Public Interest Litigation Update:

29th September 2015

 

Welcome to the PILS Project's Public Interest Litigation Update. The Update provides you with information on current public interest cases, judgments, news and events.
 
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N.I Judicial Review - Criminal Law
  • Court quashes PSNI's decision to give Informed Warning to youth
 D’s Application (2015) NIQB 78
 
On 10th September the High Court quashed a PSNI decision to administer an Informed Warning (IW) to an 11 year old boy without offering him access to legal advice beforehand. 
 
The boy (D) was arrested in September 2013 on suspicion of offences including assault occasioning actual bodily harm and resisting police.  He was interviewed under caution in the presence of an appropriate adult and his solicitor.  He was released unconditionally on all charges except resisting police. 
 
The police file was considered by the Public Prosecution Service (PPS) who decided that it was in the public interest to issue D with an IW.  This was administered in December 2013 by a PSNI Youth Diversion Officer (YDO) in the presence of D’s father and social worker.  The YDO explained to D that he would have to admit the offence and consent to the IW which D did. 
 
D then lodged judicial review proceedings challenging the decision to administer the IW.  The challenge centred upon the question of consent, when the consent was based upon an admission of liability without the benefit of legal advice.  It was claimed that this was a breach of D’s Article 8 ECHR rights.
 
The Court held that the legal requirement of procedural fairness incorporates the basic right to be given sufficient information to enable an informed decision to be reached.  In the particular circumstances of this case, the Court ruled that D’s consent could not be regarded as sufficiently informed.  Consequently the decision of the PSNI to administer the IW without referring to the possibility to seek legal advice beforehand was unlawful.
 
Following judgment, the President of the Law Society commented:
‘Whilst the Society welcomes the judgment of the Court it is important that assurances are provided from the Justice Minister and the Chief Constable that this sort of incident never occurs again and that access to a solicitor should never be overlooked.’
 
Read an article from The Belfast Telegraph here

 

Family - Care proceedings
  • £20,000 damages awarded in childcare case
Williams and anon v London Borough of Hackney (2015) EWHC 2629
 
The High Court of England and Wales awarded £20,000 damages to a married couple whose 8 children were unlawfully retained in foster care by a local authority.  The case is significant as it is one of the first where damages have been awarded under the Human Rights Act in childcare proceedings.
 
The case arose when one of the children, arrested on suspicion of shoplifting, reported to police that his father had physically assaulted him.  Police visited the family home and reported to the London Borough of Hackney that it was not a fit state to house the children.  The Court said:
A swift consideration of the welfare issues concluded that if some simple improvements were made to their home, the children could return home.  Yet it was two months before the children returned to their parents after experiencing a variety of foster placements.’
 
The Court held that the local authority acted lawfully in the initial action of removing the children under a 72 hour police protection order, however, it was unlawful for the children to remain in care beyond the expiry of that order. 
 
The Court awarded the monetary damages for breach of the couple’s right to a family life under Article 8 ECHR. 
 
Click here for an article from The Law Gazette. 


 

Family - Parental status 
  • IVF sector errors led to doubts over legal parental status 
 A and others (In the matter of the Human Fertilisation and Embryology Act 2008) (2015) EWHC 2602 (Fam)
 
Judgment was handed down in the family division of the High Court in England and Wales on 11th September in a case where seven couples, who had assisted reproduction through sperm donor, issued proceedings for a declaration that they were the legal parents of their offspring.
 
The case arose after it emerged that written consent forms which are signed by couples who are not married or in a civil partnership, to ensure legal parentage before treatment begins, had not been properly completed by the fertility clinics involved.  The mistake meant that women using donated sperm had not formally agreed that their partner would be the child’s legal guardian. 
 
The Court criticised the IVF regulator, the Human Fertilisation and Embryology Authority, which licences IVF clinics, for its failure to properly regulate the sector.  It said that the sector’s ‘incompetence’ had forced couples to come to court and reveal ‘intensely private’ details in public.  Whilst this case involved seven couples, it is understood 85 other couples could have their parentage called into doubt because of the administrative errors. 
 
The Court granted the declarations ruling that the couples had given their written consent to be parents to the clinics, even if it was not on the specific form required by law.
 
Read an article from the UK Human Rights Blog here and from Family Law Week here.

 

Social Security
  • Withdrawal of DLA for children in hospital can amount to human rights breach
Cameron Mathieson, a deceased child (by his father Craig Mathieson) (Appellant) v Secretary of State for Work and Pensions (Respondent) (2015) UKSC 47
 
The UK Supreme Court has ruled that the withdrawal of Disability Living Allowance (DLA) from a child in hospital for more than 84 days can amount to a breach of the European Convention of Human Rights (ECHR).
 
Cameron Mathieson, a 3 year old child who was born with bowel problems and cystic fibrosis, was hospitalised from July 2010 to August 2011.  During this time his parents continued to be Cameron’s primary caregivers including administering twice daily physiotherapy and feeding him via a tube. 
 
Cameron’s father challenged the regulations governing DLA that mean a child stops receiving the benefit after their 84th day as a NHS inpatient. 
 
The Supreme Court ruled that the regulations constituted discrimination against disabled children in breach of Article 14 ECHR.  It held that the government’s aim in imposing the 84 day rule was to avoid overlapping provision to meet disability-related needs from public funds.  However, the government had failed to evaluate the impact of this rule on the children concerned.  The rule overlooked the importance of parental participation in the care of a child in hospital. 
 
Although the Court ruled in favour of Cameron’s father, it did not strike down the rule as a whole. It left it to the government to decide what measures should be taken to avoid violation of the rights of disabled children such as Cameron. 
 
Commentary from Youth Justice Legal Centre can be accessed here.


 
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Human Trafficking
  • Domestic servitude victim awarded damages in UK's first caste discrimination case 
 Tirkey v Chandok and another ET/3400174/2013

On 17th September, an Employment Tribunal awarded £184,000 in unpaid wages to an Indian woman of low caste kept in domestic servitude by her UK employers for 4 ½ years. 
 
Ms Tirkey was recruited from one of India’s poorest states as her employers wanted someone of a low caste who would be ‘…not merely of service but servile’.  Caste is a hereditary division rooted in Hindu society, based on factors such as wealth, rank or occupation. 
 
The Tribunal found that Ms Tirkey was subjected to unacceptable working conditions including working 18 hours a day and receiving payment of 11p per hour.  It upheld several of her claims including that she was harassed on the grounds of her race and was the victim of indirect religious discrimination.  The case is significant as it is the first time that caste was considered an aspect of race by the Tribunal. 
 
The Legal Aid Agency had refused to fund Ms Tirkey’s representation for 17 months which caused significant delay to the case.  Her solicitor said that the Agency suggested that the case was not of ‘sufficient importance or seriousness’ and was ‘only a claim for money.’ 
 
To read the press release from Anti Trafficking and Labour Exploitation Unit, who represented Ms Tirkey, please click here.  An article from The Guardian can be read here

 
Assisted Dying
  • House of Commons MPs reject 'right to die' legislation
 On 11th September the House of Commons rejected legislation to allow adults with fewer than 6 months to live the right to ask for medical help to end their own life. 
 
The Assisted Dying Bill was introduced following last year’s UK Supreme Court decision, R (Nicklinson & Anor) v Ministry of Justice [2014] UKSC 38, which stated that Courts did not have the authority to rule on the right to die; it was a matter for Parliament to decide through legislation.  
 
The Bill would have allowed people with fewer than 6 months to live to be prescribed a lethal dose of drugs, which they would have been able to take themselves.  Two doctors and a High Court Judge would have needed to approve each case.  In an impassionate debate some MPs argued that the Bill did not contain sufficient safeguards to protect the most vulnerable in society with one MP stating
We are here to protect the most vulnerable in our society, not to legislate to kill them.’
 
Keir Starmer, the Labour MP and former director of public prosecutions, gave an important speech in favour, after laying out his reasons for deciding in a number of cases not to prosecute people who had helped dying relatives to end their lives abroad,
‘We have arrived at a situation where compassionate amateur assistance from nearest and dearest is accepted, but professional medical assistance is not unless you have the means of physical assistance to get to Dignitas’.
 
The bill was rejected by 212 votes with 118 MPs being in favour and 330 against.  The scale of the vote means the issue is unlikely to come before Parliament for at least another decade. 
 
Click here for commentary from The Independent.  Read the press release from campaigners, Dignity in Dying, click here.


 
PILS Events - Legal Aid Seminar

You are invited to attend our free seminar on ‘Legal Aid Cuts: Challenges for Northern Ireland’.  The seminar will be held on Wednesday 14th October at 1.30pm at Law Society House, 96 Victoria Street, Belfast.  The event will be chaired by Fiona Doherty QC.  Speakers include Roger Smith, former Director of JUSTICE, Karen Quinlivan QC and Pearse MacDermott, Partner at McCann and McCann Solicitors.  A light lunch will be served at 1pm.  To reserve a place please email dervla@pilsni.org.  Please note places are limited.

 

Pro Bono
 
The PILS Project has a register of legal practitioners who are interested in undertaking pro bono work with the PILS Project.  Opportunities range from writing an initial opinion to involvement in a test case, contributing to publications on public interest cases/issues and delivering training and talks to NGOs and legal practitioners. If you would like to join the register and find out more about opportunities to do pro bono work, please email dervla@pilsni.org to request an application form.
 

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