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.
Researching Reform 
I disagree strongly with LJ Ryder. Courts are themselves a public authority by virtue of s.7 HRA 1998, therefore where are article 8 is engaged any decision they make must be proportionate…. and the proportionality issue is evaluative in line with the decisions post Re B June 2013 Supreme Court rulings and appeal court rulings……indeed LJ McFarlane in recent PTA case accepted this in Court…
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Hi Shaun, I think that’s a really powerful point given that the courts operate independently of the parents.
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see Re G 2013…. http://www.bailii.org/ew/cases/EWCA/Civ/2013/965.html
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I have struggled immensely with this Judgment, notwithstanding what Shaun has said above, the methodology in Ryder J’s conclusions surely do not abide by the UN on the convention on the Rights of a Child.
We do see quite a lot on the HRA more so in Family Proceedings and rightly so however dose it mean, in reference to this judgment that the UN convention is also disregarded by virtue of proportionality.
UN CRTC
Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
I find it exceptionally difficult in dissecting these cases without the proper facts from the courts of the first instance, I know the COA battle with the self same problem as I do, in these types of judgments we do read references referring to lower courts, we may see various quotes from the lower judges however in this particular matter there is nothing on the equals sign, 2+2=? what caused Ryder J to leave the equals sign open, want for further debate and such, and, most probably a second appeal or appeal to the SC.
There was a consented custody order in favor of the appellant father, what then brought the case into the realms of the Court of Appeal, if the mother was unhappy with the proposed plans for relocation to the US by the father, mother had quite rightly the right to oppose the plan, however one would wonder why, if the significance of the case did the mother not apply for a transfer of residency if it is such a prominent point of principle that resulted in the HRA and UN Convention to be disregarded.
Where does this leave things now with not just the Child in this particular case but with the wider field in Private Family matters, not only does this Ryder J judgment leave a very bitter taste it could have even more far reaching implications for others involved in Private Family matters.
Who knows hey, I may not even be talking any sense right about now, I am blushing though, thanks N.
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🙂
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I see comments about international instruments other than the European Convention, but these are dry when as was argued by the judiciary time and time again until the European Convention became UK Law it was not enforceable in the UK. Other than an academic run to the European Courts after exhaustion of remedies there was no remedy in the UK. The main parts of the European Convention now are UK law by virtue of the Human Rights Act 1998 which came into force in October 2000. However they omitted Article 13 the right to an effective remedy. Other than that it is a force for good IF properly applied. It is more about the administration of the law than the law itself. if the Courts by virtue of s.7 is a public authority then any decision the Courts make must be lawful, necessary in a democratic society and proportionate. Sadly the barrister involved had no argument to correct LJ Ryder’s misinterpretation of the law, however I have been given permission to appeal on this point (one of the grounds) in a forthcoming case. Watch this space…..
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This might help…. http://mckenzie.blog.co.uk/2014/10/18/do-human-rights-and-proportionality-apply-in-private-law-19580897/
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