The Federal Court dismissed an application made by Save the Children Australia for habeas corpus of 34 women and children held in camps in North-East Syria finding that the Minister for Home Affairs and the Commonwealth of Australia did not have control over their detainment. However, the Court in a separate decision made no order as to costs, in an important decision on costs in public interest litigation.
Read MoreMB (a pseudonym) v Children’s Court of Victoria & Anor [2023] VSC 666
This case raises important human rights considerations of privacy and the State acting in the best interests of the child, in relation to the State’s retention of a child’s DNA information. Without the Victorian Charter, these fundamental considerations would not have been taken into account.
Read MoreHA (a pseudonym) v The Queen S EAPCR 2021 0019 (19 March 2021)
The Victorian Supreme Court overturned a decision to refuse bail to a 15 year old child. In deciding to grant a child bail, Justice Maxwell and Justice Kaye were guided by the “fundamental principle” of the youth legal system to “keep children out of custody wherever possible.” Their Honours also raised the “unacceptable” rate of over-representation of Aboriginal and Torres Strait Islander people in the criminal legal system and considered that the “courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates.”
Read MorePoole Borough Council v GN and another [2019] UKSC 25
The UK Supreme Court (the Court) examined whether the local authority had failed to fulfil a common law duty to protect two children, Colin and Graham, from harm inflicted by their neighbours. Drawing on the facts of the case, the Court held that the council was not liable for negligently failing to exercise its social services functions as there was no recognisable basis for a cause of action. While the Court dismissed the appeal, the decision in Poole leaves open the possibility for a duty of care to exist where an assumption of responsibility can be established.
Read MoreZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017)
The Supreme Court of Victoria held that the Children's Court Magistrate had the power to authorise the vaccination of three young children as a condition of interim accommodation orders under the Children Youth and Families Act 2005, contrary to the wishes of both parents. Justice Osborn held that s 263(7) of the CYFA is only capable of one interpretation and therefore the rights under the Charter of Human Rights and Responsibilities Act 2006 (VIC) were not relevant to the construction of the subsection.
Read MoreYG v S (A263/2016) [2017] ZAGPJHC 290; 2018 (1) SACR 64 (GJ) (19 October 2017)
The South African High Court has ruled the common law defence of reasonable or moderate chastisement is no longer applicable at common law in South Africa. The landmark judgement found no justification for permitting the use of corporal punishment against a child which would otherwise constitute assault but for the invocation of the defence.
Read MoreGreat Ormond Street Hospital v Yates [2017] EWHC 1909 (Fam) (24 July 2017)
In a high-profile dispute between the parents of a terminally ill child and doctors at the Great Ormond Street Hospital over the child’s course of treatment, the UK High Court found that the best interests of the child require that he not be given experimental medical treatment and instead be taken off life support.
Read MoreCertain Children by their litigation guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors [2017] VSC 251 (11 May 2017)
The Victorian Supreme Court has found for the third time that the Victorian government acted unlawfully with children's human rights and best interests in breach of the Charter of Human Rights and Responsibilities Act 2006 by establishing the Grevillea unit at Barwon prison as a youth justice centre and remand centre, transferring children to the Grevillea unit and using OC spray and extendable batons on children.
Read MoreMinister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA 343 (29 December 2016)
The Victorian Court of Appeal upheld a Supreme Court decision that the Victorian Government's decision to establish a youth justice centre inside the Barwon maximum security adult prison was unlawful. The Court held that the Minister and Governor in Council failed to have regard to children’s rights and Victoria’s legal obligations but overturned a finding that the Minister had acted for an improper purpose in establishing the facility.
Read MoreCertain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 (21 December 2016)
The Supreme Court of Victoria has found that orders made in November 2016 establishing the Grevillea unit at Barwon Prison as a youth justice facility were invalid and of no effect because of a failure by the defendants to take into account certain relevant entitlements and duties under the Children, Youth and Families Act 2005 (Vic). Garde J held that the use of the facility as ‘emergency accommodation’ was an improper or extraneous purpose to that required for the exercise of relevant powers under the CYF Act.
Garde J also held that the defendants failed to give proper consideration to provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Read MorePrince Alfred College Incorporated v ADC [2016] HCA 37 (5 October 2016)
In the recent decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 (5 October 2016), the High Court of Australia acknowledged the that the law in relation to the vicarious liability of educational and care institutions when an employee commits sexual offences against children, is unclear. However, because the Court ultimately declined to extend the statutory limitation period relevant to the claim by a former boarding student who had resided at Prince Alfred College in 1962 and was the victim of sexual abuse, the issue of vicarious liability was not determined.
Read MoreCase of The Christian Institute and others v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016)
In a recent judgment, the United Kingdom Supreme Court unanimously blocked the introduction of the Scottish Government's Named Persons scheme (Scheme), due to its incompatibility with article 8 (right to private and family life) of the European Convention on Human Rights (ECHR). The Scheme was part of a package of child welfare measures introduced under the Children and Young People (Scotland) Act 2014 (the Act).
Read MoreCase of Foulon and Bouvet v France (Application No’s 9063/14 and 10410/14) (21 July 2016)
The European Court of Human Rights (the Court) has delivered a judgment protecting the rights of children born as a result of international commercial surrogacy to have their relationships with their biological parents legally recognised. The Court unanimously found that refusal by French authorities to transcribe the birth certificates of children born under surrogacy agreements in India violated the children's right to respect for private life under Article 8 of the European Convention on Human Rights (the Convention). The judgment resolves past uncertainty as to whether the Court's earlier decisions on surrogacy would extend to same-sex families.
Read MorePJS v News Group Newspapers Ltd [2016] UKSC 26
A married celebrity had a threesome. His partner wasn’t one of the three. The affair was published widely on the internet outside the UK. A UK newspaper wanted to publish the story too. Demonstrating that it takes the right to privacy seriously in the age of the internet, the Supreme Court in May 2016 upheld an injunction preventing the publication of the story in the UK.
The decision confirms that the right to privacy protects not just secrecy, but intrusion into private life. Therefore the fact that the information was already publicly accessible was not fatal – the injunction would prevent additional intrusion and harm to the applicant and his family caused by print publication.
Read MoreCentral Queensland Hospital and Health Service v Q [2016] QSC 89
On 20 April 2016, the Central Queensland Hospital and Health Service (“CQHHS”) applied to the Supreme Court of Queensland seeking orders authorising the termination of 12-year-old “Q’s” pregnancy. Exercising the Court’s parens patriae jurisdiction, McMeekin J held that that the termination of Q’s pregnancy was necessary to avoid danger to Q’s mental and physical health, and was therefore lawful.
Read MoreR v A2; R v KM; R v Vaziri (No. 23) [2016] NSWSC 282 (18 March 2016)
The first three people in New South Wales to stand trial for female genital mutilation (FGM) related offences have been convicted and sentenced. Following a nine week trial, and a series of pre-trial applications dealing with evidentiary and procedural questions including the compellability of the child victims to give evidence for the prosecution against their mother (one of the defendants), the defendants were convicted of offences under section 45 of the Crimes Act 1900 (NSW) (the Act). Each was sentenced to 15 months’ imprisonment (with a non-parole period of 11 months) and referred for assessment as to suitability for home detention.
Read MoreFirst Nations Child and Family Caring Society of Canada et al. v Attorney General of Canada [2016] CHRT 2 (26 January 2016)
In a significant decision handed down by the Canadian Human Rights Tribunal, it was found that the Canadian Government discriminated against First Nations children and families living on reserve and in the Yukon Territory by failing to provide them with equitable child welfare services.
Read MoreRe: Martin [2015] FamCA 1189 (23 December 2015)
The parents of a 16 year old child (identifying as male) sought a declaration that their son was competent to consent to stage two cross-sex hormone treatment for gender dysphoria. Justice Bennett of the Family Court of Australia followed the approach set out by the Full Court of the Family Court in Re: Jamie [2013] FamCAFC 110 (Re Jamie) of considering whether the child was competent to consent to the treatment according to the test in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. While considering herself bound by Re Jamie, her Honour expressed strong criticism of the Full Court’s decision and of the current position under Australian law which requires a court authorisation before stage two treatment for gender dysphoria can be undertaken.
Read MoreZoltowski v Australia, HRC, Communication No 2279/2013, UN Doc CCPR/C/115/D/2279/2013 (7 December 2015)
The UN Human Rights Committee (‘Committee’) decision in Zoltowski v Australia established that a State party is required to allow contact between family members during family law proceedings. A failure to do so can amount to arbitrary interference with the family in violation of articles 17(1), 23(1) and 24(1) of the International Covenant on Civil and Political Rights (‘Covenant’). Further, the decision confirmed that a failure to deal expeditiously with a family law matter, without providing some ‘provisional access scheme’, can amount to a violation of the fair hearing provision in article 14(1) of the Covenant. An exception to these findings is if the failure to adopt such measures is in the best interests of the child.
Read MoreInquest into the death of Luke Geoffrey Batty [2015] Coroners Court of Victoria
Commonwealth, Royal Commission into Family Violence, Report and Recommendations (2016)
Luke Geoffrey Batty (Luke) was killed by his father, Gregory Anderson (Mr Anderson), on 12 February 2014. An inquest was held into Luke’s death in late 2014. The inquest did not focus on the immediate cause of Luke’s death – this was plain on the facts. The State Coroner, Judge Gray, instead investigated the interactions that Luke and his mother (Ms Batty) had with the family violence system in Victoria in the 18 months prior to Luke’s death. Judge Gray found that no one person or organisation caused or directly contributed to Luke’s death. However, his Honour did recognise some systemic flaws and made a number of recommendations for improvement.
Read MoreSecretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926
Justice Bergin, the Chief Judge in Equity in the NSW Supreme Court, found that a person not party to an adoption (in this case, a paternal grandmother) may have standing to enforce an adoption plan if the plan is registered under the Adoption Act 2000 (NSW) (Adoption Act), but not to review or amend it.
Read MoreRe: Jamie [2015] FamCA 455 (16 June 2015)
The Family Court of Australia has found that 15 year old “Jamie”, the subject of the often-cited decision of the Full Court of the Family Court in Re: Jamie [2013] FamCAFC 110 (Re Jamie 2013), was competent to consent to the stage two treatment for gender dysphoria and authorised her to make her own decision in relation to that treatment. This case is one of many being heard by the Family Court following the decision in Re Jamie 2013 that whilst court authorisation is unnecessary for stage one treatment for gender dysphoria, the nature of stage two treatment requires the Court to determine the child’s “Gillick competence” to make the decision.
Read MoreR (on the application of SG and others (previously JS and others)) (Appellants) v Secretary of State for Work and Pensions (Respondent) [2015] UKSC 16
By a majority of three to two, the UK Supreme Court held that the Benefit Cap (Housing Benefit) Regulations 2012 (UK), which limited the total amount of welfare payments a beneficiary may receive to an amount equal to the average earnings of working households, was valid despite having a discriminatory impact on women (in particular, single mothers). A different majority of three judges held that the cap breached the United Nations Convention on the Rights of the Child (UNCRC), but only two of those judges found that this was relevant to the question of the discrimination against the mothers and meant that the cap was invalid. The decision reveals a significant range of views on the status and interpretation of the UNCRC in the UK.
Read MoreBurgess & Anor v Director of Housing & Anor [2014] VSC 648 (17 December 2014)
Macaulay J held that in making the decision to apply for a warrant of possession:
- The Director of Housing was obliged by law to consider the facts surrounding Ms Burgess’s health and the significance of maintaining the rented premises to her health and wellbeing. The Director’s failure to do this constituted a jurisdictional error.
- The Director was obliged by law to consider the human rights of Ms Burgess and her son identified in s 17 of the Charter. Failure to take these rights into account made the Director’s decision unlawful under s 38 of the Charter [243]-[244].
His Honour made a declaration that the decision to apply for the warrant was and is of no legal force or effect, and was unlawful by reason of s 39(1) of the Charter [248]. He invited further submissions as to any further orders that should follow from his findings.
Read MoreQ v Q [2014] EWFC 31 (6 August 2014)
The England and Wales Family Court has determined that unrepresented litigants should be funded by the Court where no other public funding is available and the hearing will otherwise contravene the litigant’s right to a just and fair hearing.
Read MoreMugenzi v France (European Court of Human Rights, Chamber, Application No 52701/09, 10 July 2014)
Tanda-Muzinga v France (European Court of Human Rights, Chamber, Application No 2260/10, 10 July 2014)
Senigo Longue and Others v France (European Court of Human Rights, Chamber, Application No 19113/09, 10 July 2014)
In each case, the French authorities refused to issue visas for the applicants’ children. The authorities alleged that there were difficulties in establishing the children’s civil registration status as the birth certificates provided in support of the visa applications were not authentic. The applicants appealed, claiming that the difficulties they encountered in the Family Reunification Procedure constituted a violation of Article 8 (right to respect for private and family life) of the European Convention of Human Rights.
Read MoreM.P.E.V v Switzerland (European Court of Human Rights, Second Section, Application No 3910/13, 8 July 2014)
The European Court of Human Rights found that Switzerland’s intended expulsion of an Ecuadorian man who had unsuccessfully claimed asylum would violate his, his second daughter’s and his wife’s right to a family under article 8 of the European Convention on Human Rights, despite the man’s previous criminal convictions and his separation from his wife.
Read MoreQ v Q [2014] EWFC 7 (21 May 2014)
The England and Wales Family Court adjourned family law proceedings for contact orders where the unrepresented applicant could not afford a lawyer, due to concerns that the hearing may contravene the applicant’s right to a just and fair hearing
Read MoreJ v National Director of Public Prosecutions and Another (CCT 114/13) [2014] ZACC 13 (6 May 2014)
The Constitutional Court of South Africa has ruled that a law requiring courts to make an order to include the particulars of a sexual offence on a National Register for Sex Offenders (the Register) is unconstitutional when that offender is a child. The court noted that having particulars of a sexual offence on the Register at a young age could significantly impact on the child's life, including their ability to gain employment. The Court found that the mandatory nature of the law infringes on the right of child offenders to have their best interests considered as a matter of paramount importance and was therefore contrary to section 28(2) of the South African Constitution (the Constitution).
Read MoreLM v Childrens Court of The Australian Capital Territory and The Director of Public Prosecutions for the ACT [2014] ACTSC 26 (24 February 2014)
The ACT Supreme Court has confirmed that the ACT Children’s Court has the power to stay proceedings in cases where the Public Prosecutor has breached the Human Rights Act 2004 (ACT). While this case did not merit the grant of a permanent stay of proceedings, such a remedy is available within the existing powers of the Children’s Court in certain circumstances, including where abuse of process is proved.
Read MoreSG & Ors (Previously JS & Ors), R (On the Application Of) v The Secretary of State for Work And Pensions [2014] EWCA Civ 156 (21 February 2014)
The UK Court of Appeal has held that a cap on housing benefits does not breach the rights of the child, the family or the right to freedom from discrimination. The cap was found to have a discriminatory impact upon women, particularly single mothers and mothers escaping domestic violence. The Court of Appeal considered the cap was justified in light of the legitimate aim of ensuring people return to work.
Read MoreO'Keeffe v Ireland (European Court of Human Rights, Grand Chamber, Application No 35810/09, 28 January 2014)
The Grand Chamber of the European Court of Human Rights found that the State of Ireland failed in its obligation to protect the applicant from sexual abuse she suffered as a child in an Irish National School and therefore violated her rights under article 3 (prohibition of inhuman and degrading treatment) and article 13 (right to an effective remedy) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). This case is not concerned with the responsibility of the perpetrator, but rather with the responsibility of the State, and whether the State ought to have been aware of the risk of sexual abuse of minors in Irish National Schools at the relevant time and whether adequate legislative protection was in place.
Read MoreR (On the application of Stephen Fagan) v Secretary of State for Justice and Times Newspapers Ltd & Ors [2013] EWCA Civ 1275 (21 October 2013)
The UK Court of Appeal has held that potential breaches to the right to family and privacy are not necessarily sufficient to justify a derogation from the principle of open justice in the courts. Depending on the circumstances of the case, the principle of open justice may prevail even where it is against the best interests of a child.
Read MoreTeddy Bear Clinic for Abused Children v Minister for Justice and Constitutional Development [2013] ZACC 35 (3 October 2013)
The Constitutional Court of South Africa has found that laws criminalising consensual sex between young people are unconstitutional. The Court held the laws unjustifiably violate the dignity and privacy of young people and are not in the best interests of the child.
Read MoreM.C. v Aaronson [2013] (22 August 2013)
The United States District Court for the District of South Carolina Charleston Division has held that a sex assignment surgery on a child with an intersex condition which removed the child’s ability to procreate may have violated the constitutional right to procreation. The defendants’ motions to dismiss the case were denied and the plaintiff’s motion for expedited discovery was granted. This case has not yet proceeded to summary judgment.
Read MoreThe Queen on the Application of HC (a child, by his litigation friend CC) v The Secretary of State for the Home Department and Others [2013] EWHC 982 (Admin) (25 April 2013)
In the United Kingdom, 17 year olds apprehended by police are treated as adults. The High Court of Justice has held that to treat 17 year olds as adults offends the UN Convention on the Rights of the Child, which informs the UK’s obligations under the European Convention on Human Rights and the Human Rights Act 1998 (UK). Accordingly, the UK must adapt its existing practices so that 17 year olds are treated as children. The law should promote the child’s best interests and provide special protections appropriate to their age.
Read MoreRe Beth [2013] VSC 189 (23 April 2013)
The Supreme Court of Victoria has held that a Court’s exercise of parens patriae jurisdiction can allow it to grant orders substantially restricting the liberty of a child where such orders are in a child’s best interests and necessary for the child’s ongoing care and protection. The Court further held that neither the statutes in issue nor the Victorian Human Rights Charter operate to exclude the exercise of parens patriae jurisdiction.
Read MoreJ (Children) [2013] UKSC 9
The United Kingdom Supreme Court has considered the appropriate balance to be struck between the right of the child to live in a safe and nurturing environment and the right to family life in circumstances where those two rights are said to be in conflict. Although these rights are most often complementary, there are unfortunate cases where a child is at risk of being harmed by a family member and protecting the child (and upholding their human rights) can necessitate an intrusion by the State into a family’s private life. In this judgment, the Court made a weighted legal analysis of when and how such an intrusion can be justified.
Read MoreFabris v France [2013] ECHR, Application no.16574/08
The European Court of Human Rights recently handed down a decision which identified a violation of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms where an individual “born of adultery” was denied the right – due to the operation of legislation in France – to inherit an equal share of his mother's estate.
Read MoreCase of Horvath and Kiss v Hungary [2013], ECHR Application no. 11146/11
The European Court of Human Rights (ECHR) has found that Hungary’s procedures for placing children in schools for children with mental disabilities resulted in discrimination against the Roma, curtailing their enjoyment of the right to education. This is the most recent in a series of ECHR cases addressing the segregation of Roma children within European state education systems.
Read MoreA & B v Children’s Court of Victoria & Ors [2012] VSC 589 (5 December 2012)
The plaintiffs were two sisters aged nine and 11 who made an application to the Supreme Court of Victoria seeking to quash orders of the Children’s Court that they lacked maturity to provide instructions to lawyers and denying them leave to be represented by the same legal practitioner. The main issue was the meaning of the expression “maturity to give instructions” under the Children, Youth and Families Act 2005 (Vic).
Read MorePratten v British Columbia (Attorney General) 2012 BCCA 480 (27 November 2012)
The Court of Appeal for British Columbia (Court of Appeal) recently held that the Canadian Charter of Rights and Freedoms (Charter) does not create a positive right for donor conceived individuals to know their biological origins. In this case, the plaintiff argued that by enacting legislation only for the benefit of adoptees, the legislature discriminated against adults conceived from anonymous donors. The plaintiff also argued that the Charter created a positive right for donor offspring to access information about their biological origins. The Court of Appeal rejected these claims, overturning a decision of the Supreme Court of British Columbia (Supreme Court).
Read MoreMoore v British Columbia (Education), 2012 SCC 61 (9 November 2012)
The Supreme Court of Canada has held that the School Act creates a statutory commitment to the education of all children in British Columbia, making the provision of special education a statutory commitment and not a dispensable luxury.
Read MoreA & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) (21 June 2012)
In this case, brothers aged 16 and 14 took action under the Human Rights Act 1998 (UK) in relation to their treatment while in the care of the Lancashire County Council. The England and Wales High Court declared that the Council and one of its employees, an Independent Reporting Officer, had acted incompatibly with the boys’ right to respect for private and family life, their right to a fair trial and the prohibition of torture.
Read MoreThe Children’s Rights Alliance for England v Secretary of State for Justice [2012] EWHC 8 (Admin) (11 January 2012)
This decision of the England and Wales High Court held that whilst certain measures had been unlawfully perpetrated against young people in secure training centres, the Court had no jurisdiction to grant an order that the victims be identified and informed of their legal rights.
Read MoreC and Others v Department of Health and Social Development, Gauteng and Others [2012] ZACC 1 (11 January 2012)
South Africa’s Constitutional Court has overturned legislation that enabled state officials to remove children from family care without requiring prompt and automatic judicial review. The majority of the Constitutional Court held that prompt judicial review of decisions to remove children from their families is in the ‘best interests’ of children and is necessary to safeguard the right to access to justice. Therefore, the Children’s Act was held to be inconsistent with section 28 (rights of the child) and section 34 (access to justice) of South Africa’s Bill of Rights.
Read MoreL.C. v. Peru, UN Doc. CEDAW/C/50/D/22/2009 (4 November 2011)
The UN Committee on the Elimination of Discrimination against Women has found that Peru, by denying a minor who had been sexually abused access to therapeutic abortion and delaying necessary spinal surgery that contributed to her paralysis, violated articles 2(c), 2(f), 3, 5 and 12 of the Convention on the Elimination of All Forms of Discrimination against Women in conjunction with article 1.
Read MoreAldridge v R [2011] ACTCA 20 (22 September 2011)
The ACT Court of Appeal has held that, by operation of s 11(2) of the Human Rights Act 2004 (ACT), the arrangements for care of children is a relevant factor to be taken into account in the grant of bail, sentencing, and the grant of bail pending appeal against sentence.
Read MoreCastle & Ors v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin) (8 September 2011)
The High Court of England and Wales has dismissed claims made on behalf of three school children that their containment at last year’s demonstrations in central London was in breach of their rights under the European Convention on Human Rights (‘EHCR’). The High Court held that the police action taken on the day, “having regard to the need to safeguard children and to promote their welfare, was necessary, proportionate and lawful”.
Read MoreGoverning Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13 (11 April 2011)
In this significant decision, the Constitutional Court of South Africa considered the nature and scope of the rights to education and children’s rights when considering the rights of a private property owner to evict a school which was operating on its premises.
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