The Human Rights Act and European Convention on Human Rights in UK Family Law

The interactions between family law and human rights issues are significant. Being part of a family is a fundamental part of what it means to be a person and the potential for the human rights of different individuals to come into conflict in family disputes is huge. If the court becomes involved in such disputes, the human rights of the family members concerned have to be weighed carefully by the decision-maker who is sometimes faced with competing considerations that cannot fully be reconciled.

For example, the European Convention on Human Rights (the foundation upon which the modern law of human rights in the UK is based) states that 'everyone has the right to respect for his private and family life'. However, the courts may have to balance a person's right to live their life and raise their family unhindered against the need to protect the rights and welfare of the children within that family, say, for example, if there was a substantial risk that the children would suffer some kind of harm without intervention from the authorities.

Another area in which conflicting rights have to be balanced is in the area of privacy within the family court system. In April 2009, reforms to UK family law saw the media given the right to attend court hearings concerning divorce disputes. However, one or both parties to a divorce can request the exclusion of journalists and court then has to decide whether to uphold this objection. When the changes first came in, a number of applications were made on the basis that coverage of the applicants' particular case would infringe their human rights. Here, the right of an individual or individuals to privacy has to be balanced against the importance of free speech and the right of freedom of expression, another element of the European Convention, as well as the public good of bringing transparency to the family court.

Human rights in UK law

On 2 October 2000, the European Convention on Human Rights (ECHR) was directly incorporated into UK law due to implementation of the Human Rights Act 1998. This means that the fundamental rights and freedoms set out in ECHR (e.g. right to life, right to a fair trial, freedom of expression etc.) can be enforced in the British courts. The result is that most UK cases concerning human rights issues no longer have to be fought in the European Court of Human Rights in Strasbourg but can be resolved here.

The Human Rights Act operates in three main ways:

  1. By ensuring that the courts interpret legislation in a way that is compatible with the ECHR. Nevertheless, parliamentary sovereignty will take precedence over the principles of the ECHR due to section 3(2)(b) of the Human Rights Act, which states that where legislation has been enacted by parliament but runs contrary to the ECHR then the legislation shall remain valid and effective.  However, the courts may recommend that the legislation should be amended to prevent continuing breaches of the ECHR.
  2. By placing a duty on public authorities to act in ways compatible with the ECHR. The court is itself a public authority and so parties to legal proceedings - including proceedings connected with a divorce or involving children - who feel they have been dealt with in a way that breaches their human rights may raise the issue in the relevant legal proceedings, rather than having to make a separate application. If there are no court proceedings - for example where a decision of a local authority or other public body is called into question on human rights grounds - then the person claiming a breach can start court proceedings in the UK (rather than in the European Court of Human Rights) to seek a remedy for their breach to their human rights.
  3. Where primary legislation cannot be applied in a way that complies with the human rights convention, the courts can make a "declaration of incompatibility", which enables the government to amend the offending law via a fast-track route. The making of a declaration is a matter of judicial discretion and where a law cannot (or will not) be changed the case may then be taken to the European Court of Human Rights.

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

Although Articles 6 and 8 are particularly significant in divorce proceedings the ECHR 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 ECHR 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 holds 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 issue of whether or not journalists should be allowed into courts for private divorce hearings involving children.

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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