Ensuring the Human Rights Act is applied correctly

What is the correct approach in regards to the proportionality analysis to be undertaken in claims under Article 8 - the right to respect for private and family life - of the Human Rights Act (HRA) 1998.

The case mainly concerned the limits of a local authority’s powers and duties to provide accommodation to children in need under s.20 of the Children Act (CA) 1989. The appellants argued breach of their rights under Article 8 of the HRA on the basis that the London Borough of Hackney had unlawfully accommodated their children under s.20 CA. The children had been placed in 72 hour emergency foster care after police inquiries revealed the family home to be in an unhygienic condition unfit for habitation by children. The appellants argued that they were not informed of their right, under s.20(7) CA, to object to the children’s continued accommodation beyond 72 hours, nor of their right under s.20(8) to remove them at any time. The children remained in the local authority’s care for 8 weeks.

The Commission did not make any submissions about the facts of the case. Our intervention focused solely on the correct approach to the question of proportionality in human rights cases.

This case comes within our core aim to uphold the system of equality and human rights protections. 

The Commission intervened at the Supreme Court, only to correct what we considered to be the Court of Appeal’s (CoA) incorrect treatment of the proportionality analysis in regard to Article 8 of the HRA. Under the HRA, public authorities can interfere with the right to respect for private and family life. But this is only allowed where the authority can show that its action is lawful, necessary and proportionate. Left uncorrected, the CoA ruling may have had significant regressive impact.

The Supreme Court judgment re-affirmed the correct application of the justification/proportionality test under the Human Rights Act.

By affirming the correct approach to the proportionality analysis in cases under Article 8 HRA, the ruling clarifies the law and helps ensure that there is no regression from existing human rights protections.