Reflections on the JUSTICE Human Rights Conference 2020 – ‘Family Law, the Court of Protection, and Human Rights’ and ‘Plenary Debate: Our rights in times of Coronavirus’
University of Edinburgh Pro Bono Society Committee members attended the JUSTICE Human Rights Conference 2020. They have produced six blog posts based on their reflections. The first blog in this series is by Rachael Greig, Pro Bono Society Treasurer and Diploma in Professional Legal Practice student, reflecting on the breakout session on ‘Family, the Court of Protection and Human Rights’ and the Plenary Debate ‘Our rights in times of Coronavirus.’
As Treasurer of the newly formed University of Edinburgh Pro Bono Society, I had the opportunity to attend the Justice Human Rights Conference 2020 along with several other committee-members. The conference was virtual this year – held over Zoom – so instead of spending a few days in London, I attended in my pyjamas from the comfort of my own bed in Edinburgh (as did my cat).
On day three of the conference, I attended the breakout session on Family Law and the Court of Protection, chaired by Dame Nathalie Lieven. The session provided an update on human rights developments in family law over the last year.
As an aspiring solicitor currently working as a shorthand writer, usually in family cases, I found the session particularly interesting. Alex Ruck-Keene discussed the difficulties faced by courts when adjudicating the cases of vulnerable people who may lack capacity in some respects but wish to be sexually active, and the legal ramifications of care workers assisting disabled people who have the capacity to consent to sex in engaging services from sex workers. Rachael Kelsey offered a much-appreciated comparative view of Scots law, explaining that Scottish family law is more similar to European civil systems than English law in many respects – it is more codified, operates within more constrained boundaries, has a separate way of dealing with young people (i.e. the Children’s Hearing System), and does not separate divorce and finance, which are done together. She also covered recent events in Scottish family law, including the raising of the criminal age of responsibility from 8 to 12 – a welcome change, though still two years younger than the minimum age recommended by the UN Committee on the Rights of the Child – and the recent Supreme Court decision of Villiers v Villiers (2020 [UKSC] 30), in which the court held that due to EU regulations, a spouse was entitled to raise a maintenance claim in her native England (which has a very generous maintenance scheme) even though the rest of the divorce was being handled in Scotland.
For me, the highlight of the session was Deidre Fottrell QC’s discussion of Re TT and YY, a case where a transgender man, applied for a judicial review of the registrar’s decision to record him on his child’s birth certificate as the “mother”. He also applied for a declaration of incompatibility under section 4 of the Human Rights Act 1998 on the ground that the domestic regime that required him to be registered as the “mother” (as opposed to “father” or “parent”) was incompatible with his and his Article 8 ECHR right to private and family life.
The court ruled against him, finding that while there was an infringement of Article 8, this was justified by the need to maintain a “clear and coherent scheme of registration of births”. This case also marks the first time a court has given a definition of “mother” under English common law: “the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth”, i.e. related purely to reproductive experience as opposed to the gender of the individual, allowing for the possibility of a ‘male mother’. The court also decided that s 12 of the Gender Recognition Act 2004 – which reads “The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child” – was intended by Parliament to be read both retrospectively and prospectively. This means that a transgender man, for example, must be legally recognised as a “mother” on his child’s birth certificate, even if the child was born after he obtained a Gender Recognition Certificate, which upon issue causes (or at least, is supposed to cause) the person’s gender to become, for all purposes, the acquired gender.
As well as being interesting from a purely legal perspective, as a member of the LGBT community I read about this judgment with interest when it was published. Trans rights have been quite a contentious issue in the news in recently, with much of the conversation focusing on reform of the Gender Recognition Act – for me, this case highlights just how much further we have to go before we can say the law adequately recognises and protects the human rights of trans people.
The final day of the conference closed out with a debate between Tom Tugendhat MP, Baroness Kennedy of The Shaws QC, Joanna Cherry QC MP, and Professor Conor Gearty on the topic “Our rights in times of Coronavirus”. Each speaker raised thoughtful and topical points on the importance of human rights and how easily they can be eroded; the conversation ranged between the rights of soldiers in war, media freedom, Black Lives Matter, and cancel culture. The most worrying consequence of the pandemic on our rights was discussed by the Baroness – a decade of austerity has “brought the justice system to its knees”, as she put it. Since 2010 more than half of all magistrates courts in England and Wales have closed, meaning that the backlog of cases that has built up since the start of lockdown is going to take months, if not years, to clear. Other problems are yet to rear their heads, but given the wide impact of austerity, it is only a matter of time.
The conference was a valuable opportunity to learn about human rights law directly from human rights experts. TT and YY is being appealed to the Supreme Court; now that I have a much fuller understanding of the issues in the case, I am anticipating it in earnest. Overall, I really enjoyed the conference – even if I didn’t get a trip to London out of it like I would have in normal circumstances.
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