The Human Rights Act and European Convention on Human Rights in UK family law

In April 2009, the UK family law reform saw the media given the right to attend all court hearings concerning divorce disputes. However, one or both parties to a divorce were still able to request exclusion of journalists, and a number of applications were swiftly made that questioned the legitimacy of coverage of their particular case and suggested that reporting of private details would infringe their human rights.

Human rights in UK law

On 2nd October 2000, UK law incorporated the European Convention of Human Rights (the Convention) into its framework through the enactment of the Human Rights Act 1998 (the Act).

The Act operates by three means:

  1. By ensuring that courts interpret legislation in a way that is compatible with the Convention. Although Parliamentary sovereignty may take precedence over the principles of the Convention as under section 3(2)(b), it is stated that where legislation has been enacted by Parliament but runs contrary to the Convention then the legislation shall remain valid and effective.

  2. By placing a duty on public authorities to act in ways compatible with the Convention. Where a party to a divorce feels the court or public authority, such as the Child Support Agency, has not ruled in respect of their Convention rights, the litigant may raise the issue in the relevant legal proceedings. According to the President of the Family Division, all Human Rights Act 1998 disputes must be dealt with immediately, irrespective of which court - family law court, county court, High Court or Court of Appeal - is hearing the case.

  3. Where primary legislation enacted by Parliament or secondary legislation, such as a statutory instrument, cannot comply with the Convention the higher courts can make a "declaration of incompatibility", which enables the government to amend law via a fast-track route. The making of a declaration is a matter of judicial discretion and where a law cannot be changed the case may then be taken to the European Court of Human Rights.

Relevance of the European Convention on Human Rights to UK family law

Although Articles 6 and 8 are particularly significant in divorce proceedings the Convention guarantees a number of fundamental rights pertinent to family law. They are, amongst others:

  • The right to life (Article 2)

  • The right to liberty (Article 5)

  • The right to a fair trial (Article 6)

  • The right to respect for private and family life (Article 8)

  • The right to freedom of expression (Article 10)

  • The right to marry and found a family (Article 12)

The Convention holds that, under Article 6, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. It is recognised that the press and public may be excluded for a number of reasons particularly where the interests of children or the protection of the private life of the parties so require.

Article 8 contains the tenet that everyone has the right to respect for their private and family life, home and correspondence except where it is necessary, in accordance with the law, for the protection of the safety, rights and freedoms of others.

These principles are particularly pertinent to the allowance of journalists into courts for private divorce hearings involving children and in July 2009, the President of the Family Division, Sir Mark Potter, ruled on a test case involving a celebrity divorce.

Sir Mark ruled to exclude journalists from the proceedings stressing that although the divorce of a celebrity couple was no different to that of any other couple and the reasoning behind his ruling was based solely on the sensitivity of the case to the children, he made it clear that a celebrity divorce would obviously bring great media interest and therefore the need to protect the children increased correspondingly.

He also noted that in each case for media exclusion, the court would have to answer questions of legitimacy and proportionality, and whether the presence of journalists in the family law court would comply with the Human Rights Act.

JMW divorce solicitors know your rights

JMW in Manchester has a dedicated team of experienced and knowledgeable divorce and family law practitioners who can offer a direct and comprehensive service in all family proceedings with full understanding of human rights under UK law.

The department is dedicated to giving clients a partner-led legal service based on strong representation at all stages of proceedings in separation, divorce and children's cases.

For a no obligation, initial discussion of your case call us on 0345 872 6666, or fill in our online contact form and a member of the team will be in touch.

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