SUMMARY OF CASES - University of Liverpoolof,Cases,FINAL.pdf · state to reform an out-of-date...

1

THE CHILDRENrsquoS RIGHTS JUDGMENTS PROJECT

2015-2017

SUMMARY OF CASES

(Judgment writer listed first and commentator second)

1 JO BRIDGEMAN AND EMMA WALMSLEY

Case Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 Hedley J In this case before the Family Division of the High Court Hedley J was asked to make a parental order in favour of a commissioning couple following the birth of twins to a Ukrainian surrogate mother Addressing a private family matter conferring the status as parents upon a couple with the agreement of the surrogate mother and her husband Hedley J was concerned to recognise the time delays expense and stress occasioned to the commissioning couple by the current law governing the practice of international surrogacy Yet it is notable how little consideration there is of the interests of the children in what was described as a lsquocautionary tale for any who contemplate entering into a foreign surrogacy agreementrsquo Hedley J observed that the difficulties experienced by the commissioning couple who had sought to lsquocomply with both the letter and spirit of the lawrsquo and for the court which had to both implement the policy against commercial surrogacy contained in the Surrogacy Arrangements Act 1985 and to protect the welfare of the child born as a consequence of such an arrangement revealed the need for reform of the law This judgment will re-draft that of Hedley J focusing upon the neglected interests of the children born as a result of international surrogacy This judgment will seek to re-focus the analysis upon a critique of the failure of the current law to protect the rights interests and welfare of the child born through an international surrogacy arrangement It will argue that the rights of the child oblige the state to reform an out-of-date statute which fails to protect the interests of the children born as a result of such arrangements even in those cases where there is no dispute between the adults involved

2 TREVOR BUCK AND CONRAD NYAMUTATU

Case Prosecutor v Thomas Lubanga Dyilo (Judgment) International Criminal Court Trial Chamber

I Case No ICC-0104-0106 (14 March 2012)

The Lubanga case is the first trial to have been heard at the ICC Lubanga a militia leader in the DRC was convicted unanimously of conscripting and enlisting children under the age of fifteen years into the lsquoPatriotic Forces for the Liberation of Congorsquo (FPLC) and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Rome Statute He was sentenced to 14 years imprisonment There are a number of process issues that require discussion eg the number and treatment of child witnesses and there were tensions between the judges and the prosecution involving two stays of proceedings and three years of hearings

2

International criminal justice is usually theorised on the basis of deterrence andor retribution our account will seek to justify Lubanga on the basis of the expressive theory of international law and its utility in exposing the harm of child soldiery

3 AOIFE DALY AND FIONA DOBSON

Case Castle amp Others v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin)

The Castle case concerned a specific incidence of lsquokettlingrsquo ndash a process of cordoning protestors into a confined space The claimants aged 16 and 14 had been confined in a cordon in central London for six hours during a protest despite requesting permission from police to leave The claimants argued that there should have been a plan in place in order to release children and that duties concerning the welfare of children under the Children Act 2004 had been breached violating ECHR rights The court accepted in this case that special obligations are owed to children However arguably the threshold was set very low in this judgment It was deemed unnecessary for police to explicitly consider the needs of children in a protest regarding education in which kettling would possibly be used This judgment is arguably not in conformity with the CRC which explicitly enshrines the principle of the best interests of the child together with the right of children to freedom of assembly and association Neither the CRC nor the right to freedom of assembly and association of children is mentioned in Castle In re-drafting this decision regard will be had to the CRC and the obligations owed to children as distinct from adults in the enjoyment of their political rights considering the particular welfare needs of this group

4 ELEANOR DRYWOOD AND AMANDINE GARDE

Case Case C-54003 European Parliament v Council of the European Union ECR [2006] I-05769

In Parliament v Council the European Court of Justice considered the legality of the EU family reunification Directive with reference to the EUrsquos fundamental rights protection regime The 2003 Directive addresses the right of third-country national migrants to be united with certain family members but permits derogations by Member States that could substantially limit the circumstances in which children in particular may join their parents in an EU Member State The Court upheld the legality of the provisions on the basis that they were capable of transposition by Member States in a way that was consistent with provisions of international law most significantly recognising ndash for the first time ndash the formal constitutional status of both the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child in the EU legal order We believe this case is interesting in the context of the childrenrsquos rights judgments project for two reasons The first is substantive the judgment considers a Directive that is indicative of the increasingly illiberal approach taken by legislatures across Europe to young immigrants overlooking their status as children in favour of that of immigrant Thus we welcome the opportunity to rewrite the judgment in a way that is more consistent with a child-focused approach The second is constitutional this judgment was the first from the Court of Justice of the European Union to consider the status of childrenrsquos rights in the EU legal order in any significant way The emergence of an explicit and far-reaching childrenrsquos rights agenda at EU level in recent years offers an interesting new perspective for critiquing the Courtrsquos reasoning in this case something that we would seek to incorporate into the rewritten judgment

3

5 MARIA FEDERICA MOSCATI AND NUNO FERREIRA

Case R (On the application of Begum) v Head teacher and Governors of Denbigh High School

[2006] UKHL 15 [2007] AC 100

We aim to revisit the judgment of the House of Lords delivered in the case R (On the application of Begum) v Head teacher and Governors of Denbigh High School It is argued that this judgment was constructed without taking into account the rights and principles enshrined the UN Convention of the Rights of the Child (1989) As a result the reasoning in the decision reflects a limited idea of childhood one which does not recognise the childs right to identity including religious identity and which failed to offer full consideration of the well-informed choice of the child In addition in R (On the application of Begum) v Head teacher and Governors of Denbigh High School their Lordships struck a dangerous balance between individual rights and group rights resulting in a limitation of individual rights A re-writing of the judgement based on childrens rights approach will demonstrate that the protection of the best interests of each individual child does not mean infringement of the rights and best interests of other children

6 MICHAEL FREEMAN AND NOAM PELEG

Case Re T (A Minor) (Wardship Medical Treatment [1997] 1 WLR 242 EWCA Civ 805

Re T is chosen as nadir of contemporary parent-child relations cases all the more repulsive because 8 years after the CRC it shows no awareness of the Convention or its implications and this imposes a lesser standard on courts [a primary consideration] than the Children Act of 1989 [the paramount consideration] It is pure Goldstein Freud and Solnit [the childs right to autonomous parents] It is a decision which conflatesidentifies childrens rights with parents rights My judgment given by Lord Korczak of Treblinka is an attack on GFS reasoning and ideology which lives only in Guggenheimia

7 STEPHEN GILMORE AND EMMA NOTTINGHAM

Case Re W [1993] Fam 64

Re W [1993] Fam 64 is the leading authority on the courtrsquos jurisdiction to order medical treatment in the face of a competent adolescentrsquos refusal to consent It is also the source of controversial obiter comments on the inter-relation of parental power to consent to a childrsquos medical treatment in the face of a competent childrsquos refusal to consent The courtrsquos interpretation of Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 and its conclusion that there could be concurrent powers of consent inhering in both parent and child attracted considerable and forceful academic criticism What Gillick and Re W established and the issue of childrenrsquos autonomy in the context of refusal of medical treatment continue to attract debate (see eg Gilmore and Herring [2011] CFLQ 3 and cf Cave and Wallbank [2012]Medical Law Review 423) providing fertile ground on which to revisit this case

4

8 NEVILLE HARRIS AND SEAMUS BYRNE

Case S v Special Educational Needs and Disability Tribunal (SENDIST) and Oxfordshire County

Council [2005] EWHC 196 (Admin) [2005] ELR 443 QBD Elias J

Although a first instance decision it is of considerable importance in confirming the exclusion of exceptional ability or lsquogiftednessrsquo from the definition of special educational needs (SEN) under Part 4 of the Education Act 1996 and now Part 3 of the Children and Families Act 2014 The case concerned a girl of exceptional ability aged 1516 who also had SEN due to emotional and behavioural problems Her father requested a formal assessment of her SEN hoping for a statement which would name the independent school she attended so that the local authority would have to pay her fees The authority and first-tier tribunal rejected his request The case before Elias J focused not only on Wednesbury grounds but more significantly on (a) whether exceptional ability could and should be considered to amount to a lsquolearning difficultyrsquo (b) whether the ECHR right to education under Art 2 of the 1st protocol was sufficiently engaged to permit Art 14 discrimination to be argued (c) if Art 14 was in play whether there was justification for the discrimination From a childrenrsquos rights perspective the case is also significant for a complete absence of any reference to the views of the child (cf UNCRC Art 12Gillick) and because of the unacknowledged relevance of UNCRC Art 29 especially that a childrsquos education should be directed to the development of hisher lsquopersonality talents and mental and physical abilities to their fullest potentialrsquo Also significant is the judgersquos approach to lsquodisabilityrsquo ndash it lsquomeans want of an ability not excess of itrsquo ndash in which he seems to eschew the social model of disability There is also no reference to the concept of lsquodual exceptionalityrsquo

9 AMEL ALGHRANI AND JONATHAN HERRING

Case Re A conjoined twins [2001] 2 WLR 480

This must be one of the most controversial and most discussed decisions in medical and family law The Court of Appeal had to deal with an extraordinarily difficult scenario Should conjoined twins be separated leading to the inevitable death of one but offering a good prognosis to the other Or should the twins be left alone which would lead to both the twins dying The Court of Appeal looked at the issue from the perspective of criminal law family law medical law and ethics None provided a clear cut response to the dilemma and the judges made no secret of the fact they found the decision enormously difficult Notably while the judges agreed in the conclusion that the twins should be separated there was diversity in the reasoning used In re-writing the judgement I will explore how the case might be considered with a focus on childrenrsquos rights Perhaps not surprisingly there is not a single result which is determined by considering childrenrsquos rights Indeed the case has been used to show some of the limitations of a rights analysis Yet I will seek to show how a childrens rights analysis can illuminate some key issues

10 SIMON HOFFMAN AND STEPHEN COTTLE

Case Collins v Secretary of State for Communities and Local Government [2013] EWCA Civ1865CA This case concerns an appeal to the Court of Appeal following refusal of planning permission under the Town and Country Planning Act 1990 The application for planning permission was made by an Irish Traveller who sought temporary permission for a traveller site On the site were 78 Travellers including 39 children The planning inspector refused permission This was upheld by the SSCLG and by the High Court The Applicant appealed to the Court of Appeal The appeal was dismissed The

5

Court of Appeal held that the approach taken in ZH(Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 should apply in planning cases This is a welcome development as it establishes that in any planning decision the best interests of any relevant child will need to be a primary consideration when the issue of possible interference with Article 8 of the ECHR is considered in the planning decision-making process Whilst this an advance and an extension of the reasoning in ZH to the domain of planning the Court of Appeals approach to the issue of how to assess a childs best interest is deficient because it fails to require proper identification and prioritisation of relevant factors A further concern is the suggestion in the case that in planning decisions it is unlikely that there will be any need to hear from the child directly a proposition which may be criticised having regard to Article 12 of the UNCRC

11 KATHRYN HOLLINGSWORTH AND RAY ARTHUR

Case R v JTB [2009] UKHL 20 [2009] 1 AC 1310

This House of Lords case was an appeal from the Court of Appeal decision that section 34 of the Crime and Disorder Act 1998 abolished both the rebuttable presumption and the defence of doli incapax for children aged between 10-14 years Prior to the 1998 Act children under the age of 14 were presumed to be doli incapax ndash incapable of evil ndash and the prosecution had to establish that the child had the requisite capacity in order for the child to be held criminally responsible Section 34 abolished the rebuttable presumption but it remained unclear whether the statute left intact a defence The House of Lords guided by rules of statutory interpretation held that the Court of Appeal were correct to hold that section 34 abolished both the defence of doli incapax There was no reference made to international rights standards nor any discussion more generally of the rights of the child and the evidenceexamples drawn on appear relatively one-sided in order to support a conclusion that the rebuttable presumption was an lsquoanachronismrsquo yet no empirical evidence was presented to support the claims made about childrenrsquos capacity This rewritten judgment will attempt to articulate how adopting a childrenrsquos rights methodology could have resulted in an alternative outcome

12 LYDIA BRACKEN AND URSULA KILKELLY

Case Gas and Dubois v France ECtHR (Application no 2595107) 15 March 2012

I propose to address and re-write this judgment on the basis that the ruling is inherently flawed in its reasoning In this case the ECtHR found that the French Government had not violated the ECHR in not allowing one partner in a same-sex couple to adopt the child of the other A significant aspect of this judgment was the absence of any real discussion of the rights of the child in the context of the adoption application With the exception of Judge Villiger (who was in dissent) the Court addressed the issues arising in this case from the perspective of the adults involved and in light of the differential treatment they had experienced as a same-sex couple The position of the child was not conisdered by the majority of the Court The re-written judgment will focus on the childrsquos right to respect for private and family life under Article 8 of the ECHR It will be argued that consideration of the childrsquos rights in this context should have led to a finding of a breach of this Article In particular given that the child had arguably been subject to differential treatment by the French authorities when compared to the child of a married opposite-sex couple it will be submitted that a breach of Article 8 taken in conjunction with Article 14 should have been found In addition the childrsquos rights under the Convention on the Rights of the Child will be addressed Of particular importance will be Article 2 (non-discrimination) Article 3 (best

6

interests) Article 18 (parental responsibilities) and Article 21 (the childrsquos rights in adoption) These rights were not considered in the original judgment The original judgment concluded that the ldquospecial statusrdquo of marriage provided justification for the discrimination experienced by the adult applicants in this case It will be shown however that the status of marriage cannot be used to legitimise discrimination against children Furthermore it will be shown that the deference which was paid to the margin of appreciation in this case was not necessary Although it is acknowledged that the Court cannot act as a moral compass for Europe it must intervene to protect children from discrimination The margin of appreciation should therefore be of reduced relevance in cases which concern such discrimination It will be submitted that a positive obligation is imposed upon States to protect children in these circumstances The implications of the re-written judgement for law and policy would therefore be to establish that consideration of the rights of the child demand that second-parent adoption should be made available to the adults who are caring for that child In order to be ECHR compliant States which provide for second-parent adoption would then be obliged to open up that process to same-sex couples The re-written judgment would clarify that opening up the process to same-sex couples is not to be regarded as an ldquoadultsrsquo rightsrdquo issue but rather it is an obligation which arises from the childrsquos right to respect for his or her family life and from his or her need for security within the family unit

13 LAURA LUNDY AND JENNY DRISCOLL

Case Valsamis v Greece 2178793 European Court of Human Rights

This was a decision of the European Court of Human Rights in which it was argued by parents and a 12 year old child that a decision to suspend her from school as a result of her refusal to take part in a commemoration of Greek national day on a non-school day breached her and her parentsrsquo right to freedom of conscience and the latterrsquos right to have their child educated in accordance with their religious convictions Victoria Valsamis was a Jehovasrsquo Witness who was exempted from attendance at religious-education lessons and Orthodox Mass She was asked to take part in the celebration of the National Day (a day when the outbreak of war between Greece and Fascist Italy on 28 October 1940 is commemorated with school and military parades) Victoria informed the headmaster that her religious beliefs in particular her pacifist convictions forbade her joining in the commemoration of a war by taking part in front of the civil Church and military authorities Her request to be excused attendance was refused but she nevertheless did not take part in the schoolrsquos parade She was punished for her failure to attend with one dayrsquos suspension from school Her parents argued that this decision breached their rights under Article 9 and Article 2 of the First Protocol of the ECHR Victoria also argued independently that her rights under Articles 3 and 9 had been breached The ECtHR did not accept any of these arguments finding on the facts that there was nothing about the parade that could offend the applicantsrsquo pacifist convictions Rethinking this decision from a childrenrsquos rights perspective would require a consideration of what was in the childrsquos best interests whether there had been a breach of Article 12 of the UNCRC in the school principalrsquos failure to give her views due weight and whether the schoolrsquos practice was in line with the aims of education as articulated in Article 29 of the CRC

7

14 AOIFE NOLAN AND ANASHRI PILLAY

Case Government of the Republic of South Africa and Others vs Grootboom 2001 (1) SA 46 (CC) 2000 (11) BCLR 1169 (CC) I would like to do this judgment as it enables me (1) to explore how a rights-rich constitution may still result in childrens rights being marginalised as a result of judicial decision-making (2) to address the risk that even where children have express rights these rights may be side-stepped or ignored where competing adult or general rights claims are present (3) to consider how childrens claims may go unenforced where courts seek to avoid childrens rights serving as stepping stones for others (4) engage with the issue of immediately enforceable childrens rights in the context of resource scarcity and competing rights claims

15 HELEN STALFORD AND CHARLOTTE OrsquoBRIEN

Case C-3409 Gerardo Ruiz Zambranov Office national de lrsquoemploi (ONEm) [2011] ECR I-01177 This is a judgment of the European Court of Justice concerning the claim of third country nationals to remain in the territory of the EU despite their precarious economic and legal status Their claim to remain in the Member State (Belgium) was upheld on the basis that their children who were EU citizens would have to leave the territory of the EU with them thereby preventing the children from enjoying the rights associated with their EU citizenship status The case was initially hailed as a decidedly liberal and compassionate interpretation of EU citizenship in favour of children and one that implicitly recognised the interdependence between children and their parents That said the Court of Justice declined to interpret these issues in the light of explicit childrenrsquos rights principles (notably best interests) This has led to inconsistent interpretations of childrenrsquos status under EU immigration and citizenship law in subsequent ECJ case law that evidences the Court of Justicersquos superficial commitment to protecting the rights of children This has had significant knock on effects at national level On the one hand it has enabled the Zambrano ruling to be used in a highly instrumental way to anchor the residence rights of immigrant parents with little regard for the impact of such rulings on children On the other hand it has led to Member Statesrsquo withdrawing key welfare benefits for immigrant families and opening the possibility of immigration authorities rather than family courts making decisions about appropriate primary care-givers In re-drafting this decision we would like to illustrate how the welfare principle and the rights of children as expressed in the CRC and indeed in the EU Charter of Fundamental Rights could have been brought to bear more explicitly on the Courts reasoning thereby potentially averting some of the more instrumental interpretations of the decision thereafter

16 LARA WALKER AND RUTH LAMONT

Case Povse v Austria (App no 389011) ECtHR 18 June 2013

In this case the Austrian court had ordered the non-return of the child (who had been abducted from Italy to Austria) under the 1980 Hague Convention The Italian courts then ordered the return of the child under Article 11(8) of the EU Brussels IIbis Regulation The Austrian authorities sought a preliminary ruling from the CJEU The CJEU indicated that the Austrian authorities had to enforce the Italian order The abducting parent then made an application to the ECtHR on the basis that the enforcement of the Italian order was a violation of the right to private and family life The ECtHR held that there was no violation of Article 8

8

I would like to re-write Povse from a childrenrsquos rights point of view as I believe that the ECtHR took an overly simplistic approach by directly applying Bosphosrus In doing this and relying on a judgment given by the CJEU three years earlier the Court failed to take account of the reality of the situation By insisting on the enforcement of the Italian order given four years earlier the Court failed to distinguish between the order (which could have been given legitimately) and the enforcement of the order years later in what is arguably a different situation Therefore the enforcement of that order could in itself violate the childrsquos human rights regardless of whether the original order did or not (a distinction made by the ECtHR in Neulinger)

17 JANE WILLIAMS AND DAVID LANE

Case PndashS (Children) [2013] EWCA Civ 233 This is a judgment of the Court of Appeal on an appeal against dismissal of a 15 year old boyrsquos application for leave to attend court to give evidence in care proceedings to which he was a party The boy wished to return to live with his mother and wanted to be able to convey in person the strength of his feelings to the court lsquoso that his case is fully advancedrsquo He was separately represented and saw the trial judge in chambers with his solicitor and guardian during the first part of the final hearing but the judge restricted the discussion to an explanation of the process and the courtrsquos task and did not discuss with him his wishes and feelings or any substantive issues in the case The boy applied to give evidence by video link during the second part of the final hearing The judge refused his application and proceeded to hear the case and to make a care order The Court of Appeal unanimously upheld the judgersquos decisions both on the boyrsquos application and on the care order The Court of Appeal referred to Article 12 UNCRC and to General Comment No 12 as well as to Article 6 ECHR Whilst accepting that a child has the right to be heard in care proceedings the Court rejected the argument that this particular boy or child parties to care proceedings in general had the right to give oral evidence The trial judge would not have heard anything from the boy about his wishes and feelings that she did not already know In her lsquoexemplaryrsquo ex tempore judgment on the issue the CA concluded that the judge was correct to conclude that the harm to the boy in giving evidence far exceeded the benefit (to the trial judge) Despite the apparent virtue of the Courtrsquos discussion of Article 12 and the General Comment a properly holistic approach based on the Convention could not have resulted in such sharp disparity of treatment between the child party and the adult parties to these proceedings An approach that was sensitive to the evolving capacity of the child a central theme of the UNCRC would have struck a different balance between the autonomy rights of the boy and his (assumed) welfare interest The Courtrsquos focus on the lack of benefit the trial judge would derive from the boy giving evidence appears to have obscured its view of the detriment to the boy if excluded from a decision that would impact on his enjoyment of many of the rights guaranteed by the Convention Further the Courtrsquos interpretation of aspects of the General Comment are highly debateable and arguably plain wrong Re-writing the judgment from a UNCRC-based perspective several aspects of current law and procedure come under scrutiny with implications for changes both in judicial approach and in the rules about childrenrsquos participation in family proceedings

18 JULIA SLOTH-NIELSEN AND MEDA COUZENS

Case Rouz v Dey 2011 (3) SA 274 (CC)

In this case the deputy-principal of a school instituted a delictual claim for compensation from three children who had allegedly defamed him The claim originated from a picture which the three boys produced and published in the school setting showing their principal and deputy-principal in a compromising sexually suggestive position In deciding on the matter eight of the ten presiding

9

judges of the Constitutional Court as well as the judge of the North Gauteng Division of the High Court and the five judges of the Supreme Court of Appeal did not even contemplate what it would mean to have regard to the best interests of the children involved in the case Despite the fact that the concept of the best interests of the child is firmly entrenched in international law the South African Constitution and South African legislation and jurisprudence the majority of the Constitutional Court failed to mention the best interests of the children involved in this matter let alone considered it to be of paramount importance in the formulation of its judgment In my opinion courts will normally find it easier to consider the best interests of the child in matters where children are the ldquovictimsrdquo or perhaps also find it more relevant in more traditional settings where the ldquodelinquent child needs to be savedrdquo For some reason the courts failed to realise that the interests of these children involved in this matter are also important where they pulled a ldquoschoolboy prankrdquo The courts also failed in their duty to develop the law of delict in line with the constitutional imperative found in s 28(2) of the South African Constitution A more pragmatic approach to exploring what it means to promote a childrsquos best interests adopted by both Judges Skewyiya and Yacoob combined with the principles of restorative justice as explored by Judges Froneman and Cameron in the decision offer preferable alternative approaches

19 SONJA GROVER AND LUCINDA FERGUSON

Case Canadian Foundation for Children Youth and the Law v Canada (Attorney General) 2004

SCC 4

The Supreme Court of Canada (SCC) judgment in Canadian Foundation for Children Youth and the Law v Canada (Attorney General) is the landmark decision upholding the right in Canada of parents or their delegates to use corporal punishment on children conditional on certain various parametersconstraints being present The case resulted in the upholding of s 43 of the Criminal Code of Canada (CCC) which states ldquoEvery schoolteacher parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child as the case may be who is under his care if the force does not exceed what is reasonable under the circumstancesrdquo The Supreme Court of Canada in this constitutional challenge found that corporal punishment of a child by the parent or parentrsquos delegate for so-called ldquocorrective purposesrdquo and using what it termed rdquoreasonable forcerdquo allegedly did not violate the Canadian Charter of Rights and Freedom guarantee of fundamental justice (section 7 of the Canadian Charter) nor the right to protection from cruel and unusual punishment or treatment (section 12 of the Canadian Charter) nor the right of children to equal non-discriminatory treatment before and under the law (section 15 of the Canadian Charter) The Supreme Court of Canada in Canadian Foundation held that there is allegedly a social consensus in Canada on what constitutes reasonable force in the use of corporal punishment on a child for a so-called lsquocorrective purposersquo Hence the act of corporal punishment of a child under certain circumstances need not be criminalized according to the Supreme Court of Canada ruling in Canadian Foundation (ie if carried out by a parent or parental delegate with reasonable force and meeting certain other criteria) Parents or their delegates need not then rely on the defences of necessity or de minimis but have in the first instance (assuming certain situational and other parameters) protection for such actions (and from prosecution under certain circumstances) under s 43 of the Criminal Code of Canada itself This ruling has profound implications for childrenrsquos human rights in Canada far beyond the issue of corporal punishment of children The re-written judgment will propose an alternative childrenrsquos rights-based approach

10

20 EUGENIA CARACCIOLO DI TORELLA AND CONNIE HEALY

Case C-16712 CD v ST [2014] ECR I-000 This case was referred from the Employment Tribunal Newcastle upon Tyne (UK) Ms CD fulfilled her desire to have a child with the assistance of a surrogate mother The child was genetically linked to CDrsquos partner CD began breastfeeding the child within an hour of the birth and continued to do so for three months Almost four months after the birth she and her partner were granted parental responsibility for the child Before the birth of the child CD had unsuccessfully requested her employer paid time off lsquofor surrogacyrsquo under the adoption leave policy However following a further application the employer reconsidered his position applied the adoption leave policy accordingly and granted CD leave CD brought claims of unlawful discrimination on the grounds of sex (based on the Recast Directive) andor pregnancy and maternity (Pregnant Workers Directive) with regard to the original refusal of her request The CJEU confirmed that the intended mother could not rely on the relevant EU provisions This technically flawless yet disappointing decision can be criticised from several angles For the purpose of the Childrenrsquos Rights Judgment Project it will be re-written focusing on its impact on the child rather than the biologicalgestational connotation of motherhood the CJEU should have emphasised the different elements of ldquobeing a motherparentrdquo in particular the caring relationship between the parent(s) and the child Ultimately this would have promoted the role of care and the best interests of the child

21 MARIA PAPAIOANNOU AND ELLEN NISSEN

Case Antwi et others vs Norway Νο 2694010 ECtHR The case originated in an application (no 2694010) against the Kingdom of Norway lodged on 11 May 2010 by Mr Henry Antwi (ldquothe first applicantrdquo) a Ghanaian national who was born in 1975 by his wife Mrs Vivian Awere Osei (ldquothe second applicantrdquo) a Norwegian citizen who was born in Ghana in 1979 and by their daughter Ms Nadia Ryan Pinto (ldquothe third applicantrdquo) a Norwegian national who was born in September 2001 In its Judgment the court concluded that the first applicantrsquos expulsion from Norway with a five-year re-entry ban would not entail a violation of Article 8 of the Convention However the Courts derogation especially in the light of the Nunez v Norway judgment (application no 5559709 28 June 2011) was underlined in the Dissenting Opinion of Judges Sicilianos and Trajkovska The latter suggested that this entry ban does violate Article 8 in respect of his daughter the third applicant underlying the necessity of a coherent interpretation and implementation of the principle of the best interests of the child In re-drafting this decision emphasis will be placed on the application of the ldquobest interests of the childrdquo as a guiding principle in immigration and family reunification decisions

22 NATASHA SIMONSEN AND IMOGEN GOOLD Case Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 The judgment of the House of Lords in this case concerned the vexed legal issue of lsquowrongful

conceptionrsquo The claim arose from the negligence of a medical practitioner in conducting a

sterilisation procedure following which Ms Rees became pregnant The issue for the court in such

cases is whether the medical practitioner can be held liable for the costs of raising the child In the

11

important case of McFarlane v Tayside Health Board [2000] 2 AC 59 five Law Lords answered that

question in the negative An important part of the ratio of the decision was the Law Lordsrsquo view that

the birth of a healthy child ought to be regarded by the law as lsquoa blessingrsquo In the subsequent case of

Parkinson v St James and Seacroft University Hospital NHS Trust [2001] 3 All ER 97 the Court of

Appeal of England and Wales held that where the negligence of a medical practitioner causes

disabilities to a foetus in utero the additional costs of raising a disabled child were recoverable

Apparently then at least where disabled children are concerned the court was prepared to regard

the birth as a lsquomixed blessingrsquo Shortly afterwards the case of Rees v Darlington Memorial Hospital

concerned a disabled mother and a healthy child where a sterilisation procedure had been sought

precisely because Ms Rees considered her disability meant she was ill-equipped to raise a child The

Court of Appeal distinguished McFarlane and awarded the mother the additional costs of raising the

child deriving from her disability By majority the House of Lords overturned that judgment but

decided to award a lsquoconventional sumrsquo of pound15000 to reflect the fact that lsquoa parenthellip has been

denied through the negligence of another the opportunity to live her life in the way that she

wished and plannedrsquo (per Lord Bingham) The judgments in this controversial line of cases are

striking for their failure to expressly consider the best interests of the child This is so

notwithstanding the malleable concepts of lsquofair just and reasonablersquo within duty of care and

despite the emphasis in all the speeches in Rees on the policy ramifications of the decision The aim

of the project is to consider how analysis of child rights can be incorporated into this tricky area of

tort law

23 CLARE FENTON-GLYNN AND BRIAN SLOAN

Case Re C v XYZ County Council [2007] EWCA Civ 1206

This case concerned a young child who had been placed for adoption at birth at the request of her mother The question arose whether the Adoption and Children Act 2002 gives rise to a duty on the local authority to try to identify the natural father of such a child in order to inform him of the adoption proceedings The Court of Appeal found that no such duty arose in this case unless such inquiries would genuinely further the prospect of finding a long-term carer for the child without delay In particular it found that there is no requirement to give preference as a matter of policy to the natural family of a child in adoption proceedings Reconsidered from a child-rights perspective I would argue that the Court adopted an unnecessarily narrow conception of the welfare of the child and placed too great an emphasis on the rights of the mother There was insufficient weight placed on the childrsquos right to information on origins and on the right to have a relationship with his or her parents if possible

24 BRIAN SIMPSON AND RHONA SCHUZ Case RCB as Litigation Guardian of EKV CEV CIVAND LRV v The Honourable Justice Colin James Forrest one of the Judges of the Family Court of Australia amp Ors [2012] HCA 47

This case relates to an application to return four children from Australia to Italy under the Hague Convention 1980 The specific issue that came before the High Court of Australia was whether the children in the case had been denied procedural fairness in the ascertainment of their views and wishes with respect to the decision to return them to Italy In particular it was claimed by the

12

mother of the children that the children should have been separately represented by a lawyer to ensure procedural fairness The reason for re-writing this judgment is that as the highest Court in Australia the case presented an important opportunity for it to guide the manner in which childrenrsquos views and wishes should be ascertained in such matters There has been significant reform in family law in Australia in recent years that has begun to reconceptualise the place of the child in family proceedings In particular this re-thinking of the child has been informed by views that children should be engaged in proceedings and that they have greater capacity to so engage than has been historically accorded to them Such thinking mirrors parallel developments in child law both nationally and internationally However the High Court of Australia made no reference to these trends in the law and instead analysed the relevant legislation in a manner which denied these aspects of it As a consequence the decision revealed particular views of the child that are inconsistent with contemporary views on the capacity and autonomy of the child even though the children in this case ranged across various ages This judgment will be re-written based on a more engaged view of the capacity of the child which takes into account the broader basis upon which children are currently conceptualised within family and child law globally

25 EMMA CAVE AND JULIE DOUGHTY Case F (Mother) v F (Father) [2013] EWHC 2683 (Fam) Measles mumps and rubella are highly contagious and potentially dangerous viral diseases the incidence of which can be vastly reduced by vaccination The efficacy of the vaccine as a public health measure is undisputed But the MMR vaccine has had a troubled history Some parents choose not to inoculate their children In F (Mother) v F (Father) [2013] EWHC 2683 (Fam) a father wanted his 15 and 11 year old children to have the MMR vaccination His wife (from whom he was separated) and children disagreed Taking into considerations the wishes of the parents and the two lsquointelligent articulate and thoughtfulrsquo minors Mrs Justice Theis held that inoculation was in their best interests The case raises concerns about the assessment of the minorsrsquo individual medical interests and capacities and in the significance placed on their views when determining whether inoculation was in their best interests

26 TON LEIFAARD AND MARIELLE BRUNING

Case Hertogenbosch (CA The Netherlands) 10 January 2013

In May 2012 two young sisters of 11 and 12 years old were to be placed in a residential institution after an emergency care order was issued After a court hearing the placement order was prolonged for three months The mother and the two sisters appealed this decision at the Court of Appeal of lsquos-Hertogenbosch and argue that the two girls should have the right to legal assistance and to an independent appeal The Court of Appeal dismissed the appeal of the two girls on the basis of their legal incapacity to an independent appeal In the Netherlands minors have no independent procedural position in civil law proceedings but are dependent on their parents or if a conflict of interests arises between the minor and the parent as a legal guardian on their court appointed guardian ad litem The girlsrsquo plea for a right to an independent legal position to appeal with legal assistance of a lawyer on the basis of Article 12 CRC Article 6 ECHR Articles 24 and 47 EU Charter of Fundamental Rights and General Comment CRC No 12 was refuted by the Court of Appeal The question can be raised whether the abovementioned international documents indeed do not

13

guarantee the right to legal assistance when the child is heard in court proceedings nor guarantee a right to independently appeal a protection order This decision should be understood in light of the reluctance of both Dutch courts (lower and higher courts) and the Dutch legislator to recognize childrenrsquos legal status in civil proceedings which deserves reconsideration in light of international childrenrsquos rights standards

27 WOUTER VANDENHOLE AND GAMZE ERDEM TUumlRKELLI Case DCI v Belgium Complaint No 692011 ECSR In DCI v Belgium the ECSR finds a violation of art 17 sect 1 RESC (right to economic social and legal protection) because of the lack of places in reception centres for both accompanied and unaccompanied migrant minors in an irregular situation In my view the decision is poorly drafted the Committee spells out some of the principles (not only legislative action but also resources are required progressive realisation but with measurable progress and full use of available resources) but it does not seriously apply these principles to the case at stake More guidance could and should be given on the extent of resources required with kind of progress is expected within which time-frame against whom protection has to be offered in the case of accompanied minors and what role parents are expected to play whether there are additional or enhanced obligations towards unaccompanied minors and so on The Committee also makes a bold statement on the life-long consequences of poverty during childhood based on a statement of the UN SR on extreme poverty and human rights but fails to substantiate this point In sum I do not challenge the finding of a violation but rather the underlying (lack of systematic) reasoning the reasoning lacks sophistication and may hence suffer from a lack of legal authority and political legitimacy in a sovereignty-sensitive area like undocumented migration Likewise it fails to build on general human rights doctrine at least in its application to the case

28 SUE FARRAN AND RHONA SMITH Case December 1783 trial of John Hudson (t17831210-19) Burglary case This is an old English case of a nine year old child indicted for burglary breaking entering and theft He was sentenced to transportation following conviction of the felony but not the burglary The case was obviously decided at a time (1783) when there was little concept of childrenrsquos rights in law or general society Indeed the child had been working since he was four years old (as a chimney sweep) In terms of the call for cases it is reflective of attitudes towards childrenrsquos livesrights at the time but no longer responds to modern social economic legal cultural and technological developments that impact upon childrenrsquos lives It is not per se a notorious case rather it is representative of the lack of special procedures juvenile justice provisions for children at the time ndash the child was tried in the Old Bailey as were numerous children found in violation on the law It is an interesting decision to reflect on from a modern juvenile justice perspective Remarkably the trial itself demonstrates some consideration of the age of the child (nine years) and his status orphaned Judicial cogniscance is taken of the reliability of confessions given the age and living conditions of the child The court also cautioned against the harshness of a finding of burglary Nevertheless the sentence of seven years transportation is draconian to modern society in spite of the ideas of rehabilitation which may have underpinned it Rewriting this case would allow reflection on a range of childrenrsquos rights and juvenile justice as well as addressing the possibility for social issues to be considered in court

14

Moreover the issue of penal transportation finds modern resonance with the issue of deportation from a childrsquos rightsrsquo perspective something which one former penal colony (Australia) is currently under attack from across a range of international law and human rights commentators Australia is explicitly not accepting any asylum seekers using external processing centres and dispersal units for those seeking to enter Australia without visae prior authorisation

29 ABDULLAH KHOSO AND URFAN KHALIQ Case Farooq Ahmed v Pakistan P L D 2005 Lahore 15 In December 2004 in Farooq Ahmed vs the State the Lahore High Court (LHC) had removed the Juvenile Justice System Ordinance (JJSO) 2000 from the statute book The JJSO was the only national legislation that provides procedural guidelines to all the agencies in the criminal justice to deal with children in conflict with law It also prohibited the death penalty against children under 18 years In February 2005 the Supreme Court of Pakistan (SCP) stayed the order of the LHC Since then the matter is pending in the Supreme Court but in result of the LHCrsquos judgment a majority of judgments by the lower and higher courts are not coming in favour of children The Judgment of the LHC is wrong in its reasoning It has made references to Indian and British laws that were repealed long before the issuing of the judgment in 2004 Since the case is still pending in the SCP therefore I wish to submit this re-written judgment with the Court with well written logic reasons ground realities international good practices and updates from the international community

30 KIRSTY HUGHES AND NICOLE MOREHAM Case AAA v Associated News [2013] EWCA Civ 554 This case concerned the publication of the paternity of a child in a national newspaper The child was the daughter of Boris Johnson The newspaper was the Daily Mail The Court here held that the disclosure was permissible because the mother had made some statements about the paternity of her child in the past For example at a celebrity county house party she told the president of Condeacute Nast that her daughter was fathered by Boris This case raises interesting issues about the application of the reasonable expectation of privacy test and the best interest of the child that will be teased out in the revised judgment

2

International criminal justice is usually theorised on the basis of deterrence andor retribution our account will seek to justify Lubanga on the basis of the expressive theory of international law and its utility in exposing the harm of child soldiery

3 AOIFE DALY AND FIONA DOBSON

Case Castle amp Others v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin)

The Castle case concerned a specific incidence of lsquokettlingrsquo ndash a process of cordoning protestors into a confined space The claimants aged 16 and 14 had been confined in a cordon in central London for six hours during a protest despite requesting permission from police to leave The claimants argued that there should have been a plan in place in order to release children and that duties concerning the welfare of children under the Children Act 2004 had been breached violating ECHR rights The court accepted in this case that special obligations are owed to children However arguably the threshold was set very low in this judgment It was deemed unnecessary for police to explicitly consider the needs of children in a protest regarding education in which kettling would possibly be used This judgment is arguably not in conformity with the CRC which explicitly enshrines the principle of the best interests of the child together with the right of children to freedom of assembly and association Neither the CRC nor the right to freedom of assembly and association of children is mentioned in Castle In re-drafting this decision regard will be had to the CRC and the obligations owed to children as distinct from adults in the enjoyment of their political rights considering the particular welfare needs of this group

4 ELEANOR DRYWOOD AND AMANDINE GARDE

Case Case C-54003 European Parliament v Council of the European Union ECR [2006] I-05769

In Parliament v Council the European Court of Justice considered the legality of the EU family reunification Directive with reference to the EUrsquos fundamental rights protection regime The 2003 Directive addresses the right of third-country national migrants to be united with certain family members but permits derogations by Member States that could substantially limit the circumstances in which children in particular may join their parents in an EU Member State The Court upheld the legality of the provisions on the basis that they were capable of transposition by Member States in a way that was consistent with provisions of international law most significantly recognising ndash for the first time ndash the formal constitutional status of both the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child in the EU legal order We believe this case is interesting in the context of the childrenrsquos rights judgments project for two reasons The first is substantive the judgment considers a Directive that is indicative of the increasingly illiberal approach taken by legislatures across Europe to young immigrants overlooking their status as children in favour of that of immigrant Thus we welcome the opportunity to rewrite the judgment in a way that is more consistent with a child-focused approach The second is constitutional this judgment was the first from the Court of Justice of the European Union to consider the status of childrenrsquos rights in the EU legal order in any significant way The emergence of an explicit and far-reaching childrenrsquos rights agenda at EU level in recent years offers an interesting new perspective for critiquing the Courtrsquos reasoning in this case something that we would seek to incorporate into the rewritten judgment

3



[2006] UKHL 15 [2007] AC 100








4










5








6





7








8







9




SCC 4


10









11




















tort law






12






13




14




3



[2006] UKHL 15 [2007] AC 100








4










5








6





7








8







9




SCC 4


10









11




















tort law






12






13




14




4










5








6





7








8







9




SCC 4


10









11




















tort law






12






13




14




5








6





7








8







9




SCC 4


10









11




















tort law






12






13




14




6





7








8







9




SCC 4


10









11




















tort law






12






13




14




7








8







9




SCC 4


10









11




















tort law






12






13




14




8







9




SCC 4


10









11




















tort law






12






13




14




9




SCC 4


10









11




















tort law






12






13




14




10









11




















tort law






12






13




14




11




















tort law






12






13




14




12






13




14




13




14




14




SUMMARY OF CASES - University of Liverpoolof,Cases,FINAL.pdf · state to reform an out-of-date...

Documents

Transcript of SUMMARY OF CASES - University of Liverpoolof,Cases,FINAL.pdf · state to reform an out-of-date...