The Human Rights Act and family law

September 30, 2017 Human Rights

The Influence of the Human Rights Act on Family Law

The Human Rights Act has had a permeant influence on all countries of UK jurisprudence. Section 3 ( 1 ) of the Act requires that,

‘So far as it is possible to make so, primary statute law, and low-level statute law must be read and given consequence in a manner which is compatible with the Convention rights.’

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It is non surprising hence that this has had an consequence on many of import countries of household jurisprudence. This paper will look at some countries of household jurisprudence that have been impacted on by the Human Rights Act, and remark on the effects this is holding on UK household jurisprudence as a whole.

The first thing to indicate out is that the function of the household in society has been altering drastically over the past coevals. Functions and values that were one time written in rock are now being challenged. As society alterations, the household alterations and the commissariats of the Human Rights Act are one more country where new values in society are taking to alterations, and new ways of understanding the household.

Article 8 ( 1 ) of the Convention provinces that‘Everyone has the right to esteem for his private and household life, his place and his correspondence’ .This article has had a large impact on a figure of household jurisprudence countries.

Looking at divorce, the motion has been off from fault-based divorce. While the proposals contained in Part II of the Family Law Act 1996 were non wholly implemented, there is decidedly a motion towards refocusing the parties in divorce and happening solutions that non merely settle belongings rights and legal position, but besides adequately take into position the involvements of kids, other household members and the parties themselves. [ 1 ] This motion can besides be seen in the growing of mediation, sometimes mandatory [ 2 ] , which has been criticised by John Eekelaar and Gwynn Davis as authorities intervention. However, this tendency shows a definite re-emphasis in divorce jurisprudence from belongings and other legal rights, to esteem for involvements non normally contemplated by the jurisprudence.

Legal acknowledgment of the rights of cohabitees is another country that has been increasing. Heterosexual cohabitation has been increasing in prevalence and in societal credence of all time since the sixtiess. [ 3 ] However, with the coming of the Human Rights Act, the legal position of such agreements has been altering dramatically. Both statute law, and instance jurisprudence have been construing the jurisprudence harmonizing to Article 7. InSutton V Mishcon De Reya and Gawor & A ; Co[ 4 ] the cogency of ‘contracts of cohabitation’ was upheld. Harmonizing theMendoza V Ghadian[ 5 ] the same rule should use to homosexual twosomes. The tribunal, in this instance, eventually accepted that there could be no justification for handling homosexual twosomes otherwise from heterosexual twosomes. This was a direct consequence of the duties placed on the tribunal by Articles 8 and 14 of the Convention on Human Rights.

This country has besides been affected by the recent passage of the Civil Partnership Act 1995. This act is unfastened to both heterosexual and homosexual twosomes. Many of these twosomes do non wish to acquire married, and the homosexual twosomes can non lawfully do so. The ‘civil partnership’ provided for by this act allows for many of the fiscal and other security benefits of matrimony, such as revenue enhancement and heritage revenue enhancement regulations, employment benefits, pensions, income benefits, responsibilities to supply care to your spouse and other household members, ability to use for parental duty of your partner’s kid, acknowledgment under intestacy regulations, entree to fatal accident compensation, protection from domestic force and acknowledgment for in-migration and nationality intents. All of these alterations have come about as a direct consequence of the application of article 14 of the Convention on Human Rights, that is the prohibition on favoritism.

Another recent passage with a similar purpose to the Civil Partnership Act is the Gender Recognition Act 2004. This provides for the issue of what is efficaciously tantamount to a new birth certification. Section 22 of the Act besides provides explicitly for the regard of the privateness rights of the person that semen under article 8 of the Convention. Peoples can use for a gender acknowledgment certification ( GRC ) so that they can hold legal acknowledgment of the ‘gender in which the individual is living’ or what may besides be termed their ‘acquired sex’ . The fact that gender reassignment surgery is non required is a direct consequence of the duties and prohibitions imposed by the Human Rights Act. [ 6 ] Once a GRC has been granted, the applier will hold the right to get married, parent and follow in their new sex. This act is another clear mark of the impact that the Human Rights Act, and peculiarly the interaction between the right to a private and household life, and the prohibition on favoritism are holding on the legal apprehension of household life, and on gender.

It is besides of import to observe that while such alterations as the Civil Partnership Act and the Gender Recognition Act are distributing the legal protections of household jurisprudence to more and more people and to less traditional household constructions, they in no manner imply that there has been any decrease in the protection that is applied to traditional households. No 1 doubts that there are a huge figure of traditional households in the UK and the Human Rights Act, far from gnawing their position, warrants that these households have more protection than of all time. Many facets such as domestic and child maltreatment, equality of partners and so forth are more strictly protected no than of all time before. However, the most dramatic impacts that the Human Rights Act has had on household jurisprudence has non been on the alterations it has made to traditional households that have ever enjoyed a high grade of protection, but on the extent to which it has extended the protections of household jurisprudence to those groups, and those households, that were, until rather late, wholly excluded from the benefits of household jurisprudence. This is where the Human Rights Act has had its biggest impact on Family Law.



Family Law Act 1996

Human Rights Act 1998

Civil Partnership Act 2005

Gender Recognition Act 2005

Articles and Reports

HHJ Nigel Fricker QC,Family Law in the New Millennium: A Vision for Reform – A position from the Front Line,Jordan Publishing, 2000

J Haskey,Cohabiting Couples in Great Britain,Office of National Statistics, 2001

Joint Committee on Human Rights, 19ThursdayReport, HL 188-I, The Stationary Office, 2003

P Booth & A ; C Kennedy,The Traditional Family and the Law,Fam LJ 35 ( 482 )


Sutton V Mishcon De Reya and Gawor & A ; Co[ 2003 ] EWHC 3166 ( Ch )

Mendoza V Ghadian[ 2004 ] UKHL 30


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