munby J decided that disclosure should be given save in respect of certain documents, the disclosure of which would involve a “wholly disproportionate interference” with the Article 8 rights of the children and the mother, be disproportionate to “any legitimate forensic purpose” and was not required to ensure that the father had a fair trial.

This decision is, in my view, a classic example of the exercise required when rights under the Convention are in conflict, namely, to quote Lord Steyn, an “intense focus on the comparative importance of the specific rights being claimed in the individual case”[21]. The case from which I have just quoted concerned an application by a guardian for an injunction restraining the publication by newspapers of the identity of the defendant (the mother) in a murder trial so as to protect the privacy of her child. The case was directed to the rights protected by Articles 8 and 10. The decision in the House of Lords provides a very clear example of the effect of the review consequent on the implementation of the 1998 Act. Lord Steyn said:

“The House unanimously takes the view that since the 1998 Act came into force in October 2000, the earlier case law about the existence and scope of inherent jurisdiction need not be considered in this case or in similar cases. The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from convention rights under the ECHR. This is the simple and direct way to approach such cases.”

Whilst the approach previously adopted by the courts could be similar, there was the additional complication that the nature of the test to be applied depended on whether the court was exercising its custodial or protective jurisdiction. Any such complication has been swept away with the introduction of the framework of Convention rights. This has also, in my view, made it more inclusive by putting clearly into the balance, when appropriate, the article 8 rights of all those involved in the court’s process (parties and witnesses) and, when engaged, their article 6 rights.

This framework of Convention rights – Articles 6, 8 and 10 as may be appropriate - enables the court to conduct what Lord Steyn calls “the ultimate balancing test”, a test I would suggest is recognisable to all family lawyers as, at least, a close relative of the approach applied whenever the court is exercising a discretionary jurisdiction.

I trust that in ascribing such a relationship, I am not embracing what so shocked Lord Shaw[22] in 1913. In that well-known decision on the importance of public justice, Scott v Scott, he said that: “To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand”.

I do not consider that we have moved from rock to sand or even from sand to sand. Rather, we have embraced a different framework which, in my view, enhances the administration of justice. I welcome the ability to use the Convention framework which, in my view, ensures that the court is able to weigh in the balance relevant interests and rights when making a decision which engages the rights protected by the Convention.

I give two further examples of this balancing framework in operation:

(a) In Norfolk County Council v Webster[23], a case with a tragic history, Munby J had to decide whether to permit publicity which would contravene section 97(2) of the Children Act[24]. By section 97(4) a court may permit such publication “if satisfied that the welfare of the child requires it”. Munby J first decided that, in order to be Convention compliant, s 97(4) should be interpreted (pursuant to section 3 of the 1998 Act) as permitting/requiring the court to exercise this power, not only when the welfare of the child requires it, but whenever it was required to give effect to the (Convention) rights of others. He then, by application of the balancing framework - involving Articles 6, 8 and 10 - concluded that he should permit publicity and dispense with the requirements of section 97(2).

(b) In the very recent Supreme Court decision of W (Children)[25], a step-father wanted to cross-examine his teenage stepdaughter who had made allegations of sexual abuse. His application was rejected at first instance, a decision upheld by the Court of Appeal. The Supreme Court’s judgment addresses the “principles which should guide the exercise of the court’s discretion in deciding whether to order a child to attend to give evidence in family proceedings”[26]. The Supreme Court rejected the established approach which “erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child”[27]. Why? Because such a presumption cannot be reconciled with the European Convention which requires a “fair balance” to be struck between competing Convention rights. The English approach accorded undue weight to the child’s interests. The decision as to whether a child should be required to give evidence would depend on the outcome of the application of the balancing framework – in this case involving Articles 6 and 8.

B Proceedings under the Act:

In the field of (children) public law, an early example of the court reviewing family justice “through the prism” of the Convention can be found in those decisions, in the Court of Appeal and the House of Lords, which considered the court’s ability to supervise the implementation of care plans and looked at whether the Act required “adjustment to the division of responsibilities between courts and local social services authorities in care cases under the Children Act 1989”[28]. When the Children Act was first introduced concerns were expressed at the removal from the courts of the power to oversee the implementation of care plans. Did the 1998 Act provide an opportunity to redress the balance?

In the Court of Appeal, Hale LJ (as she then was), clearly thought so. She said at [79]:

“Where elements of the care plan are so fundamental that there is a real risk of a breach of Convention rights if they are not fulfilled, and where there is some reason to fear that they may not be fulfilled, it must be justifiable to read into the Children Act 1989 a power in the court to require a report on progress. In effect, such vital elements in the care plan would be ‘starred’ and the court would require a report, either to the court or to … CAFCASS, who could then decide whether it was appropriate to return the case to court … This would only be appropriate if there was good reason to believe that Convention rights had been or were at real risk of being breached”.

The House of Lords decided that the Court of Appeal had gone beyond “well beyond” interpreting legislation (in accordance with 3 of the Act) into amending legislation. However, this does not mean that those whose Convention rights had been, or were at risk of being, violated in the implementation of care plans were without legal redress. The House of Lords highlighted the “extended powers”[29] given to the courts by sections 7 and 8 of the 1998 Act and identified that these sections “are to be given a generous interpretation, as befits their human rights purpose”[30]. These significant and novel powers are additional to the more conventional remedy of judicial review.

Section 7 gives a person the right to bring proceedings when it is claimed that a public authority has acted or proposes to act in a way which is incompatible with a Convention right; section 8 provides that a court may “grant such relief or remedy, or make such order, within its powers as it considers just and appropriate”. Thus, said Lord Nicholls “if a local authority conducts itself in a manner which infringes the Art 8 rights of a parent or child, the court may grant appropriate relief on the application of a victim of the unlawful act” [45]. He also noted that the Children Act makes no provision for the involvement of the court in some important decisions and commented, as referred to earlier in this speech, that in such situations judicial review might not be sufficient because “consistently with Strasbourg jurisprudence such decisions attract a high degree of judicial control” [79].

The House of Lords considered that, in the “ordinary course”, parents would thereby be able to obtain “effective relief”. However, significant concerns were raised in respect of children. Lord Mackay said that he could not see how, “As a practical matter … a child who has no person to raise the matter on his behalf can be protected from violation of his or her human rights or the rights conferred on him or her by our domestic law, other than by reliance on an effective means by which others bring the violation to notice”[31]. He strongly urged the Government and Parliament to give urgent attention to the problems clearly described by the Court of Appeal.

These important powers under the 1998 Act, which, for example, enable challenges to care plans and placements of children in care, are still in the early stage of their development. I give three examples:

(a) In 2001 Holman J had to consider a claim brought by parents against a local authority under section 7 of the 1998 Act[32]. This is a very early example of the Human Rights Act remedy in action. A care order had been made. At a permanency meeting, not attended by the parents or their solicitors, it was decided that there was no prospect of rehabilitation of the children to either parent and that if placement with the maternal grandmother was not found to be viable, the local authority would opt for adoption. This was a fundamental change to the final care plan. The parents claimed:

(i) First, that the circumstances and manner in which the local authority had reached this decision breached their rights under Article 8. Holman J decided that the procedural requirements of Article 8 had been breached as the parents had not been sufficiently involved in the decision-making process. He quashed the decision reached by the local authority at this meeting; and

(ii) Secondly, that the court was obliged by sections 6, 7 and 8 of the Act to review the local authority’s plans to determine whether the local authority was planning to act in a way which was incompatible with Article 8 and, if it was, to exercise its powers to ensure that the local authority acted lawfully. Holman J accepted that, because the local authority were considering a fundamental change of plan, the lawfulness of the proposed acts could be examined by the court in free-standing proceedings under the 1998 Act[33].

(b) In 2007 the Court of Appeal had to consider whether a mother was entitled to damages under section 8 of the 1998 Act[34]. She claimed, and Hedley J found, that a local authority had breached her rights by deciding to abandon a care plan for rehabilitation without giving her an opportunity to participate in the decision making process. Hedley J said that “the concept of damages (does not) sit easily with the welfare jurisdiction of family law”. Wilson LJ agreed that “The instincts of most family lawyers” would be likewise but that “as a result of the advent of the (1998 Act) such instincts are misplaced”[35]. The Court of Appeal decided that damages were not appropriate in that case but made it clear that, in the right case, they could be awarded.

(c) My third example is from April 2008 when McFarlane J[36] considered a claim by a mother whose child had been removed by a local authority in whose favour there was a care order, following a change in the care plan. The question he asked was whether the local authority’s actions had been “proportionate to the level of concern and the issues in the case” and “procedurally fair”. The local authority conceded that the mother’s and the child’s human rights had been breached and proposed that there should be a detailed assessment of the prospect of reunifying the child to his mother’s care. McFarlane J made a declaration that the local authority’s process had been unlawful but declined, on the merits, to order the child’s immediate return to his mother.

C Financial Claims

The 1998 Act has had little impact on the substantive law relating to financial claims. In Charman v Charman (No 2) Coleridge J rejected the suggestion that the powers available under the Matrimonial Causes Act 1973 breached the husband’s rights as “frankly absurd”[37].

It does, however, have greater relevance to procedural aspects of financial claims. I have recently had to consider in the context of ancillary relief proceedings the issues which arise when information has been irregularly obtained. The submissions and my judgment focussed significantly on Articles 6 and 8[38]. The Court of Appeal is due to hear the appeal against my decision, by both parties, in May 2010.

It can be seen from the above analysis that I regard the answer to my first specific question – “Has the family justice system been subjected to a fundamental process of review and, where necessary, reform by the judiciary?” – as being positive. The examples I have given are but a few of the ways in which the judiciary has subjected family law to review and, where necessary, reform in the light of the 1998 Act. Such a review, whether it has led to a change in the law, a mere incremental development or a confirmation of the status quo, has provided an important opportunity for family justice to be “health-checked” by reference to the essential principles set out in the Convention.

(2) Have we moved towards a rights-based system in family justice?

Turning to my second specific question, it will be apparent from what I have already said that the Convention is now very much part of our family law landscape. However, in the next part of my speech, I propose to focus specifically on the use of the word “rights” in the context of parental rights, when the decision being made is governed by the welfare principle.

Historically, there can be no doubt that there was reluctance on the part of the judiciary to become involved in any debate regarding parental rights when the decision was to be taken in accordance with the welfare principle. Earlier in this speech I quoted Lord Hobhouse from Dawson v Wearmouth because of his rejection of the notion that the case was concerned with the “rights of the father”. I well remember judges in the not so distant past responding somewhat frostily to any submission which attempted to rely on a parent’s rights. This is not to say that there was no recognition that a parent might have rights. For example, in 1969, Willmer LJ[39] referred to a mother’s application for access as being “In the ordinary way (what) would be no more than the basic right of any parent”.

However, and despite parental rights being referred to in a number of statutes, there was a marked reluctance to embrace the concept of “rights”. The invariable retort mirrored Lord Hobhouse’s response, namely that the judge was only concerned with the child’s best interests and not with any supposed rights the parents might claim as a parent.

Latey J, an extremely experienced and respected family judge, turned Willmer LJ’s comment round so that it better fitted with the conventional approach. He preferred to identify the “basic right" as meaning,

"not that a parent has any proprietorial right to access but that, save in exceptional circumstances, to deprive a parent of access is to deprive a child of an important contribution to his emotional and material growing up in the long term”[40].

It might be that this evident anxiety about the use of “rights” was founded on a concern that it would be a retrograde step towards the proprietorial rights which a father exercised over his children until the end of 19th century and might conflict with or at least diminish the principle that the child’s welfare was the paramount factor – a principle which was first given statutory force in the Guardianship of Infants Act 1925.

The House of Lords addressed the question of rights in In re KD (A Minor) (Ward: Termination of Access)[41]. The advocate who sought to persuade the House of Lords to revisit the classic exposition of welfare as the paramount consideration[42], in part in reliance on the ECHR, was the then Alan Ward QC. Lord Oliver’s speech provides a clear window into the approach taken by the courts to the idea of “rights”. He said that cases since S v S (Willmer LJ) have “emphasised the ephemeral nature of any parental “right” to access”. When looking at the position of parents, Lord Oliver preferred to ascribe to them “parental privileges” or as having a “claim” to access to their child. He considered it “inappropriate” to describe such a claim as a "right”. He analaysed the word “right” as follows:

“The word 'right' is used in a variety of different senses, both popular and jurisprudential. It may be used as importing a positive duty in some other individual for the non-performance of which the law will provide an appropriate remedy, as in the case of a right to the performance of a contract. It may signify merely a privilege conferring no corresponding duty on any one save that of non-interference, such as the right to walk on the public highway. It may signify no more than the hope of or aspiration to a social order which will permit the exercise of that which is perceived as an essential liberty, such as, for instance, the so-called 'right to work' or a 'right' of personal privacy.”

It can be seen that there was a broad unease about ascribing “rights” to parents. It might have been expected that the implementation of the 1998 Act would have reduced if not eliminated these concerns – such rights could be accommodated within a framework in which the welfare of the child remains the paramount consideration. The question is, has it? Have we shaken off such concerns and embraced a rights-based system?

Last year it might have been thought that we had moved towards embracing a rights-based approach even within a welfare context. In the case of Re R (Residence) Wall LJ spoke of “the fundamental proposition that children have a right to be brought up by their natural parents unless their welfare positively demands the replacement of that right”[43]. However, if this was a ‘high watermark’ of such a move, it did not last long. Only two months later Wall LJ accepted that he had gone too far[44].

Two recent decisions (from the House of Lords and the Supreme Court) make it clear that concerns surrounding the effect of the attribution of parental rights remain[45]. In the first, Re G, when overturning the lower courts’ order in favour of the former lesbian partner of the children’s biological mother, Baroness Hale said: “There is no question of a parental right” - “the welfare of the child is the paramount consideration”[46].

In the second, the Supreme Court identified the principal message of Re G as having “given the final quietus to the notion that parental rights have any part to play in the assessment of where the best interests of a child lay”[47]. In this case, residence of a young child had been transferred from his maternal grandmother to his father on an appeal from the Family Proceedings Court. In addition to repeating the message from Re G, the Supreme Court considered that the case illustrated the “distraction that discussion of rights rather than welfare can occasion”[48].

The above discussion illustrates that in the specific context of parental rights in welfare governed decisions, we have not moved far along the road towards a rights-based system. I would suggest that this is not because it is doubted that human rights are a ‘good thing’ for family justice. It is to avoid the “distraction” which I have just quoted when there is no substantive difference between the interests of the child prevailing[49] (the expression commonly used in the European Court of Human Rights) and the child’s welfare being the paramount consideration. As Lord Oliver said in 1988 “Such conflict as exists, is, I think, semantic only”[50].


As will be clear by now, I would answer the question of whether the Human Rights Act has been a “good thing” with the simple answer, yes! I have sought to demonstrate the justification for this answer during the course of this speech.

First, to borrow the words of the Master of the Rolls, “the Human Rights Act has added a considerable new dimension to” [51] family law. As forecast by Lord Hope, there has been a review of many aspects of the family justice system, consequent on the effective incorporation into our domestic system of the substantive and procedural rights guaranteed by the European Convention. In addition, and importantly, the procedural safeguards implicit in Article 8 extend to decisions made outside the legal system and cover decisions made by local authorities. In the family arena, the reach of the Convention is indeed broad.

Secondly, in my view, the balancing framework provided by the Act enhances the administration of justice, both substantively and procedurally. In a paper delivered in 2009 Lord Lester QC[52] referred to our common law system as being “in many respects ethically aimless”. This would not be an apt description of family law prior to the 1998 Act. However, although not ethically aimless, the Convention on Human Rights has enhanced family law; whilst it appears to be focussed on “rights” it encompasses both rights and responsibilities. The balancing framework to which I have referred, creates not only rights but also responsibilities - both for public bodies, such as local authorities, and for individuals. The former is clear. In the latter case, the need in a divided family to balance the rights of each member brings with it the responsibility for each to act so as to accord due respect to the rights of the other members of the family. This responsibility can be enforced by the court by giving effect to the rights of other family members. This balance also, in my view, should diminish the concern sometimes expressed that the requirement to read legislation so as to make it Convention compliant creates an unconstrained judicial power. Apart from due deference arguments, the balancing framework to which I have referred creates and provides its own constraints.

Thirdly, the right to bring proceedings provided by section 7 of the 1998 Act, combined with the judicial remedies provided by section 8, give very real “extended powers” to the court to assist those whose Convention rights have been or are at risk of being violated by a public authority. Of course, these powers must be used with due restraint but they provide additional protection to families in circumstances where, as Lord Nicholls remarked, judicial review might not provide a sufficient remedy.

Finally, although the language of “parental rights” continues to cause unease in cases governed by the welfare principle, in practice the family system has embraced the concept of rights, as guaranteed by the Convention, and such rights are daily applied to the benefit of and in the best interests of families and of children.

This is why I consider the Human Rights Act to have been and would expect it to continue to be a “good thing” for family justice.

[1]Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730, [150].

[2]1066 and All That, Sellar & Yeatman (1930).

[3]R v DPP ex parte Kebeline [2000] 2 AC 326, 375.

[4]Ghaidan v Godin-Mendoza [2004] 2 FLR 600, [32].

[5] Professor Jowell QC: “The courts are charged by Parliament with delineating the boundaries of a rights-based democracy”: Judicial Deference: Servility, Civility or Institutional Capacity? [2003] PL 592, 597;

A v Secretary of State for the Home Department [2005] 2 AC 68, Lord Bingham [42].

[6]Re B (Care Proceedings: Standard of Proof) [2009] 1 AC 11, Baroness Hale [20].

[7] McMichael v United Kingdom (1995) 20 EHRR 205, [87].

[8]Ibid [91].

[9]Ringeisen v Austria (No 1) (1979–80) 1 EHRR 455, [94]: “The character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc.) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc.) are therefore of little consequence”.

[10]In re S (Minors)(Care Plan: Implementation of Care Plan) [2002] 1 FLR 815, Lord Nicholls [79].

[11]B v UK; P v UK [2001] 2 FLR 261.

[12]S-B [2009] UKSC 17, per Baroness Hale [6].

[13]A v C (1985) FLR 445, 455.

[14] [1999] 1 FLR 1167.

[15]Re B-M (Care Orders) [2009] 2 FLR 20, [118].

[16]Re MA (Care Threshold) [2010] 1 FLR 431

[17]Re W (2010) EWCA Civ 57, per Wilson LJ [28].

[18]W (Children) [2010] UKSC 12.

[19] [2001] 2 FLR 1017.

[20] [1996] AC 593.

[21]In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 Lord Steyn [17]

[22]Scott v Scott [1913] 1 AC 417, 477.

[23] [2007] 1 FLR 1146

[24] Section 97(2) prohibits the publication of “any material” intended or likely to identify (a) any child as being involved in proceedings under the Children Act or the Adoption and Children Act 2002 or (b) an address of school as being that of a child involved in any such proceedings.

[25] [2010] UKSC 12.

[26] Lady Hale, ibid, [1].

[27] Lady Hale, ibid, [22].

[28]Re W and B (Care Plan) [2001] 2 FLR 582 [49]; In re S (Minors)(Care Plan: Implementation of Care Plan) [2002] 1 FLR 815, per Hale LJ [49].

[29] Lord Nicholls, ibid, [45].

[30] Lord Nicholls, ibid, [48].

[31]Ibid [113].

[32]Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300.

[33] In C v Bury MBC [2002] 2 FLR 868 – Butler-Sloss P. agreed with this approach.

[34] Re C (Breach of Human Rights: Damages) [2007] 1 FLR 1957.

[35]Ibid, [61].

[36]G v N County Council [2009] 1 FLR 774 [26], [29], [30]; see also Re W (Removal into care) [2005] 2 FLR 1022, CA.

[37]Charman v Charman (No 2) [2007] 1 FLR 593 [126].

[38]Immerman v Immerman [2010] EWHC 64.

[39]S v S [1962] 1 WLR 445, 448.

[40] In M. v. M. (Child: Access) [1973] 2 All E.R. 81, 88,

[41] [1988] 1 AC 806.

[42]J v C [1970] AC 668.

[43]Re R (Residence) [2009] 2 FLR 819, [116].

[44]Re B (Residence: Second Appeal) [2009] 2 FLR 632, [41].

[45]Re G [2006] 2 FLR 629; In re B (A Child) (2009) (FC) [2009] UKSC 5.

[46]Re G [30];

[47]In re B [33]

[48]In re B [20].

[49]Elsholz v Germany (2002) 34 EHRR 58, [52]; TP and KM v United Kingdom (2002) 34 EHRR 2, [72].

[50]In re KD, 825.

[51]Rights and Responsibilities: Civic Duty and the Rule of Law: 2009 Denning Lecture, Lord Neuberger of Abbotsbury MR.

[52]The European Court of Human Rights after 50 Years: University of Copenhagen, 21st March 2009.