In BP v Surrey County Council (2020) EWCOP 17 a care home had acted lawfully in suspending all family visits during the coronavirus pandemic. It was necessary and proportionate to derogate from ECHR Articles 5 and 8. Considering alternative means of contact and communication was imperative. An appropriate balance had been struck.
In R (Drexler) v Leicestershire County Council (2020) EWCA 502 the Court of Appeal has unanimously dismissed am appeal against a Judgment of Swift J dismissing an ECHR challenge to a Council Cabinet decision to amend its SEN Home to School/College Transport Policy. Swift J did not (para75) err in applying the “manifestly without reasonable foundation” test or a conventional proportionality test. The issue was as to alleged unlawful age discrimination, contrary to Article 14 of the ECHR.
On ECHR Art 10, freedom of speech and expression, and the approach to limitations thereupon, see Divisional Court in R ( ANPO TVN ) v OFCOM (2020) EWHC 689 (Admin), at paras 41-63.
In Re Al M (Reporting Restrictions) (2020) EWHC 702 (Fam), concerned with an application for anonymity made by a witness who gave evidence during the fact finding stage of proceedings concerning the welfare of two children, the President declined to resolve what he described as an apparent conflict of first instance authorities on the question whether it is appropriate to strike any balance with ECHR Art 10 rights when absolute Art 2 or Art 3 rights are engaged.
In R (SXM) v Disclosure and barring Service (2020) EWHC 624 (Admin) (DC) the Court, at paras 81-85, addressed the scope of positive obligations under ECHR Article 8. At para 84, the Court confirmed that there may be “ a positive obligation to provide information concerning health risks to which a person may have been exposed.”
The test for establishing family life for the purposes of ECHR Article 8 within the foster care context is no different to that for birth families. So stated Au v SSHD (2020) EWCA Civ 318.
In R (Leighton) v Lord Chancellor (2020) EWHC 336 (Admin), Cavanagh J considered allegations including breaches of the PSED under Section 149 of the Equality Act 2020 and of Article 6 of the ECHR or Article 14 of the ECHR in conjunction with Article 6.
In R (BMA) v SoS for Health and Social Care (2020) EWHC 64 (Admin), Andrews J held, para 151, that the BMA was entitled to declaratory relief and a quashing order in respect of 2019 Pension Regulations which purported to enable the SoS to make a suspension decision in respect of pension benefits after criminal charge, but before any conviction. The BMA established to the Judge’s satisfaction that (1) the power to suspend pension benefits in the form in which it was introduced by the 2019 Regulations was a breach of ECHR Article 14, in conjunction with Article 1 of Protocol 1; (2) that this was compounded by an absence of appropriate procedural safeguards, as required both by ECHR Article 6 and by the common law principles of natural justice; (3) that although the Article 6 deficiencies might have been capable of cure had they stood alone, the Court was unable to use the wide powers, given to the Court under Section 3(1) of the Human Rights Act 1998, to interpret the legislation in a manner which would render it compatible with the ECHR; and (4) the SoS also failed to comply with the PSED, under Section 149 of the Equality Act 2010, when making the 2019 Regulations, which was an entirely independent ground upon which the decision to introduce the power was unlawful.
B (Secure Accommodation Order) (2019) EWCA Civ 2025 is an appeal by a local authority against the refusal of its application for a secure accommodation order under Section 25 of the Children Act 1989. The appeal raised important and overlapping questions on the interpretation of Section 25, including whether, when considering such an application, the Court is obliged to carry out an evaluation of “proportionality”, pursuant to Articles 5 and 8 of the ECHR. Baker LJ addressed the HRA and proportionality from paragraph 74. On the meaning of “deprivation of liberty” in Article 5 he referred to Guzzardi v Italy (1980) 3EHRR 332 at paragraphs 92-93 and P v Cheshire West and Cheshire Council (2014) UKSC 19, to the “degree and intensity of control” that amounts to “a deprivation of liberty”, and to in practice an Order under Section 25 involving a “deprivation of liberty” under Article 5, and an interference with the child’s right to respect for private and family life under Article 8.