Yes, that’s what the Court of Appeal have said, in a ruling on a private family law case which involved relocation issues and a Section 8 (Children Act 1989) application (which looks at contact and residence).

The case involved a husband and wife, who had two children together. They subsequently divorced, and the father remarried and went on to have a child with his second wife. The second wife was from America and began to miss her home town in the States, feeling increasingly unhappy in the UK. The father then sought permission to remove his two children with his first wife, and their half sibling to the US. The application was successfully opposed by his first wife, and the father appealed, citing Article 8 of the ECHR as one of the grounds for appeal. He argued, amongst other things, that refusal to move would violate his youngest daughter’s right to a family life, and would cause the unit to break apart due to the wife’s growing unhappiness at living in England.

The judge took the view that human rights considerations of this nature, in family cases only applied where a public authority was involved and directly responsible for any actions which might lead to interference of a family member’s human rights. The judge went on to say that Parliament had provided a legislative mechanism for parties with parental responsibility in this area, which is human rights compliant.

Ryder LJ said in the judgment:

“[…] can only be an attempt to impose the concept of ‘horizontality’ into private law children cases where the agency of the state is not the principal actor seeking to interfere in the family or the private life of those concerned.  If that is right, the submission is misguided.  In private law applications it is a person with parental responsibility who seeks to interfere with the Article 8 rights of the other relevant persons, be they other adults with parental responsibility or the children themselves. Parliament has provided a legislative mechanism for such a decision that is human rights compliant.  It is neither necessary nor appropriate for the Family Court in ordinary private law applications where there are no public law consequences to undertake a separate human rights proportionality evaluation balancing the effects of the interference on each person’s Article 8 rights so as to evaluate whether its decision is proportionate.  [Counsel for the father] could point to no jurisprudence to suggest otherwise.  That position is quite distinct from public law applications where such an evaluation is required by reason of the fact that a local authority applicant is a public authority seeking itself to interfere in the rights that are engaged.”

It’s an interesting judgment. Come on over and tell us what you make of it….

Many thanks to the superb Jerry Lonsdale for alerting us to this case.

Advertisements