Menu My portfolio: 0

Court: Administrative Court

‘Breach of human rights for detainee who was subjected to constant observation for 75 days’

IS (Bangladesh) v SSHD [2019] EWHC 2700 (Admin)

The claimant challenged the legality of his detention for a period of 28 months pending his deportation. He says that it was unlawful to detain him for that period of time having regard to his young age (he was 18 when first detained), his mental health, history of self-harm and risk of suicide, and the conditions of his incarceration. He claims a violation of his rights under the ECHR, art 3, 5 and 8.

Held: The detention of the Claimant between 28 July 2016 and 29 June 2018 was lawful and did not involve a breach of his Convention rights. The detention of the Claimant between 29 June 2018 and 30 November 2018 was unlawful and amounted to a breach of his right to liberty under Article 5 ECHR. His treatment of being subjected to constant observation for a period of 75 days whilst unlawfully detained amounts to a separate breach of the right to respect for private life under Article 8 ECHR. There was no breach of the prohibition on inhuman or degrading treatment under Article 3 ECHR.

Court holds biological father’s inability to be named on surrogate child’s birth certificate to be a legitimate interference with his private life

R (H) (by her litigation friend B) v Secretary of State for Health and Social Care [2019] EWHC 2095 (Admin)

This case concerns whether the inability of A (the Claimant’s genetic father) to be named on the Claimant’s birth certificate is a breach of the Claimant’s article 8 and 14 ECHR rights. The Claimant applies for a declaration of incompatibility under s.4 of the Human Rights Act 1998 in respect of sections 35 and 38 of the Human Fertilisation and Embryology Act (HFEA) 2008 and for a declaration that those sections breach the Claimant’s human rights.

A and B entered into a surrogacy arrangement with C and D, a married couple. A is the biological father and C is the biological mother. During the course of C’s pregnancy, there was a breakdown in relations between the parties.

C and D registered themselves on H’s birth certificate, however by an Order made on 13 December 2016, A and B, as well as C and D, were given parental responsibility for the Claimant. The child currently resides with A and B but has regular contact throughout the year with C and D.

Held: There is no incompatibility and consequentially no remedy. It is accepted that H’s private life is interfered with by the operation of s.35 and 38, but not her family life. H lives with A and B, and they have day to day responsibility for her life. Her family life with them is fully protected by the terms of the Child Arrangements Order, and the impugned provisions have no real impact on her family life.

This interference, however meets a legitimate aim, and is necessary. The regulation of surrogacy is necessary for three reasons:

in order to provide legal certainty so that the child, and anyone else, can know who that child’s legal parents are;
to meet the objective that gamete donors should not be legal parents;
to ensure that surrogacy arrangements are not enforceable in domestic law.

Furthermore, the interference is relatively limited as A and B can explain H’s genetic heritage, and they have a day to day parental responsibility for her.  

Claimant acquitted for murder not entitled to receive compensation for miscarriage of justice

R (Holdsworth) v The Secretary of State for Justice [2019] EWHC 2079 (Admin)

In December 2008 the claimant was acquitted for a previous conviction of murder. The claimant applied for compensation under Criminal Justice Act 1988, s133, alleging a miscarriage of justice.  This was refused by the defendant in 2009 and they later refused to review this decision in 2011. The  claimant brought a judicial review to quash the 2011 decision, stating it is unlawful.

Held: The 2011 decision was not unlawful. When analysing R (Adams) v Justice Secretary [2011] UKSC 18; [2012] 1 AC 48 it was decided this case fell within category 3, as the claimant failed to lodge her claim within 28 days of the Supreme Court decision. For this reason, the Defendant’s decision not to review the 2009 decision was a lawful application of the policy.

Court lifts anonymity order on transgender claimant seeking to be recorded as father not mother on child’s birth certificate

TT v The Registrar General For England And Wales [2019] EWHC 1823 (Fam)

This case involves an application made by interested media parties, to remove a claimant, TT, from the protection of the anonymity order, but retain a bar on directly naming their child, YY. The anonymity order refers to an ongoing case involving a transgender’s application to be named the biological father on their child’s birth certificate, despite giving birth to them.

Held: The present anonymity order shall be varied so that Claimant’s child will be referred to as YY only but the Claimant’s name will be published. As the Claimant has agreed to the publication of a documentary on national TV which reveals the his identity, the court is not persuaded that the publication of the additional information of naming the Claimant in these proceedings, is, of itself, sufficient to engage the child’s Art 8 rights.

High Court dismisses Heathrow challenges

Spurrier & Ors v Secretary of State for Transport [2019] EWHC 1069 (Admin) & [2019] EWHC 1070 (Admin)

Five claims for judicial review challenging the Secretary of State for Transport’s decision to designate the Airports National Policy Statement, including the process which led to the designation. All claims were dismissed – the main grounds fell within the following categories: in the first four claims, climate change, air quality, surface access, noise, and habitats; […]