January 2004

Butterworths Family and Child Law

Bulletin Editor:
Jonathan Montgomery, BA, LLM
Professor of Law, University of Southampton

Butterworths Family and Child Law Bulletin provides an immediate
updating service for the main text of Butterworths Family Law
Service and Clarke Hall and Morrison on Children. The Bulletin is
published every month and sent to subscribers to those

References to BFLS and CHM above each case are to the relevant
paragraphs in Butterworths Family Law Service and Clarke Hall and
Morrison on Children.

Assisted conception

Men may withdraw consent to storage of embryos
Evans v Amicus Healthcare Ltd [2003] 3 FCR 577, [2003] 4 All ER
903, [2004] 1 FLR 67, Fam D
BFLS 3A[323]

In Evans v Amicus Healthcare Ltd [2003] 3 FCR 577, [2003] 4 All ER
903, Fam D Wall J held that frozen embryos could not continue to be
stored unless both the gamete donors consented. The case concerned
two couples who had separated after the embryos had been created
and frozen. The women wished to use the embryos to establish a
pregnancy but the men wished the embryos to be destroyed. Under the
Human Fertilisation and Embryology Act 1990, Sch 3, para 6(3) the
consent of each gamete donor was required. Consequently, if either
withdrew their consent the continued storage of the embyro became
unlawful under s 3 of the Act. Wall J rejected the argument that
the men were estopped from withdrawing their consent. Public policy
did not allow for the giving of an unequivocal and irrevocable
consent. The estoppel doctrine could not therefore be applied. The
right to respect for family life under Article 8 of the European
Convention on Human Rights was not engaged as the four adults lived
separate lives and the embryos were not persons with rights under
the ECHR. The rights of the four adults to respect for their
private lives under Article 8 were engaged, but the interference of
the state was necessary to balance protection for all four
person’s rights and was proportionate. Requiring mutual
consent was entirely appropriate. As a result no incompatibility
between the 1990 Act and the ECHR had been shown.
Comment: The decision is also important in the wider context of
abortion. Wall J rejected the suggestion that the embryos had
rights under Article 2 of the ECHR, even to a
‘qualified’ right to life (see paras
[174]–[179]). This indicates that attempts to use the Human
Rights Act 1998 to challenge the terms of the Abortion Act 1967 are
unlikely to succeed. An argument based on discrimination under
Article 14 of the ECHR failed on a number of grounds. The court
found that there was no differential treatment between women on the
basis of the cause of their infertility, and consequently there was
no discrimination on the basis of disability. In addition there was
no difference of treatment between pregnant women on the basis of
their route to pregnancy. The court rejected the suggestion that
there was an analogy between pregnant women (where the father would
have no say in the decision whether or not to continue the
pregnancy) and those who hope to have an embryo implanted. One was
pregnant and the other was not. Once the latter became pregnant
they would be treated in the same way, but until that happened the
cases were different and needed to be treated differently.

Medical treatment

Vaccination against wishes of primary carer
Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148, [2003]
2 FLR 1095
BFLS 3A[813]; CHM 1[234]
In Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148,
[2003] 2 FLR 1095, the Court of Appeal upheld specific issue orders
that two children from separate families be vaccinated, as their
fathers wished, despite the objections of the mothers. Although the
MMR vaccination was amongst the immunisations in question, the
mothers’ objections, and the ‘expert’ evidence
presented on their behalf, concerned vaccination in general and was
not based on worries that the MMR vaccination specifically was
unsafe. In the High Court, Sumner J had considered in detail expert
evidence on the safety of the range of childhood vaccinations that
were requested by the fathers, see [2003] EWHC 1376 (Fam), [2003] 2
FLR 1054. He concluded in each case that the benefits to the
children in relation to each immunisation outweighed the risks,
save in relation to pertussis and Hib where he excluded the older
of the two children (who was aged 9 years). Deciding in the
interests of the children, he made specific issue orders requiring
the mothers to take their children for immunisation in accordance
with a schedule of appointments appended to the order. His
examination of the welfare issues included considering the impact
on the children of the mothers’ distress if he were to make
the order. Counsel for the mothers argued that there was a
principle that the courts should not order non-essential invasive
medical treatment in the face of rooted opposition from a
child’s primary carer. The Court of Appeal unhesitatingly
rejected that claim as being a misreading of Re J [2000] 1 FLR 571
and being in conflict with the court’s obligation to act in
the best interests of the child. In Thorpe LJ’s view
immunisation should be regarded as preventive health care rather
than non-essential invasive medical treatment and was therefore
offered in accordance with the state’s obligations under
Articles 6(2) and 24 of the UN Convention on the Rights of the
Comment: Sumner J expressed the view, reinforced in the Court of
Appeal, that this was not a decision that provides general approval
of immunisation for children. However, it seems unlikely that other
cases would be decided differently. The judges were highly critical
of the evidence offered in support of the mothers’ objections
to immunisation, Sedley LJ described it as ‘junk
science’. However, Thorpe LJ did suggest (at para [17]) that
cases of disputes over immunisation fell into the category of
decisions that cannot be taken unilaterally by one person with
parental responsibility and which therefore require the supervisory
jurisdiction of the court to be invoked. This aligns them with
disputed male circumcision for religious reasons (Re J [2000] 1 FLR
571) and change of surname (Re T [1999] 3 FCR 337). He also
included sterilisation (Re B [1987] 2 All ER 206) but this is
slightly different in that the court needs to be involved before
non-therapeutic sterilisations are carried out on minors even where
both parents agree. It remains to be seen whether the potential for
extensive litigation over vaccinations that Thorpe J’s
suggestion raises will be realised.

Local authority services

Accommodation of family of children in need

R (A) v Lambeth LBC; R (G) v Barnet LBC; R (W) v Lambeth LBC [2003]
UKHL 57, [2003] 3 FCR 419
BFLS 3A[2262]; CHM 1[1607]
In R (A) v Lambeth LBC; R (G) v Barnet LBC; R (W) v Lambeth LBC
[2003] UKHL 57, [2003] 3 FCR 419 the House of Lords considered
whether a local authority was obliged to provide accommodation for
the families of children in need. The claimants argued that the
authorities were obliged to assess the needs of children and to
meet those needs once identified. The majority of the House of
Lords held that s 17 of the Children Act 1989 did not provide a
specific duty to accommodate individual children and certainly not
to do so in a way that would also accommodate their families. To
construe the Act in that way would be to turn social services into
housing departments. Rather, the duty in s 17 was a general duty to
provide a range of services sufficient to ensure that the local
authority could carry out its functions under Part III of the
Children Act 1989. It did not give rise to duties enforceable by
individuals and certainly did not provide a duty to meet all
assessed needs whatever the resources required. The specific duties
of local authorities were set out in Sch 2 to the Act and these
were defined in proportionate rather than absolute terms: for
example as obligations to take reasonable steps.
Comment: Generally speaking, the courts have been reluctant to find
that welfare statutes give rise to enforceable rights to specific
services unless it is clear on the face of the statute that this
was the intention of Parliament. This has also been the case in
relation to claims for damages for breach of statutory
duty—one of the implications of determining that specific
duties do exist—X v Bedfordshire CC; M v Newham LBC; E v
Dorset CC [1995] 3 All ER 353, 364, HL. More commonly, this result
is reached by permitting resources to be a relevant factor in an
authority’s decision whether to provide services (see eg R v
Gloucestershire CC, ex p Barry [1997] 2 All ER 1, HL). Only where
the language of the statute makes it clear that specific duties
arise have the courts been happy to accept them (R v E Sussex CC,
ex p Tandy [1998] 2 FCR 221). The consequence of this general
approach is that welfare legislation will normally be interpreted
to give rise to discretionary powers rather than duties. This
raises an avenue that was not fully explored in the speeches of the
House of Lords. As public bodies, local authorities are obliged to
act in accordance with the rights recognised in the ECHR, Human
Rights Act 1998, s 6. Lord Nicholl’s dissenting speech noted
the relevance of this provision (para [52]). However Lord Hope, in
the majority, was more dismissive. He suggested that decisions
would need to be considered in relation to the facts of each case
(para [69]) but failed to undertake such consideration in his
speech. It is probable that Article 8 of the ECHR offers little
support in establishing stronger entitlements. The ‘rights
and freedoms of others’ are likely to constitute legitimate
reasons for balancing the various competing claims to scarce
resources (Article 8(2)). However, where it can be suggested that
the circumstances in which children are left constitute inhuman or
degrading conditions, then Article 3 of the Convention may provide
a stronger argument.

Failure to implement decision not within general

A v Essex CC (2004) Times, 22 January, CA
BFLS 3A[3191]; CHM 1[1667], 3[60]

In A v Essex CC (2004) Times, 22 January the Court of Appeal held
that there was no general duty of care in negligence to take
reasonable steps to provide prospective adopters with information
about the children they were to adopt. However, once an authority
had decided to provide specific information there was a duty to
ensure that it was in fact given and received. This more restricted
duty had been breached and the breach of duty had caused harm,
including psychiatric harm, that was actionable under Page v Smith
[1996] AC 155. There was a cut off time in respect of the making of
the adoption order, because by that time the claimants knew enough
to make a decision for themselves and the breach of duty did not
cause damage suffered after that point. The local authority’s
appeal against liability was dismissed, as was the claimant’s
appeal for a broader basis for that liability.
Comment: It is not clear from this brief report how the decision
relates to the finding of the House of Lords in W v Essex CC [2000]
1 FCR 586 concerning vicarious liability for failures of individual
social workers to act responsibly. However, the Court of Appeal
seems to have regarded the exercise of judgment about how much of a
child’s history should be disclosed as non-justiciable but
the implementation of the resultant decision to be within the remit
of a negligence action.

Ancillary relief

Court should adjourn or co-ordinate ancillary relief proceedings to
enable outstanding claims to be determined
George v George [2003] EWCA Civ 202, [2003] 3 FCR 380
BFLS 4A[1536]

In George v George [2003] EWCA Civ 202, [2003] 3 FCR 380 the Court
of Appeal allowed a husband’s appeal against the division of
assets in an ancillary relief case. The order had been made on the
basis that a claim against the husband, outstanding in separate
trust litigation, would not succeed. The district judge had refused
the husband’s application to adjourn the ancillary relief
proceedings pending resolution of the claim and made an order on
the basis that he would be successful in resisting it. In the
event, the case went against the husband and he was liable to repay
a judgment debt of £500,000. The husband appealed, contending
that the outcome of the litigation (being the opposite of the
assumption made by the district judge) falsified the basis of the
order. The Court of Appeal upheld that claim, allowed the
husband’s appeal in the ancillary relief proceedings, and
remitted the case to the High Court judge who had heard the trust
Comment: Thorpe LJ indicated that it had been inappropriate to
anticipate the result of the trust litigation. The ancillary relief
proceedings should have been adjourned pending the outcome of the
other case. Alternatively, the two sets of proceedings could have
been brought together either by allocation to the same judge or by
being prepared and dispatched in tandem.

Principles to be applied when capitalising periodical

Pearce v Pearce [2003] EWCA Civ 1054, [2003] 2 FLR 1144
BFLS 4A[1808]

In Pearce v Pearce [2003] EWCA Civ 1054, [2003] 2 FLR 1144, the
Court of Appeal considered a wife’s application for an
increase in her periodical payments and their capitalisation. The
husband accepted that there should be an increase but denied that
any account should be taken of the wife’s mortgage liability
because it resulted from a poor investment in a property in
Ireland. Thorpe LJ accepted the husband’s contention on that
point. The capital claims had been settled in the earlier stages of
litigation and the court had no power to reopen them in proceedings
that were concerned with periodical payments. The wife’s
mortgage liability was related to her use of the capital, not her
periodical income. She could have chosen to live in a cheaper
property to avoid that liability in the light of her misfortune
with her investments. The more general issue then arose as to
whether the court could fix the capitalised payments so as to
achieve fairness in the case or was obliged merely to translate the
periodical sum into a capital amount through accounting techniques.
Thorpe LJ criticised as erroneous the obiter comments of Charles J
in Cornick v Cornick (No 3) [2001] 1 FCR 68 at paras
[109]–[118] that the judge had a wide discretion to determine
the amount of an order under s 31(7A) and (7B) of the Matrimonial
Causes Act 1973. The role of the court was first to determine the
proper level of periodical payments and then to identify the
capital sum that was equivalent. The judge had been wrong to add
any substantial uplift to the sum calculated. There might be
special factors that justified departure from the mathematics of
the Duxbury tables, but this discretion was a narrow one. The
alternative position was against policy because it would encourage
the court to take into account factors that had not been foreseen
at the original capital division, thus undermining its
Comment: As counsel for the wife pointed out, one of the
implications of this approach is that any new factors need to be
raised in relation to the variation of periodical payments not at
the stage of capitalisation. Practitioners who present their cases
properly should not be precluded from arguing for increased
provision, but it must be put forward as a reason for raising
periodical payments rather than increasing the capital sum.
Flexibility in relation to the lump sum is available in respect of
the anticipated rate of interest to be used in the Duxbury
calculations and life expectancy (see W v W, below) but not in
relation to the ‘justice’ of the case.

Non-disclosure of assets—capitalisation of
periodical payments

W v W (ancillary relief: non-disclosure) [2003] EWHC 2254 (Fam),
[2003] 3 FCR 385
BFLS 4A[1808]

In W v W (ancillary relief: non-disclosure) [2003] EWHC 2254 (Fam),
[2003] 3 FCR 385 Nicholas Mostyn QC (sitting as a deputy High Court
judge) considered a case in which he found that the husband had
been deliberately misleading in his disclosure of assets in Form E.
He had included as hard debts major liabilities amounting to
£2.5m when he had known that there was no real likelihood of
the claims materialising. Mostyn awarded the wife 90% of the
additional costs attributable to the non-disclosure. The
‘natural’ costs of the case, that is the sum that would
have been incurred with proper disclosure, were to be met by each
party themselves because the final order was approximately half way
between their respective Calderbank offers and neither could be
said to have won substantially more by taking the case to
Turning to the substance of the wife’s application for
variation and then capitalisation of her periodical payments,
Mostyn considered the effect of the decision in Pearce v Pearce
[2003] EWCA Civ 1054, [2003] 2 FLR 1144 (above). He noted that he
had first to consider the appropriate variation, over which the
usual generous ambit of discretion existed, and then to look at the
sum required to capitalise the new order. In relation to this
latter exercise the circumstances in which it would be appropriate
to depart from the Duxbury tables were far more limited. An issue
arose as to the period of life expectancy that should be used and
Mostyn found that it should be that of the wife, which was longer,
rather than the husband. The decision to the contrary in Harris v
Harris [2001] 1 FCR 68 was not applicable, as in that case the
wife’s claims under the Inheritance (Provision for Family and
Dependants) Act 1975 had already been dismissed. In the present
case, they were still available and needed to be taken into
account. Where a maintenance order was in force at the
husband’s death, then a claim under the 1975 Act would be
unanswerable. Capitalisation to cover the full period of the
wife’s life would reflect that aspect of her
Comment: Mostyn’s judgment contains a thinly veiled threat to
those who fail to disclose assets that they will be identified in
future judgments. He suggested that the only factor tipping the
balance against it in the present case was that the parties had
expected that any report would be anonymous. However, given
developments in the understanding of the need for publicity in
family cases, anonymity was now less likely to be appropriate (see
the High Court decision in Norris v Norris [2002] EWHC 2996 (Fam),
[2003] 2 FCR 245 and comments in Clibbery v Allan [2002] EWCA Civ
45, [2002] 1 FCR 385). The case also includes some significant
comments on the role of solicitors in preparing Form E submissions.
Mostyn took the view (para [50]) that solicitors had a duty to the
court to ensure that true and realistic figures are entered onto
Form E. While uncertain liabilities could be included in the
narrative sections, they should only be entered into the
computational boxes that support calculations of net worth when the
legal advisors are satisfied by credible evidence that on the
balance of probabilities the liability is more likely than not to
eventuate. He found that the husband’s solicitors had been at
fault in their preparation of the case, but not sufficiently to
merit naming them. Nor to a degree that warranted a wasted costs


Anonymity preserved

P v BW [2003] EWHC 1541, [2003] 3 FCR 523, [2003] 4 All ER 1074,
BFLS 3A[6032.2]; CHM 1[1212.1]

In P v BW [2003] EWHC 1541, [2003] 3 FCR 523, [2003] 4 All ER 1074,
Fam, Bennett J held that the restrictions set out in s 97(2) of the
Children Act 1989 on publication of material identifying a child
involved in court proceedings were compatible with Article 6 of the
European Convention on Human Rights. He also held that hearings in
chambers, the normal position under r 4.16(7) of the Family
Proceedings Rules 1991, also conformed to the requirements of
Article 6. He refused to make the declarations of incompatibility
under s 4 of the Human Rights Act 1998 between these provisions and
the ECHR that had been sought by the father of the child concerned
in the proceedings. The father contended that he was a
‘victim’ of human rights infringements because he was
unable to publish his views about the way in which he had been
treated or to receive or impart information to others about their
experiences. He submitted that experience in Scotland, where
children cases were routinely heard in public, showed that it was
not necessary in a democratic society to maintain
Comment: It is perhaps not surprising that the father failed in
this case. His application under the pre-Human Rights Act law had
failed in Re P-B [1996] 3 FCR 705, CA and had been rejected by the
European Court of Human Rights in B v UK [2001] 2 FCR 221. While
the father was correct to argue that the English courts were not
bound to follow the ECHR it would be unlikely that they would
depart from so recent a decision, particularly when it involved the
UK and therefore specifically considered the detail of English law.
However, in the light of the concerted effort in some quarters to
challenge the way in which the courts treat fathers, it is
important that the position has been clearly restated.


Remedying inadequate reasons

Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, [2003] 2 FLR
BFLS 3A[5610]; CHM 1[1495]

In Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, [2003] 2 FLR
1035 the Court of Appeal accepted that the judge’s reasons
were inadequately expressed and adjourned its consideration of the
case pending additional reasons being provided by him. This
followed the procedure suggested in English v Emery Reimbold &
Strick [2002] EWCA Civ 605, [2002] 3 All ER 385, approved for
family cases in Re T [2002] EWCA Civ 1736, [2003] 1 FLR 531.
Comment: Perhaps of even greater significance for practitioners was
Thorpe LJ’s reminder that in Re T Arden LJ had pointed out
that if advocates perceive that there is a failure to deal with
significant matters in a draft judgment, then they should draw the
attention of the judge to them. It would be unsatisfactory to raise
omissions or inadequate reasons as a ground for appeal unless the
matter had been brought to the attention of the judge when there
was a ready opportunity to do so. If necessary, a hearing could be
convened on receipt of the draft judgment to enable submissions to
be made. This would generally be preferable to invoking the appeal
Brussels II prevails over Child Abduction and Custody Act 1985 once
final order made

Re G (Children) (Foreign contact order: enforcement) (2003)
Times, 19 November, CA
BFLS 5A[108.1]; CHM 1[1462], 2[42.1]

In Re G (Children) (Foreign contact order: enforcement) (2003)
Times, 19 November the Court of Appeal considered a case where a
French court had ordered that children live with their mother and
subsequently gave permission for her to move to England. When
contact arrangements subsequently broke down, the father sought to
use the European Convention on Recognition and Enforcement of
Decisions Concerning Custody of Children, scheduled to the Child
Abduction and Custody Act 1985. The Court of Appeal held that this
was not the appropriate procedure. The order of the French court
concerning residence arrangements had been a final order.
Consequently, jurisdiction now fell to be determined under Brussels
II—Council Regulation EC/137/2000 on the Jurisdiction and
Recognition and Enforcement of Judgments in Matrimonial Matters and
in Matters of Parental Responsibility for Children of Both Spouses
(see Article 3(3)(a)). Under Brussels II, jurisdiction was based on
habitual residence. The children were habitually residence in the
UK and the English court could assume jurisdiction. Consequently,
the father’s summons under the Child Abduction and Custody
Act 1985 was a nullity.

Subsequent enforcement applications did not prevent order
being final

Re A (A child) (Foreign contact order: jurisdiction) (2003) Times,
10 December, FD
BFLS 5A[108.1]; CHM 1[1462], 2[42.1]

In Re A (a child) (Foreign contact order: jurisdiction) (2003)
Times, 10 December, FD Sumner J held that an application in Spain
to enforce a contact order made there did not undermine the final
status of the Spanish orders for residence and contact. The Spanish
court had given the mother permission to come to England with the
children in 2001, with a contact order in respect of the father.
The father had appealed unsuccessfully and the orders were upheld
in June 2002. They were final orders and jurisdiction for further
proceedings depended, under Brussels II, Article 3(3), on the
habitual residence of the child. This was now in England. The
father was seeking an amendment to the original order and
enforcement of it in Spain. He contended that where such an
application had been made, the order was not a final order so that
the English court had no jurisdiction to hear the mother’s
applications for a residence order and a defined contact order.
Sumner J rejected his claim. The father’s application in
Spain for enforcement did not affect the validity or finality of
the original orders. Under Brussels II, the English courts had
jurisdiction and the father had either to apply within the
jurisdiction to enforce the earlier contact order or make new
applications under the Children Act 1989.

Solicitors’ liability

Damages where solicitors failed to renew restrictions on

Hamilton Jones v David & Snape (2004) Times, 15 January, Ch

In Hamilton Jones v David & Snape (2004) Times, 15 January, Ch
D Neuberger J held that a firm of solicitors was liable in contract
for damages of £20,000 for mental distress caused when a child
was removed from the jurisdiction partly as a result of their
failure to renew restrictions on the issuing of passports. The fact
that there was no liability in negligence for loss of the company
of a child when a local authority acted improperly (F v Wirral MBC
[1991] Fam 69) did not preclude such an action.

Human rights

Excluded boy did not have remedy against school for breach
of human right to education

A v Head Teacher and Governors of Lord Grey School [2003] EWHC
1533, [2003] 4 All ER 1317, QBD
CHM 6[103]

In A v Head Teacher and Governors of Lord Grey School [2003] EWHC
1533, [2003] 4 All ER 1317, QBD Stanley Burnton J rejected a claim
that damages arose under the Human Rights Act 1998 in respect of
the impact upon a child’s education of his exclusion from
school. He had been excluded as a result of police investigations
into a fire at the school. Work had been sent home and the boy sat
examinations. After the conclusion of the investigations the school
arranged a ‘reintegration meeting’ that the boy and his
parents declined to attend. The boy’s name was subsequently
removed from the school roll. Neither the exclusions nor the
removal from the roll were in accordance with the procedures
established under the School Standards and Framework Act 1998 and
the associated circular. The court held that there was no claim in
damages under the HRA 1998 against the school in this case. There
could be such a claim if a child was excluded without alternative
arrangements for education. However, a school would not be so
liable if the reason for the breach of the right to education under
Article 2 of Protocol 1 to the European Convention on Human Rights
was the responsibility of the local education authority. Under the
Education Act 1996, the obligation to educate the child fell on
that authority not the school. In the case before the court, the
school’s exclusion of the boy pending the investigations was
reasonable, although unlawful, and did not give rise to a breach of
Article 2. While the exclusion after the ‘reintegration
meeting’ and the removal from the roll were both unlawful and
unreasonable, the education authority had undertaken its
responsibility to educate the boy. Accordingly, the decision to
remove the boy’s name from the roll could have been
challenged by judicial review but it did not give rise to damages
for breach of his human rights.
Comment: The court drew an important distinction between procedural
irregularity, which made the school’s actions unlawful in a
public law sense, and substantive breach of the right to education.
In relation to the substantive issue, the reasonableness of the
school’s actions provided a defence against the claim for
damages. It is also important to note that any claim for damages
for failure to honour a child’s rights to education under
Protocol 1 to the ECHR needs to be made against the appropriate
body. This will sometimes be the school and sometimes the education

Recovery of possession from non-entitled person does not
require consideration of Article 8

Newham LBC v Kibata [2003] EWCA Civ 1785, [2003] 3 FCR 724,
BFLS 5A[4183]

In Newham LBC v Kibata [2003] EWCA Civ 1785, [2003] 3 FCR 724 the
Court of Appeal rejected the applicant’s claim that the local
authority had acted in breach of Article 8 of the European
Convention on Human Rights when it commenced proceedings for
possession of a flat. The applicant and his wife had lived together
in a flat let to her on a secure tenancy. The applicant continued
to live in the flat after the wife had left it and served notice to
quit on the authority. The judge had refused to make an order for
possession against the man on the ground that the authority had not
satisfied her that the interference with his rights to respect for
private life under Article 8 was justified. The Court of Appeal
allowed the authority’s appeal on the basis that it was
recovering possession of its property from a person who had no
legal right to it. There was no need for a detailed consideration
of the merits of the case under Article 8(2).
Comment: As public bodies, local authorities are obliged to act in
accordance with the rights set out in the ECHR, Human Rights Act
1998, s 6. On this basis, it could be argued that all powers that
local authorities have, including the power to enforce their
proprietary rights, should be exercised with human rights in mind.
The Court of Appeal seems to have rejected that mode of analysis.
As it had been found that Article 8 provided no defence to the
applicant in the possession proceedings (applying Harrow LBC v
Quazi [2003] UKHL 43, [2003] 3 FCR 43) that was thought to exhaust
the human rights dimension. It remains to be seen whether the
courts will allow the development of greater control over the
exercise of

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