EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003:
FIVE YEARS ON
ANNUAL HUMAN RIGHTS CONFERENCE 2008
IRISH HUMAN RIGHTS COMMISSION / LAW SOCIETY OF IRELAND
Session: Family Law
Title:
“The ECHR Act, 2003 and Family
Law in practice”
Author: Ms. Rosemary Horgan
1
LAW SOCIETY/ IHRC CONFERENCE
Saturday 8th November 2008- Dublin
European Convention on Human Rights – Five Years On
The ECHR Act, 2003 and Family Law in practice
Chairman, ladies and gentlemen,
Thank you for the invitation to share with you the views of a practising family law
solicitor on how the passing of the European Convention on Human Rights, Act 2003
has impacted directly and directly on the practice of family law in the past five years.
Events such as this provide a rare opportunity for dialogue between legal practitioners
and academic human rights theorists.
Practising solicitors tend to think about human rights through a very narrow lens –
practically tunnel vision. How is it relevant to my client? How can I use it?
The ECHR Act, 2003 Act makes the ECHR part and parcel of our domestic law so it
is very much on our ‘legal radar’. It affords us new avenues of redress or exposure for
our clients depending on whether our clients are individuals or ‘organs of state’. In
management jargon it presents both ‘threats’ and ‘opportunities’. To avail of these
opportunities and to avoid the threats presented we must achieve a ‘paradigm shift’ in
our thinking as well as developing a familiarity around the technicalities of the Act
and ECHR jurisprudence. Family lawyers have to become familiar with concepts such
as “the purposive approach”1, and “horizontality”2, the principal of “proportionality”3
and the doctrine of the margin of “appreciation”4.
1. The Paradigm Shift
If we are to avail of the depth and breath of the Act, we must refashion our
foundational concepts of rights and obligations to incorporate a broader ‘human
rights’ vision. First up is the old chestnut of the ‘family’ in Irish Law. The ‘family’ is
guaranteed special protection under Article 41 of the Irish Constitution, but the
concept of ‘family’ is restricted to the family based on marriage upon which the
See Report On Statutory Drafting And Interpretation: Plain Language and the Law (LRC 61 - 2000),
Chapter 2 available at BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >>
[2000] IELRC 4. See Nestor v. Murphy [1979] IR 326.
2
A free-standing right of action against a public authority (section 3) may also have a horizontal effect
on conduct between private parties in that a court or tribunal, is required by Section 2, in so far as it is
possible to do so, to read primary and subordinate legislation so as to give effect to it in a way which is
compatible with Convention rights.
3
Dr. Ursula Kilkelly, “The European Convention on Human Rights Implications for General Practice,
UCC 11th February 2004.
4
See VgT Verein gegen Tierfabriken v. Switzerland Application Number 24699/94 where the ‘margin
of appreciation’ did not protect the Swiss Government from being found in breach of Article 10.
1
2
institution is founded. 5 The European Convention, on the other hand, under Article 8
guarantees - as a basic right - respect for private and family life, home and
correspondence. Any interference is limited to lawful State intervention in the
interests of national security, public safety, the economic well being of the country,
crime or disorder control, public health or morality control or necessary measures
taken to ensure the rights and freedoms of others.
The release clasp springing the opening of “Pandora’s box” in terms of family life
definition however is that both in practice and in its jurisprudence the ECHR tends to
accord legal protections to self-defined family units. If it operates like a ‘family’ it is
entitled to be treated as such and is protected by the ECHR from arbitrary actions by
the State. The focus of Article 8 is on the protection of an individual’s right to family
life as distinct from protection of the rights of a family unit. In Keegan V Ireland 6 the
court stated:
“The Court recalls that the notion of the ‘family’ in this provision is not
confined solely to marriage based relationships and may encompass other de
facto ‘family’ ties where the parties are living together outside of marriage. A
child born from such a relationship is ipso jure part of that ‘family’ unit from
the moment of his birth and by the very fact of it. There thus exists between the
child and his parents a bond amounting to family life, even if at the time of his
birth the parents are no longer cohabiting or if their relationship has then
ended”.
From the practitioners’ perspective, what all this boils down to is that one can no
longer limit the obligations of “Organs of State” to a rigid definition of the ‘family’ as
being the family based on marriage. You must now extend advice to encapsulate the
broader canvass of the ECHR. Family life can exist between children and their
parents, regardless of their marital status and if married, regardless of the fact that
they no longer live together.7
‘Organ of the State’ is defined by Section 1 of the Act as including”.. a tribunal or
any other body (other than the President or the Oireachtas or either House of the
See: State (Nicolaou) v. An Bord Uchtála [1966] IR 567; G v An Bord Uchtála [1980] IR 32,
North Western Health Board v HW and CW [2001] IESC 90; N. & Anor. -v- Health Service Executive
& ors. [2006] IESC 60;
6
(1994) 18 EHRR 342.
7
Marckx v Belgium, No 6833/74, Series A no.31,(1980) 2 EHRR 330 (unmarried mother), Johnson v
Ireland Application no 9697/92, A/12, (1987) 9 EHRR 203 ECHR (unmarried father), Berrehab v
Netherlands Application No 10730/8, (1988) A/138, (1989)11 EHRR 322 (1988) (divorced Moroccan
father), Keegan v Ireland Application No 16969/90, (1994) A 290, (1994) 18 EHRR 342 (unmarried
father no post birth relationship), Kroon v Netherlands No 18535/91, (1994) A/197-C,(1995) 19 EHRR
263 (unmarried father of child, registered at birth as the child of the mother and her husband),
McMichael v UK Application No. 1642/90, (1995) A/307-B,(1995) 20 EHRR 205 (unmarried father of
child taken into care before birth and opportunity to seek custody), Gul v Switzerland Application No.
23218/94, //RJD 1996-1 159, (1996) 22 EHRR 93 (married father separated by circumstances of
asylum), Boughanemi v France Application No.22070/93, RJD 1996-11 no 8,p.593, (1996) 22 EHRR
229 (deported unmarried previously uninvolved father), XY and Z V UK Application No.21830/93,
RJD 1997 II no 35,p.619, (1997) 24 EHRR 143 [1997] 2 FLR 892, ECHR (post operative transsexual/
family ties between biological parents), Lebbink v. The Netherlands (2005) 40 E.H.R.R. 18(non
cohabiting unmarried father)
.
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3
Oireachtas or a committee of either such House or a Joint committee of both such
Houses or a court) which is established by law or through which any of the
legislative, executive or judicial powers of the State are exercised”.
Public bodies, other than those excluded by the above definition, are mandated to
carry out their activities in a manner compatible with the provisions of the ECHR.
Section 3(1) of the ECHR Act 2003 provides that, “every organ of the State shall
perform its functions in a manner compatible with the State’s obligations under the
Convention provisions”.
Section 2(1) places an interpretative obligation on the Courts to interpret statutory
provisions or rules of law in a manner which is compatible with the State’s
obligations under the convention – where possible and subject to any countervailing
rule of interpretation.
Public bodies not excluded by the Act include, the HSE, The Adoption Board, sundry
Ombudsman offices, Local Authorities and Town Councils, the Revenue
Commissioners, The Legal Aid Board, etc;
Section 3 imposes on organs of state an obligation to perform its functions in a
Convention compatible manner and section 3(2) provides that if an organ of state i.e.;
a public body is found wanting under Section 3 they are essentially committing the
tort of breach of statutory duty with all of the consequences, in terms of remedies
available to a complainant, that this entails. The specific tort created by the Act is
only available however “if no other remedy in damages is available”. For the
entitlement to damages under s. 3(2) to come into play, it must be established that the
organ of state has contravened s. 3(1) by not performing its functions in a manner
compatible with the State’s obligations under the Convention. If the aggrieved party
can establish that they have suffered injury, loss or damage and that no other remedy
in damages is available to them, they can recover under Section 3(2) of the 2003 Act.
If the organ of state is fully compliant with its legislative obligations however, and yet
is in breach of Convention obligations, then the legislation is defective. One must then
ask if the defect can be remedied by reference to Section 2 (interpretation)8. If it
cannot however, one can proceed to Section 5 and seek a Declaration of
Incompatibility. It has been suggested that the need to seek a Declaration of
Incompatibility under Section 5 in order to “exhaust all domestic remedies” is otiose
because such a Declaration is not an effective remedy.9 Donncha O’Connell believes
See for example T v O [2007] IEHC -the G case where McKechnie J states ; “It seems to me that the
phrase ‘rights of custody … required by operation of law’ as used in article 2(11)(a) of the Regulation,
must be given a meaning independent of Irish law seeing as it is, part of an autonomous legal order.
That order also includes the European Convention of Human Rights. Therefore in keeping with the
express objectives and general policy of the Regulation and following long established precedent in
giving to it a purposive interpretation, I should endeavour to construe the above phrase in a manner
consistent with the objects, purpose and intent of both the Regulations and the European Convention
on Human Rights”. See generally, Human Rights Law, Law Society of Ireland 2nd edition pp.144-186
for Human Rights in EC/EU law. The ECHR is an essential source of law in the EU human rights
jurisprudence, even if the EU/EC is not a Contracting Party to the Convention and is therefore relevant
in issues relating to the EU Council Regulation 2201/2003.
9
Donncha O’Connell “Progress Thus Far Under The Echr Act 2003” Law Society/ IHRC Conference
2004 p.2.
8
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that Strasbourg would not require a litigant to go through that lengthy expensive
process before personally petitioning the ECHR.
The two reviews of Ireland’s human rights record by the United Nations Human
Rights Committee conducted in 1993 and 2000 contained significant “to do” lists
which did not appreciably alter between the first and second report. Fottrell noted that
the Irish Government appeared to engage in “a series of smoke and mirrors tricks”
designed to obscure our failure to correct problems highlighted in the First Report of
the Committee which resulted in the same problems being highlighted in the Second
Report.10 The Third Report by the Human Rights Committee issued in July 2008 did
not make for complacent reading either. While much has been achieved, a lot more
remains to be done.
In the first two Reports, the Human Rights Committee echoed major concerns
outlined by the NGO Shadow Reports produced by three domestic Non Governmental
Organisations. The Shadow Reports produced a very interesting article by article
review of Irish legislation highlighting those areas where there was a gap in
Convention and legislative standards.11 The latest shadow Report followed the same
very useful Article by Article critique.
The third periodic Report of the Human Rights Committee welcomed the progress
made such as the legislative and other measures taken by the Irish Government,
including the establishment of the Human Rights Commission in 2000, The Mental
Health Act, 2001, the ECHR Act 2003, and the establishment of the Garda Siochana
Ombudsman Commission in 2007. They also noted the developments in the field of
domestic violence (Cosc), the establishment of the Equality Authority and an Equality
Tribunal. In terms of the downside however the Committee were unhappy with lack
of action of many of the issues noted in the Shadow Report. The Committee
requested a progress report within one year on three matters namely, their
recommendations in relation to a definition of “terrorist acts” in domestic legislation
so as to limit extraordinary measures in appropriate situations. They also gave a
warning in relation to accepting assurances for third countries as to the innocuous
nature of actions taken by them and there should be an official regime for the control
of suspicious flights and any acts of rendition should be publicly investigated. Their
second area of particular concern related to prison conditions and their third area
related to the need to have a greater availability of non denominational primary
education to match the influx of a diverse and multi-ethnic school population. The
number of overall concerns listed included the proposals for Civil Partnership, issues
of domestic violence in practice, abortion, fair trial issues, trafficking, and
shortcomings in the Immigration Residence and Protection Bill. The Fourth periodic
Report is due in 2012.
Fottrell, Deirdre, “Reporting to the UN Human Rights Committee- A Ruse By Any Other Name?
Lessons For International Human Rights Supervision From Recent Irish Experiences; Irish Law Times
No 4, 2001.
11
See Irish Council for Civil Liberties, Irish Penal Reform Trust and Irish Commission for Justice and
Peace, “Shadow Report Under the International Convention on Civil and Political Rights”, June 2000.
10
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2.
The Mechanics
Procedurally, practitioners must watch the Statutory Instruments, Rules of Court12 and
Practice Directions13. The Practice Direction has been partially overtaken by the Rules
of Court which relate to the right of the Attorney General and Human Rights
Commission to notice of proceedings involving a Declaration of Incompatibility. The
originating Court document must plead Section 3(1) of the 2003 Act where injury loss
or damage is alleged. The rules do not say that other remedies may also be sought
such as injunctions or declarations. The Originating Pleading must bear the title “in
the matter of the European Convention on Human Rights Act 2003, section 3(2)”. The
party with carriage of the proceedings must serve a copy of same on both the Attorney
General and the Human rights Commission and update both of those institutions on
the progress of the proceedings as the case progresses. While section 3(2) provides that
a claim for damages may be initiated in the High Court or in the Circuit Court, section
3(3) limits the Circuit Court’s power to award damages to that available under any other
Circuit Court tort action. Barton has raised the question as to how practitioners should
evaluate whether to proceed in the High Court or the Circuit Court. He goes on to query
whether you should deal with the issue as with any other tort claim or whether it should
have a special status due to its very nature? He also points to the low level of damages
normally measured for such breaches by the European Court of Human Rights where the
quantum of damages has never been generous14. The measure of compensation is
supposed to afford just satisfaction to the injured party which effectively amounts to
‘restitution in integrum’ but it is generally accepted that the awards are generally lower
than most Member States’ awards15.
The Irish Human Rights Commission made “Amicus Curia “appearances on seven
occasions in 2007 in the High Court and Supreme Court in cases involving Human
Rights issues, and it received 42 Notifications of proceedings under the Rules16.
Cases involving Convention pleadings included such issues as legal aid17, residency
rights of ‘non-nationals’ parents of Irish born children and immigration issues and
12
SI 211 2004, Order 60 A
HC 32 European Convention on Human Rights (N0.20 2003) -Right of Attorney General and Human
Rights Commission to Notice of proceedings involving Declaration of Incompatibility Issue.
13
Sean Barton “The ECHR Act 2003 – a practitioner’s perspective” Law Society Paper SEB\882419
www.lawsociety.ie/newsite/documents/members/hrbarton.pdf, see also WHITE, R., Remedies in a
Multi-Level Legal Order: The Strasbourg Court in The Future of Remedies in Europe, edited by
Kilpatrick, C., Novitz, T., Skidmore, P., Oxford, Hart Publishing, 2000, At. 191. See Also Law
Commission & Scottish Law Commission, Damages under the Human Rights Act 1998, HMSO,
London, 2000.
15
See Marco Bono “Towards the “Europeanization” of Personal Injury Compensation? Contexts,
Tools, Projects, Materials and Cases on Personal Injury Approximation in Europe” published in
Personal Injury Compensation in Europe Klewer 2003.
16
See I v Minister for Justice Equality and Law Reform [2003] IESC 42 where the Supreme Court said
that the power to appoint an ‘amicus curiae’ is part of the inherent jurisdiction of the appeal courts.
17
Legal Aid Board v. District Judge Patrick Brady, the Northern Area Health Board & Others Nos.
2005/474 JR and 2006/652 SS. This case was settled before being judicially determined, the case
related to the issue of who should pay the costs of the Guardian Ad Litem in the proceedings for the
adult with mental illness and mild learning disability. Ultimately the HSE agreed to pay but the
principal of who should be liable for costs in such cases remained. The Legal Aid Board would be
acting ‘ultra vires’ if it paid as it was outside its statutory remit, the matter settled on the basis of the
LAB’s extension of its remit to cover such matters in the future.
14
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refugee issues most of which plead the ECHR Act, 200318, accommodation of
travelling families19, criminal trespass legislation20, data protection issues21 and
housing issues22.
Other Judgments concerned tax treatment23, issues relating to detention under the
Mental Health legislation24. An interesting Judgment in the year touched on
Convention case law although it did not directly invoke the Convention; the subject at
issue was the Constitutionality of Section 3(2) of the Deceased Wife’s Sister’s
Marriage Act 1907, as amended by Section 1(2) (b) of the Deceased Brother’s
Widow’s Marriage Act 1921. This legislation which prohibited the marriage of a man
with a divorced wife of his brother or half brother was held to be unconstitutional25.
Because of existing Constitutional jurisprudence broadly mirroring convention type
rights it is fair to say that there has been no floodgate of cases pleading Convention
issues since the ECHR Act 2003 brought the Convention into domestic law, however
as can be seen there has been a “trickle effect”. A progress Report and impact
assessment on the 2003 Act was prepared by O’Connell, Cummiskey & Meeneghan
entitled “ECHR Act 2003: A Preliminary Assessment of Impact”. This was at the
behest of the Law Society of Ireland and Dublin Solicitors’ Bar Association, and was
published in 2006. This report suggests so far there has been little “added value”
arising from the incorporation of the Convention at sub-constitutional level into our
18
D.B. & Others v. The Minister for Justice, Equality and Law, and Bode (a minor) v Minister for
Justice Equality and law Reform [2007] IESC 62 (Supreme Court).
19
Lawrence & Others. Ballina Town Council & Others, Pullen & Others v Dublin City Council and
Thomas McDonagh & Others (applicants) v. Kilkenny County Council, the Commissioner of An Garda
Siochana, the Director of Public Prosecutions, Ireland and the Attorney General (respondents) [2007]
IEHC 350, O’Reilly & Others v Limerick County Council [2006 EIHC 174, Fingal County Council v
Gavin & Ors [2007] IEHC 444, Doherty v. South Dublin County Council and others, [2007] IESC 4,
Dooley & Ors v Killarney Town Council [2008] IEHC 242, O’Donnell (a minor) & Ors v South Dublin
City Council [2007] IEHC 204
20
Carmody v. The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
[2005] IEHC 10 affirmed on appeal to the Supreme Court 2008 ( legal aid)
21
Digital Rights Ireland Limited v. The Minister for Communications, Marine and Natural Resources,
The Minister for Justice, Equality and Law Reform, The Commissioner of An Garda Síochána, Ireland
and the Attorney Genera, substantive hearing awaited but IHRC was granted leave to appear in the
High Court as ‘amicus curiae’ (unreported 2007 (HC)).
22
2007 Annual Report of Irish Human Rights Commission p.8. and see Pullen & Others v. Dublin City
Council, Donegan -v- Dublin City Council & Ors [2008] IEHC 288 (Laffoy J) developing Dublin City
Council v. Fennell, [2005] 1 I.R. 604 and determining that the court should make a declaration of
incompatibility pursuant to Section 5 of the 2005 Act that s. 62 of the Housing Act, 1966 is
incompatible with Article 8 insofar as it authorises the District Court, or the Circuit Court on appeal, to
grant a warrant for possession where there is a factual dispute as to whether the tenancy has been
properly terminated by reason of a breach of the tenancy agreement on the part of the tenant in the
absence of any machinery for an independent review of that dispute on the merits being available at
law.
23
Zappone & Anor v Revenue Commissioners [2006] IEHC (Dunne J) recognition of ‘same sex’
Canadian marriage and challenge to Revenue Legislation
24
J.H v Vincent Russell Clinical Director of Cavan General Hospital. The Applicant was detained
since 2003 and the proceedings were brought on his behalf by the Irish Human Rights Commission.
The challenge was brought under Article 40.4.2 (habeas corpus) of the Constitution on notice to the
HSE and Mental Health Commission. The challenge was heard in the High Court over two days in
2006 and was successful.
25
O’Shea v Ireland and the Attorney General [High Court Laffoy J, 17 th October 2006 The
proceedings were instituted prior to the operation of the 2003 Act but the court considered the ECHR
judgment of B and L v UK [Application No. 36536/02 (13 December 2005) to be persuasive.
7
domestic law. However the Report concedes that it is probably too soon to be
definitive on this assessment26.
Emily O’Reilly, The Ombudsman, has indicated that she will assess whether Organs
of State have fulfilled their obligations and discharged their duties having regard to
Section 3 of the ECHR Act, as a matter of routine in investigations which her office
conduct for the future. In this way she hopes to assess systemic problems routinely so
that Organs of State themselves are prompted to undertake a Human Rights risk
assessment in all administrative actions.
“I admit that this may not be as simple as it sounds – given the conflicting imperatives
that drive all risk assessment procedures – but, at the very least, a public body cannot
hope to defend itself against a claim, formulated in terms of a human rights violation,
if that body has not even considered human rights implications in the course of risk
assessment. Such enlightened self-interest should assist in breaking down any
entrenched institutional reflex against human rights-proofing where it exists. It might
even lead to the incremental emergence of a human rights culture, so-called, in the
public service. While best human rights practice may not, ultimately, ‘save’ a public
body faced with a claim before a court it may well prove vital in the context of more
systemic or generalised inquiries conducted by my own office or other supervisory
agencies”.27
3.
ECHR Act 2003 impact on Adoption
Adoption in Ireland is largely a consensual matter. The Adoption Acts 1952-1998
encompass the adoption code and prescribe who may adopt, who may be adopted,
limited non-consensual adoption and foreign adoption. Although Ireland is party to
The Hague Convention on Intercountry Adoption there is still no legislation
incorporating the Convention processes into our domestic law. Adoption is one area
where Article 41 and the restrictive definition of ‘family’ as being limited to the
family based on marriage comes into sharp focus. It is very hard to reconcile the
obligations of the Adoption Board to act within their existing statutory remit, and their
obligation as an ‘organ of state’ to perform its functions in a manner compatible with
the State’s obligations under the Convention provisions. There is a very basic
disconnect between both sets of obligations.
To take the issue of ‘eligibility’ to be considered as a suitable party to adopt for
example it is all but impossible to reconcile Section 9(2) of the 1952 Act and Section
10(2) of the 1991 Act with recent ECHR jurisprudence. Although Ireland permits
adoption by a single person and Wagner and J.M.W.L –v-Luxembourg28 concerned a
situation where the Luxembourg authorities would not recognise a full adoption made
in favour of a single mother in Peru, one would have to note the comments of the
Chamber Judgment that the national court had taken into account neither developing
26
Published by Law Society of Ireland, Blackhall Place, Dublin 7 website: www.lawsociety.ie
in association with Dublin Solicitors Bar Association, 26 Lower Hatch Street, Dublin 2 website:
www.dsba.ie.
27
See Emily O’Reilly “Human Rights and the Ombudsman” paper delivered at Biennial Conference
Warwick University 27 April 2007.
28
Application No. 76240/01 (18 January 2007 Chamber Judgment);
8
social reality nor the best interests of the child in that case. More pertinently the recent
decision of EB v France29 stated that national authorities in France could not
discriminate against a lesbian prospective adopter by reason only of her sexuality.
This line of logic has been extended by the House of Lords in their decision on a case
coming from Northern Ireland which relates to an application for joint adoption of a
child by an unmarried couple who cared for the child during the last ten years. This
case was decided having regard to two earlier decisions and in the context of the
revamp of adoption laws in the UK culminating in the Adoption and Children Act,
2002 which does not stretch as far as Northern Ireland. In the case of In re P and
another (AP) (Appellants) (Northern Ireland)30 .
The Adoption (Northern Ireland) Order 1987 was challenged as being contrary to
Article 8 and Article 14 of the Convention because it restricted joint adoption to
married couples.
Gillen J, in the Family Division of the Northern Ireland High Court took the view that
being unmarried was a chosen status and there was no incompatibility, in his view,
with the Human Rights Act, 1998. This couple chose to be unmarried, and should live
with the consequences. This view was rejected by the Northern Ireland Court of
Appeal and it was determined that unmarried couples were a ‘formless’ group which
could vary widely in their relevant characteristics31.
The opinions of the Law Lords in the House of Lords are lengthy and compressive.
Lord Hoffman was of the view that eligibility to adopt by unmarried persons was
essentially a question of social policy and therefore was a matter, in principle, for the
legislature. Social Policy questions generally admit more than one rational choice
which is perfectly permissible, provided that the legislation is not irrationally
discriminatory. He went on to consider the Judgment of the ECHR in Fretté v France
(2002) 38 EHRR 348 which permitted discrimination against that adopter on the basis
of his homosexuality and being within the margin of appreciation of the French
courts. He also noted however that this position no longer pertains since the decision
in EB v France Application No. 43546/02 reported in January of this year. That
judgment effectively reversed the Fretté decision. In the EB decision the prospective
adopter was a homosexual woman as the margin of appreciation was narrowed in the
intervening years by developments within the Council of Europe Member States. He
also referred to Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] 2
AC 323 at paragraph 20: stating that “the duty of national courts is to keep pace with
the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”.
He also referred to a report prepared by Dr. Ursula Kilkelly who had been
commissioned by the Northern Ireland Department of Health and Social Services and
Public Safety to write a Report on whether the 1987 Order was consistent with the
Convention. She expressed a clear opinion that discrimination on the grounds of
marital status was very hard to justify, and a total exclusion of unmarried couples
29
Application No. 43546/02 [2008] 1 FLR 850;
[2008] UKHL 38. See ‘Adopting the Future’ (DHSSPSNI) June 2006, Department of Health, Social
Services and Public Safety in Northern Ireland and ‘Adopting the Future Consultation Final Report’’
September 2007.
31
Re P (A child) [2007] NICA 20, (4 June 2007) and see Dewhurst E, “Adoption and unmarried
couples” Law Society Gazette Aug/Sept 2008 at 16.
30
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from adoption was prima facie incompatible with the Convention in so far as it was
arbitrary discrimination on the grounds of marital status.
Baroness Hale in her Opinion also noted recent developments at Council of Europe
level and the New draft Adoption Convention considered by the Council of Ministers
on 7 May 2008. The new Convention was prepared against the backdrop of Sweden
formally “denouncing” the 1967 Adoption Convention in 200332. The UK partially
renounced the Convention in June 2005 following substantive adoption reform in that
jurisdiction which rendered its new domestic adoption code incompatible with the
1967 Convention which had become outdated. The COE Working Group sought a
type of ‘vox pop’ of Member States to ascertain what their position and views were in
relation to adoption issues in their countries. The text of the questionnaire and the
replies are available on the Council of Europe Website33. In this way the COE had a
readily accessible indicator from which the issue of ‘margin of appreciation’ could be
more reliably assessed. This has been referred to by the ECHR in both the Wagner
and EB decisions, and by the House of Lords in the re P decision.
Article 7 of the draft Adoption Convention permits adoption by two persons of
opposite sex who are married or who have entered into a registered partnership or by
one person. States are also free, but not obliged to recognise opposite sex couples and
same sex couples who are living together in a registered partnership. The draft
Adoption Convention does not of course oblige any Contracting State to introduce a
system of registered partnership into its national law. Where such an institution exists
however those partners cannot be discriminated against and denied the right to adopt
jointly in the same way as a married couple. Furthermore the working group
recommended that Contracting States should be able to extend the scope of the
Convention to persons of the same sex who are either married together or who have
entered into a registered partnership where those Member States felt that this was
appropriate. It was also recommended that Contracting States should be able to extend
the scope of the Convention to heterosexual couples who, though not registered
partners, lived together in a stable relationship.
As there remains divergent Member State opinion on the issue of homosexual
adoption there exists; theoretically, room to argue for a relatively wide margin of
appreciation on this issue in countries who opposed such a step. However it must also
be borne in mind that the pace of change on this issue is growing apace, and as more
countries permit gay adoption the margin will narrow. Already Sweden, Denmark,
Iceland, the Netherlands and the UK permit gay adoption.
Baroness Hale also noted developments in the jurisprudence of the ECHR which
insists that very weighty reasons are required to justify a difference in treatment based
on sexual orientation: Lustig-Prean and Beckett v UK (1999) 29 EHRR 548 and of
course EB v France where the Grand Chamber has emphasised that a person seeking
to adopt cannot be prevented from doing so merely on the grounds of his or her
sexuality alone.
32
European Convention on the Adoption of Children, Article 27(3) permits Contracting States to
‘denounce’ the Convention by notification to the Secretary General of the Council; this denunciation
was received on the 3/07/2002 and six months later became operative in accordance with the provisions
of the Article.
33
See, www.coe.int/.../legal_co-operation/family_law_and_children's_rights/Documents/CJFAGT1.
10
Interestingly she noted that this did not automatically mean that the ECHR would
necessarily prohibit a difference in treatment between unmarried couples and married
couples. She specifically noted Article 41.3.1 of the Irish Constitution and speculated
as to whether Strasbourg would regard the special protection afforded to marriage to
justify the discrimination against unmarried couples. On the other hand, the ECHR
follow the logic in the case of Karner v Austria where the refusal of the Austrian
Supreme Court to recognise a homosexual partner’s right to succeed to a tenancy on
the grounds that it must protect the traditional family unit was impugned. The ECHR
accepted that, in principle, a weighty and legitimate reason could justify a difference
in treatment. However, the majority were of the view that the Austrian aim in this
regard was rather abstract and moreover a broad variety of concrete measures could
be used to implement it which would not necessitate discriminatory treatment.
The Austrian Government had not advanced sufficiently weighty reasons justifying
the need for the discriminatory measures. Could Ireland justify discriminatory
treatment of an unmarried couple on the basis that the discrimination was necessary to
protect the institution of marriage?
Cohabiting ‘same sex’ or ‘opposite sex’ couples in Ireland who have been living
together in harmony perhaps in a situation where one of them is the mother or father
of the child in question are in a strong position to assert that they are being
discriminated against and their rights to family life are being infringed. It is difficult
to articulate any logical argument to prevent a joint adoption by them. Such an Order
would surely be in the best interests of the child and not unusual in current social
conditions prevailing in Ireland.
If one looks at the pool of children in Ireland who may be adopted it is also clear that
the list of adoptable children is quite arbitrary. Only children who are ‘illegitimate’ or
orphans may ordinarily be adopted34. Where does this leave the rights of a child who
wishes to be adopted by long-term foster parents but who cannot fit themselves within
the strict parameters of the 1988 legislation? It is quite clear that the ECHR is
trenchant in its protection of vulnerable parents who are forced to lose a child through
adoption.35 On the other hand it has taken a relatively robust approach to issues such
as dispensing with consent36. This however is different to situations where the loss of
rights is due to some failure on the part of the Member States in terms of any laxity of
process as in Keegan v Ireland and X v Croatia37.
The law of unintended consequences is also impacting on situations of Intercountry
adoption by virtue of Section 34 of the 1952 Act as inserted by Section 7 of the 1998
Act. In effect this section prohibits the private placement of a child for adoption. The
child must be placed by the HSE or Adoption Agency. This is perfectly reasonable in
domestic adoption, however in Intercountry adoption from countries which have
implemented the Hague Adoption Convention, these countries effectively make an
34
Section 10 of the 1952 Act as amended by Section 13 of the 1974 Act. The Status of Children Act
1987 removed archaic references to ‘illegitimacy’ replacing it with ‘non-marital’ as the appropriate
term thus attributing a status to the parents rather than to the child.
35
P,C and S v UK Application No. 56547/00 [2002[ ECHR 2004;
36
Kearns v France Application No. 35991/01 [2008]ECHR 1, Söderbäck v. Sweden Application No.
24484/97, Eski v Austria Application No. 21949/03 [2007] ECHR 80.
37
Application No. 16969/90 [1994]ECHR 18, and Application No. 11223/04 [2008] ECHR 203;
11
order severing the rights of the natural parents and granting custody of the child to the
prospective adoptive parents pending adoption in Ireland. This is normally done by a
Court Order; nevertheless this technically breaches Section 34. The Adoption Board
therefore take the view that they cannot make a domestic adoption order in respect of
the child. This may well be fully resolved as soon as the implementing legislation is
passed in Ireland ensuring that we are part of an International regulation process
which guarantees the best interest of a child, rather than the unilateral regulation we
have at present. However what about children currently in Ireland and without the
benefit of an Irish domestic adoption order?
In all of these situations an argument can be cogently made that ‘family life’ entitled
to respect under Article 8 already exists. In Boyle v UK 38family life was held to exist
between an uncle and a nephew, and in Boughanemi v France 39family life was said to
exist where the father had recognised the child although there were doubts about the
legitimacy of his links to the child. The ECHR indicated that the concept of family
life on which Article 8 is based embraces, even where there is no cohabitation, the tie
between a parent and his or her child, regardless of whether or not the latter is
legitimate. It seems a short step to accepting that ‘family life’ exists for a long term
‘social parent’ or a parent under a foreign order in circumstances where the character
and depth of the relationship would make it difficult to deny it.
The Adoption Board in its 2006 Annual Report recommended a re-definition of
Article 41 giving everyone a right to respect for their family life in accordance with
Article 8 of the European Convention on Human Rights. This respect for family life
should, it felt include respect for non-marital family life between a natural mother and
her child and a natural father and his child. Any necessary limitations on such rights
would also need to be clearly defined in law; The Adoption Board recommended that
an amended Constitution should enshrine “the welfare of the child as the first and
paramount consideration” in all decisions relating to the promotion of the welfare of
children who do not receive adequate care and protection. Children should have equal
rights to be adopted regardless of the marital status of their parents.
4.
The ECHR Act, 2003 and Declarations of Incompatibility;
Foy -v- An t-Ard Chláraitheoir & Ors as is now very well known. The basic facts
relate to a post operative male to female transsexual who had corrective surgery to
rectify Gender Dysphoria or Gender Identity Disorder. She sought an order from the
High Court directing the correction of her original birth certificate so that it would
reflect her acquired gender. The High Court judgment was delivered on the 9th July
2002 refusing her application and this decision was appealed to the Supreme Court.
However before the case was heard, there were three significant changes in the legal
landscape. Firstly, the European Court changed its mindset on these issues. The
European Court in Goodwin v UK 40gave judgment in 2002 and determined that the
failure to allow trans-gendered persons to acquire new birth certificates or to marry in
their ‘new’ gender was a breach of Article 8 and 12 of the ECHR(right to marry and
38
Series A no 282-B, (1994) 19 EHRR, 179
Application No. 22070 /93, 22 EHRR, 228.
40
22 EHRR 122.
39
12
found a family) of the ECHR. Secondly, the Convention became part of Irish
domestic Law and thirdly the Irish Civil Registration Act, 2004 was passed.
Accordingly, the Supreme Court remitted the case to the High Court for re-hearing
and the judgment of Mr. Justice William McKechnie was delivered in October 2007.
He held that the circumstances of the case justified the High Court in granting a
declaration of incompatibility pursuant to Section 5 of the 2003 Act stating that the
Irish Civil Registration Act, 2004 was incompatible with the ECHR. This decision
was appealed to the Supreme Court and that Court’s decision is eagerly awaited.
One has to ask whether many litigants would have the tenacity to engage in long haul
litigation as Dr Foy who was granted leave to bring the Judicial Review proceedings
in 1997, had a first 14 day hearing in October 2000 and a Judgment in 2002, a
Supreme Court debut in 2004, a return trip with new pleadings to the High Court in
2006 and a re-hearing on both sets of proceedings in 2007 all as a prelude to the
Supreme Court determination which is due shortly41.
On a positive note however, in the case of O’Donnell v. South Dublin County Council
42
judgment was given by Ms Justice Laffoy on 23rd May 2007 and she found that
Dublin County Council had breached the Plaintiff’s rights under Article 8 of the
Convention in a situation where the Council had failed to provide adequate
accommodation for a Traveller family. Three of the family suffered from a severely
incapacitating condition. Ms Justice Laffoy held that Article 8 of the Convention
imposed a positive obligation on the local authority to provide appropriate
accommodation for the family in question. This was notwithstanding that she found
no breach of the family’s Constitutional rights. Michael Farrell has deduced from this
decision a strengthening the argument that the Convention can sometimes supplement
the protections offered by the Constitution43.
5.
The ECHR and Privacy
Copland V UK 44is of interest to family lawyers amongst others. Ms. Copland found
that in the course of her employment as personal assistant in a college, her telephone,
email and internet use was being secretly monitored. She claimed that this amounted
to a breach of her right to privacy under Article 8. The UK government admitted that
monitoring took place, but claimed that this did not amount to an interference as there
was no actual listening into the telephone calls or reading of the emails. The calls had
been monitored and the level of e-mails and internet usage but this did not extend to
the interception of telephone calls or the analysis of the content of websites visited by
her. The monitoring thus amounted to nothing more than the analysis of automatically
generated information. It was minimal, routine and did not constitute a failure to
respect private life or correspondence.
See Tanya Ni Mhuirthile, ‘Declaring Irish Law Incompatible with the law of the ECHR- Where to
now? (200) 4(1) ILR 2.
42
[2007] IEHC 204 .
43
Michael Farrell “The Challenge of the ECHR” Judicial Studies Institute Journal, {2007:2] PP. 76-94
at p. 79.
44
(2007) 45 EHRR 37, [2007] ECHR 253
41
13
The Court disagreed however and held that the monitoring and storage of details of
telephone and internet use was itself interference under Article 8, what was done
amounted to an “integral element of the communications made by telephone”45. The
mere fact that these data may have been legitimately obtained by the College, in the
form of telephone bills, was held to be no bar to finding an interference with rights
guaranteed under Article 8. Moreover, storing of personal data relating to the private
life of an individual was held to fall within the application of Article 8 .1 even though
the data held was not disclosed or used against the applicant in disciplinary or other
proceedings.
Now the question I pose, is whether, in the context of matrimonial proceedings where
evidence is adduced of this type whither the rights of the party whose Article 8 rights
have been interfered with?
45
Malone v. the United Kingdom, Judgment of 2 August 1984, Series A no. 82, 84.
14