S v S (CCT 63/10) [2011] ZACC 7 (29 March 2011)
This case considered the degree to which a court is required to take into consideration the best interests of the child when determining the appropriate sentence to impose upon a primary caregiver. In particular, it considered the circumstances when a person will be considered to be the primary caregiver of a child, and the impact the person’s imprisonment will have on the child.
Read MoreJohns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin) (28 February 2011)
The England and Wales High Court recently found that the right to religious expression could be limited where attitudes towards sexuality might impact upon the rights of the child. The applicants, who were prospective foster carers, were found to have exhibited antipathy or disapproval of same-sex relationships or of people who identified as homosexual.
Read MoreSecretary to the Department of Human Services v Sanding [2011] VSC 42 (22 February 2011)
The Supreme Court of Victoria has ruled that the Children’s Court of Victoria (‘Court’) had the discretion to make orders returning four Aboriginal children to the care of their maternal grandmother at a submissions contest hearing in which no formal evidence was given. The Supreme Court further held that a child welfare proceeding is a ‘civil proceeding’ to which the Charter of Human Rights applies.
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ZH (Tanzania) FC (Appellant) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011)
The Supreme Court of the United Kingdom has held that the 'best interests of the child' should be the first consideration where children are affected by the decision to remove or deport one or both of their parents. While the best interests of the child can be cumulatively outweighed by other factors in determining proportionality, no consideration is inherently more significant than the best interests of the child.
Read MoreSuppiah & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) (11 January 2011)
The High Court of England and Wales decided that two families who had sought asylum in the United Kingdom were detained unlawfully by the Secretary of State for the Home Department (Defendant) because the Defendant failed to have regard to its duty to safeguard and promote the welfare of children.
Read MoreMXL, R (on the application of) & Ors v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) (30 September 2010)
The England and Wales High Court has held that the immigration detention of a Jamaican woman with dependant children breached arts 5 and 8 of the European Convention of Human Rights on the basis that her detention affected the welfare of her children. It was further held that the decision makers’ failure to apply a relevant policy when exercising their discretion to continue the claimant’s detention, also rendered her detention unlawful.
Read MoreR v Ashman [2010] ACTSC 45 (21 May 2010)
In this case, the ACT Supreme Court recognised that the right to family and the best interests of children under the Human Rights Act 2004 (ACT) may be relevant to the sentencing of a parent or guardian.
Read MoreAD and OD v United Kingdom [2010] ECHR 340 (16 March 2010)
The European Court of Human Rights has held that the United Kingdom breached its obligation to respect private and family life under art 8 of the European Convention on Human Rights because of errors made by a local child protection authority.
The errors lead to the removal of a child from his family for a period that was unnecessarily prolonged and in a manner that was overly disruptive way. The Court also held that there had been a breach of art 13 of the Convention because, at the time of the incident, no domestic redress was available for the child’s mother.
Read MoreA, R (on the application of) v London Borough of Croydon [2009] UKSC 8 (26 November 2009)
The difficulty in determining age has become prominent as a consequence of the increased movement of children around the world, and specifically the increased migration of unaccompanied young people. It is an issue of particular significance, for a number of reasons. States often have – or at least, ought to have – different policies and procedures in place in relation to the treatment of asylum seekers who are children. These may relate, for example, to the provision of guardianship, the provision of legal aid, conditions of any ‘detention’, the substantive consideration of whether the asylum seeker satisfies the requisite test (ie the refugee definition), or access to particular social entitlements (housing, welfare, education etc).
Read MoreCarey Baptist Grammar School Ltd (Anti-Discrimination Exemption) [2009] VCAT 2221 (23 October 2009)
Carey Baptist Grammar School ('Carey') was also successful in its application to VCAT for an exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act'). VCAT renewed Carey's exemption to enable it to treat prospective female students preferentially in order to promote a gender balance of the student body.
Read MoreCentre for Child Law v Minister for Justice and Constitutional Development and Others (with the National Institute for Crime Prevention and the Re-integration of Offenders as Amicus Curiae) [2009] ZACC 18 (15 July 2009)
The Constitutional Court of South Africa upheld a decision of the High Court declaring invalid provisions of the Criminal Law (Sentencing) Amendment Act 38 (2007) (Amendment Act) that made minimum sentences for certain serious crimes applicable to 16 and 17 year old children. The provisions were found to negate the Constitution’s principles that children should only be detained as a last resort and for the shortest period of time.
Read MoreAC v Manitoba (Director of Child and Family Services), 2009 SCC 30 (26 June 2009)
On 26 June 2009, the Canadian Supreme Court handed down a decision which discussed in detail the right of adolescents to make their own medical decisions. The Court held that the wishes of the child must be considered when determining what action was in the child’s best interests.
Read MoreE (a child), Re (Northern Ireland) [2008] UKHL 66 (12 November 2008)
In this case, the House of Lords decided that a police response to sectarian unrest in Northern Ireland did not constitute a breach by the State of its positive obligation to prevent the infliction of inhuman and degrading treatment upon its citizens under art 3 of the European Convention on Human Rights.
Baroness Hale discussed how the special vulnerability of children impacted upon the State’s obligations under article 3.
Read MoreEM (Lebanon) v Secretary of State For The Home Department [2008] UKHL 64 (22 October 2008)
The House of Lords recently ruled that a foreign national could not be removed from the UK in circumstances that would completely deny or nullify her right to family life, since such removal would be incompatible with the UK's obligations under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998.
Read MoreAS (Pakistan) v Secretary of State for the Home Department [2008] EWCA Civ 1118 (15 October 2008)
The England and Wales Court of Appeal recently allowed an appeal against a decision of the Asylum and Immigration Tribunal regarding the deportation of AS, a Pakistani national. The Court held that the Tribunal erred in two respects: first, in finding that deportation would not interfere with AS’ right to respect for his private and family life (under art 8 of the European Convention on Human Rights), and second, in its assessment of proportionality.
Read MoreRK and AK v United Kingdom [2008] ECHR 38000(1)/05 (30 September 2008)
The European Court of Human Rights has held that a UK decision of a public authority to remove a child from its family, on the basis of an incorrect diagnosis, was not a breach of art 8 of the European Convention of Human Rights which provides for the right to respect for private and family life. Rather, the Court held that there was a breach of art 13, the right to an effective remedy, in that there was no adequate remedy at the national level for an incorrect diagnosis.
Read MoreR(C) v Secretary of State for Justice [2008] EWCA Civ 882 (28 July 2008)
In this case, the England and Wales Court of Appeal held that rules introduced to maintain good order and discipline in children detained in Secure Training Centres (‘STCs’) should be quashed for breach of art 3 of the European Convention on Human Rights, which prohibits torture and other ill-treatment.
Read MoreVM v British Columbia (Director of Child, Family and Community Service) 2008 BCSC 449 (13 June 2008)
The Supreme Court of British Columbia has held that the decisions of a Provincial Courtand a public official to authorise medically-necessary blood transfusions for four infants against the express wishes of their parents did not breach the parents’ rights under the Canadian Charter of Rights and Freedoms.
Read MoreMaslov v Austria [2008] ECHR 1638/03 (23 June 2008)
The Grand Chamber of the European Court of Human Rights has held that the deportation of a youth who had spent the majority of his childhood in Austria constituted a violation of his right to respect for his family and private life.
Read MoreDirector of Housing v TP (Residential Tenancies) [2008] VCAT 1275 (24 June 2008)
In this case, VCAT considered that the rights to privacy and family, and to protection of children and the family unit, were relevant to determining whether an application for an order of possession by the Director of Housing should be granted as against a single mother of four children.
Read MoreR v DB [2008] SCC 25 (16 May 2008)
The Supreme Court of Canada recently considered the validity of a rebuttable presumption that minors committing serious offences should be sentenced as adults. A majority of the Court concluded that the presumption offended against the right not to be deprived of liberty otherwise than in accordance with principles of fundamental justice under s 7 of the Canadian Charter of Rights and Freedoms.
Read MoreMurray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 (07 May 2008)
The England and Wales Court of Appeal has considered that scope of a child’s right to privacy in a case in which photographs of the child of a celebrity were taken and published without consent.
Read MoreTrinity Mirror & Ors, R (on the application of) v Croydon Crown Court [2008] EWCA Crim 50 (1 February 2008)
The UK Court of Appeal has held that the right to freedom of expression and the media’s right to disclose the identities of convicted persons and report in the public interest may outweigh the interests of children of convicted persons and their right to privacy.
Read MoreIn sentencing a young offender found guilty of murder, Bell J of the Supreme Court of Victoria had regard to international human rights principles, including the rights of the child under the Convention on the Rights of the Child, in the exercise of his sentencing discretion.
Read MoreD and E v Australia, HRC, Communication No 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (25 July 2006)
The UN Human Rights Committee (‘the Committee’) recently handed down its latest in a string of decisions concerning Australia’s policy of mandatory immigration detention. The authors of the complaint were two Iranian nationals who, together with their two children, arrived in Australiaby boat in November 2000. Pursuant to Australia’s policy, the four were held in immigration detention for a total of three years and two months. During their period of mandatory detention, the relevant provisions of the Migration Act 1958 (Cth) effectively precluded judicial review of the lawfulness of their detention, while their applications for asylum were rejected. The four were ultimately granted Global Special Humanitarian visas on 13 March 2006.
Read MorePerovic v CW, No CH 05/1046, ACT Children’s Court, Unreported (1 June 2006)
This case concerned the right of a child to a fair trial without unreasonable delay under the Human Rights Act 2004 (ACT). After considering jurisprudence from the European Court of Human Rights, the Magistrate held that there had been an unreasonable delay contrary to the human right enshrined in the Act and ordered a permanent stay of proceedings.
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