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Court: Court of Appeal (Civil Division)

Court of Appeal rules on UK non-contributory sickness benefit if claimant is resident in another EU member state

Konevod v Secretary of State for Work and Pensions [2020] EWCA Civ 809

This appeal concerns the application of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (“Regulation 883/2004”) to a claim for a UK non-contributory sickness benefit in circumstances where the claimant had formerly lived and worked in the United Kingdom but was resident in another EU Member State at the time when the claim was made.

Held: This appeal was dismissed:

(1) the UT was right to hold that the United Kingdom is not the competent Member State under Article 21;

(2) the UT was right to reject the argument that the close link between carer’s allowance and attendance allowance. They remain separate benefits with different conditions of entitlement and have to be claimed by, and are payable to, different people.

Transgender man who gave birth to a child loses appeal to be registered as ‘father’ on the child’s birth certificate

McConnell & Anor v Secretary of State for Health and Social Care [2020] EWCA Civ 559

The question in this appeal was whether the Appellant, Alfred Mc Connell, a transgender man and holder of a Gender Recognition Certificate, was entitled to be registered as the ‘father’ or otherwise ‘parent’ or ‘gestational parent’ on the birth certificate of his son, YY, to whom he gave birth. The Registrar had registered Mr Mc Connell on YY’s birth certificate as “mother.” The Appellant applied for judicial review of that decision. The President of the Family Court issued a declaration of parentage on the basis that Mr Mc Connell was YY’s mother. Mr Mc Connell appealed both orders.
The Court of Appeal considered that the central question for the Court was a matter of statutory interpretation namely, whether the Gender Recognition Act, section 12 is retrospective only in effect or whether it can also have prospective effect. The Court held that it is both retrospective and prospective in its effect. The Registrar was correct to apply the ordinary interpretation of the GRA, section 12 to register Mr McConnell as YY’s mother.
The Court then turned to consider whether the correct interpretation of the GRA, sections 9 and 12 would give rise to an incompatibility with Mr Mc Connell’s Convention rights. The Court held that the requirement for a trans person to declare in a formal document that their gender is not their current gender but the gender assigned at birth represents a significant interference with the right to respect for family life.
However, the Court found that this interference was justified under Article 8(2) given that the interference serves to protect the rights of others, including any children who are born to a transgender person, and the maintenance of a clear and coherent scheme of registration of births. The general question to be considered was whether the rights of children include the right to know who has given birth to them and what the person’s status was.
The Court of Appeal held that Parliament’s view is that every child should have a mother and should be able to discover who their mother was, because that is in the child’s best interests. It recognised that others may take a different view and in time may be able to persuade Parliament to take a different view.
Mr Mc Connell’s appeals were dismissed. The legislative scheme did not violate his or YY’s Article 8 rights and there was no incompatibility between the GRA and the Convention.

Government’s policy to not include an ‘unspecified gender’ option on passports found to be lawful

R (Elan- Cave) v SSHD [2020] EWCA Civ 363

This case is an appeal against a dismissal of a previous claim for judicial review. The Appellant submits that the refusal of the Government to allow the Appellant to apply for or be issued with a passport with an “X” marker in the gender field, indicating gender “unspecified”, is unlawful.

Held: appeal dismissed. The current policy of HMPO not to permit the Appellant to apply for and be issued with a passport with an “X” marker, does not at present amount to an unlawful breach of the Appellant’s Article 8 private life rights.

There is a respectable argument that we are approaching a time when the consensus within the Council of Europe’s Member States will be such that there will be a positive obligation on the State to recognise the position of non-binary including intersex individuals if and when that time comes.  It follows that when the time comes, notwithstanding that there is a wide margin of appreciation as to how such a positive obligation is affected, the State will then have to take steps towards implementing that obligation.

Decision for Heathrow’s third runway found to be unlawful

R (Friends of the Earth) v Secretary of State for Transport and Ors [2020] EWCA Civ 214

The Court of Appeal have ruled on the proposed expansion of capacity at Heathrow Airport by the addition of a third runway under the policy set out in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” (“the ANPS”). The ANPS designated by the then Secretary of State for Transport in June 2018, is a national policy statement prepared Planning Act 2008, s5(1). It was subject to a number of legal challenges brought by claims for judicial review in accordance with the procedure that Parliament has provided for such challenges to be brought, in Planning Act, s13(1).

Held: The Court of Appeal has ruled that the expansion plans for a third runway at Heathrow airport were unlawful as the government did not take into account the UK’s commitment to the Paris climate agreement or the full climate change impacts of the proposal. The ruling is the first ever to be based on the Paris agreement to tackle climate change and the Prime Minister could use this ruling to abandon the project altogether. The judges said that a third runway could be possible in the future, if the plans changed to conform with UK climate commitments.

Court of Appeal provides route map for judges to follow when considering whether to make a forced marriage protection order

Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190

The Court of Appeal provided a route map for judges to follow when considering whether to make a forced marriage protection order. The Court held that it had power to make orders in respect of adults who have capacity, including to impose a travel ban or to confiscate a passport. The Court gave guidance on how to accommodate rights under Article 8 of the ECHR, with potential breaches of Article 3.