29 June 2020
In the News:
Together with anti-racism protests sparked by the death of George Floyd, the coronavirus pandemic has continued to dominate the news. Two recently published reports have highlighted flaws in the government’s response in relation to the provision of social security and domestic abuse support during the crisis.
The pandemic has propelled an estimated 3 million new claimants onto universal credit, prompting fresh criticisms of the UK’s social security system. On 22 June, the Work and Pension Committee published a report on the response by the Department for Work & Pensions to the outbreak, available in full here. While praising the efforts of DWP frontline staff, Chair Rt Hon Stephen Timms MP said the pandemic “has highlighted weaknesses” in the system. The Committee found shortcomings in relation to:
- Legacy benefits. While the government had raised the rates of Universal Credit and Working Tax Credits to reflect the fact that the virus has increased living costs for disabled people, people on benefits yet to be replaced by UC have not been similarly helped. It was “unacceptable” that such people were left facing hardship through no fault of their own.
- No Recourse to Public Funds. The report calls for the suspension of this condition. During a pandemic, it argues, it cannot be in the public interest to deny people, including key workers and frontline staff, access to the welfare safety net on the basis of their immigration status.
- Universal Credit. The minimum five-week wait for a first payment was singled out for particular criticism. It led to many people taking out a repayable Advance, but the system lacked any flexibility to suspend repayments of these Advances.
In related news, and on the same day, four single mothers secured a victory against the government. The Court of Appeal unanimously ruled that the Secretary of State for Work and Pensions (SSWP) has acted irrationally and unlawfully by making universal credit regulations which fail to take into account that the date monthly salaries are paid can vary because of weekends and bank holidays.
Considerable criticism has been levied against the government for its provision of essential support and services for survivors of domestic violence before and during the pandemic. Among others, Human Rights Watch argue that the crisis has “exposed longstanding flaws” in the system exacerbated by an “erosion of support for specialist domestic abuse services”.
On 25 June, following a review by legal, charitable and academic experts assessing the risk of harm to children and parents in private law children’s cases, the MoJ has published a report, available in full here. The Domestic Abuse Commissioner Nicole Jacobs noted with approval that the report’s publication comes “in time to implement its recommendations through the Domestic Abuse Bill”, which entered its its report stage in the Commons last Thursday. The report’s key recommendations included:
- Physical barriers. Victims will be provided with separate court entrances and waiting rooms, as well as protective screens to shield them from their alleged abuser in court.
- Preventing abusers from dragging victims back to court. Judges will make it easier for judges to issue barring orders to protect victims from harassment and re-traumatising.
- Reviewing “parental involvement”. The report states that “[a] review of the presumption of parental involvement in s.1(2A) of the Children Act 1989 is needed urgently in order to address its detrimental effects.” In cases of domestic abuse, it could prioritise the abusive power’s right to family life, above the child’s welfare and the abused parent’s right to safety.
- Trialling a “problem solving approach”. On the basis that an adversarial approach in the family courts often worsened conflict between parents and retraumatised victims and their children, a new investigative approach will be trialled. Judges will explore evidence and try to get to the root of issues, rather than parents presenting their cases against each other with limited intervention.
In Other News
- Liberty and Ed Bridges, a Cardiff resident, have brought a legal challenge against the use of automated facial recognition technology by South Wales police in the Court of Appeal. It was argued that the technology’s use radically alters the way in which Britain is policed, is racially discriminatory, breaches privacy rights and is contrary to data protection laws.
- A review into the use of pain-inducing techniques against children in custody has concluded that they should be an “absolute exception” to save life or prevent serious harm, but stopped short of calling for an outright ban.
- Leilani Farha, the UN’s special rapporteur on adequate housing, has warned the UK government that its failure to replace dangerous cladding on buildings in the wake of the Grenfell Tower fire could be a breach of international law.
In the Courts
- LC (A Child – Placement Order)  EWCA Civ 787: the Court of Appeal dismissed an appeal by a local authority against a decision to refuse the authority’s placement order in respect of a child. The two-year-old child, who had an Indian father and a Hungarian Roma mother, was of unusual heritage, which she shared with her two brothers, aged eight and seven. The authority had argued that the best option for the child was to be adopted, while her older siblings were placed in long-term foster care. The recorder had ruled that the stability this arrangement would offer did not outweigh the importance of the child maintaining a bond with her birth family, including her siblings, and her cultural heritage. The court was satisfied the recorder had “carried out a fair and balanced analysis.” The case comes shortly after the Supreme Court’s consideration of the role of siblings in the procedures by which children’s hearings in Scotland make compulsory supervision orders.
- Inkster v R  EWCA Crim 796: the Court of Appeal quashed the appellant father’s conviction for breach of a non-molestation order preventing him from directly contacting the complainant mother. The mother’s repeated failure to respond to contact from designated third party intermediaries in relation to child arrangements amount to a “reasonable excuse” for making contact. The judge’s interventions had placed pressure on the unrepresented appellant to plead guilty by leading him to wrongly believe that he had no defence on the basis of a reasonable excuse.
- Bater-James & Anor v R.  EWCA Crim 790: the Court of Appeal dismissed two otherwise unrelated appeals against conviction which were listed together to provide the court an opportunity to consider various issues relating to the retention, inspection, copying, disclosure and deletion of the electronic records held by prosecution witnesses. The cases focussed on claimants alleging sexual assault, but the four principles laid out would be “equally relevant – depending always on the facts – to other prosecution witnesses.”
- First, a “reasonable line of inquiry” was necessary for investigators to seek to review a witness’s digital material, which would depend on the facts.
- Second, investigators should adopt an incremental approach to reviewing a witness’s electronic communications.
- Third, a complainant should be reassured that (i) the prosecution will keep them informed as to any decision made as to disclosure, (ii) that any device would only be inspected if there is no other appropriate method of discharging the prosecution’s disclosure obligations, and (iii) that material will be provided to the defence only if it meets the strict test for disclosure, in a redacted form.
- Fourth, if a complainant refuses to permit access to a device or deletes relevant material, the court will need to consider the reasons for this action carefully.
- Gerulskis & Anor v The Prosecutor General’s Office of the Republic of Lithuania  EWHC 1645: the High Court heard granted two appeals and dismissed the rolled up hearings against orders for extradition to Lithuania. The court found that there did not exist a real risk of impermissible treatment contrary to article 3 of the ECHR. The “danger caused by the spread of COVID-19” was raised, but dismissed since there was no evidence of the virus in prisons in Lithuania. There had been no breach of article 8, since the interference with the appellants’ rights and the rights of their children had been correctly balanced against the public interest in complying with extradition obligations. The extraditions had therefore been proportionate.
On the UKHRB
- Anna Dannreuther considers Re X  EWFC 39, which concerned the statutory criteria for granting parental orders over children born as the result of surrogacy arrangement in circumstances involving the death of an intending parent.
- Henry Tufnell clarifies the confusion surrounding cross-border travel between England and Wales under the Coronavirus Regulations.
- Ben Christman discusses the functions and powers of Scotland’s new environmental watchdog, Environmental Standard Scotland, in the UK Withdrawal from the EU (Continuity) (Scotland) Bill.
- Clodagh Bradley QC outlines GMC v Awan  EWHC 1553, which concerned GP’s sexually motivated online chat with someone posing as a 13-year-old child.
- Rosalind English surveys a report considering the GDPR requirements for machine learning in healthcare and medical research.
- Natasha Isaac summarises the EHRC’s findings and recommendations in a report entitled “Inclusive Justice: a system designed for all”.
- In the latest episode of Law Pod UK, Emma-Louise Fenelon speaks to Martin Forde QC, Independent Adviser to the Windrush Compensation Scheme, about racial inequality in the UK, in immigration history and at the Bar.
- In the preceding episode, Fenelon speaks to Richard Scorer, Head of Abuse at Slater and Gordon, about progress of the Independent Inquiry into Child Sexual Abuse.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .