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Judicial Approaches to the Human Rights Act

Published online by Cambridge University Press:  17 January 2008

David Bonner ,
Helen Fenwick  and
Sonia Harris-Short
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Extract

The case law generated in just over two years' operation of the Human Rights Act 1998 (HRA), enables stocktaking rather than definitive appraisal.1 This article begins by recalling the markedly contrasting roles in United Kingdom law of the European Convention on Human Rights (ECHR) before and after the HRA, the better to appreciate judicial approaches to, and use of, the HRA in the areas surveyed. The second part of the article focuses on judicial use of key provisions of the HRA to interpret primary legislation said to conflict with one or more Convention rights and on judicial use of the power to make a declaration of incompatibility. It considers a selection of decisions, principally of the House of Lords and the Court of Appeal, which raise important points regarding the purpose and scope of the HRA as a constitutional document and indicate judicial uncertainty as to how the HRA should be conceptualised, interpreted and applied. With this emerging picture of a cautious and uncertain judiciary in mind, the final two sections of the article give detailed consideration to the post-HRA jurisprudence within two discrete areas of English law. Part III explores the impact of the HRA on judicial approaches to the clash between the freedoms of expression and assembly, on the one hand, and public order, on the other. Part IV considers the ‘use and abuse’ of the HRA and of Article 8 ECHR in private law family disputes. Finally, certain tentative conclusions as to the perhaps disappointing story of the HRA so far, will be proffered.

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 52 , Issue 3 , July 2003 , pp. 549 - 586
Copyright
Copyright © British Institute of International and Comparative Law 2003

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References

1 For other stocktaking see: Klug, and O'Brien, , ‘The First Two Years of the Human Rights Act’ [2002] PL 649;Google ScholarKlug, and Starmer, , ‘Incorporation through the “front door”: the first year of the Human Rights Act’ [2001] PL 654;Google ScholarAshworth, , ‘Criminal Proceedings After the Human Rights Act: The First Year’ [2001] Crim LR 855;Google ScholarClayton, , ‘Developing Principles for Human Rights’ [2002] EHRLR 175;Google ScholarClayton, , ‘The Limits of What's “Possible”: Statutory Construction Under the Human Rights Act’ [2002] EHRLR 559;Google ScholarBonner, and Graham, , ‘The Human Rights Act 1998: The Story So Far’ (2002) 8 EPL 177;Google ScholarWadham, , ‘The Human Rights Act: One Year On’ [2001] EHRLR 620;Google ScholarWadham, and Taylor, , ‘The Human Rights Act Two Years On’ (2002) 152 New LJ 1485;Google ScholarGearty, , ‘The Human Rights Act One Year On’ (2001) 10 Nottingham Law Journal, v–vii;Google ScholarKilkelly, , ‘One Year On: Children and the Human Rights Act 1998’ [2001] 182 Childright 9;Google ScholarMcGoldrick, , ‘The United Kingdom's Human Rights Act 1998 in Theory and Practice’ (2001) 50 ICLQ 901;CrossRefGoogle ScholarWadham, , ‘The Human Rights Act: One Year On’ [2001] Legal Action 1;Google ScholarPorter, , ‘Marking the First Anniversary of the Human Rights Act’ (2001) 151 New LJ 1204.Google Scholar

2 International Transport Roth GmbH and others v Secretary of State for the Home Department [2002] EWCA Civ 158 (CA), per Laws LJ at para 70.

3 R v Secretary of State for the Home Department, exp Brind [1991] 1 All ER 720;Google Scholar see further McGoldrick, above n 1, at 903–5; Lord, Hope, ‘Human Rights—Where Are We Now’ [2000] EHRLR 439, at 440.Google Scholar

4 Brind.

5 Malone v Metropolitan Police Commissioner [1979] Ch 344, per Megarry VC.

6 Ibid.

7 SI 2001 No 1815. The HRA came into force in respect of the Scottish Parliament and executive on the commencement of the devolutionary settlement: see Scotland Act 1998, s 29.

8 The HRA does not incorporate Art 1 (the international obligation of the State to guarantee the protected rights and freedoms to those within its jurisdiction) and Art 13 (the right to an effective remedy). The view was taken that the HRA itself was the fulfilment of both of those Arts. See McGoldrick, above n 1, at 906–9.

9 Section 3.

10 Section 4(6).

11 Under Art 46 of the ECHR States are bound to implement a judgment of the Court against them and the execution of the judgment is supervised by the Council of Ministers of the Council of Europe. The UK has always in response made some alteration in its law or practice, although there will inevitably be dispute as to whether the changes made went far enough. See McGoldrick, above n 1, at 920, 924–5.

12 Section 10.

13 [2002] EWCA Civ 158 (CA), at para 71; see also McGoldrick, above n 1, at 905–6.

14 [2002] EWCA Civ 158 (CA), at para 71.

15 Thoburn v Sunderland City Council [2002] 4 All ER 156, at 185, 188 (Laws LJ)Google Scholar; Lord, Steyn, ‘Democracy Through Law’ [2002] EHRLR 723, at 728–9, 731Google Scholar; Lord, Steyn, ‘The New Legal Landscape’ [2000] EHRLR 549, at 550Google Scholar.

16 R v Lambert [2001] 3 All ER 577, at 621 (para 135)Google Scholar.

17 Edwards, , ‘Judicial Deference Under the Human Rights Act’ (2002) 65 MLR 859, at 866–8CrossRefGoogle Scholar; Klug and O'Brien, above n 1, at 653–4.

18 Wilson v First County Trust [2001] 3 All ER 229 (CA)Google Scholar.

19 [2001] 2 All ER 929, at 982 (para 76).

20 [2001] 2 All ER 929, at 969 (para 26), applied by Wilson J in R (on the application of Joanne Reynolds) v the Secretary of State for Work and Pensions [2002] WL 237086 (para 17)]. See also R v Secretary of State, ex parte Anderson [2002] UKHL 46, para 18 (Lord Bingham)Google Scholar, with particular respect to judgments of the Grand Chamber.

21 HL Debs, vol 583, col 514 (18 Nov 1997).

22 Lord Hope, above n 3, at 450.

23 Klug, , ‘The Human Rights Act—A “Third Way” or a “Third Wave” Bill of Rights’ [2001] 4 EHRLR 361, at 370Google Scholar.

24 McGoldrick, above n 1, at 917–20; Ashworth, above n 1, at 870.

25 See, eg, JA Pye (Oxford) Ltd v Graham [2001] 2 WLR 1293 (CA)Google Scholar: extinguishing of title through adverse possession did not violate Art 1, Protocol No 1 ECHR); R (on the application of Pretty) v DPP [2001] 1 All ER 1 (HL) (Art 2 [right to life] does not preclude criminalising assisting a suicide nor give a right of self-determination in relation to life and death); Matthews v Ministry of Defence [2003] 1 All ER 689 (HL)Google Scholar (no breach of Art 6 by substantive rule precluding entitlement); Poplar Housing [2001] 4 All ER 604 (CA) (no breach of Art 8)Google Scholar.

26 R v A [2001] 3 All ER 1 (HL), per Lord Steyn at para 44; Hooper [2002] EWHC 191 (admin), at para 157 (Moses J); Percy v DPP [2001] EWHC Admin 1125, at para 12 (Hallett J); Matthews v Ministry of Defence [2002] CP Rep 26, at para 51 (Keith J); R v W & B (Children) [2001] HRLR 50, at para 50 (Hale LJ); R (on the application of H) v Nottinghamshire Healthcare NHS Trust [2001] EWHC Admin 1037, at para 56 (Bell J).

27 R v Mental Health Review Tribunal [2001] 3 WLR 229 (CA) resulting in the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001 No 3712).

28 International Transport Roth GmbH v Secretary of State for Home Department [2002] EWCA Civ 158; Nationality, Immigration and Asylum Act 2002, s 125 and Sched 8. R v Secretary of State for the Home Department, exparte Anderson [2002] UKHL 46.

29 R (Alconbury etc) v Secretary of State for Environment etc [2001] 2 All ER 929; Matthews v Ministry of Defence [2002] 3 All ER 513 (CA) an overturning upheld by the Lords [2003] 1 All ER 689; A v Secretary of State for the Home Department [2002] EWCA Civ 1502.

30 Wilson v First County Trust [2001] 3 All ER 229 CA; R (on the application of Hooper and others) v Secretary of State for Work and Pensions [2002] EWHC 191 Admin; R (on the application of Wilson) v IRC [2002] EWHC 182 (Admin); Klug and O'Brien, above n 1, at 650 (n 10).

31 I Leigh and L Lustgarten, ‘Making Rights Real: The Courts, Remedies, and the Human Rights Act’ (1999) 58 CLJ 509, at 536–8; Lord, Lester, ‘Developing Constitutional Principles of Public Law’ [2001] PL 684, at 691.Google Scholar

32 But see McGoldrick, above n 1, at 923.

33 R (on the application of the Secretary of State for the Home Department) v Mental Health Tribunal [2001] EWHC Admin 849.

34 See, inter alia, Young, , ‘Judicial Sovereignty and the Human Rights Act 1998’ (2002) 61 CLJ 53CrossRefGoogle Scholar, and the parliamentary sources cited therein; Edwards, , ‘Reading Down Legislation Under the Human Rights Act’ (2000) 20 Legal Studies 353CrossRefGoogle Scholar; Elliott, , ‘Parliamentary Sovereignty and the New Constitutional Order: Legislative Freedom, Political Reality and Convention’ (2002) 22 Legal Studies 340, at 346–52CrossRefGoogle Scholar; Lord, Irvine, ‘Activism and Restraint: Human Rights and the Interpretative Process [1999] EHRLR 350.Google Scholar

35 Lord Hope, above n 3, at 446, 450; Lord, Steyn, ‘The New Legal Landscape’ [2000] EHRLR 549, at 550.Google Scholar

36 R v A [2001] 3 All ER 1, at para 108.

37 R v Lambert [2001] 3 All ER 577, at para 78.

38 Re S, Re W [2002] 2 All ER 192, at para 37.

39 R v A, at para 44; affirmed by him in R v Lambert, at para 42.

40 R v A, at para 44 (Lord Steyn), affirmed by him in R v Lambert, at para 42; R v A, at para 109 (Lord Hope); R v Lambert, at para 78 (Lord Hope).

41 Ibid, Lord Steyn.

42 Re S, Re W [2002] 2 All ER 192, at para 37 (Lord Nicholls of Birkenhead).

43 R v Lambert, at para 81 (Lord Hope); R v A, implicit in Lord Steyn's judgment since his result is achieved by a method going beyond that applicable without s 3 HRA; cf Lord Phillips MR in Ashworth Hospital Authority v MGN [2001] 1 All ER 991 (CA), at 1008 (para 79).

44 R v A, at para 44 (Lord Steyn), affirmed by him in R v Lambert, at para 42; R v A, at para 108 (Lord Hope); R v Lambert, at para 81 (Lord Hope).

45 R v Lambert, at para 81 (Lord Hope); R v A, at para 45 (Lord Steyn).

46 [2001] 3 All ER 1, at 18 (para 45).

47 [2002] EWCA Civ 273.

48 [2002] EWCA Civ 273, para 37.

49 R v Lambert, at para 81 (Lord Hope); R v A, at para 45 (Lord Steyn).

50 [2001] 3 All ER 577, at 605–6, paras 84–6 (Lord Hope).

51 [2001] 3 All ER 577, at 606 (para 85).

52 [2001] 1 All ER 221. The decision was followed in Goode v Martin [2001] 1 All ER 620 (CA), where s 3 HRA enabled a construction of CPR 17.2 (reading in the words ‘as are already in issue’) which would not have been available under previous rules of construction (‘We now possess more tools for enabling us to do justice than were available before April 1999’ [per Brooke LJ, at para 35]).

53 [2001] EWHC Admin 1037.

54 R (on the application of Wooder) v Feggeter and Mental Health Act Commission [2002] 3 WLR 591, para 48Google Scholar.

55 Klug and Starmer, above n 1, at 657.

56 [2001] 4 All ER 604; see also Adan v Newham LBC [2002] 1 All ER (Brook and David Steel LJJ).

57 International Transport Roth GmbH v Secretary of State for Home Department [2002] EWCA Civ 158 (CA), per Parker LJ, at paras 155–6, 180, 184.

58 Ibid, at para 66. See also Matthews v Ministry of Defence [2002] 3 All ER 513 (CA), at paras 74–6.

59 [2002] 2 All ER 192 (HL).

60 [2002] 2 All ER 192, at 204 (para 42).

61 [2002] 2 All ER 192, at 205 (para 44).

62 [2002] 2 All ER 192, at 203 (para 35).

63 [2002] 2 All ER 192, at 203–4 (para 40).

64 [2002] 2 All ER 192, at 204 (para 41).

65 [2001] 3 All ER 1, at 35 (paras 108, 109); see also his speech in R v Shayler [2002] 2 All ER 477 at para 52.

66 [2001] 3 All ER 577, at 604 (para 79).

67 [2001] 3 All ER 577, at 604 (para 80).

68 [2001] 3 All ER 577, at 605 (para 84), 608 (para 94).

69 [2002] 2 All ER 192, at 204–5 (paras 43, 44).

70 R v Secretary of State for the Home Department, ex parte Anderson [2002] UKHL 46, at paras 30 (Lord Bingham), 59 (Lord Steyn) and 81 (Lord Hutton), Lords Hobhouse, Nicholls, Scott, and Rodger concurring.

71 In J(Ron the application of) v London Borough of Enfield and Secretary of State for Health [2002] EWHC 432 (Admin), Elias J preferred the approach of Lord Hope (paras 61–6).

72 [2001] 3 All ER 1, at 35–6 (para 109), per Lord Hope.

73 [2001] 3 All ER 1, at 17–18 (paras 44, 45).

74 see also Ashworth, above n 1, at 869.

75 Clayton, , ‘Developing Principles for Human Rights’ [2002] EHRLR 175, at 181Google Scholar.

76 [2002] UKHL 46, para 59 (emphasis supplied).

77 Indeed, Young, above n 34, argues (without considering the case law) that s 3 sets no limits other than those determined by a ‘sovereign’ judiciary.

78 HRA, s 4(1), (2). Subs (5) defines court to cover, for England and Wales, the High Court, the Court of Appeal and the House of Lords.

79 HRA, s 5.

80 [2001] 4 All ER 604, at 624 (para 75).

81 [2002] 2 All ER 192, at 212–13 (paras 87, 88). See also Hirst (R on the application of) v Parole Board [2002] EWHC (Admin ) 1592.

82 Wilson v First County Trust [2001] 3 All ER 229 (CA).

83 See also R v Galfetti (Plinio) [2002] EWCA Crim 1916.

84 ‘Thus if a court is unable to construe a statute in a way which is compatible with the Convention, the Act gives it the power to expose the problem by making a declaration that there has been a violation of Convention rights’ (Wadham and Mountfield, Blackstones Guide to the Human Rights Act 1998, at 47); (Home Secretary Straw, 2R, 16 Feb 1998, col 780; Coppell, The Human Rights Act 1998; Enforcing the European Convention in Domestic Courts, at 48.

85 See, eg, Lord Chancellor Irvine HL Debs, vol 582, cols 1228–9 (3 Nov 1997); Rights Brought Home: The Human Rights Bill, Cm 3782, Oct 1997, at para 1.19.

86 [1984] 2 SCR 145.

87 HRA, s 4(6); R (on the application of the Secretary of State for the Home Department) v Mental Health Tribunal [2001] EWHC Admin 849, at para 33; Lord Irvine LC, above n 85. ‘A declaration of incompatibility will not itself change the law. The statute will continue to apply despite its incompatibility.’

88 Feldman sees a close analogy with a petition of right: see Feldman, , ‘The Human Rights Act 1998 and Constitutional Principles’ (1999) 19 Legal Studies 165, at 187CrossRefGoogle Scholar.

89 Leigh and Lustgarten, ‘Making Rights Real: The Courts, Remedies and the Human Rights Act’ (1999) 58 CLJ 509, at 537; cf Nicol, ‘Are Convention Rights a No-Go Zone for Parliament?’ [2002] PL 438, at 441–4.

90 See Clayton, R and Tomlinson, H, The Law of Human Rights (Oxford: Oxford University Press, 2000), at 272–3.Google Scholar

91 Art 10 provides: ‘1. Everyone has the right to freedom of expression … 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such … restrictions as are prescribed by law and are necessary in a democratic society, in the interests of national security … for the prevention of disorder or crime … for the protection of the rights of others.’

92 Art 11 provides: ‘ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association … 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime … or for the protection of the rights and freedoms of others.’

93 (1999) 28 EHRR603; a violation of Art 10 was found in respect of interferences with public protest.

94 Sunday Times v UK A 30 (1979).

95 Jersild v Denmark (1994) 19 EHRR 1 concerned an application by a Danish journalist who had been convicted of an offence of racially offensive behaviour after preparing and broadcasting a programme about racism which included overtly racist speech by the subjects of the documentary.

96 Lingens v Austria (1986) 8 EHRR 103 concerned with defamation of a political figure.

97 Thorgeirson v Iceland (1992) 14 EHRR 843 concerned newspaper articles reporting allegations of brutality against the Reykjavik police.

98 A 202 (1991) at para 53.

99 Ibid, para 51.

100 [1999] 2 WLR 625; see Clayton, , ‘Reclaiming Public Protest: the Right to Peaceful Assembly’ (2000) 63 MLR 52.CrossRefGoogle Scholar

101 See Fenwick, and Phillipson, , ‘Public Protest, the Human Rights Act and judicial responses to political expression’ (2000) PL 627–50.Google Scholar

102 See Pendragon v UK Appl No 31416/96 (1998); Chappell v UK Appl No 12587/86 (1987) 53 DR 241; Christians Against Racism and Fascism v UK (1980) 21 DR 138; Rassemblement Jurassien v Switzerland Appl No 81291/78 (1980) 17 DR 93; Rai, Allmondand Negotiate Now v UK, 81-AD&R 146 (1995).

103 Fenwick, , ‘The Right to Protest, the Human Rights Act and the Margin of Appreciation’ (1999) 62 MLR 491, at 502–5.CrossRefGoogle Scholar

104 In the words of Judge Martens, ‘[the task of domestic courts] goes further than seeing that the minimum standards laid down in the ECHR are maintained … because the ECHR' s injunction to further realise human rights and fundamental freedoms contained in the preamble is also addressed to domestic courts.’ (‘Opinion: Incorporating the Convention: The Role of the Judiciary’ [1998] 1 EHRLR 3.)

105 See Fenwick, above n 103, at 502–3. As the House of Lords recently stressed: ‘in the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules’ (R v DPP exparte Kebilene [1999] 3 WLR 972).

106 See the findings in: A v B and C [2002] 2 All ER 545; Douglas v Hello! [2001] 2 All ER 289 (admittedly, the Douglas case depended on an application of s 12 HRA which would not be applicable to common law crimes; it is unclear whether s 12 would apply to findings in relation to the breach of the peace doctrine which does not, as a matter of domestic law, create criminal liability).

107 [2002] 2 AC 291. The case will be referred to as S (Children), Re W.

108 2001 WL 1612531 QBD, 21.12.01, High Court of Justice Queen's Bench Division Divisional Court.

109 [2002] EWHC 110 Admin QBD.

110 See Brown v Stott [2001] 2 WLR 817.

111 See the reasoning of the House of Lords in Ashworth Security Hospital v MGN Ltd [2002] 4 All ER 193.Google Scholar

112 (1999) 28 EHRR 603, para 109.

113 See Laws LJ's findings in The Prolife Alliance v The British Broadcasting Corporation [2002] 2 All ER 756.Google Scholar

114 The following analysis will focus on cases dealing with typical private law family disputes ie intra-familial adoption and applications under the Children Act 1989 relating to residence, contact and the upbringing of children.

115 Fortin, J, ‘The HRA's impact on litigation involving children and their families’ Child and Family Law Quarterly, vol 11 (3), 1999, 217, at 255.Google Scholar

116 Foreword to Swindells, H, Neaves, A, Kushner, M, and Skilbeck, R, Family Law and the Human Rights Act 1998 (Bristol: Family Law, 1999).Google Scholar

117 Generally, Conway, H, ‘The Human Rights Act 1998 and Family Law—Part Two’ January [2000] Fam Law 30 and Swindells et al. op cit, at 90–6, esp at 93.Google Scholar

118 [2000] 2FCR 481.

119 [2000] 2FLR 225.

120 Per Ward LJ, op cit, at 226–7.

121 Per Ward LJ, op cit at 227.

122 way, Con, ‘The Human Rights Act 1998 and Family Law—Part One' Dec [1999] Fam Law 811, at 813.Google Scholar

123 See, eg X and Yv the Netherlands (1985) App No 8978/80, 8 EHRR 235 at [23]; Hoffmann v Austria (1993) App No 12875/87, 17 EHRR 293 at [29]; and Hokkanen v Finland (1995) App No 19823/92, 19 EHRR 139 at [55]. See generally, Harris, DJ, O'Boyle, M, and Warbrick, C, Law of the European Convention on Human Rights (London: Butterworths, 1995), at 320–4Google Scholar and Fortin, above n 115, at 240.

124 Fenwick, H, Civil Liberties and Human Rights, 3rd edn (London: Cavendish Press, 2002), at 161.Google Scholar

125 Per Buxton LJ, Re A, above n 119, at 229.

126 [2001] 1 FLR 1052.

127 [2001] 1 FLR 153. Glaser concerned a complaint by the child's father that the English and Scottish authorities had not done enough to enforce a contact order against his former wife. The European Court held: ‘[t]here may however be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to ensure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation where appropriate, of specific steps. … the Court's case-law has consistently held that Art 8 includes a right for a parent to have measures taken with a view to his or her being reunited with the child, and an obligation for the national authorities to take such measures. This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures, but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children's family.’ Ibid at [63] and [65].

128 Per Thorpe LJ, Payne v Payne, above n 126 at [34]. See also the judgment of Butler-Sloss P, at [81].

129 [1970] AC 668.

130 Ibid at 697 (per Lord Guest), 710–11 and 715 (per Lord MacDermott) and 727 (per Lord Donovan).

131 Ibid.

132 This could be achieved by departing from the approach as set down in J v C and ‘downgrading’ the child's interests from the sole consideration to the primary consideration—the test which is in fact set down in Art 3 of the United Nations Convention on the Rights of the Child.

133 See, in particular, Herring, J, ‘The Human Rights Act and the welfare principle in family law’ (1999) Child and Family Law Quarterly vol 11 (3) and Fortin, above n 115, esp at 250–2.Google Scholar

134 See, eg, Re C (HIV Test) [1999] 2 FLR 1004Google Scholar at 1016G (Wilson J at first instance) and at 1021 (Butler-Sloss LJ on appeal); Re P (Section 91(14) Guidelines (Residence and Religious Heritage) [1999] 2 FLR 573, at 598–9Google Scholar; Re A (Conjoined Twins: Medical Treatment) [2001] 1 FLR 1 at 97–8Google Scholar; Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678 at 701Google Scholar (not challenged on appeal, see [2000] 1 FLR 571 at 575)Google Scholar; Dawson and Wearmouth [1999] 1 FLR 1167, at 1174 and 1181Google Scholar; and Re A (Permission to Remove Child from Jurisdiction) above n 119, at 226–7 and 229–30.

135 See Bainham, A, ‘Taking Children Abroad: Human Rights, Welfare and the Courts’ [2001] CLJ 489, at 492Google Scholar and A Bainham, ‘Can we Protect Children and Protect their Rights’, April [2002] Fam Law 279.

136 See Payne v Payne, above n 126, at [35]–[39] and [81]–[82] and Re H (Contact Order) (No 2) [2002] 1 FLR 22 at [59]. Outside the context of the Children Act 1989 see Re T (Paternity: Ordering Blood Tests) [2001] 2 FLR 1190 at 1197–8. Cf Re B (Adoption: Natural Parent) [2002] 1 FLR 196 at [30].

137 This possibility was predicted by Fortin, above n 115, at 252. As to the extent of the margin of appreciation afforded to States under Art 8 see Hokkanen v Finland, above n 123, at [55] and [58]; Johansen v Norway (1997) App No 17383/90, 23 EHRR 33 at [64]; Glaser v United Kingdom (2000) App No 32346/96 [2001] 1 FLR 153 at [63]–[64]; and Sahin v Germany [2002] 1 FLR 119 at [40]–[41].

138 [2002] 1 FLR 23.

139 Ibid at [59].

140 See, Payne v Payne, above n 126 at [82] (judgment of Butler-Sloss P), Re B (Adoption: Natural Parent) above n 136, discussed below, and Re S (Contact: Children's Views) [2002] 1 FLR 1156, at 1170. This reflects the approach which was generally taken towards the Convention prior to the implementation of the HRA. See Re A (Conjoined Twins: Medical Treatment) at 978; Re J (Specific Issue Orders: Muslim Upbringing and Circumcision), at 701 (not challenged on appeal); Dawson and Wearmouth [1999] 1 FLR 1167, at 1174 and 1181; and Re A (Permission to Remove Child from Jurisdiction), at 226–7 and 229–30. All cited above, n 134.

141 The origins of this approach to the Convention can be found in the judgment of Lord Oliver in the House of Lords in Re KD (A Minor) (Ward: Termination of Access) [1988] 1 All ER 577, at 587–9. For analysis of this approach, see Fortin, above n 115, at 251–2.

142 Above, n 136.

143 For a detailed analysis of this case including Lord Nicholl' s approach to the HRA, see Harris-Short, S, ‘Re B (Adoption: Natural Parent) Putting the child at the heart of adoption?’ Child and Family Law Quarterly, Vol 14 (3) (2002) 325.Google Scholar

144 B v P (Adoption by Unmarried Father) [2000] 2 FLR 717.

145 Re B (Adoption by One Natural Parent to Exclusion of Other) [2001] 1 FLR 589.

146 Section 15(3) of the Adoption Act 1976 provides: ‘An adoption order shall not be made on the application of the mother or father of the child alone unless the Court is satisfied that—(a) the other natural parent is dead or cannot be found, or by virtue of section 28 of the Human Fertilisation and Embryology Act 1990, there is no other parent, or (b) there is some other reason justifying the exclusion of the other natural parent …’.

147 Re B above, n 136, at [30].

148 Ibid, at [31]. This reasoning would seem to be equally applicable to the question of the compatibility of s 1 of the Children Act with the Convention, thus strongly suggesting that no reconceptualisation of the welfare principle will be required.

149 Harris-Short, above n 143, at 336–7.

150 For a particularly good analysis of the difference between the approach taken under the Children Act 1989 and the approach taken under the Convention, see Herring, above n 133, esp at 228–30.

151 Herring, Ibid, at 224 and 231. See also, Bailey-Harris, R, Barron, J, and Pearce, J, ‘From Utility to Rights? The Presumption of Contact in Practice’ IJLF 13 (1999), 111, at 111–31.Google Scholar

152 This argument has again been discussed in greater detail in Harris-Short, above n 143, at 337–8.

153 Fortin, above n 115, at 252.

154 In fact the only support in the Convention case law for such an approach is the very recent case of Yousefv The Netherlands (Application No 33711/96) [2003] 1 FLR 210, in which the European Court held: ‘where the rights under Art 8 of parents and those of a child are at stake, the child's rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the child must prevail …’ (at [73]). However, the contention that the interests of the child are “paramount” and “must prevail” runs contrary to the clear and undisputed line of authority derived from Johansen v Norway (to be discussed below). Significantly, Johansen was not discussed by the Court in Yousef; the Court relying instead on Elsholz v Germany [2000] 2 FLR 486 and TP and KM v United Kingdom [2001] 2 FLR 549, neither of which, it is submitted, provides support for the Court's conclusion. Both of the cases cited assert that in carrying out the required balancing of interests under Article 8(2), the best interests of the child will be of ‘crucial importance’. However, the Convention case law, whilst recognising this fact, does not suggest ‘crucial’ equates to rendering the interests of the child ‘paramount’ as understood in English law. Indeed, Elsholz goes on to confirm the approach taken in Johansen (the implications of which are discussed below) that: ‘a fair balance must be struck between the interests of the child and those of the parent… and that in doing so particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent’ (at [50]). The Johansen approach has also been reaffirmed in the subsequent case of Hoppe v Germany (Application No 28444/95) [2003] 1 FLR 384 which, interestingly, relies on Elsholz v Germany and TP and KM v the UK as authority, not for the paramountcy of the child's welfare, but for the familiar proposition from Johansen as cited in full above (at [49)]. Yousef thus stands as an isolated and weak decision which is very unlikely to signal a major shift in the approach of the European Court to this important issue.

155 See James v UK 8 EHRR 123, at [50]. See also Swindells et al., above n 118, at 53.

156 See Herring, above n 133, at 230.

157 See the Convention cases cited above, above n 137. See also Herring, op cit, and Fortin, above n 115, at 252.

158 App No 5947/72 (1983) 5 EHRR 347.

159 Ibid, at [97].

160 Above n 137, at [78].

161 See generally the cases cited above, n 140.

162 Above n 126.

163 Ibid, at [35].

164 Ibid, at [37].

165 Art 3(1) of the UNCRC provides: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

166 Above n 126, at [38].

167 See, eg Johansen v Norway above n 137, at [64]; Buchberger v Austria App No 32899/96 (not yet reported) at [38] and Sahin and Others v Germany, above n 137, at [40].

168 Above n 126, at [39]. Butler-Sloss P also takes the view that Johansen is authority for the child's welfare being the ‘overriding’ consideration. Ibid, at [82].

169 This has since been reiterated in Buchberger v Austria, App No 32899/96, above n 167, at [40] and Sahin and Others v Germany above n 137, at [42].

170 See Harris-Short, above n 143, at 338.

171 Johansen, above n 137, at [76].

172 Ibid, at [84].

173 Thorpe LJ refers to the fact that he has taken his review of the authorities from the skeleton argument of counsel. Payne, above n 126, at [39].

174 Indeed, the recent decision of the European Court in Yousef v The Netherlands may have created some scope for launching a successful defence of the welfare principle within the terms of the Strasbourg jurisprudence—although it should also be said that for the reasons discussed above at n 154, it is view of the authors that Yousef would not justify a departure from the established approach as set down in Johansen and which has been followed consistently by the European Court thereafter.

175 See Tarnopolsky, W, The Canadian Bill of Rights, 2nd edn (Toronto: McLelland and Stewart Ltd., 1973), esp at 14–15, 132–63.Google Scholar