Feminist Judgments: From Theory to Practice

(A) Hunter Prelims 13/9/10 15:29 Page i FEMINIST JUDGMENTS While feminist legal scholarship has thrived within unive...

Author: Rosemary Hunter | Clare McGlynn | Erika Rackley (editors)

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FEMINIST JUDGMENTS While feminist legal scholarship has thrived within universities and in some sectors of legal practice, it has yet to have much impact within the judiciary or on judicial thinking. Thus, while feminist legal scholarship has generated comprehensive critiques of existing legal doctrine, there has been little opportunity to test or apply feminist knowledge in practice, in decisions in individual cases. In this book, a group of feminist legal scholars put theory into practice in judgment form, by writing the ‘missing’ feminist judgments in key cases. The cases chosen are significant decisions in English law across a broad range of substantive areas. The cases originate from a variety of levels but are primarily opinions of the Court of Appeal or the House of Lords. In some instances they are written in a fictitious appeal, but in others they are written as an additional concurring or dissenting judgment in the original case, providing a powerful illustration of the way in which the case could have been decided differently, even at the time it was heard. Each case is accompanied by a commentary which renders the judgment accessible to a non-specialist audience. The commentary explains the original decision, its background and doctrinal significance, the issues it raises, and how the feminist judgment deals with them differently. The book also includes chapters examining the theoretical and conceptual issues raised by the process and practice of feminist judging, and by the judgments themselves, including the possibility of divergent feminist approaches to legal decision-making.

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Feminist Judgments From Theory to Practice

Edited by

Rosemary Hunter Clare McGlynn and Erika Rackley

OXFORD AND PORTLAND, OREGON 2010

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Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © The editors and contributors severally 2010 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-053-8 Typeset by Hope Services Ltd, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall

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FOREWORD Is it possible to be both a judge and a feminist? Feminism involves the belief both that women are the equals of men and that the experiences of women are as much part of the common experience of mankind as are the experiences of men. The first belief is normative. It shapes our view of what the law should be. The second belief is empirical. It shapes our view of reality. It is no longer possible to assert the opposite of either belief: that the law should assign an inferior status to women or deny them the same rights as men; or that the only reality is the reality of men’s experience or interpretation of the world around them. But of course it is possible to assert that the substance and practice of the law do not (yet) measure up to either of them. So what difference would it make if there were more feminist judges? We take it as given that all judges have to work within their judicial oaths: to ‘do right to all manner of people after the laws and usages of this realm without fear or favour affection or ill-will’. They cannot have an ‘agenda’ to shape the law to their own design. But they can certainly bring their own experience and understanding of life to the interpretation or development of the law or to its application in individual cases. We do not have many women judges in the higher, law-shaping courts. We have even fewer judges, whether men or women, who are prepared to call themselves feminists. So it is intriguing, to say the least, to read how a group of feminist scholars would have reasoned their decisions in a selection of well-known cases both old and new. Each of the authors has made an honest attempt to write a judgment using the ordinary conventions of judgmentwriting and the materials which were available at the time. Three things stand out. First, it is remarkable how plausible they mostly are, not only as judicial writing but also as examples of how a different judgment might properly have been written in that case and at that time. Secondly, it makes such a difference how the story is told. Feminist judges will take different facts from the mass of detail to tell the story in a different way, to bring out the features which others discard, and to explain the features which others find difficult to understand. The third is context. Feminist judges will set the story in a different context, a context which they understand but others may not. Reading this book ought to be a chastening experience for any judge who believes himself or herself to be both true to their judicial oath and a neutral observer of the world. It is certainly a chastening experience for any judge who, like me, believes herself to be a feminist. ‘Could do better’ is the mark which some of the authors have given to my own best efforts. There are always cases on which feminists can have two views. Provocation is the clearest example. Unless it is judged by objective standards, men who kill their women partners simply for making fun of them might ‘get off ’ with a manslaughter verdict. But if it is, women who kill their partners after years of abuse might not ‘get off ’ unless they can show some recognised mental disorder. How demeaning to have to ascribe the woman’s reaction to a life which anyone would find intolerable as a mental disorder! But how unjust if a man whose life is very far from intolerable can claim an excuse without showing any mental disorder at all!

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vi Foreword There are other cases in which the result is easier but the route to getting there is not. There are cases here in which I would have loved to be able to go the extra mile and write the judgment which the feminist ‘judge’ has written. Sometimes I did not because it was more important to reach the same result by a route with which the whole court could agree. Sometimes I did not because of the huge practical implications, which might actually imperil the decision if they were exposed. Sometimes I did not because I had not seen the case in that way. If lawyers and judges like me have so much to learn from reading this book, then surely other, more sceptical, lawyers and judges have even more to learn. I suspect that it has also been quite a steep learning curve for most of the authors. But other scholars, and not only feminists, must also be fascinated by the window it opens onto the process of judicial reasoning: not the straightforward, predetermined march from A to B of popular belief, but something altogether more complicated and uncertain. And anyone will find it a very good read. Brenda Hale 15 March 2010

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ACKNOWLEDGEMENTS The Feminist Judgments Project has been a collaborative enterprise which has only been possible with the support and assistance of a large number of people. First of all, we would like to thank our financial supporters. The journal Social and Legal Studies, together with the AHRC Centre for Law, Gender and Sexuality, and Durham University’s research group, Gender and Law at Durham, enabled the seed of an idea to germinate into a fully-fledged project by part-funding our inaugural workshop held at Durham University in April 2008. Following this auspicious start, generous funding from the Economic and Social Research Council (ESRC) (RES-000-22-3039) made possible the holding of a further four workshops, each of which were also financially supported by their respective host institutions, namely Birkbeck Law School, the law schools of Reading University and Bristol University, and the AHRC Centre for Law, Gender and Sexuality which hosted the workshop at the University of Westminster. In addition, the ESRC funding enabled us to establish a website for the project (www.feministjudgments.org.uk), and paid for administrative assistance and our time as organisers, editors, and contributors. The organisation of the workshops entailed considerable effort from the host institutions and we would particularly like to thank Harriet Samuels, Rosemary Auchmuty, Rosa Bardwell, Lois Bibbings, Morag McDermont, Shirley Knights, Linda Mulcahy and Victoria Hunt for their assistance. In addition, the project administrator, Sarah Slowe, was central to ensuring the overall good organisation of the project and especially the workshops, and for the considerable challenge of formatting the commentaries and judgments in accordance with a daunting array of stylistic conventions. We would also like to thank all of the contributors for their patience during the editorial process and their willingness to respond to such a high level of editorial interference. Many friends and colleagues gave generously of their time and expertise at both the workshops and informally. We would particularly like to thank Veronica Barran, Alice Belcher, Christine Chinkin, Julia Dick, Brenda Hale, Rozanna Head-Rapson, Emily Jackson, Martha-Marie Kleinhans, Kate Malleson, Siobhan McGrath, Alan Norrie, Denise Reaume, Hilary Sommerlad, Clare Wade, Celia Wells, Sally Wheeler and Elizabeth Woodcraft. Any errors of course remain our own.

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CONTENTS Foreword by Baroness Hale of Richmond Acknowledgements Notes on Contributors Table of Cases Table of Statutes and Legislation

v vii xiii xvii xxvii

Part I Introduction and Overview 1

Feminist Judgments: An Introduction Rosemary Hunter, Clare McGlynn and Erika Rackley

3

2

An Account of Feminist Judging Rosemary Hunter

30

3

The Art and Craft of Writing Judgments: Notes on the Feminist Judgments Project Erika Rackley

44

Part II Parenting 4

5

6

7

8

Evans v Amicus Healthcare Ltd Commentary: Sally Sheldon Judgment: Sonia Harris-Short

59 64

Re N (A Child) Commentary: Emily Jackson Judgment: Samantha Ashenden

83 89

Re G (Children) (Residence: Same-Sex Partner) Commentary: Daniel Monk Judgment: Alison Diduck

96 102

Re L (A Child) (Contact: Domestic Violence) Commentary: Christine Piper Judgment: Felicity Kaganas

114 120

Re A (Children) (Conjoined Twins: Surgical Separation) Commentary: Richard Huxtable Judgment: Geraldine Hastings

134 139

Part III Property and Markets 9

Royal Bank of Scotland Plc v Etridge (No 2) Commentary: Alison Diduck Judgment: Rosemary Auchmuty

149 155

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x Contents 10 Porter v Commissioner of Police for the Metropolis Commentary: Maureen O’Sullivan Judgment: Anna Grear

170 174

11 Baird Textile Holdings v Marks & Spencer Plc Commentary: John Wightman Judgment: Linda Mulcahy and Cathy Andrews

184 189

Part IV Criminal Law and Evidence 12 R v A (No 2) Commentary: Louise Ellison Judgment: Clare McGlynn

205 211

13 R v Stone and Dobinson Commentary: Neil Cobb Judgment: Lois Bibbings

228 234

14 R v Brown Commentary: Matthew Weait and Rosemary Hunter Judgment: Robin Mackenzie

241 247

15 R v Dhaliwal Commentary: Mandy Burton Judgment: Vanessa Munro and Sangeeta Shah

255 261

16 R v Zoora (Ghulam) Shah Commentary: Susan Edwards Judgment: Samia Bano and Pragna Patel

273 278

17 Attorney-General for Jersey v Holley Commentary: Clare Connelly Judgment: Susan Edwards

292 297

Part V Public Law 18 YL v Birmingham City Council and Others Commentary: Morag McDermont Judgment: Helen Carr and Caroline Hunter

311 318

19 R (Begum) v Governors of Denbigh High School Commentary: Holly Cullen Judgment: Maleiha Malik

329 336

20 Sheffield City Council v E Commentary: Jonathan Herring Judgment: Nicola Barker and Marie Fox

346 351

21 R v Portsmouth Hospitals NHS Trust, ex parte Glass Commentary: Anne Morris Judgment: Jo Bridgeman

363 369

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Contents xi Part VI Equality 22 Roberts v Hopwood Commentary: Stephanie Palmer Judgment: Harriet Samuels

381 387

23 Mundon v Del Monte Foods Ltd Commentary: Gwyneth Pitt Judgment: Rachel Horton and Grace James

401 407

24 James v Eastleigh Borough Council Commentary: Joanne Conaghan Judgment: Aileen McColgan

414 420

25 Wilkinson v Kitzinger Commentary: Karon Monaghan Judgment: Rosie Harding

425 430

26 EM (Lebanon) v Secretary of State for the Home Department Commentary: Judy Walsh Judgment: Karon Monaghan

443 449

Index

459

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NOTES ON CONTRIBUTORS Cathy Andrews holds a PhD from Birkbeck, University of London and is a Sessional Lecturer in the School of Law at Birkbeck and at the London School of Economics. Samantha Ashenden is a Senior Lecturer in Sociology in the Department of Politics at Birkbeck, University of London. Rosemary Auchmuty is a Professor in the School of Law, University of Reading. Samia Bano is a Lecturer in the School of Law, University of Reading. Nicola Barker is a Lecturer in the School of Law, Keele University. Lois Bibbings is a Senior Lecturer in the School of Law, . Jo Bridgeman is a Senior Lecturer in Law and Gender Studies at the University of Sussex. Mandy Burton is Professor of Socio-Legal studies in the School of Law, University of Leicester. Helen Carr is a qualified solicitor and part-time Chair of Residential Property Tribunals, and a Senior Lecturer in the Kent Law School, University of Kent. Neil Cobb is a Lecturer in the Durham Law School, Durham University. Joanne Conaghan is a Professor and Head of School in the Kent Law School, University of Kent. Clare Connelly is a qualified solicitor and a Senior Lecturer in the School of Law, University of Glasgow. Holly Cullen practised as an advocate in Montreal, Canada and was a Reader in Law at Durham University, before her appointment as Winthrop Professor of Law at the University of Western Australia. Alison Diduck practised as a barrister and solicitor in Canada and is now a Professor of Law at University College London. Susan Edwards is a Professor and Dean of Law at the University of Buckingham, and a door tenant at Clarendon Chambers, London. Louise Ellison is a Senior Lecturer in Law at the University of Leeds. Marie Fox is a qualified solicitor and Professor of Law at Keele University, and a former member of the British Medical Association’s Medical Ethics Committee. Anna Grear is a Senior Lecturer in Law at the University of the West of England, Bristol. Rosie Harding is a Lecturer in the Law School, Keele University. Sonia Harris-Short is a barrister and honorary door tenant at St Philips Chambers, Birmingham, and a Reader in the Birmingham Law School, University of Birmingham.

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xiv Notes on Contributors Geraldine Hastings is a Lecturer in Physiotherapy in the School of Healthcare Studies, Cardiff University. Jonathan Herring is a qualified solicitor and a Fellow of Exeter College, Oxford University. Rachel Horton is a qualified solicitor, and a PhD student and Teaching Fellow in the School of Law, University of Reading. Caroline Hunter is a barrister at Arden Chambers, London, a part-time Chair of Residential Property Tribunals, and a Professor of Law at the University of York. Rosemary Hunter is a Professor in the Kent Law School, University of Kent. Richard Huxtable is a Senior Lecturer in the Centre for Ethics in Medicine, University of Bristol, and a member of the Ethics Committee of the National Council for Palliative Care. Emily Jackson is a Professor of Law at the London School of Economics, Deputy Chair of the Human Fertilisation and Embryology Authority, and a member of the British Medical Association Medical Ethics Committee and the Ethics Committees of the Royal College of Physicians and the Royal College of Pathologists. Grace James is a Reader in the School of Law, University of Reading. Felicity Kaganas is a qualified attorney in South Africa and a Reader in the Brunel Law School, Brunel University. Robin Mackenzie is a Reader in the Kent Law School, University of Kent, and a member of the Topic Selection Panel for Long Term Conditions of the National Institute for Clinical Excellence and of the Ethics Committee of the National Council for Palliative Care. Maleiha Malik is a qualified barrister and a Reader in Law at King’s College London. Aileen McColgan is a Professor of Human Rights Law at King’s College London and a barrister at Matrix Chambers, London. Morag McDermont is a Senior Lecturer in the School of Law, . Clare McGlynn is a qualified solicitor and a Professor in the Durham Law School, Durham University. Karon Monaghan QC is a barrister at Matrix Chambers, London and a member of the Equal Treatment Advisory Committee of the Judicial Studies Board. Daniel Monk is a solicitor and Senior Lecturer in Law at Birkbeck, University of London. Anne Morris is a Senior Lecturer in the Liverpool Law School, University of Liverpool. Linda Mulcahy is a Professor of Law at the London School of Economics. Vanessa Munro is a Professor of Socio-Legal Studies at the University of Nottingham. Maureen O’Sullivan is a Lecturer in Law at the National University of Ireland, Galway. Stephanie Palmer is a barrister at Blackstone Chambers, London and a University Senior Lecturer in Law at Cambridge University. Pragna Patel is the Director of Southall Black Sisters. Christine Piper is a Professor of Law at Brunel University.

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Notes on Contributors xv Gwyneth Pitt is a Professor in the Kingston Law School, Kingston University and a member of the Bar Standards Board’s Education and Training Committee. Erika Rackley is a Senior Lecturer in the Durham Law School, Durham University. Harriet Samuels is a qualified barrister and a Senior Lecturer in the School of Law, University of Westminster. Sangeeta Shah is a Lecturer in Law at the University of Nottingham. Sally Sheldon is a Professor in the Kent Law School, University of Kent. Judy Walsh is a barrister at law in Ireland, former Assistant Director of the Irish Council for Civil Liberties, and a Lecturer in Equality Studies in the School of Social Justice, University College Dublin. Matthew Weait is a qualified barrister, former Parliamentary Legal Officer to Lord Lester of Herne Hill QC, and a Reader in Socio-Legal Studies at Birkbeck, University of London. John Wightman is a Senior Lecturer in Law and the Dean of Social Sciences at the University of Kent.

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TABLE OF CASES UNITED KINGDOM A v A (Children) (Shared Residence) [2004] 1 FLR 1195.....................................................109 A v Secretary of State for the Home Department [2005] 2 AC 68.........................................456 Albert v Lavin [1982] AC 546 ...............................................................................................182 Allnutt v Inglis (1810) 12 East 527 ................................................................................178, 179 Armagh District Council v Fair Employment Agency [1983] NI 346 ...................................424 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546................................................................................................325 Attorney-General v Fulham Corporation 1921 1 Ch 440 .....................................................393 Attorney-General for Jersey v Holley [2005] UKPC 23, [2005] 2 AC 580...............................................................................13, 19, 292–96, 297–307 Attorney-General’s Reference (No 6 of 1980) [1981] 2 QB 715 ....................................241, 250 Australian Blue Metal Ltd v Hughes [1963] AC 74...............................................................195 B v B (Residence: Condition Limiting Geographic Area) [2004] 2 FLR 979.........................109 Baird Textile Holdings v Marks & Spencer Plc [2001] EWCA Civ 274, [2002] 1 All ER (Comm) 737 .....................................................................184–88, 189–202 Barclays Bank Plc v Coleman & Another [2001] QB 20 .......................................................167 Barclays Bank Plc v O’Brien [1994] 1 AC 180.................................150, 153, 155–56, 158, 159 Baxter v Baxter [1948] AC 274 .............................................................................................440 Bedder v DPP [1954] 1 WLR 1119................................................................................302, 306 Bellinger v Bellinger [2003] 2 AC 467 ...........................................................................432, 442 Berthiaume v Dastous [1930] AC 79...............................................................................430–43 Board of Education v Rice [1911] AC 179.......................................................................391–92 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 ........................356, 376 British Crane Hire Corp Ltd v Ipswich Plant Hire Ltd [1975] QB 303 ................................196 Chester v Afshar [2005] 1 AC 134 .........................................................................................356 CIN Properties Ltd v Rawlins [1995] EGLR 130.....................................171, 176–78, 180, 183 Cinnamond v British Airports Authority [1980] 1 WLR 582 ...............................................179 Copsey v WBB Devon Clays Ltd [2005] ICR 1789..........................................................338–39 Corbett v Corbett [1971] P 83 ...............................................................................................432 Dawson v Wearmouth [1999] 2 AC 308 ...............................................................................120 de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69.............................................................................................225 Del Monte Foods Ltd v Mundon [1980] ICR 694 ...........................................401–406, 407–13 DPP v Camplin [1978] AC 705.............................................................................................300 DPP v Smith [1961] AC 290 .................................................................................................265 Durham v Durham (1885) 10 PD 80....................................................................................354 East Lindsey District Council v Daubney [1977] ICR 566 ...................................................411 EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 AC 1198...............................................................................19, 24, 443–48, 449–58

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xviii Table of Cases Etridge v Pritchard Englefield [1999] Lloyds Rep PN 702 ............................................160, 164 Evans v Amicus Healthcare Ltd and Others [2003] EWHC 2161 (Fam), [2004] 2 WLR 713 .............................................................................................59, 62, 65–82 Evans v Amicus Healthcare Ltd and Others [2004] EWCA Civ 727, [2005] Fam 1 ...................................................................................11, 12, 24, 59–62, 64–82 Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 ............................................436–37 G Scammell & Nephew Ltd v HC & JG Ouston [1941] AC 251...........................................195 Ghaidan v Godin-Mendoza [2004] 2 AC 557................................102, 355, 427, 436, 442, 456 Gibson v Manchester City Council [1978] 1 WLR 520 .........................................................201 Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] AC 112........................................................................370 Hawthorn v Hammond (1844) 1 Car & K 404.....................................................................178 Hayes v Malleable Working Men’s Club [1985] ICR 703 ......................................................402 Heinz v Kenrick [2000] ICR 491 ...................................................................................403–405 Hillas & Co Ltd v Arcos Ltd (1932) 43 Ll L Rep 359...............................................194–96, 198 Holmes v DPP [1946] AC 588 ...............................................................................................300 Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130...................................................16, 432 Ilyssia Compania Naviera SA v Bamaodah (The Elli 2) [1985] 1 Lloyd’s Rep 107 .............191 In re S (Adult’s Lack of Capacity: Carer and Residence) [2003] 2 FLR 1235 .......................351 In the Estate of Park deceased, Park v Park [1954] P 112 ........................348, 353–54, 356, 357 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896.............................................................................................................196 J v C [1970] AC 668...............................................................................................................145 James v Eastleigh Borough Council [1990] 2 AC 751........................................414–19, 420–24 Kay v Lambeth London Borough Council [2006] 2 AC 465..................................................327 Kruse v Johnson [1898] 2 QB 91 ...........................................................................................393 Lawrence v Lawrence [1985] Fam 106 ..................................................................................431 Leeds Teaching Hospital NHS Trust v A [2003] 1 FLR 1091 ..................................................69 London Borough of Lewisham v Malcolm [2008] UKHL 43, [2008] 1 AC 1399 .........404–405 London County Council v The Attorney-General and Others [1902] AC 165......................393 Luc Thiet Thuan v R [1997] AC 131.............................................................................303–305 M v M (Child: Access) [1973] 2 All ER 81 ............................................................................120 M v Secretary of State for Work and Pensions [2006] 2 AC 27 ...........434–35, 441–42, 456–57 Mancini v Director of Public Prosecutions [1942] AC 1........................................................303 Mandla v Dowell Lee [1983] 2 AC 548 .................................................................................343 Masterman-Lister v Brutton & Co (No 1) [2003] 1 WLR 1511 ...........................................353 M’Naghten’s Case (1843) 10 Cl & Fin 200 ...........................................................................353 Nagarajan v London Regional Transport [2000] 1 AC 501 ..................................................415 National Westminster Bank plc v Gill [1998] 4 All ER 705 ..................................................165 Newbury DC v Russell (1997) 95 LGR 705...........................................................................177 Payne v Payne [2001] Fam 473 .....................................................................................106, 111 Peake v Automotive Products Ltd [1977] QB 780 .................................................................424 Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167 ..........................................356 Percy v DPP [1995] 1 WLR 1382 ..........................................................................................182 Porter v Commissioner of Police for the Metropolis [1999] All ER (D) 1129...........................................................................41, 170–73, 174–83 R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45 .......................12, 23, 39, 47, 205–10, 211–27

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Table of Cases xix R v Adomako [1995] 1 AC 171......................................................................................229, 260 R v Ahluwalia [1992] 4 All ER 889.........................275, 283, 289, 290, 292, 295, 300, 301, 303 R v Arnold [1996] 31 BMLR 24 ....................................................................................288, 290 R v Bashir [1969] 1WLR 1303 ..............................................................................................215 R v Binning (unreported) 12 April 1996 ..............................................................................289 R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155 .........................................................................................................422, 424 R v Blaue [1975] 1 WLR 1411.......................................................................................268, 270 R v Borthwick (1998) Crim LR 274 ......................................................................................289 R v Brown [1972] 56 Cr App R 564 ......................................................................................299 R v Brown [1992] UKHL 7, [1994] 1 AC 212.......................................10, 13, 241–46, 247–54 R v Cambridge Health Authority, Ex p B [1995] 1 WLR 898 ...............................................375 R v Campbell [1997] 1 Cr App R 199 ...................................................................................289 R v Camplin [1978] AC 705 ..........................................................................302–303, 305, 306 R v Carson Roberts [1908] 1 KB 407.............................................................................392, 393 R v Cato [1976] 1 WLR 110 ..................................................................................................262 R v Central Birmingham Health Authority, Ex p Collier, Court of Appeal (unreported) 6 January 1988............................................................................................369 R v Central Birmingham Health Authority, Ex p Walker; R v Secretary of State for Social Services and another, Ex p Walker (1987) 3 BMLR 32 .....................................................369 R v Chan Fook [1994] 1 WLR 689 ................................................................................263, 265 R v Cheshire [1991] 1 WLR 844............................................................................................268 R v Chief Constable of Devon and Cornwall, Ex p Central Electricity Generating Board [1982] QB 458 ...............................................................................182–83 R v Church [1966] 1 QB 59, 70 .....................................................................................262, 266 R v D [2006] EWCA Crim 1139, [2006] 2 Cr App R 24............................19, 255–60, 261–72 R v Dear [1996] Crim LR 595.................................................................................259, 268–69 R v Dias [2002] 2 Cr App R 5 ...............................................................................................262 R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 ....................................218 R v Donovan [1934] 2 KB 498 (CA)...............................................................................241–42 R v Dudley and Stephens (1884–85) LR 14 QBD 273..........................................................252 R v Duffy [1949] 1 All ER 932...............................................................................299–300, 302 R v Franklin (1883) 15 Cox CC 163 .....................................................................................262 R v Greatbanks [1959] Crim LR 450.............................................................................212, 215 R v Hammersmith & Fulham London Borough Council, Ex p M (1998) 30 HLR 10......................................................................................................322, 325 R v Hayward (1833) 6 C & P 157 .........................................................................................300 R v Hinks [2001] 2 AC 241....................................................................................................265 R v Humes (Re Attorney General’s Reference (Nos 74, 95 and 118 of 2002)) [2003] 2 Cr App R (S) 42..................................................................................................301 R v Humphreys [1995] 4 All ER 1008 .....................................................................290–92, 301 R v Ibrams; R v Gregory [1982] 74 Cr App R 154 ................................................................299 R v Instan [1893] 1 QB 450 ..................................................................................................239 R v Ireland; R v Burstow [1998] AC 147 ...............................................................258, 263, 265 R v Jones [1997] 1 Cr App R 86 ............................................................................................290 R v Kennedy (No 2) [2008] 1 AC 269 ...................................................................................269 R v Lamb [1967] 2 QB 981 ...................................................................................................262

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xx Table of Cases R v Lawrence [1977] Crim LR 492 .......................................................................................217 R v Lesbini [1914] 3 KB 1116................................................................................................300 R v Marriott (1838) 8 C & P 425 ....................................................................................238–39 R v Mawgridge [1707] Kel J 119 ...........................................................................................302 R v Melville [1976] 1 WLR 181 .....................................................................................288, 289 R v Miller [1954] 2 QB 282...................................................................................................265 R v Miller [1983] 2 AC 161 ...................................................................................................229 R v Ministry of Defence, Ex p Smith [1996] QB 517 ............................................................436 R v Mukadi [2003] EWCA Crim 3765, [2004] Crim LR 373 ..............................................209 R v Newell (1980) 71 Cr App R 331......................................................................................303 R v Nicholls (1874) 13 Cox CC 75 ........................................................................................239 R v Pagett (1983) 76 Cr App R 279.......................................................................................267 R v Pitts (1842) 174 ER 509 ..................................................................................................268 R v Portsmouth Hospitals NHS Trust, Ex p Glass (1999) 50 BMLR 269 (QB); [1999] 2 FLR 905 (CA) .................................................................................363–68, 369–78 R v R [1992] 1 AC 599.............................................................................................220–21, 357 R v Richardson (unreported) 9 May 1991 ............................................................................289 R v Riley (1887) 18 QBD 481..........................................................................................220–21 R v Roberts (1972) 56 Cr App R 95...............................................................................268, 271 R v Sangha [1997] 1 Cr App R (S) 202.................................................................................304 R v Smith (1837) 8 C & P 173...............................................................................................238 R v Smith [1959] 2 QB 35 ...............................................................................................267–68 R v Smith (Morgan) [2000] UKHL 49, [2001] 1 AC 146 ............................................................293–95, 297–99, 301–302, 304–305 R v Stone and Dobinson [1977] QB 354 .....................................................36, 228–33, 234–40 R v Straw [1995] 1 All ER 187 ..............................................................................................289 R v Thornton (No 1) [1992] 1 All ER 306.............................................................................300 R v Thornton (No 2) [1996] 1 WLR 1174 ...............................291–92, 295, 300–301, 303, 304 R v Viola [1982] 1 WLR 1138 ...............................................................................................217 R v Wilkinson (Re Attorney General’s Reference (Nos 74, 95 and 118 of 2002)) [2003] 2 Cr App R (S) 42..................................................................................................301 R v Williams [1992] 1 WLR 380 ...........................................................................................268 R v Wilson [1997] QB 47 (CA) .............................................................................................243 R v Zoora (Ghulam) Shah [1998] EWCA Crim 1441 ................................19, 273–77, 278–91 R (A & B) v East Sussex County Council (2003) 6 CCL Rep 194.........................................318 R (Burke) v General Medical Council [2005] QB 424 ..........................................................357 R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173.............................456 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532...........................361 R (Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356 ........................................47 R (Haggerty) v St Helens Borough Council [2003] HLR 69 .................................................319 R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936.......................................325 R (Hooper) v Secretary of State for Work and Pensions [2003] 1 WLR 2623 ...................79–80 R (Quintavelle) v Human Fertilisation and Embryology Authority [2004] QB 168.....................................................................................................................69 R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 ......................................................................................13, 329–35, 336–45 R (Ullah) v Special Adjudicator [2004] 2 AC 323.................................................................437

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Table of Cases xxi R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 ................................................................................................................339 Ramdoolar v Bycity Ltd [2005] ICR 368...............................................................................404 Re A (A Child) (IVF: Paternity of Child) [2005] 2 AC 621 ....................................................69 Re A (A Child) (Joint Residence: Parental Responsibility) [2008] EWCA Civ 867, [2008] 2 FLR 1593 ............................................................................................................100 Re A (Adoption: Mother’s Objections) [2000] 1 FLR 665 .......................................................93 Re A (Children) (Conjoined Twins: Medical Treatment) [2001] Fam Law 16 .............135, 140 Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254, [2001] Fam 147 .......................................................................................37, 134–38, 139–46 Re A (Medical Treatment: Male Sterilisation) [2000] 1 FLR 549 ...........................143–44, 366 Re AW (Adoption Application) [1993] 1 FLR 62 ..............................................................85–86 Re B [2002] 1 FLR 1090 ........................................................................................................357 Re B (A Child) [2009] EWCA Civ 545, [2009] 2 FLR 632...................................................100 Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421.................................371 Re B (A Minor) (Wardship: Sterilisation) [1988] AC 199 ............................................375, 378 Re C (A Baby) [1996] 2 FLR 43 ............................................................................................371 Re C (A Minor) (Medical Treatment) [1998] 1 FLR 384 ...............................................371–73 Re C (A Minor) (Wardship: Medical Treatment) [1990] Fam 26.................................371, 377 Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846 .......................................................85 Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 ................................................357, 358 Re C (Residence Order) [2007] EWCA Civ 866, [2008] 1 FLR 211 .....................................117 Re D (Children) (Shared Residence Orders) [2001] 1 FLR 495............................................109 Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] 1 FCR 556 ......................................................................................................102, 103 Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48 ..........................................................123 Re E (Minors) (Residence: Imposition of Conditions) [1997] 2 FLR 638 .............................109 Re F (Adult: Court’s Jurisdiction) [2001] Fam 38.................................................................351 Re F (Children) (Shared Residence Order) [2003] 2 FLR 397 ..............................................109 Re F (Mental Patient: Sterilisation) [1990] 2 AC 1...............................................................378 Re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] 1 AC 173 ..........................428 Re G (Children) (Residence: Same-Sex Partner) [2006] UKHL 43, [2006] 1 WLR 2305.......................................................................................96–101, 102–13 Re H (Contact: Domestic Violence) [1998] 2 FLR 42............................................................126 Re H (Minors) (Access) [1992] 1 FLR 148 ............................................................................121 Re H and A (Children) (Paternity: Blood Tests) [2002] 1 FLR 1145....................................107 Re H and Others (Minors) (Sexual Abuse:Standard of Proof) [1996] AC 563.....................128 Re J (A Minor) (Child in Care: Medical Treatment) [1993] Fam 15 ...................................369 Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33............................371, 375–76 Re K (A Minor) (Ward: Care and Control) [1990] 1 WLR 431 ...........................................108 Re K (Contact: Mother’s Anxiety) [1999] 2 FLR 703............................................................126 Re KD (A Minor) (Ward: Termination of Access) [1988] AC 806........................................120 Re L (A Child) (Contact: Domestic Violence); Re V (A Child); Re M (A Child); Re H (Children) [2000] EWCA Civ 194, [2001] Fam 260 .......19, 20, 110, 114–18, 120–33 Re M (Contact: Welfare Test) [1995] 1 FLR 274 ...................................................................121 Re M (Minors) (Contact) [1995] 1 FLR 274.........................................................................124 Re M (Minors) (Contact: Violent Parent) [1999] 2 FLR 321................................................126

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xxii Table of Cases Re MB (Medical Treatment) [1997] 2 FLR 426 ..............................................143, 355, 357–58 Re MW (Adoption: Surrogacy) [1995] 2 FLR 759 ......................................................85, 91–93 Re N (A Child) [2007] EWCA Civ 1053, [2008] 1 FLR 198 ....................25, 40, 83–88, 89–95 Re O (A Minor) (Contact: Imposition of Conditions) [1995] 2 FLR 124 ...............110, 120–21 Re P (Children) [2008] EWCA Civ 1431, [2009] 1 FLR 1056 .............................................118 Re P (Minors) (Contact: Discretion) [1998] 2 FLR 696 .................................................123–24 Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421 ...........................................85, 92–94 Re R (A Child) (Residence Order) [2009] EWCA Civ 358, [2009] 2 FLR 819 ....................100 Re S (A Child) (Residence Order: Condition) (No 2) [2003] 1 FCR 138 .............................109 Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242...........................................................................144–45, 367–68, 376–77 Re T (Adult: Refusal of Treatment) [1993] Fam 95 ..........................................353–54, 357–58 Re Thain (An Infant) [1926] Ch 676 ......................................................................................86 Roberts v Hopwood [1925] AC 578 .................................................9–10, 24, 381–86, 387–400 Robson v Hallet [1967] 2 QB 939..........................................................................................177 Royal Bank of Scotland plc v Etridge (No 1) [1997] 3 All ER 628 ................................160, 164 Royal Bank of Scotland Plc v Etridge (No 2); Barclays Banks Plc v Harris and Another; Midland Bank Plc v Wallace and Another; National Westminster Bank Plc v Gill and Another; UCB Home Loans Corporation Ltd v Moore and Another (Conjoined Appeals); Bank of Scotland v Bennett and Another; Kenyon-Brown v Desmond Banks & Co [2001] UKHL 44, [2002] 2 AC 773...........................................10, 20, 149–54, 155–69, 172 Sanders Bros v Maclean & Co (1882–83) LR 11 QBD 327 ..................................................202 Semayne’s Case (1604) 5 Co Rep 91 .....................................................................................177 Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326 .............................................................................................13, 19, 346–50, 351–62 Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and others [1985] AC 871...........................................................................356, 358 Sottomayer v De Barros (Queen’s Proctor Intervening) (1879) LR 5 PD 94.........................426 Southam v Smout [1964] 1 QB 308 ......................................................................................177 St George’s Healthcare NHS Trust v S [1998] 3 WLR 936 ......................................................73 Storer v Manchester City Council [1974] 1 WLR 1403.........................................................201 Sydall v Castings Ltd [1967] 1 QB 302 ...................................................................................54 T v DPP [2003] Crim LR 622 ...............................................................................................265 The Aramis [1989] 1 Lloyd’s Rep 213...................................................................................192 The Parlement Belge (1878–79) LR 5 PD 129 ......................................................................396 Tinsley v Milligan [1994] 1 AC 340 ......................................................................................159 Trendtex Trading v Central Bank of Nigeria [1977] QB 529 ................................................453 Turley v Allders [1980] ICR 66..............................................................................................402 UCB Home Loans Corp Ltd v Moore [1998] 4 All ER 705 ...................................................157 V v V [2004] 2 FLR 851.........................................................................................................109 Vervaeke v Smith [1983] AC 145...........................................................................................433 Viscountess Rhondda’s Claim [1922] 2 AC 339 ..............................................................395–96 Wandsworth London Borough Council v Michalak [2003] 1 WLR 617 .......................439, 456 Webb v EMO Air Cargo (UK) Ltd [1992] 2 All ER 43..........................................................402 Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), [2007] 1 FLR 295 .........................................................................11, 13, 24, 425–29, 430–42 Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1....................................200

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Table of Cases xxiii Williams & Glyn’s Bank v Boland [1981] AC 487 ..........................................................157–58 YL v Birmingham City Council (Secretary of State for Constitutional Affairs intervening) [2007] UKHL 27, [2008] 1 AC 95 ....................10, 19, 22, 36, 311–17, 318–28

AUSTRALIA State of Queensland v Alyssa Nolan and Another [2001] QSC 174; (2002) 10 Medical Law Review 100–102 ....................................................................136–37 U v U (2002) 211 CLR 238 ...................................................................................................111

CANADA Colet v The Queen (1981) 119 DLR (3d) 521.......................................................................177 Lyons v The Queen (1985) 14 DLR (4th) 482.......................................................................177 Multani v Commission scolaire Marguerite-Bourgeoys [2006] SCC 6..........................343, 344 R v Darrach (2000) 191 DLR (4th) 539........................................................................222, 225 R v Mills [1999] 3 SCR 668...................................................................................................225 R v Seaboyer [1991] 2 SCR 577 ...............................................................206–207, 215, 222–23

SOUTH AFRICA Minister of Home Affairs and Others v Fourie and Others [2005] ZACC 19, 2006(1) SA 524............................................................................................................427–28

UNITED STATES De Wolf v Ford, 86 NE 527 (1908) ........................................................................................178 Diamond v Bland, 113 Cal Rptr 468 (1974).........................................................................178 Fullilove v Klutznick, 448 US 448 (1980)..............................................................................422 Marsh v Alabama, 326 US 501 (1946)..................................................................................179 Munn v Illinois, 94 US 113 (1887)........................................................................................179 Regents of the University of California v Bakke, 438 US 265 (1978) ....................................422 Uston v Resorts International Inc, 445 A.2d 370 (NJ 1982) .................................................176 Wygant v Jackson Board of Education, 476 US 267 (1986) ..................................................422

EUROPEAN COURT OF HUMAN RIGHTS AND EUROPEAN COMMISSION OF HUMAN RIGHTS A v United Kingdom (1999) 27 EHRR 611...........................................................................359 Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 .......................457 Baegen v The Netherlands (App No 16696/90) (unreported) 27 October 1995.................225

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xxiv Table of Cases Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (1979–80) 1 EHRR 252 ................................................................................439–40 Cossey v United Kingdom (1990) 13 EHRR 622...................................................................434 Dahlab v Switzerland (App No 42393/98) (unreported) 15 February 2001 ..............337, 341 Darby v Sweden (1991) 13 EHRR 774..................................................................................338 Doorson v the Netherlands (1996) 22 EHRR 330 .................................................................224 EB v France (2008) 47 EHRR 21...........................................................................................428 Evans v United Kingdom (2006) 43 EHRR 21 ..................................................................11, 51 Evans v United Kingdom (2008) 46 EHRR 34 ...........................................................11, 51, 60 Glass and Another v United Kingdom (2004) 39 EHRR 15 ..........................................364, 367 Görgülü v Germany [2004] 1 FLR 894..................................................................................108 Handyside v United Kingdom (1979–80) 1 EHRR 737 ........................................................435 HL v United Kingdom (2005) 40 EHRR 32 ..........................................................................361 HM v Switzerland (2004) 38 EHRR 17 ................................................................................361 Hoffman v Austria (1993) 17 EHRR 293..............................................................................446 Ireland v United Kingdom (1978) 2 EHRR 25......................................................................266 Johnson and others v Ireland (1987) 9 EHRR 203 ........................................................438, 440 Karner v Austria (2003) 38 EHRR 528 ...................................................................436–37, 441 Kroon v Netherlands (1995) 19 EHRR 263...........................................................................435 Kurt v Turkey (1998) 27 EHRR 373......................................................................................266 LR v France (1998) 26 EHRR 29...........................................................................................359 Mamatkulov and Askarov v Turkey (2005) 51 EHRR 494 ...................................................455 Marckx v Belgium (1979–80) 2 EHRR 330 ..........................................................................439 Mata Estevez v Spain (App No 56501/00) (unreported) 10 May 2001.................427, 435–36 Nielsen v Denmark (1989) 11 EHRR 175.............................................................................361 Niemietz v Germany (1993) 16 EHRR 97.............................................................................437 Olsson v Sweden (No 1) (1988) 11 EHRR 259 .....................................................................457 Opuz v Turkey (2009) 27 BHRC 159 ......................................................................256–57, 448 Osman v UK (1998) 29 EHRR 245.........................................................................257, 271–72 Rasmussen v Denmark (1985) 7 EHRR 371 .........................................................................439 Rees v United Kingdom (1986) 9 EHRR 56 ..........................................................................434 S v United Kingdom, (App No 11716/85) (unreported) 14 May 1986................................436 Sahin v Turkey (App No 44774/98) (unreported) 10 November 2005.......................337, 341 Schenk v Switzerland (1988) EHRR 242...............................................................................224 Selcuk and Asker v Turkey (1996) 26 EHRR 477 ..................................................................266 Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163.........................................434 Smith and Grady v United Kingdom (2000) 29 EHRR 493..................................................437 Stedman v United Kingdom (1997) 23 EHRR CD 168 ........................................................338 Steel v United Kingdom (1999) 28 EHRR 603 ......................................................................182 Velikova (AV) v Bulgaria (App No 41488/98) (unreported) 18 May 1999 .................435, 437 W v United Kingdom (1987) 10 EHRR 29............................................................................457 X v United Kingdom (App No 8160/78) (1981) 22 DR 27 ..................................................338 X and Y v United Kingdom (App No 9369/81) (unreported) 3 May 1983 .........................436

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Table of Cases xxv EUROPEAN COURT OF JUSTICE Dekker v VJV Centrum (Case C-177/88) [1990] ECR 1-3941 ....................................401–402 Hertz v Aldi Marked (Case C-179/88) [1990] ECR I-3979..................................................401 Webb v EMO Air Cargo (UK) Ltd (Case C-32/93) [1994] ECR I-3567 ..............................402

INTERNATIONAL COURT OF JUSTICE Barcelona Traction Case (Second Phase) [1970] ICJ 3 .........................................................451

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TABLE OF STATUTES AND LEGISLATION UNITED KINGDOM Adoption and Children Act 2002 .........................................................................................102 Care Standards Act 2000.........................................................................................320–21, 326 Child Support Act 1991 ........................................................................................................434 Children Act 1989....................................................................................................97, 106, 347 S 1 ...................................................................................................................90, 96, 125, 140 S 1(1) .................................................................................................................................143 S 1(3).............................................................................96, 108, 110, 124, 126, 128, 132, 144 S 3.......................................................................................................................................143 S 8 .................................................................................................................90, 366, 370, 377 S 31.....................................................................................................................................128 S 31(2) .................................................................................................................................86 S 37.......................................................................................................................................92 Children and Adoption Act 2006 ...........................................................................................98 Civil Partnership Act 2004.............................28, 97, 102–103, 425–27, 429–30, 432, 434, 442 S 1 ...............................................................................................................425, 430, 432, 442 S 212 ............................................................................................................................432–33 S 213...................................................................................................................................433 S 215(3) .............................................................................................................................433 Part 5, Ch 2 ........................................................................................................430, 432, 442 Sch 20.................................................................................................................................433 Commissioner for Older People (Wales) Act 2006 .............................................................321 Community Care (Direct Payments) Act 1996 ...........................................................316, 322 Contempt of Court Act 1981................................................................................................215 Coroners and Criminal Justice Act 2009..............................................................................296 Criminal Appeal Act 1968 ......................................................................................................12 S 2(1) .................................................................................................................................281 S 23...............................................................................................................276, 281, 288–89 S 23(1)........................................................................................................................281, 290 S 23(2)..................................................................................................................281, 287–89 Disability Discrimination Act 1995......................................................................................403 Domestic Violence, Crime and Victims Act 2004........................................................233, 271 Electricity Act 1989 .......................................................................................................174, 180 Employment Act 1989 ..........................................................................................................343 Employment Protection Act 1975........................................................................................401 Employment Protection (Consolidation) Act 1978 ....................................................402, 410 S 33–48 ..............................................................................................................................408 S 60 .....................................................................................................401, 403, 405, 407, 409 S 60(1) ...........................................................................................................407–10, 412–13

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xxviii Table of Statutes and Legislation Equality Act 2010 ..........................................................................................................404, 418 Family Law Act 1986 .............................................................................................................430 Family Law Act 1996 .............................................................................................................261 Family Law Reform Act 1969 ...............................................................................................107 Gender Recognition Act 2004 ..............................................................................................432 Homicide Act 1957..................................................................................................11, 299, 302 S 2.......................................................................................................................................287 S 3.........................................................................................................................297–98, 302 Homicide (Jersey) Law 1986 ..........................................................................................297–98 Housing and Social Care Act 2008 .......................................................................................315 Human Fertilisation and Embryology Act 1990...........................................28, 42, 51, 59–60, 64, 67, 72, 75–76, 79–81, 83, 90 S 13(5) .................................................................................................................................80 S 27(1) .................................................................................................................................90 S 28.......................................................................................................................................90 S 30.......................................................................................................................................90 Sch 3.........................................................................................................................65–78, 81 Para 1 ...................................................................................................................67, 68–69 Para 2(1)....................................................................................................................67–68 Para 3...............................................................................................................................68 Para 4.........................................................................................................................68–70 Para 6.........................................................................................................................68–69 Para 8(2) ....................................................................................................................68, 70 Human Fertilisation and Embryology Act 2008 ..................................................28, 60, 83, 99 Human Rights Act 1998 ......................................12, 18, 26–27, 39, 60, 72, 106, 120, 136, 171, 175, 205, 218, 277 311–12, 315–16, 321–22, 324–29, 333, 338–39, 343, 347, 359, 367, 370, 386, 426–27, 432, 444, 448, 455 S 1.......................................................................................................................................323 S 2.......................................................................................................................................437 S 2(1) .................................................................................................................................339 S 3 .........................................................................................................78, 207, 210, 226, 442 S 3(1) ...................................................................................................................................70 S 4 ...............................................................18, 70, 206–207, 210, 226–27, 429–30, 432, 442 S 4(4) ..................................................................................................................66, 67, 78, 82 S 6.........................................................................................................................324–25, 327 S 6(3)....................................................................................................311, 315, 317, 325–26 S 8.......................................................................................................................................323 Law of Property Act 1925 .....................................................................................................163 Marriage Act 1949.................................................................................................................360 Marriage Act 1994.................................................................................................................360 Matrimonial Causes Act 1973...........................................................28, 355, 360, 426–27, 429 S 11.............................................................................................................................431, 432 S 11(a)................................................................................................................................360 S 11(c) ..........................................................................................................430–31, 433, 442 S 12(c)................................................................................................................................360 Metropolis Management Act 1855 .......................................................................381, 387, 391

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Table of Statutes and Legislation xxix National Assistance Act 1948 ..................................................................312, 322, 325–26, 327 National Health Service and Community Care Act 1990 ...................................................322 Northern Ireland Act 1998 ...................................................................................................344 Offences against the Person Act 1861 ..........................................11, 27, 241–42, 245, 248–52, 254–55, 257–58, 260, 262–66, 271–72 S 18.....................................................................................................................263, 265, 266 S 20 .................................................................................241, 247, 255, 258, 262–63, 265–66 S 47 ...............................................................................................241, 243, 247, 263, 265–66 Parliament (Qualification of Women) Act 1918 ................................................................395 Pre-War Trade Practices Act 1919 ........................................................................................383 Protection from Harassment Act 1997.........................................................................257, 265 Public Health Act 1875 .................................................................................................381, 387 Qualification of Women (County and Borough Councils) Act 1907 ................................393 Race Relations Act 1976 ........................................................................................343, 421, 423 Race Relations (Amendment) Act 2000.........................................................................343–44 Rent Act 1977 ........................................................................................................................436 Representation of the People Act 1918 ........................................................................393, 395 Sex Discrimination Act 1975.................................................11, 15, 28, 401–402, 421, 422–24 S 1.......................................................................................................................................415 S 1(1)....................................................................................................................416, 420–24 S 2.......................................................................................................................................420 S 3A....................................................................................................................................402 S 5(3)..........................................................................................................................420, 422 S 29.....................................................................................................................................420 S 35.....................................................................................................................................421 S 37–38 ..............................................................................................................................423 Sex Disqualification Removal Act 1919 ...............................................................................395 Sexual Offences Act 1956......................................................................................................249 Sexual Offences Act 1967 ................................................................................................97, 249 Sexual Offences (Amendment) Act 1976.......................................................................216–18 S 2...............................................................................................................................205, 216 Surrogacy Arrangements Act 1985...................................................................................83, 90 Youth Justice and Criminal Evidence Act 1999....................................11, 23–24, 27, 213, 218 S 41...........................................................................................205–10, 213, 218–20, 222–27 S 41–43 ..............................................................................................................................218 Subordinate Legislation Care Homes Regulations 2001 .............................................................................................326 Civil Partnership Act 2004 (Overseas Relationships and Consequential, etc. Amendments) Order 2005 (SI 2005/3129)...............................................................................................433 Employment Equality (Religion or Belief) Regulations 2003 ......................................343–44 Maternity and Parental Leave etc Regulations 1999 (as amended)............................402–403 National Assistance Act 1948 (Choice of Accommodation) Directions 1992 ...................322

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xxx Table of Statutes and Legislation CANADA Canadian Criminal Code S 276.....................................................................................................................209, 226–27 S 276(1) .............................................................................................................................223

SOUTH AFRICA Constitution ..................................................................................................................316, 317

EUROPEAN CONVENTIONS AND LEGISLATION European Charter of Human Rights....................................................................................434 European Convention on Human Rights 1950......12, 18, 51, 72, 79, 102, 120, 214, 257, 321, 323–24, 327–28, 347, 370, 426–27, 429, 435, 443–44, 447, 449, 453 Art 1 ...................................................................................................................................435 Art 2....................................................................................18, 66–67, 256–57, 271, 370, 455 Art 3 ..........................................18, 214, 265–66, 271, 347, 350, 359–60, 361, 370, 444, 455 Art 6 ..............................18, 23–24, 206–207, 209, 214, 219–20, 224–26, 277, 370, 455, 457 Art 8 .........................................................14, 18, 35, 60, 66–67, 70–72, 75, 78–82, 106, 153, 177, 214, 224, 241–42, 271, 312, 327, 350, 361–62, 367, 370, 427–28, 430, 433–40, 442, 444–47, 454–55, 457–58 Art 8(1) ......................................................................................70–73, 75–6, 78–79, 81, 361 Art 8(2)...............................................................................................60, 70–73, 81, 242, 361 Arts 8–11 ...........................................................................................................................435 Art 9....................................................................................18, 27, 320–33, 336–39, 341, 344 Art 9(1) ..................................................................................................336–37, 341, 344–45 Art 9(2) ..........................................................................................331, 334, 336–38, 341–45 Art 10 ...................................................................................................................................18 Art 11 ...................................................................................................................................18 Art 12 ............................................18, 66, 350, 361–62, 427–28, 430, 433–34, 439, 440, 442 Art 14 ...................................................14, 18, 60, 66–67, 70, 79–81, 277, 341, 350, 361–62, 427–28, 430, 433–34, 439–42, 444–48, 454–56, 457 First Protocol Art 1 .................................................................................................................................66 Art 2 ...............................................................................................................................340 Directives Equal Treatment Amendment Directive 2002/73/EC OJ L269/15 .....................................402 Pregnant Workers Directive 1992/85/EC OJ L 348/1 ..........................................................402

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Table of Statutes and Legislation xxxi INTERNATIONAL CONVENTIONS, TREATIES etc Convention on the Elimination of All Forms of Racial Discrimination 1965...................450 General Assembly Resolutions A/RES/55/71 and A/RES/S-23/3 on Further actions and initiatives to implement the Beijing Declaration and Platform for Action ...............452 International Convention on the Elimination of All Forms of Discrimination Against Women 1981 ....................................................................................................449 Art 2 ...................................................................................................................................449 Art 16 ...........................................................................................................................449–50 Art 16(1) ............................................................................................................................451 Art 28(2) ............................................................................................................................450 International Covenant on Civil and Political Rights 1966 ........................................449, 452 International Covenant on Economic, Social and Cultural Rights 1966 ...........................452 International Criminal Court Rome Statute .......................................................................224 Refugee Convention 1951.....................................................................................................444 Treaty of Versailles 1919................................................................................................386, 396 United Nations Charter 1945 .......................................................................................451, 452 United Nations Convention on the Rights of the Child 1989 ....................................370, 455 United Nations Declaration and Programme of Action following the World Conference on Human Rights 1993.......................................................................452–53 United Nations Principles on Older People.................................................................317, 321 Universal Declaration of Human Rights 1948.....................................................................452 Vienna Convention on the Law of Treaties 1969.................................................................450 Art 53 .................................................................................................................................451

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Part I Introduction and Overview

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1 Feminist Judgments: An Introduction ROSEMARY HUNTER, CLARE MCGLYNN AND ERIKA RACKLEY

The Feminist Judgments Project The Impetus and Aims of the Project What if a group of feminist scholars were to write the ‘missing’ feminist judgment in key cases? Could we put theory into practice, in judgment form? What would these judgments look like? What impact would they have?

The Feminist Judgments Project was a unique, imaginative collaboration in which a group of feminist legal scholars set out to write alternative feminist judgments in significant legal cases. Rather than simply producing academic critiques of existing judgments, the participants in the project engaged in a practical, ‘real world’ exercise of judgment-writing, subject to the various constraints that bind appellate judges, including fidelity to the judicial oath, respect for existing legal principles, and consciousness of the impact of decisions on the parties and the broader community. The project aimed to inaugurate a new form of critical legal scholarship, one which seeks to demonstrate in a sustained and disciplined way how judgments could have been written and cases could have been decided differently. This book is the first product of that endeavour. The idea for the project was sparked by a similar venture in Canada—the Women’s Court of Canada (WCC). A number of Canadian feminist scholars and litigators are engaged in writing ‘shadow’ judgments of major Canadian Supreme Court decisions on section 15— the equality clause—of the Canadian Charter of Rights and Freedoms, with the aim of showing how substantive equality can be given practical, judicial expression. The first six judgments of the WCC were published in 2007 in the Canadian Journal of Women and the Law.1 There have also been two publications in the USA in which leading scholars have been invited to write their own judgments in the landmark constitutional cases of Brown v Board of Education and Roe v Wade.2 The Feminist Judgments Project is unique, however, both in being based on English law, and in addressing a far more extensive array of cases. To initiate the project, we sought expressions of interest from feminist legal scholars to join us in the process of drafting feminist judgments across a broad range of substantive 1 (2006) 18(1) Canadian Journal of Women and the Law. The judgments are also available from ‘The Court’ website: www.thecourt.ca/decisions-of-the-womens-court-of-canada/. 2 J Balkin (ed), What Brown v. Board of Education Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision (New York, New York University Press, 2002); J Balkin (ed), What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision (New York, New York University Press, 2005).

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4 Rosemary Hunter, Clare McGlynn and Erika Rackley topics. Our only requirement was that the cases chosen should be significant for feminist legal scholarship. That is, while they need not be recent cases, they must be important decisions that would benefit from a feminist analysis. We received an outstanding response, including from colleagues in Scotland, India and South Africa, as well as interest in rewriting a number of decisions of the European Court of Justice. In the light of this wideranging response, we made an editorial decision to confine the project to cases decided by courts in England and Wales. This enabled us to focus on a single body of statute and common law (where Scots and Northern Irish law may differ), and a specific method of decision-making (from which the practices of the European Court of Justice and the European Court of Human Rights would diverge). We hope, though, that this book will inspire similar projects in many other jurisdictions. From the expressions of interest received, we selected 22 proposals. Over the course of the project we lost two of these cases but gained three more, with the result that this volume incorporates 23 judgments, six of them written jointly by two authors. We realised, too, that the feminist judgments would not necessarily be self-explanatory. Accordingly, we determined that each published judgment would be accompanied by what we have termed a ‘commentary’, which outlines the original decision in each case, and explains and reflects upon what the feminist judgment does differently. In this way, we hope that all of the judgments will be accessible to a wide range of readers, from academics to lawyers, activists to policy-makers and students, within the UK and internationally.

The Process of Developing the Feminist Judgments Much of the work to produce the judgments and commentaries was undertaken using conventional, desk-based legal research methods—drawing upon the original judgments, other decisions in the relevant doctrinal area, case notes and other secondary literature, and relevant research and policy material. Given the innovative nature of the project, however, it was essential that the participants also worked collaboratively in developing their contributions. Accordingly, with the support of funding from the Economic and Social Research Council and several universities, we held a series of five collaborative workshops, designed to mirror the collegial decision-making practices of appellate courts, at which methodologies of judgment-writing were discussed, and draft judgments were presented and commented upon. These workshops facilitated detailed analysis of each draft judgment in terms of reasoning, substantive outcome, style and methodology, engendered shared knowledge of the practice of judgment-writing and enabled debates on challenging theoretical issues in an open, collegial atmosphere. After a preliminary workshop in April 2008, at which, among other things, a member of the WCC led a discussion on their experiences and lessons learned from the production of their first six judgments, a workshop on judgment-writing was held in October 2008, followed by three substantive workshops on the draft judgments in April–September 2009. Most of the judgment-writers attended the majority of the workshops, while the commentators attended one or more of the workshops. In addition, the workshops included input from academic discussants whose role was to act as a ‘critical friend’, and from invited judges, lawyers and activists who provided practical information, expert comments and ‘reality checks’ on the draft judgments, as well as insights into the issues involved in some of the cases and the potential value of the feminist judgments from an advocacy perspective.

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Feminist Judgments: An Introduction 5 Overall, the workshops far exceeded our expectations in relation to the number, enthusiasm and commitment of the participants, and the quality and value of the discussions. In total, 60 academics and postgraduate research students from 30 institutions participated in the project in some way. Participants experienced a very supportive, collaborative and enjoyable process, and the workshops also served to engender a palpable momentum and sense of excitement for the project. In addition to receiving feedback from the workshops, the judgments and commentaries have been subjected to an intensive editorial process, involving detailed comments and suggestions on successive drafts. Of course, in the real world, judges do not have the benefit of so much time and editorial assistance to polish their judgments, but then again, as discussed further below, the writers of the feminist judgments were working in an unfamiliar genre, and one that was in many respects foreign to their day to day practice.

Theoretical Underpinnings of the Project The process of judging, understood as legal decision-making, has been extensively theorised in jurisprudential literature.3 The central issue debated in this literature is the extent to which judges ‘make’ as opposed to ‘find’ the law, and what resources they draw upon, or ought to draw upon, in so doing. As discussed in Rosemary Hunter’s chapter, the Feminist Judgments Project is premised on the proposition that in many cases—particularly those coming before appellate tribunals—the law is at least to some extent indeterminate, and appellate judges therefore have considerable scope to make choices between competing interpretations of the law. In this process, a feminist consciousness or philosophy may legitimately come into play. The operation of judgments as texts—their rhetorical strategies and uses of language and metaphor—has also been extensively discussed within law and literature scholarship. Some of the insights of that scholarship are applied to the Feminist Judgments Project in Erika Rackley’s chapter. Yet at the same time, the actual practice of writing judgments has been subjected to surprisingly little analysis. This is at least partly because it has been seen as the exclusive concern of judges, and therefore has tended to be addressed within judicial education programmes rather than in academic literature. The Feminist Judgments Project challenges the notion that judgment-writing is or ought to be an expertise confined to judges, and seeks to develop the practice of writing judgments as a form of critical scholarship. We hope that this project of judgment-writing will be taken up by feminist and other critical scholars as a new method of legal critique, and that it will be developed substantively, theoretically and methodologically from the beginnings offered here, in ways that might have an influence upon the practice of judging. It must nonetheless be acknowledged that the strategy of re-writing judgments has its limits. Judgments are themselves a constrained and bounded genre, and writing a judgment imposes certain expectations and constraints on the writer that inevitably affect—even infect—her theoretical purposes. Because courts are not democratic institutions and judges 3 eg HLA Hart, The Concept of Law (Oxford, Oxford University Press, 1961); R Dworkin, Law’s Empire (London, Fontana Paperbacks, 1986); N MacCormick, Legal Reasoning and Legal Theory (Oxford, Oxford University Press, 1978); JW Harris, Law and Legal Science (Oxford, Clarendon Press, 1979); P Goodrich, Reading the Law: A Critical Introduction to Legal Method and Techniques (Oxford, Blackwell, 1986); S Fish, Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (Oxford, Clarendon Press, 1989); D Kennedy, A Critique of Adjudication: Fin de Siecle (Cambridge, MA, Harvard University Press, 1997).

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6 Rosemary Hunter, Clare McGlynn and Erika Rackley are unaccountable to the public they serve, it is not open even to the highest appellate court to radically reshape or reinvent the law in the way that parliament might do; at most, they can push the existing rules a bit further in a desired direction. Moreover, since our purpose in the Feminist Judgments Project was to demonstrate how cases could have been written and decided differently, it was important to make our judgments as plausible as possible to potentially sceptical lawyers and judges. For this reason, we have taken judgment-writing largely as a ‘given’, and have not attempted to rethink it as a practice in any significant way (see further the discussion in the following chapter). In other words, we have followed the customs and practices of judges in the English appellate courts. Consequently, judgmentwriting as applied in this collection can only impact on legal structures and discourses to a limited degree; it does not accommodate feminist theoretical positions that might have more radical or completely different ambitions. Hence, as a new form of feminist legal critique, judgment-writing will not be to the taste of all feminist legal scholars. Nevertheless, having initiated the project, we think there is considerable scope for further work in exploring the possible parameters of feminist judging. Within feminist legal scholarship, one of the central issues for debate has been whether women judges make a difference and if so, in what ways.4 Women might be thought to judge differently from their male counterparts because they bring a different experience of life to the task; because they are more likely to empathise with women litigants; because they might judge in a ‘different voice’—one which incorporates an ‘ethic of care’;5—or because they have greater commitments to principles of equality and gender justice. Despite the persistent lack of empirical evidence to support any consistent gender differences in judging,6 this debate has enjoyed surprising longevity. Hunter has argued, however, that while women judges may not necessarily ‘make a difference’, it is more reasonable to expect feminist judges to do so.7 A judge who identifies herself as a feminist holds herself out, as it were, as having a particular set of beliefs, understandings and commitments that she might be expected to put into practice in her decision-making. The literature on feminist approaches to judging is derived from both theoretical analysis and empirical evidence, and has informed the work of the Feminist Judgments Project. The way in which the Project itself contributes to that literature is explored by Hunter in the next chapter. More generally, the Feminist Judgments Project has been informed by feminist theoretical concerns about the ways in which law constructs gender. Theorists such as Carol Smart,8 drawing on the work of Michel Foucault, have observed that law is not simply a coercive force, but is also a powerful and productive social discourse which creates and reinforces 4 eg J Resnik,‘On the Bias: Reconsideration of the Aspirations for our Judges’ (1988) 61 Southern California Law Review 1877; B Wilson, ‘Will Women Judges Really Make a Difference?’ (1990) 28 Osgoode Hall Law Journal 507; C McGlynn, The Woman Lawyer: Making the Difference (London, Butterworths, 1998); S Berns, To Speak as a Judge: Difference, Voice and Power (Aldershot, Ashgate, 1999); E Rackley, ‘Difference in the House of Lords’ (2006) 15 Social & Legal Studies 163; E Rackley, ‘Judicial Diversity, the Woman Judge and Fairy Tale Endings’ (2007) 27 Legal Studies 74; B Hale, ‘Maccabaean Lecture in Jurisprudence: A Minority Opinion?’ (2008) 154 Proceedings of the British Academy 319; D Feenan, ‘Editorial Introduction: Women and Judging’ (2009) 17 Feminist Legal Studies 1. 5 See C Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA, Harvard University Press, 1982); S Sherry, ‘Civil Virtue and the Feminine Voice in Constitutional Adjudication’ (1986) 72 Virginia Law Review 543. 6 For summaries of the empirical evidence, see R Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 International Journal of the Legal Profession 7; Feenan, above n 4. 7 Hunter, ibid; See also R Hunter, ‘Justice Marcia Neave: Case Study of A Feminist Judge’ in U Schultz and G Shaw (eds), Gender and Judging (Oxford, Hart Publishing, forthcoming). 8 C Smart, Feminism and the Power of Law (London, Routledge, 1989).

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Feminist Judgments: An Introduction 7 gender norms. In other words, law does not simply operate on pre-existing gendered realities, but contributes to the construction of those realities, often in a constraining or damaging way. This is not confined to the way law regards women, but applies to both femininity and masculinity.9 Femininity and masculinity tend to be constructed in dichotomous terms, which are aligned with other dichotomies such as active/passive, culture/nature, autonomy/dependency, bounded/penetrable, universal/particular, subject/object, self/ other. And these dichotomies are hierarchical, with the ‘feminine’ side of the pair occupying the devalued position in each case. By intervening in law from a feminist perspective, one of the aims of the Feminist Judgments Project was to disrupt this process of gender construction, and to introduce different accounts of gender that might be less limiting for women.

Policy and Political Implications of the Project In recent years in the UK there has been considerable debate and policy development on the issue of judicial diversity.10 Apart from the arguments noted above about the difference that women judges might bring to their decision-making, arguments in favour of greater judicial diversity in general include equality (the importance of all qualified practitioners having equal opportunities for judicial appointment), representation (the need for the courts fairly to reflect the broader community over which they preside in order to engender community confidence and establish their democratic legitimacy),11 and the benefits of bringing to bear a spectrum of life experiences on collegial courts.12 The old system of ‘secret soundings’ to determine judicial appointments has been abolished and replaced by a more transparent process administered by the Judicial Appointments Commission. Under the old system, judges were chosen by means of consultations among the senior judiciary, a sure-fire way of reproducing the judiciary’s traditional class, gender and ethnic profile year after year. The Judicial Appointments Commission, on the other hand, invites applications for appointment, recommends appointments on the basis of merit, and has a specific remit to increase judicial diversity, which it pursues chiefly through the strategy of encouraging applications from as wide a pool of practitioners as possible. Yet despite changes over the last 20 years in the profile of the legal profession in England and Wales, the appellate judiciary remains overwhelmingly white, male and middle/upper 9 For an excellent example of the legal construction of masculinity, see S Sheldon, ‘ReConceiving Masculinity: Imagining Men’s Reproductive Bodies in Law’ (1999) 26 Journal of Law and Society 129. 10 eg L Peach, An Independent Scrutiny of the Appointment Processes of Judges and Queen’s Counsel in England and Wales (London, Lord Chancellor’s Department, 1999); K Malleson and F Banda, Factors Affecting the Decision to Apply for Silk and Judicial Office, Research Series 2/00 (London, Lord Chancellor’s Department, 2000); Department of Constitutional Affairs, Increasing Diversity in the Judiciary, Consultation Paper 25/04 (London, Department of Constitutional Affairs, 2004); C Thomas, Judicial Diversity in the UK and Other Jurisdictions— A Review of Research, Policies and Practices (London, Commission for Judicial Appointments, 2005); Ministry of Justice, Governance of Britain: Judicial Appointments (Cm 7210) (2007); H Genn, The Attractiveness of Judicial Appointment to Highly Qualified Practitioners: Report to the Judicial Executive Board (London, Directorate of Judicial Offices for England and Wales, 2008); Judicial Appointments Commission, Barriers to Applications for Judicial Appointment: Research (London, Judicial Appointments Commission, 2009). 11 On both the ‘equality’ and ‘representation’ arguments, see, eg, B Hale,‘Equality and the Judiciary: Why Should We Want More Women Judges?’ [2001] Public Law 489; K Malleson,‘Justifying Gender Equality on the Bench: Why Difference Won’t Do’ (2003) 11 Feminist Legal Studies 1; B Hale, (2005) ‘Making a Difference? Why We Need a More Diverse Judiciary’ (2005) 56 Northern Ireland Legal Quarterly 281. 12 T Etherton, ‘Liberty, the Archetype and Diversity: A Philosophy of Judging’, paper dated 5 August 2009 delivered in the Birkbeck Judicial Conversation Series, Birkbeck, University of London, 13 November 2009, forthcoming in [2010] Public Law.

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8 Rosemary Hunter, Clare McGlynn and Erika Rackley class. Although women now constitute 45 per cent of solicitors and 31 per cent of barristers, and around 11 per cent of solicitors and barristers are from black and minority ethnic (BME) communities,13 only five (white, middle/upper class) women in total, and no-one from a BME background, have ever sat in the Court of Appeal, the House of Lords or now the Supreme Court. At the time of writing, a vacancy exists on the Supreme Court, but it appears that it will be filled by a current member of the Court of Appeal. This significantly reduces the chances of the appointee being anything other than a white male. Indeed, the practice of appointing from part-time judicial office to the High Court to the Court of Appeal to the Supreme Court means that even if entry level positions become more diverse, it will take a very long time for that diversity to ‘trickle up’ to the appellate judiciary. In providing a practical demonstration of the difference that a more diverse appellate judiciary could make, the Feminist Judgments Project adds to calls for more concerted, positive action to diversify the judiciary at all levels.14 It also suggests that, at least at appellate level, the notion of who is qualified for judicial office could be extended to include legal academics, and that ‘merit’ in this regard may be demonstrated not only by trial experience, but also by substantial experience of teaching, discussing, writing and thinking about legal doctrine. The Feminist Judgments Project is finally a political intervention which seeks to challenge the ongoing exclusion of women from legal subjectivity, whether as the authors of legal decisions and doctrine, or as the subjects upon whose knowledge, experience, activities and concerns law is founded. Impatient with the glacial progress made to date in appointing women to the judiciary, and sceptical of the capacity of the conservative efforts put in place to address women’s under-representation to achieve much more than tokenistic change, we decided, quite literally, to take the law into our own hands. Rather than accepting our (feminine) invisibility and powerlessness, we have exercised collective agency to attempt to leave ‘a female-gendered mark on the law’.15 While academic feminists have been accused of retreating into the abstruse realms of the discursive, the symbolic and the psychoanalytic, removed from the realities of women’s material lives and divorced from their activist roots, the Feminist Judgments Project represents a form of academic activism, an attempt to tackle power and authority not from the distance of critique but on their own ground. By appropriating judgment-writing for feminist purposes, the judgment-writers engage in a form of parodic—and hence subversive— performance. In much the same way as Judith Butler describes ‘drag’ as a performance that subverts gender norms,16 these feminist academics dressed up as judges powerfully denaturalise existing judicial and doctrinal norms, exposing them as contingent, and as themselves (the product of) performances. Again, though, the political project inevitably has its limitations. Primarily, it can be characterised as a law reform project. We want to change the law, not turn our backs on it. Carol Smart,17 and many others subsequently, have noted that feminist efforts to reform the law 13 Law Society, Trends in the Solicitors’ Profession: Annual Statistical Report 2009 (2010), www.lawsociety.org. uk/secure/file/183555/e:/teamsite-deployed/documents/templatedata/Publications/Research%20Publications/ Documents/asr2009report.pdf; Bar Council, 2009 Statistics, www.barcouncil.org.uk/about/statistics/. 14 See, eg, K Malleson, ‘Rethinking the Merit Principle in Judicial Selection’ (2006) 33 Journal of Law and Society 126; K Malleson, ‘Diversity in the Judiciary: The Case for Positive Action’ (2009) 36 Journal of Law and Society 376; and see also the Equal Justices Initiative, www.law.qmul.ac.uk/eji/index.html. 15 P Hanafin, ‘Voicing Embodiment, Relating Difference: Towards a Relational Legal Subjectivity’ (2008) 29 Australian Feminist Law Journal 77, 84, quoting the Milan Women’s Bookstore Collective, Sexual Difference: A Theory of Social-Symbolic Practice (Bloomington, Indiana University Press, 1990) 71. 16 J Butler, Gender Trouble: Feminism and the Subversion of Identity (New York, Routledge, 1990) 136–38. 17 Above n 8.

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Feminist Judgments: An Introduction 9 almost inevitably accept law’s image of itself as a force for good. Feminist law reformers try to improve law and address its shortcomings, so that it will eventually live up to its selfimage, rather than seriously questioning the validity of that image in the first place. Smart calls on feminists to de-centre law, to stop according it the power and beneficence that it claims. Years of law reform efforts inspired by the second-wave women’s movement have failed, for example, to improve the conviction rate for rape, to achieve pay equity for women, or to make women and children safe from domestic violence. Law is part of the problem, but surely not the solution: On the one hand, Smart sees various areas of law as simply parts of wider discourses. Thus it is unhelpful to focus only on legal doctrine. For example, ‘tackling family law means tackling constructions of fatherhood, masculine authority, and economic power’. It is these constructions which are the underlying ‘problems’ for women with marriage and at its dissolution, and they are merely manifested in the legal rules. Moreover, Smart urges feminists to deny law’s claims to make authoritative pronouncements about women. For example, if a woman says ‘I was raped’, and the law says ‘you consented’, feminists should not try to change the law on consent, but should refuse to believe the legal story and stop according law the power to speak the ‘truth’. In this respect it is better, Smart has said, to be a feminist journalist than to be a feminist lawyer.18 Contrary to these injunctions, as noted above, the Feminist Judgments Project takes law as a constructive discourse in itself rather than one that merely reflects other social discourses; but even if the latter were true, we would still consider it useful to intervene in gendered constructions at the level of legal discourse. Further, we want to tackle law’s understanding of rape directly, so that when a woman says ‘I was raped’, the law says ‘I believe you’. To the extent that this involves authorising law’s truth-claims and conceding its power, we plead guilty, but we do not concede that that power is or should always and inevitably be monopolised by hegemonic masculinity in its own interests. Of course we do not consider efforts to change the law to be an exclusive strategy, nor do we hold out unrealistic hopes for its effectiveness, but so long as women appear before the law, and law continues to have material effects on women’s lives, we must continue to engage with it.

The Feminist Judgments The Types of Judgments The 23 judgments in this volume have been written mainly by feminist legal scholars, ranging from research students to senior professors, but also including a few, brave non-legal and/or non-academic authors. Most of the cases are contemporary (decided since 1998), but a few are older.19 The oldest case is Roberts v Hopwood (1925),20 an early administrative 18 GJ Simpson and H Charlesworth, ‘Objecting to Objectivity: The Radical Challenge to Legal Liberalism’ in R Hunter, R Ingleby and R Johnstone (eds), Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law (Sydney, Allen & Unwin, 1995) 119 (footnotes omitted). 19 Roberts v Hopwood [1925] AC 578 (HL); R v Stone and Dobinson [1977] QB 354 (CA); Del Monte Foods Ltd v Mundon [1980] ICR 694 (EAT); James v Eastleigh Borough Council [1990] 2 AC 751 (HL); and R v Brown [1992] UKHL 7, [1994] 1 AC 212. 20 Roberts v Hopwood, ibid.

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10 Rosemary Hunter, Clare McGlynn and Erika Rackley law decision of the House of Lords, which includes interesting ideas about women’s equality in the period immediately following the First World War. In the original judgments these ideas are dealt with in passing, and with some derision. However, the author of the feminist judgment, Harriet Samuels, takes them far more seriously and makes them a central point of her analysis. It is fascinating to speculate on what the effects of this case might have been had Samuels’ judgment actually been written in 1925. Not only would this have been the first case in which the principle of equal pay for women and men was upheld, but Samuels would also have been the first woman to sit as a Lord of Appeal in Ordinary (rather than the first and last woman to hold that honour being Baroness Hale of Richmond, not appointed until 2004). Both of these innovations could have had far-reaching future consequences. All of the feminist judgments are appellate decisions, meaning that they do not make findings about disputed facts, but rather deal with grounds for appeal on questions of law raised by the losing party in the court below. The majority of the judgments (13) are decided at the level of the House of Lords; nine at the level of the Court of Appeal, and one by the Privy Council. One difference between House of Lords judgments and those of the Court of Appeal and Privy Council is that it was not possible to write joint judgments in the House of Lords. This was because each Law Lord technically was giving an individual speech on the matter in the course of a parliamentary debate. Consequently, while some of the feminist judgments in the House of Lords have been written by two authors, they are presented as the work of one (Baroness Hunter-Carr, Baroness Munro-Shah, and Baroness Mulandrews). In the new Supreme Court, which assumed the former jurisdiction of the House of Lords from October 2009, joint judgments are possible, and are indeed now being written. The majority of the judgments (16) constitute additional judgments in the original cases; that is, they sit alongside the existing judgments or opinions in the House of Lords, Court of Appeal or Privy Council. Nine of these are dissenting judgments, although in two of the cases, the additional feminist judgments would have converted a 3:2 majority decision into a 3-all split. In R v Brown 21 this would not have changed the outcome, as the senior Law Lord was part of the original majority, but in YL v Birmingham City Council,22 the additional opinion would have converted the minority (which included the senior Law Lord) into the winning side. Six of the remaining seven additional judgments are concurrences— that is, they reach the same result but for different reasons—while one, Royal Bank of Scotland Plc v Etridge (No 2)23—partly concurs with and partly dissents from the outcomes reached in the seven consolidated appeals decided by the House of Lords in that case.24 These dissenting and concurring judgments illustrate powerfully how, even at the same time and within the same court, cases could have been reasoned and decided differently. One potential difference between the feminist judgments and more typical concurring or dissenting judgments, however, relates to conversations between judges about the reasoning and the result. Normally, on a collegial appellate court, these conversations would take place prior to the final judgments or opinions being issued, and while they might have been instrumental in shaping particular judgments, the nature or even existence of behind-the21

R v Brown, above n 19. YL v Birmingham City Council (Secretary of State for Constitutional Affairs intervening) [2007] UKHL 27, [2008] 1 AC 95. 23 References to judgments without further citation are to the feminist judgments in this collection. 24 Royal Bank of Scotland Plc v Etridge (No 2); Barclays Banks Plc v Harris and Another; Midland Bank Plc v Wallace and Another; National Westminster Bank Plc v Gill and Another; UCB Home Loans Corporation Ltd v Moore and Another (Conjoined Appeals); Bank of Scotland v Bennett and Another; Kenyon-Brown v Desmond Banks & Co [2001] UKHL 44, [2002] 2 AC 773. 22

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Feminist Judgments: An Introduction 11 scenes discussions is not usually evident. In the feminist judgments, however, due to the absence of the opportunity for behind-the-scenes discussions, conversations and points of disagreement with other judges in the case are more likely to be found on the face of the judgments. In contrast to the concurrences and dissents, seven of the feminist judgments are leading judgments in fictional appeals. That is, rather than writing a dissenting judgment at the level of the original decision, the judgment-writer has chosen to imagine an appeal to a higher court against the original decision. In two of the cases, Sheffield City Council v E and Wilkinson v Kitzinger, this was necessary because the original decision was made in the High Court at first instance,25 so an additional judgment would not have been possible. The only way to reconsider the issues was by way of a fictional appeal to the Court of Appeal. In other cases, the judgment-writer/s wanted to overcome an intractable precedent,26 to set an authoritative precedent,27 and/or to take a broader approach than an additional judgment in the original case would have allowed. In Evans v Amicus Healthcare, the case had been decided by the Court of Appeal,28 leave to appeal to the House of Lords was refused, and Ms Evans went on to take her case to the European Court of Human Rights.29 There was thus a natural ‘gap’ or missing judgment in the sequence of events that the feminist judgment could fill, and the author of that judgment, Sonia Harris-Short, was interested to see what the House of Lords could have done with the human rights aspects of the case, on which her judgment focuses.

The Range of Legal Topics Addressed In terms of legal issues, eight of the feminist judgments concern common law or equitable principles, involving either the development of new doctrine or a different application of the law to the facts of the case, or both. The relevant principles include, in civil law, the law of trespass,30 the test for capacity to marry,31 the equitable doctrine of undue influence,32 and implied contracts;33 and in criminal law, causation,34 criminal liability for omissions,35 and the role of consent in relation to causing actual bodily harm.36 Thirteen cases involve statutory interpretation and the application of a particular interpretation to the facts, including interpretations of the Homicide Act 1957,37 the Sex Discrimination Act 1975,38 the Offences against the Person Act 1861,39 the Youth Justice and Criminal Evidence Act 1999,40 and the 25 Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326; Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), [2007] 1 FLR 295. 26 eg Porter v Commissioner of Police for the Metropolis. 27 eg Mundon v Del Monte Foods. 28 Evans v Amicus Healthcare Ltd and Others [2004] EWCA (Civ) 727, [2005] Fam 1. 29 Evans v United Kingdom (2008) 46 EHRR 34, affirming Evans v United Kingdom (2006) 43 EHRR 21. 30 Porter v Commissioner of Police for the Metropolis. 31 Sheffield City Council v E. 32 Royal Bank of Scotland Plc v Etridge (No 2). 33 Baird Textile Holdings v Marks & Spencer Plc. 34 R v Dhaliwal. 35 R v Stone and Dobinson. 36 R v Brown. 37 Attorney-General for Jersey v Holley. 38 James v Eastleigh Borough Council. 39 R v Dhaliwal; R v Brown. 40 R v A (No 2).

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12 Rosemary Hunter, Clare McGlynn and Erika Rackley Criminal Appeal Act 1968.41 A particular sub-set of six statutory interpretation cases involve the interpretation and application of the Human Rights Act 1998 (HRA) and the European Convention on Human Rights (ECHR).42 In a third group of six cases, the judgment involves a review of the exercise of discretion and/or the principles governing its exercise.43 Finally, four cases are concerned with evidential issues.44 The cases chosen include some which may be viewed as paradigmatically feminist in that they deal with subject-matter of immediate concern to many women’s lives, such as reproduction,45 residence and contact with children,46 workplace discrimination47 and domestic violence;48 some are causes célèbres for feminist activism in law, such as R v A (No 2),49 involving sexual history evidence in rape trials. On the other hand, some of the cases do not deal specifically with ‘women’s issues’50 or even human persons,51 but address significant concerns about the operations of markets and private property, and are thus central to how resources are allocated in society. Several of the cases reflect intersectional issues of gender, ethnicity, sexuality and religion.52 The specific areas of law covered include administrative law, contract law, criminal law, constitutional law, discrimination law, employment law, equity, evidence law, family law, housing law, human rights law, international law (both public and private), medical law, migration law, property law, and practice and procedure. Notable ‘gaps’ include company law, competition law, consumer law, environmental law, intellectual property law, tax law and tort law. This is not because these areas do not raise gender issues. On the contrary, analyses of all of these areas may be found within feminist legal scholarship. It is true to say, however, that there are probably fewer cases raising gender issues, and fewer feminist legal scholars working within these areas. We hope that future feminist judgment writing may help to fill these gaps and demonstrate the possibilities for a feminist approach within these various areas. Several of the cases raise issues on which there is no clear, single feminist position, and indeed, on which feminist views might—and did—differ. Discussions at the workshops often included arguments back and forth as to what the feminist judicial response or outcome could or should be. The commentaries on some of these cases highlight these differences of opinion. Examples include Evans v Amicus Healthcare:53 should one empathise with a woman whose only chance to have her own genetically-related child is about to be taken away; or should one rather be concerned to resist the relentless social pressures which 41

R v Zoora Shah. EM (Lebanon) v Secretary of State for the Home Department; Evans v Amicus Healthcare; R v A (No 2); R (Begum) v Governors of Denbigh High School; Wilkinson v Kitzinger; YL v Birmingham City Council. 43 Re A (Children) (Conjoined Twins: Surgical Separation); Re G (Children) (Residence: Same-Sex Partner); Re L (A Child) (Contact: Domestic Violence); Re N (A Child); R v Zoora Shah; Roberts v Hopwood. 44 Re L; R v A (No 2); R v Dhaliwal; R v Zoora Shah. 45 Evans v Amicus Healthcare, above n 28; Re N (A Child) [2007] EWCA Civ 1053, [2008] 1 FLR 198. 46 Re G (Children) (Residence: Same-Sex Partner) [2006] UKHL 43, [2006] 1 WLR 2305; Re L (A Child) (Contact: Domestic Violence); Re V (A Child); Re M (A Child); Re H (Children) [2000] EWCA Civ 194, [2001] Fam 260; Re N, ibid. 47 Del Monte Foods Ltd v Mundon, above n 19; Roberts v Hopwood, above n 19. 48 See the discussion below of cases involving domestic violence. 49 R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45. 50 eg Porter v Commissioner of Police for the Metropolis [1999] All ER (D) 1129 (CA); R v Brown, above n 19; YL v Birmingham City Council, above n 22. See also Royal Bank of Scotland Plc v Etridge (No 2), above n 24. 51 eg Baird Textile Holdings v Marks & Spencer Plc [2001] EWCA Civ 274, [2002] 1 All ER (Comm) 737. 52 See the discussion below of intersectionality. 53 Above n 28. 42

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Feminist Judgments: An Introduction 13 valorise motherhood as the highest object of a woman’s life and which privilege genetic families over other forms of family relationships? In R (Begum) v Denbigh High School,54 does one take the side of the Muslim schoolgirl who wished to wear a more extensive form of Islamic dress than was provided for by her school’s uniform policy, or does one take the position that head-to-toe body coverings are oppressive of women and girls and ought not to be imposed, encouraged or even tolerated in British schools? In Sheffield City Council v E,55 a case concerning a young woman with physical and intellectual disabilities who wanted to marry an older man with a history of sexually violent offending, does one emphasise her autonomous decision to marry or her need for protection from harm? In AttorneyGeneral for Jersey v Holley,56 does one limit the scope of the defence of provocation so that it is less available to possessive and controlling men, thereby also reducing its availability to battered women who kill their abusive partners, or does one make the defence more available to both groups? In Wilkinson v Kitzinger,57 does one support the applicant’s claim to have her Canadian same-sex marriage recognised in the UK as a marriage (as opposed to a civil partnership), or does one deplore the attempt to extend an institution which has historically been a major site of women’s oppression to lesbian couples? And in R v Brown,58 similarly, does one see sado-masochistic sex as oppressive or potentially liberating for women? These dilemmas clearly highlight the fact that ‘feminism’ is far from monolithic. Liberal feminists, radical feminists, cultural feminists, postmodern feminists, postcolonial feminists, critical race feminists, sex-positive feminists and so forth are likely to take different positions on or approaches to different issues. This is further illustrated by the fact that in four of the feminist judgments,59 the judgment-writers agree with the conclusion reached by Baroness Hale of Richmond, the one acknowledged feminist judge in the House of Lords, but do so for quite different reasons to hers. This demonstrates not only that a single, token woman judge cannot possibly represent the range of women’s perspectives on a particular issue, but further, a single, token feminist judge cannot possibly represent the range of feminist perspectives on an issue. Much broader representation not only of women but of feminisms among the appellate judiciary is required before anything approaching true judicial diversity could be said to have been achieved.

Methodological Issues As noted above, our objective to re-write judgments subject to the same constraints as the original judges meant that the extent to which we could question the conventions of judgment-writing was necessarily limited. This section discusses some of the particular challenges and restrictions experienced by the judgment-writers as a result of this approach. First, some of the authors were forced to grapple with the fact that only limited facts about their case were available. These included cases concerning preliminary issues, where

54

R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100. Above n 25. 56 Attorney-General for Jersey v Holley [2005] UKPC 23, [2005] 2 AC 580. 57 Above n 25. 58 Above n 19. 59 EM (Lebanon) v Secretary of State for the Home Department; Re G; R (Begum) v Governors of Denbigh High School; YL v Birmingham City Council. 55

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14 Rosemary Hunter, Clare McGlynn and Erika Rackley there had not been a trial of the facts,60 and cases where the original decisions both at first instance and on appeal gave only relatively bare accounts of the facts which begged a number of questions.61 As discussed in the following chapter, one of the key methods of feminist judging is to tell the story of the case in as full and contextualised a way as possible, but in some cases, this simply was not possible. Another issue relating to the facts in three cases was the existence of expert evidence that the feminist judgment-writer considered to be questionable.62 This is a difficult matter, as expert witnesses are the experts in the areas on which they are asked to comment, and it is not usual for a judge, who is not an expert, to second-guess their opinions. In each of these cases, it was necessary to refer to other evidence pointing strongly in the opposite direction, and/or to consider how the circumstances in which the expert opinions were produced may have compromised their validity, in order to overcome the authority of this evidence. Next, adversarial theory confines appellate courts to addressing only the issues raised by the parties in the appeal. While the fictitious appeals in this volume could, of course, determine for themselves which issues had been argued, and hence what they would address, they were confined by the way in which the case had been argued in the court/s below, and could not plausibly add ‘grounds for appeal’ that would have been unlikely to be raised in any real appeal in the matter. Indeed, because we imposed word limits on the judgments, some of the fictitious appeals confined themselves to addressing only some of the issues that had been argued in the court below. For example, in Baird Textile Holdings v Marks & Spencer, the feminist judgment deals only with the question of an implied contract and does not address the question of estoppel raised below. And in Evans v Amicus Healthcare, the feminist judgment confines itself to the arguments under articles 8 and 14 of the ECHR, and does not pursue the range of other arguments raised below. In some of the cases where the feminist judgment constitutes an additional judgment in the original case, however, the judgment-writer would have liked to go beyond the arguments raised in the appeal, but could only do so by means of obiter comments. This occurs most extensively in the feminist judgment in Attorney-General for Jersey v Holley, in which the point in issue concerned one particular element of the defence of provocation, but the feminist judgment reviews the defence more broadly, seeing the case as a (missed) opportunity for the Privy Council to clarify the law of provocation in light of contemporary knowledge and social norms. In other cases, however, obiter comments are more limited, and confined to suggesting further arguments that could have been but were not raised in the case, and implicitly inviting such arguments to be raised in future cases. In addition to being confined to the issues and arguments raised by the parties in the appeal, judges are also confined to the legal authorities raised by the parties, or by themselves in the course of argument. Again, adversarial theory requires that a judge should not introduce cases and other legal materials into her judgment on which the parties have not had an opportunity to comment. Nonetheless, there is some scope for relaxation of this rule where the material in question forms part of an obiter comment or is not part of the essential reasoning leading to the judge’s conclusion and would not change that conclusion. And clearly, once more, the fictitious appeals had greater scope to introduce authorities that 60 R v A (No 2), above n 49; Sheffield City Council v E, above n 25. (Although this did not impose such a limitation in Baird Textile Holdings v Marks & Spencer, above n 51.) 61 Del Monte Foods v Mundon, above n 19; Re N, above n 45; R v Stone and Dobinson, above n 19. 62 Re N; R v Zoora Shah.

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Feminist Judgments: An Introduction 15 might not otherwise have been put to the court by the parties. Clearly, too, had the feminist judgment-writers been sitting on the relevant court at the time, they would have raised particular authorities with counsel and asked for their responses. By and large, however, the feminist judgments adhere to this limitation of legal authorities, although with some allowances for the conditions under which the judgments have been produced. A more significant constraint is the fact that judges cannot always reach the results they consider most desirable by means of statutory interpretation or the incremental development of the common law. This is evident, for example in R v Portsmouth Hospitals NHS Trust, ex p Glass, in which regulation of the future treatment to be offered by a hospital to a boy with severe disabilities, following a serious dispute about his care, simply cannot be achieved by means of an application for judicial review. The feminist judgment goes further than the original court in spelling out the legal positions of the parties and the appropriate course of action in case of any future disputes, but the author of the judgment ultimately agrees with the court that it is powerless to specify how the hospital should act in advance. In James v Eastleigh Borough Council, the author of the feminist judgment reluctantly concludes that it is impossible to interpret the direct discrimination provisions of the Sex Discrimination Act 1975 so as to enable the achievement of substantive as opposed to formal equality between men and women. And in Re N and Mundon v Del Monte Foods, the feminist judgments consider that the conclusions reached should ideally be backed by statutory reform in order to produce more certain and satisfactory results in future cases. The other obvious constraint applying to the feminist judgments is that they could not introduce materials or refer to developments subsequent to the original decision. Where the feminist judgment constitutes an additional judgment in the original case, it is written as at the date of the original judgment. Where it constitutes a fictional appeal, it is written as if it had been decided within approximately 12 months of the original decision (sometimes less depending on the nature of the case). In some cases, this operated as a real constraint, as very useful subsequent authorities could not be relied upon. More generally, it was difficult for judgment-writers to banish subsequent developments from their minds, especially in the more recent cases. And in relation to some of the older cases, it was impossible to eliminate all traces of an early twenty-first-century feminist judicial sensibility. Nevertheless, as part of our efforts to show how cases could have been reasoned and decided differently at the time they were determined, we have tried to be scrupulous in referring only to cases and policy and research materials available at that time. Subsequent developments that shed further light on the case are often mentioned in the commentaries. A further methodological issue faced by the feminist judgment-writers was the difference between academic and judicial modes of writing. First, judges and academics have different ways of making truth-claims, and indeed, a different interest in making truth-claims. In academic writing, it is perfectly acceptable, and sometimes desirable, to be tentative and suggestive, to stress the contingency of one’s conclusions, or simply to canvass different ways of looking at an issue without reaching any conclusions at all. Alternatively, academics may offer a critique—explaining in detail why something is wrong, misconceived, oppressive, or otherwise fails to live up to its own internal claims (immanent critique) or to some external values (normative critique)—without suggesting any particular positive alternative. A judgment, however, is compelled to make truth-claims. It must assert truths about the facts, and truths about the law, and must apply the law to the facts by means of logical reasoning that leads to an inexorable—and therefore apparently true—conclusion. It must also present these conclusions as actual truths, and not merely as truth-claims.

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16 Rosemary Hunter, Clare McGlynn and Erika Rackley Secondly, in making its truth-claims, a judgment also draws upon different sources of authority from those drawn upon in academic writing. Sources of authority in judgments are primarily legal—legislation and cases that constitute binding precedents. Judges may refer to other materials—persuasive and informative cases from the same or other jurisdictions, parliamentary debates, policy documents, research materials, academic writing (see further the discussion in the following chapter of the use of such materials in the feminist judgments)—but these are not authoritative in the same way, and cannot be used as the basis for a decision unless no legislation or binding precedents exist on the point. By contrast, there are no binding sources of authority in academic writing (although some theorists, philosophers and disciplinary founding fathers may sometimes be treated as if they were). Arguments are constructed by applying one’s chosen academic analysis (one’s own and/or that of others) to primary materials (which vary from discipline to discipline—for example cases, legislation and other ‘legal’ sources for law, sociological data for sociology, historical documents for history, literary texts for literature, and so forth), or by applying one’s own academic analysis to the academic analysis of others. But there is often a wide choice of starting points available. Thirdly, in addition to different sources of authority, judges and academics also have different referencing practices. Academics footnote their work obsessively, having been rigorously trained in the ethics of acknowledging the source of any information that is not the product of their own thought processes. Judgments in the UK, on the other hand, do not contain footnotes.63 This does not mean that they lack a system of referencing—cases, legislation and other materials referred to are carefully cited—but there are important, if somewhat nuanced, differences. First, judges are more likely to represent matters of ‘social’ fact—not the facts of the particular case, or the relevant law, but contextual material that links and surrounds the two—as matters of ‘common knowledge’ of which they may take ‘judicial notice’ (the doctrine of judicial notice is discussed in more detail in the next chapter). In theory, this means that facts are taken to be so notorious that it is unnecessary to provide proof of their existence, but in practice, the effect is one of self-authorisation. That is, something is taken to be true because the judge says it is so, or to express the point mathematically: judicial belief + judicial authority = legal knowledge. The consequence is that, for better or for worse, many points that would be footnoted in academic writing are not referenced in judgments. Secondly, when material is referenced in judgments, it is not listed as a mere source or series of sources for a proposition, but rather is incorporated discursively into the text, so that the authority and the proposition are intertwined. Thus, for example, whereas an academic would say: Marriage is defined as ‘the voluntary union for life of one man and one woman, to the exclusion of all others’.64

A judge would say: As Lord Penzance said in Hyde v Hyde and Woodmansee (1865–69) LR 1 P&D 130, 133, ‘marriage, as understood in Christendom, may . . . be defined as the voluntary union for life of one man and one woman, to the exclusion of all others’.

This difference posed some editorial challenges and we have tried to render the references into judicial style, though possibly with varying success. 63 This is the modern style of printed judgments in the UK. Footnotes were used in earlier periods: see, eg, Roberts v Hopwood, above n 19. 64 Hyde v Hyde and Woodmansee (1865–69) LR 1 P&D 130, 133.

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Feminist Judgments: An Introduction 17 Fourthly, academics do not follow the same norms of politeness and are accustomed to engaging in much more robust criticisms of others’ work than are typically found in judgments—or at least the judgments of UK courts (as opposed, for example, to those of the United States Supreme Court, which can be highly scornful or acrimonious). In UK conventions, disagreements with other judges in the case are always prefaced by expressions of respect and/or regret, and if criticism is to be made, the focus is more on what was wrong with the reasoning of the court below than on what is wrong with the reasoning of other members of the same court. As noted above, however, the feminist judgments often do engage in conversation with the other judgments in the case, and in some instances, they are in sharp or passionate disagreement. Nonetheless, we have attempted to follow the more tempered judicial style of the UK courts. Finally, and above all, a judgment must decide. It must conclusively determine rights between the parties, and it must declare a winner and a loser. This was a particularly challenging aspect for many of the academics writing feminist judgments. For some, this was because they could not decide. Their interest in the case had been sparked by the contentious issues it raised, with finely-balanced arguments on both sides, and they were loath to come down on one side or the other. In part, too, it was because of the responsibility involved in deciding. Despite recent governmental interest in measuring the ‘impact’ of academic research, academic writing rarely makes a material difference to people’s lives. This imposes much more pressure on the judge to decide carefully and wisely, and much more need for concern about the effects of one’s decisions, both on the particular parties and on others in similar situations now and in the future. Although, like an academic, a judge can later change their position (within limits), they can never change the outcome of a particular case and its consequences for the parties to the case. This was a bracing experience for some of the feminist judgment-writers, although it should also be noted that many of the feminist judgments were written out of the conviction that the judges in the original case had failed to pay sufficient regard to the effects of their decision on the parties before them. A related issue in some cases was the dilemma of deciding in situations where a good outcome for an individual woman might represent a bad outcome for women in general. This included some of the cases mentioned above where feminist positions might differ: recognise individual suffering and respect individual choices within existing, disadvantageous social conditions, or refuse to do so as part of a refusal to perpetuate those conditions? Ultimately, this dilemma reduces to a general limitation of judicial decision-making. As discussed earlier, judges decide cases brought to court by the parties. They are invited to resolve the parties’ particular dispute, not to make broader decisions in the interests of society as a whole—that is a function reserved for elected representatives. Since this was the Feminist Judgments Project and not the Feminist Legislation Project, the feminist judge’s primary concern had to be to make the best possible decision in the particular case before her. We hope, though, that in due course we will also see a Feminist Legislation Project get off the ground.

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18 Rosemary Hunter, Clare McGlynn and Erika Rackley

Jurisprudential Contributions Cross-Cutting Themes in the Judgments A number of themes emerge from the feminist judgments across different areas of law and different levels of court. These include issues of human rights, domestic violence, motherhood, legal attitudes to women who transgress accepted gender roles, and the legal concept of reasonableness. In each case, the feminist judgments demonstrate how a feminist approach to these issues can make a jurisprudential difference. The extent to which the HRA would be of benefit to women—given that, among other things, the ECHR contains no freestanding guarantee of gender equality—has been the subject of some feminist scepticism,65 and rather disappointing experience to date.66 The feminist judgments, however, strongly demonstrate the unexploited feminist potential of the HRA and the ECHR, not only through invocation of article 14 (which prohibits discrimination in relation to the enjoyment of the other rights and freedoms set out in the Convention), but by the use of the full spectrum of Convention rights. As well as article 14,67 the feminist judgments refer to article 2 (right to life),68 article 3 (prohibition of torture or inhuman or degrading treatment),69 article 6 (right to a fair trial),70 article 8 (right to respect for private and family life),71 article 9 (freedom of religious belief and expression),72 articles 10 and 11 (freedom of expression, association and assembly),73 article 12 (right to marry and found a family),74 and generally to the notion of dignity.75 In Evans v Amicus Healthcare and Wilkinson v Kitzinger, certificates of incompatibility are issued under section 4 of the HRA, which would require legislative change to avoid the rights infringements found to exist, and in R v A (No 2), the dissenting feminist judgmentwriter, had she agreed with the majority’s conclusions, would have issued a certificate of incompatibility rather than reading down the legislation in the manner adopted by the majority. This is not to say that rights claims are always upheld by the feminist judgments, but even where no infringements, or legitimate justifications for infringements, are found, the judgments contribute significantly to the development of domestic human rights jurisprudence. 65 See, eg, E Kingdom, What’s Wrong With Rights? Problems for Feminist Politics of Law (Edinburgh, Edinburgh University Press, 1991); S Palmer, ‘Critical Perspectives on Women’s Rights: The European Convention on Human Rights and Fundamental Freedoms’ in A Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (London, Cavendish Press, 1996); A McColgan, Women Under the Law: The False Promise of Human Rights (Essex, Longman, 2000). 66 For a brief summary, see E Grabham and R Hunter, ‘Special Issue—Encountering Human Rights: Gender/Sexuality, Activism and the Promise of Law: Editorial Introduction’ (2008) 16 Feminist Legal Studies 1. 67 EM (Lebanon) v Secretary of State for the Home Department; Evans v Amicus Healthcare; Sheffield City Council v E; Wilkinson v Kitzinger. 68 R v Dhaliwal. 69 R v A (No 2); R v Dhaliwal; Sheffield City Council v E. 70 EM (Lebanon) v Secretary of State for the Home Department; R v A (No 2). 71 EM (Lebanon) v Secretary of State for the Home Department; Evans v Amicus Healthcare; Porter v Commissioner of Police for the Metropolis; R v A (No 2); Sheffield City Council v E; Wilkinson v Kitzinger; YL v Birmingham City Council. 72 R (Begum) v Governors of Denbigh High School. 73 Porter v Commissioner of Police for the Metropolis. 74 Sheffield City Council v E; Wilkinson v Kitzinger. 75 Porter v Commissioner of Police for the Metropolis; YL v Birmingham City Council.

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Feminist Judgments: An Introduction 19 As a central, ongoing feminist concern that blights so many aspects of women’s lives, it is perhaps not surprising that the theme of domestic violence runs through the feminist judgments. Domestic violence by her husband was implicated in the decision by a care home to evict an elderly woman with Alzheimer’s disease in YL v Birmingham City Council.76 Domestic violence took four mothers to the Court of Appeal in Re L,77 as they tried to protect their children’s and their own safety from ongoing contact with their violent former partners. Domestic violence led the claimant in EM (Lebanon) v Secretary of State for the Home Department 78 to flee her home and country and to become an asylum-seeker in the UK. Domestic violence resulted in the deaths of Cherylinn Mullane in Attorney-General for Jersey v Holley 79 and of Gurjit Dhaliwal in R v Dhaliwal,80 and resulted in Zoora Shah killing her abuser in R v Zoora Shah.81 Regrettably, domestic violence is a matter not only of ongoing social concern, but also of ongoing legal concern, as judicial responses to domestic violence have to date failed to recognise consistently the seriousness and systemic nature of men’s violence against women. For example, in the cases of R v Dhaliwal 82 and R v Zoora Shah,83 the courts evinced little sympathy with the victims of violence or understanding of its psychological effects. In Sheffield City Council v E,84 the court’s assistance was sought to protect a vulnerable adult who proposed to enter a potentially abusive marriage, but this assistance was not forthcoming. In Re L,85 although the Court of Appeal denied direct contact with their children to the violent fathers in the case, the guidelines it established for future contact cases involving allegations of domestic violence were weak and have resulted in a systemic failure to protect women and children.86 Of course, such a widespread social phenomenon cannot effectively be tackled by means of individual court decisions alone, but since tackling domestic violence is a key issue of public policy,87 the courts do have a responsibility to contribute to this effort. As unhelpful appellate decisions on domestic violence continue to be made,88 the feminist judgments demonstrate how much more could be done in this regard. While fathers tend to have an acknowledged legal existence in family law but not otherwise,89 the role of women as mothers arises in the feminist judgments not only in family law but also in cases in equity,90 immigration law,91 medical law,92 employment 76

Above n 22. Above n 46. 78 EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 AC 1198. 79 Above n 56. 80 R v D [2006] EWCA Crim 1139, [2006] 2 Cr App R 24. 81 R v Zoora (Ghulam) Shah [1998] EWCA Crim 1441. 82 Above n 80 83 Above n 81. 84 Above n 25. 85 Above n 46. 86 See Family Justice Council, Report to the President of the Family Division on the approach to be adopted by the Court when asked to make a contact order by consent, where domestic violence has been an issue in the case (London, Family Justice Council, 2007), www.family-justice-council.org.uk/docs/Reportoncontact.pdf; House of Commons Home Affairs Committee, ‘Domestic Violence, Forced Marriage and “Honour”-Based Violence’ HC (2007–08) 263–I 93. 87 See, eg, most recently, Home Office, Together We Can End Violence Against Women and Girls: A Strategy (London, Home Office, 2009). 88 eg Yemshaw v Hounslow Borough Council [2009] EWCA Civ 1543. 89 Although cf R Collier and S Sheldon Fragmenting Fatherhood: A Socio-Legal Study (Oxford, Hart Publishing, 2008). 90 Royal Bank of Scotland v Etridge (No 2). 91 EM (Lebanon) v Secretary of State for the Home Department. 92 R v Portsmouth Hospitals NHS Trust, ex p Glass. 77

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20 Rosemary Hunter, Clare McGlynn and Erika Rackley law93 and criminal law.94 This in itself illustrates the point made in the judgments—that motherhood and fatherhood are gendered roles. The judgments resist the legal tendency to reduce or falsely equate motherhood and fatherhood into an undifferentiated, genderneutral ‘parenthood’, but rather highlight the gendered specificity of mothering and fathering. Despite discourses of ‘new fatherhood’ and claims about the ‘convergence’ of the roles of mothers and fathers,95 the feminist judgments are concerned to draw attention to the ongoing social reality that mothers and fathers behave and are treated differently. In particular, while the biological role of mothers should not be over-emphasised,96 as this has been a major source of women’s oppression, neither should it be under-emphasised, especially in imagining equivalence between the respective contributions of mothers and fathers in the conception, gestation and early nurturance of children.97 Gendered expectations of motherhood are also implicated in the way that women who behave badly seem to be regarded by the courts with particular opprobrium—in contrast to the relatively neutral way in which they appear to regard men behaving badly, such as the violent partners in the cases mentioned above, or the loan-defaulting husbands in Royal Bank of Scotland v Etridge (No 2).98 Feminist scholars have noted that one constraining aspect of gender norms operating both in society and in law is that women (and especially those who are mothers) are expected to be ‘good’, with the result that women’s transgressions are regarded as particularly shocking, and particularly in need of correction and reassertion of the appropriate norms of feminine behaviour.99 In a number of the feminist judgments, the particular injustice the judgment seeks to address is the harsh treatment meted out to transgressing women, or the failure to give adequate consideration to their point of view. These include the woman whose persistent absenteeism from work led to her dismissal;100 the woman who staged an impromptu sit-in protest in a London Electricity Board showroom and resisted her forcible removal by the police;101 the woman who entered into a surrogacy arrangement deceptively;102 the woman who secretly moved herself and her children away from her former partner in defiance of court orders;103 the woman who argued vehemently with hospital staff about her son’s treatment and whose family members caused a fracas at the hospital that resulted in police intervention;104 and the woman who poisoned the man who had abused and exploited her for many years, and who was perceived by the judges of the Court of Appeal to lack any decency or ‘normal’ maternal feelings.105 Notably, all of these women were mothers—or about to be mothers, in the case of Mrs Mundon who was dismissed from her employment despite having informed her managers of her pregnancy prior to the dismissal taking place. In Re L,106 too, the original Court of Appeal judgments were shadowed by the fictive figure of the ‘implacably hostile mother’, the description developed within family law of the woman who resists post-separation contact 93 94 95 96 97 98 99 100 101 102 103 104 105 106

Mundon v Del Monte Foods. R v Zoora Shah. See Collier and Sheldon, above n 89. eg Re G. eg Re N. Above n 24. See, eg, C Smart, Law, Crime and Sexuality: Essays in Feminism (London, Sage, 1995). Mundon v Del Monte Foods. Porter v Commisioner of Police for the Metropolis. Re N. Re G. R v Portsmouth Hospitals NHS Trust, ex p Glass. R v Zoora Shah. Above n 46.

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Feminist Judgments: An Introduction 21 between her children and their father, despite the fact that she may have very good reasons (such as fear of violence) for doing so. The feminist judgments generally seek to insert the perspective of the woman herself into the picture, to understand her position and the (often limited) choices she faced. In addition, they note that in some instances, concern to punish the deviant woman has detrimental effects on her children, and it is the children’s welfare, rather than the mother’s behaviour, that ought to be the court’s primary concern. The legal concept of ‘reasonableness’ has been subject to feminist analysis in the context of discussions of the ‘reasonable man’ as he appears in tort law and in the defence of provocation in criminal law. It is argued that the notion of ‘reasonableness’ has been interpreted in accordance with masculine standards, and that this has remained the case, even when the ‘reasonable man’ has been gender neutralised into the ‘reasonable person’.107 Despite the absence of tort cases from the collection of feminist judgments, the provocation case of Attorney-General for Jersey v Holley certainly makes this argument. But the concept of ‘reasonableness’ also recurs in a number of other judgments in administrative law, employment law, human rights law, property law, equity, and practice and procedure. In some cases it is the reasonableness of the woman’s action that is being judged,108 but more often it is that of institutions including governments, statutory authorities, local authorities, schools, employers, and banks. In these cases, the feminist judgments provide nuanced understandings of a standard of reasonableness that incorporates women’s experience as well as men’s.

Feminist Theoretical Frameworks In line with the earlier discussion concerning different feminist positions, the individual feminist judgments are animated by a variety of theoretical frameworks. Several common theoretical clusters are discernible, however. First and foremost are feminist critiques of liberal legalism. One aspect of these critiques rejects the (gendered, masculine) view of the subject of law as an atomised, self-interested, competitive being, and instead asserts the fact of human relationality and interdependence, an insight derived particularly from women’s experiences of interconnection with others through pregnancy, childbirth, nurturing and caregiving. As mentioned earlier in the context of debates about how women judges might make a difference, cultural feminists have posited a feminine ‘ethic of care’ as an (implicitly superior) alternative to the masculine ‘hierararchy of rights’—a form of moral reasoning based on an understanding of individuals as embedded within webs of relationships rather than as disconnected, free-floating entities.109 Thus, for example, the feminist judgments in Re A, R v Portsmouth Hospitals NHS Trust, ex p Glass, YL v Birmingham City Council, R v Stone and Dobinson and Baird Textile Holdings v Marks & Spencer emphasise caring relationships and interdependence rather than regarding their subjects in atomised terms. And in Re G, the feminist judgment is concerned to stress that children’s welfare should be determined by reference to the actual caregiving they have received rather than to abstract notions of parental status or rights. 107 See, eg, J Conaghan ‘Tort Law and the Feminist Critique of Reason’ in A Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (London, Cavendish Publishing, 1996); C Forell and D Matthews, A Law of Her Own: The Reasonable Woman as a Measure of Man (New York, New York University Press, 2000). 108 Porter v Commissioner of Police for the Metropolis (reasonableness of Ms Porter’s actions in the LEB showroom); R v Zoora Shah (when seeking to introduce fresh evidence on appeal, whether there was a reasonable explanation for her failure to adduce the evidence at trial). 109 eg Gilligan, above n 5; J Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (London, Routledge, 1993); J Nedelsky, ‘Law, Boundaries and the Bounded Self ’ (1990) 30 Representations 162.

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22 Rosemary Hunter, Clare McGlynn and Erika Rackley One consequence of the view of legal subjects as atomised, self-interested, self-determining beings is that legal responsibility tends to be ascribed only to subjects who have acted intentionally, whereas a relational, interdependent view of humanity would focus more on the effects of actions. This argument is found in the discrimination cases of James v Eastleigh Borough Council and Mundon v Del Monte Foods. In the former case, the issue was whether direct sex discrimination—less favourable treatment of a person on the ground of their sex— could be found only where the respondent intended to treat the applicant less favourably, or whether it could be found in any instance in which the effect of the respondent’s actions was to treat the applicant less favourably. The first view would immunise positive actions that were intended to treat a particular group more favourably in order to overcome historical disadvantage, but it would also immunise actions based on paternalism, chivalry, perceived business necessity and so on. The feminist judgment concurs with the majority of the House of Lords that the effects (or ‘but for’) test is the better approach. In the Mundon case, on the other hand, the Employment Appeal Tribunal held that an employer would only unfairly dismiss a woman on the basis of her pregnancy if they did so intentionally or if, at the time of the decision to dismiss, they knew that the reason for dismissal was related to her pregnancy. The feminist judgment contends that this creates too wide a ‘get out’ clause for employers, and proposes instead that a dismissal should be considered unfair if it is objectively based on or related to the woman’s pregnancy, and that the onus should be on employers to make reasonable inquiries when dismissals are pending to ensure that they will not be unfairly based on pregnancy. Baird Textile Holdings v Marks & Spencer is another case in which the feminist judgment emphasises the fact of the parties’ interactions and interdependence rather than their stated intentions in finding an implied contract regulating their long-term business relationship. A second, related aspect of the feminist critique of liberal legalism concerns the (false) dichotomy between autonomy and agency on the one hand, and vulnerability, victimhood and the need for protection on the other. In liberal legal theory, subjects may occupy one or other of these positions, although their gendered marking identifies autonomy as essentially masculine and vulnerability as essentially feminine—which is why, for example, women often find that when they attempt to exercise agency, such as in the context of refusing to consent to sexual activity or medical treatment, they are not taken seriously.110 The feminist judgments in Sheffield City Council v E, Royal Bank of Scotland v Etridge (No 2), R (Begum) v Denbigh High School, Evans v Amicus Healthcare, R v Stone and Dobinson, R v Brown, R v Dhaliwal and R v Zoora Shah, however, assert the possibility of occupying positions both of autonomy and vulnerability, agent and victim, at once. The fact that one occupies a position of vulnerability need not deprive one of agency; and, conversely, the fact that one acted in a way that appears autonomous does not mean that one’s autonomy was not in fact circumscribed or impaired by experiences of vulnerability or victimhood. Judgments based on an either/or view of victimhood and agency miss and therefore misrepresent this crucial reality of many women’s lives. An extreme example of this is found in YL v Birmingham City Council,111 in which treating YL as a party to a contract (thus, as an agent), while ignoring the fact that she is an 84-year-old woman with Alzheimer’s disease (thus, extremely vulnerable), enables her to be evicted from her care home in accordance with the terms of the contract, regardless of the devastating effect this is likely to have on her well-being. 110 111

eg R v A (No 2), above n 49; R v Portsmouth Hospitals NHS Trust, ex p Glass [1999] 2 FLR 905 (CA). Above n 22.

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Feminist Judgments: An Introduction 23 A third aspect of the feminist critique of liberal legalism is concerned not with the victim/agency dichotomy but with the public/private dichotomy. In liberal legal theory, the public is the realm of masculine, productive activity which is appropriately regulated by law, whereas the private is the realm of intimacy and reproductive activity, associated with the feminine and free of legal regulation. The state’s refusal to intervene in the private sphere, for example, tacitly permitted domestic violence to thrive and flourish in the past, and too many legacies of this non-interventionist attitude still remain. As noted in the feminist judgment in Royal Bank of Scotland v Etridge (No 2), for instance, the law claims to be unable to regulate the relations of husbands and wives so that husbands do not exert undue influence over their wives in relation to business transactions. A different but related manifestation of the public/private divide is found in Porter v Commissioner of Police for the Metropolis. Here, the distinction is between public and private property, and the untrammeled rights of private property owners to exclude others from their property. The feminist judgments in both of these cases contest the valorisation of privacy when its consequences are to disenfranchise those who dwell in its sphere. By contrast, the state does not, in fact, hesitate to intervene in the private in the pursuit of moral agendas, so that in R v Brown, the feminist judgment defends the private as a sphere of consensual sexual freedom that should be left alone. The public/private divide has also been exploited by the politics of neo-liberalism, in which privatisation has been widely employed as a means of transferring resources from the public sector subject to public duties, to the private sphere which is relatively free of regulation other than the self-regulation of private contracts. The feminist judgments are uniformly sceptical of these moves and their effects on collective responsibilities and the distribution of care. In Roberts v Hopwood and Sheffield City Council v E, the feminist judgments defend the positive actions of local authorities in taking responsibility for the welfare of their employees and vulnerable adults respectively. In Porter v Commissioner of Police for the Metropolis and YL v Birmingham City Council, the feminist judgments condemn processes of privatisation which deprive citizens of access to important public goods, and in R v Stone and Dobinson and R v Dhaliwal, the feminist judgments argue that much more could have been done by state institutions to fulfil their responsibility to protect and support the vulnerable subjects of those cases. A fourth aspect of the feminist critique of liberal legalism is the critique of rights discourse.112 While, as noted above, many of the feminist judgments rely upon human rights to make gains for women, others are more cautious about the value of rights, or are at least aware of the dead-ends they can lead into. For example, as rights proliferate, they have a tendency to clash with each other. The phenomenon of ‘competing rights’ is well observed—a particular contemporary example in the UK is the perceived clash between gay equality rights and the right to freedom of religion, which religious bodies argue includes the right to discriminate against lesbians and gay men in accordance with religious teachings. The feminist judgments deftly sidestep several instances of potentially competing rights. In R v A (No 2),113 the House of Lords held that the ‘rape shield’ provisions in the Youth Justice and Criminal Evidence Act 1999, designed to protect complainants in sexual assault trials from intrusive and demeaning questioning about their sexual history, were incompatible 112 See, eg, E Gross, ‘What is Feminist Theory?’ in C Pateman and E Gross (eds), Feminist Challenges: Social and Political Theory (Sydney, Allen & Unwin, 1986); Kingdom, above n 65; Smart, above n 8 at 144–45. 113 Above n 49.

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24 Rosemary Hunter, Clare McGlynn and Erika Rackley with a defendant’s right to a fair trial under article 6 of the ECHR, which took precedence over any privacy or equality rights of complainants. The feminist judgment, however, painstakingly explains why the relevant provisions do not conflict with the defendant’s right to a fair trial, but rather, the two can co-exist within a broader understanding of the right of a fair trial. In Evans v Amicus Healthcare,114 the Court of Appeal considered that the parties’ respective rights to privacy simply cancelled each other out, but the feminist judgment shows why they should not simply be equated, and why, in the very particular circumstances of that case, Natallie Evans’s rights should be trumps. In R (Begum) v Denbigh High School, the feminist judgment rejects the perceived clash between the claimant’s right to manifest her religion and the equality rights of other Muslim schoolgirls, while the feminist judgment in Re A rejects the perceived clash between the rights to life of conjoined twins, Jodie and Mary. Whereas all the other judges in the case constructed Jodie’s and Mary’s rights as being in conflict, and resolved the conflict in favour of Jodie, as the stronger twin who had the opportunity of a relatively ‘normal’ life if the pair were surgically separated (which would result in the death of Mary),115 the feminist judgment refuses to pit the twins against each other, seeing them instead as essentially conjoined—interrelated and interdependent—with their rights to life and bodily integrity resting on their remaining that way. Finally, the feminist judgment in Porter v Commissioner of Police for the Metropolis resolves the clash between private property rights and rights of freedom of expression by introducing the category of ‘quasi-public property’, in which the landowner’s rights to exclude are limited, and the citizen’s rights to protest correspondingly enlarged. The final element of liberal legalism addressed in the feminist judgments is the concept of equality. Feminist legal scholarship has generally been critical of the liberal notion of formal equality—treating likes alike—because it is assimilationist, establishing the male norm as the benchmark for treatment that women are supposed to aspire to, and because it thus has limited purchase in addressing women’s inequalities in the multitude of circumstances in which women are historically, biologically and socially unlike men. Consequently, many feminists prefer the goal of substantive equality, which seeks to accommodate difference, address historical disadvantages, and incorporate women’s experiences into the norms by which equality is judged. The feminist judgments suggest, however, that formal equality may have some continuing value, not only in the 1920s case of Roberts v Hopwood,116 in which a local authority’s determination to pay its male and female employees the same wage was deemed outrageous and unreasonable, but also in the early twenty-first century, in cases such as EM (Lebanon) v Secretary of State for the Home Department 117 and Wilkinson v Kitzinger.118 In EM, a woman was resisting deportation to Lebanon, where she would be discriminated against in relation to the custody of her child simply because she was a woman, while Wilkinson v Kitzinger concerned the exclusion of same-sex couples from the institution of marriage simply by reason of their homosexuality. Treating likes alike, in these cases, would be a considerable improvement on the prevailing situation. Nevertheless, in several other cases, substantive equality is clearly endorsed119 and attempts to impose formal equality through superficial efforts to classify people as being ‘alike’ (such as male and female gamete 114

Above n 28. Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254, [2001] Fam 147. 116 Above n 19. 117 Above n 78 118 Above n 25. 119 eg Attorney-General for Jersey v Holley; James v Eastleigh Borough Council; Royal Bank of Scotland v Etridge (No 2). 115

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Feminist Judgments: An Introduction 25 donors,120 or same-sex and opposite-sex parents121) are rejected. Feminist judicial commitment to the goal of substantive equality is discussed further in the following chapter. Moving beyond liberal legalism, some of the judgments draw upon Foucauldian critiques of medical or bio-power. According to Foucault, since the eighteenth century, there has been a shift in the way Western societies are governed, so that the force of law (juridical power) has become much less important, and has been replaced by the ‘bio-power’ of the new human sciences, which govern through knowledge and the (self-) regulation of human behaviour. These discourses operate not by means of direct coercion, but by the circulation of ideas about normality, which have the effect of normalising their subjects.122 In her book Feminism and the Power of Law,123 Carol Smart observed various ways in which law concedes power to the human sciences, for example by deferring to medical or welfare ‘experts’, effectively handing over decision-making to these authorities, or incorporating ‘expert’ knowledge as incontrovertible legal truth. As noted earlier, some of the feminist judgments are concerned to question ‘expert’ medical or welfare opinions, and more generally to resist the devaluation of the knowledge of actual carers in favour of medical opinions and clinical judgements.124 In Re N,125 one of the points held against a birth mother in her efforts to keep the child born as a result of a failed surrogacy arrangement was that she and her husband were apparently less receptive to expert advice and intervention by family ‘professionals’ than were the child’s genetic father and his wife. In Evans v Amicus Healthcare, the feminist judgment expresses concern at the gate-keeping role played by the medical profession in regulating access to fertility treatments, and the compliant performances called forth from applicants as a result, which may limit full and frank discussion of the options available to them. In R v Dhaliwal, the feminist judgment challenges the way in which the legal concept of ‘bodily harm’ has come to be bounded by expert medical knowledge. Although the courts have recognised that ‘bodily harm’ may encompass mental harm, such harm will only be legally recognised if it constitutes an established psychiatric illness—that is, its existence must be medically certified.126 The feminist judgment points out, however, that this requirement has an adverse impact on women subjected to domestic violence, who may suffer serious psychological harm as a result of the violence, but this may either fall short of a recognised psychiatric illness, or for a variety of reasons remain undiagnosed. In arguing for the extension of the concept of ‘bodily harm’ to serious psychological injury, they suggest ways in which this may be evidenced without the need for psychiatric diagnosis. Many of the other feminist judgments, too, in drawing upon reports by women’s NGOs and feminist research materials (as discussed in the next chapter), implicitly contend for a widening of the categories of knowledge authorised by law beyond that of the medical and psy- professions. A more recent feminist theoretical concern is that of ‘intersectionality’—the notion that, rather than there being any essential life experience shared by all women, women’s 120

Evans v Amicus Healthcare. Re G. 122 eg M Foucault, The Birth of the Clinic: An Archaeology of Medical Perception (London, Tavistock, 1973); The Order of Things: An Archaeology of the Human Sciences (London, Tavistock, 1970); Discipline and Punish: The Birth of the Prison, trans AM Sheridan (London, Allen Lane, 1977); The History of Sexuality, Volume I (London, Allen Lane, 1979); Security, Territory, Population: Lectures at the Collège de France 1977–78 (Basingstoke, Palgrave Macmillan, 2007). 123 Above n 8. 124 Re A; Re N; R v Portsmouth Hospitals NHS Trust, ex p Glass. 125 Above n 45. 126 R v Ireland and Burstow [1998] AC 147 (HC). 121

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26 Rosemary Hunter, Clare McGlynn and Erika Rackley experiences vary as their gender intersects with other aspects of identity such as race, ethnicity, sexuality, class, age, religion and so forth.127 Although the theory of intersectionality is contested,128 it has gained considerable popularity. Several of the feminist judgments employ an intersectionality approach, highlighting the interrelationships between sex and age,129 sex and sexuality,130 and sex, religion and culture.131 Finally, in the early 2000s, Nancy Fraser identified a split in feminist conceptions of justice between ‘recognition’ and ‘redistribution’. Fraser’s concern was that too much emphasis had been placed upon identity politics and arguments for recognition and respect for their ‘difference’ by particular social groups (as exemplified in the intersectionality approach), at the expense of attention to the maldistribution of social resources and the material conditions of people’s lives.132 It is interesting to note that while the older feminist judgments such as Roberts v Hopwood, Mundon v Del Monte Foods and James v Eastleigh Borough Council raise issues of redistribution, the more recent judgments such as R v Brown, R v Zoora Shah, Re A, R v A (No 2), Evans v Amicus Healthcare, Re G, Attorney-General for Jersey v Holley and Wilkinson v Kitzinger focus on issues of recognition. A handful of the judgments, however, attempt to incorporate both conceptions of justice. This is made explicit in R (Begum) v Denbigh High School, where the feminist judgment argues that Shabina Begum, the Muslim high school girl who wished to wear a jilbab contrary to her school’s uniform policy, should not be forced to choose between recognition and redistribution, between her choice of religious dress and her ability to access important public goods such as education, but rather should be able to enjoy both at the same time. In YL v Birmingham City Council, too, the feminist judgment insists on the state’s responsibility to provide care for frail, elderly people (the majority of whom are women), and sees the HRA as the key mechanism mediating between recognition and redistribution for this group. And in R v Dhaliwal, while the judgment is primarily concerned with legal recognition of the experience of women subjected to domestic violence, it also comments upon the need for redistribution of state resources to support women living within or wishing to escape violent relationships. Before leaving this section, it should be noted that the above discussion represents the editors’ account of the theoretical framing of the feminist judgments; it should not be taken to be either an authorised or an adequate explanation of the position taken by and the intentions of, each of the individual judgment-writers. While some of the authors would have liked to explain their judgments at some length, space considerations did not allow for this, beyond the option of a short explanatory footnote to the judgment, or asking the commentator to incorporate into the commentary any points that the judgment-writer particularly

127 See K Crenshaw, ‘Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ [1989] University of Chicago Legal Forum 139; K Crenshaw,‘Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color’ (1991) 43 Stanford Law Review 1241. 128 For an account of the theory and its critiques, see E Grabham, D Cooper, J Krishnadas and D Herman (eds), Intersectionality and Beyond: Law, Power and the Politics of Location (Abingdon, Routledge, 2008). 129 James v Eastleigh Borough Council; YL v Birmingham City Council. 130 Re G; Wilkinson v Kitzinger. 131 EM (Lebanon) v Secretary of State for the Home Department; R (Begum) v Governors of Denbigh High School; R v Dhaliwal; R v Zoora Shah—the latter also including poverty. 132 N Fraser, ‘Rethinking Recognition’ (2000) 3 New Left Review 107; N Fraser and A Honneth, Redistribution or Recognition: A Political-Philosophical Exchange (London, Verso, 2003); N Fraser, ‘Mapping the Feminist Imagination: From Redistribution to Recognition to Representation’ (2005) 13 Constellations: An International Journal of Critical and Democratic Theory 295.

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Feminist Judgments: An Introduction 27 wished to convey. We were also reluctant to add such explanations for reasons of authenticity. Judgments in the real world do not come accompanied by exegeses, and we wanted the reasoning in the feminist judgments, too, to stand up on its own.

Potential Impacts The foregoing discussion suggests some of the ways in which the feminist judgments might have made a difference. This section consolidates those points and considers the potential consequences if these judgments had actually been written and if these cases had actually been decided accordingly. First, legal doctrine would have been different: property law would include the concept of ‘quasi-public’ property;133 the doctrine of implied contracts would have gained new life;134 the meaning of ‘public authority’ in the HRA would be broader,135 as would the meaning of ‘bodily harm’ in the Offences against the Person Act 1861,136 and the meaning of dismissal by reason of pregnancy in employment protection law.137 The criminal law rules on omissions liability may be stricter;138 and the test of capacity to marry would be a variable one,139 as would the standard of behaviour expected of the reasonable person in the defence of provocation.140 The sexual history evidence provisions of the Youth Justice and Criminal Evidence Act 1999 would be applied in their terms, and not subject to a judicial discretion to admit evidence otherwise barred by the statute.141 There would be an assumption against child contact in domestic violence cases where there is a risk of harm to the child, with an appropriately broad definition of domestic violence for this purpose.142 The ‘contracting out’ doctrine in religious expression cases under article 9 of the ECHR would no longer be followed, and there would be a different approach to justification of any infringements of article 9.143 And the prohibition of sex discrimination would be recognised as a peremptory norm of international law which all courts have a duty to uphold.144 In terms of their discursive impacts, the feminist judgments would have introduced new legal understandings of marriage and civil partnerships, parenting, care and caregiving, children’s welfare, conjoinity, autonomy, gender equality, and sado-masochistic sexual activities; of the experiences of infertile women, pregnant workers, homemakers, rape victims at trial, victims of domestic violence and battered women who kill their abusers; and of the position of minority ethnic women in their social, cultural and religious contexts. In terms of their policy impacts, the feminist judgments would or could have resulted in amendments to employment protection legislation to shift the burden of proof to employers to ensure they take all reasonable steps to ensure that a woman’s dismissal is not based 133 134 135 136 137 138 139 140 141 142 143 144

Porter v Commissioner of Police for the Metropolis. Baird Textile Holdings v Marks & Spencer. YL v Birmingham City Council. R v Dhaliwal. Mundon v Del Monte Foods. R v Stone and Dobinson. Sheffield City Council v E. Attorney-General for Jersey v Holley. R v A (No 2). Re L. R (Begum) v Governors of Denbigh High School. EM (Lebanon) v Secretary of State for the Home Department.

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28 Rosemary Hunter, Clare McGlynn and Erika Rackley on her pregnancy;145 amendments to the Sex Discrimination Act 1975 to embed a broader conception of substantive equality;146 amendments to the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 to enable the recognition of overseas same-sex marriages as marriages in the UK;147 amendments to the consent regime under the Human Fertilisation and Embryology Act 1990 (now the Human Fertilisation and Embryology Act 2008);148 stronger protections against the use of sexual history evidence in sexual assault trials;149 and improved legislation regulating surrogacy arrangements.150 Ultimately, the feminist judgments envisage a significant range of socio-economic changes. These include the earlier acceptance of equal pay for women, better protection for pregnant workers against unfair dismissal, and greater accommodation of individual religious beliefs in the public sphere. They also include expanded rights of access to and action within quasi-public space; the reflection of long-term business relationships in implied contracts; greater responsibilities imposed on banks when lending money to businessmen on the security of their houses, and greater protection for wives in these circumstances; and the redistribution of power between medical professionals and parents in medical decisionmaking with regard to children. Further, they demand greater protection for women and children against domestic violence, and greater support for victims of abuse to enhance their capacity to leave violent relationships and reduce withdrawal rates in criminal prosecutions; greater access to the provocation defence for women who kill abusive partners; greater respect for complainants in rape trials, including reduced rates of attrition and withdrawal and improved conviction rates; and greater protection of the dignity and human rights of elderly residents of care homes. To all intents and purposes, these concerns remain outstanding.151 Indeed, the above list might usefully provide an agenda for future feminist law reform efforts. At the very least, it demonstrates the extent to which law continues to fail many women, and women continue to struggle to be accorded full legal subjectivity. In this context, there is, we would argue, an urgent need for (more) feminist judgments.

The Organisation of the Book The next two chapters present alternative ways of framing, reading and thinking about the feminist judgments. Rosemary Hunter’s chapter provides an account of feminist judging which seeks to address two questions. First, can feminist judging be regarded as a legitimate judicial exercise? How does it relate to judicial norms of independence, impartiality, consistency and certainty? Secondly, what does a feminist approach to judging consist of, and how (if at all) does it represent a distinct approach? Erika Rackley’s chapter focuses on the formal, stylistic and rhetorical aspects of judgment-writing. She considers what makes a ‘good’ judgment, and how judges go about their task of storytelling and persuasion. Both chapters 145

Mundon v Del Monte Foods. James v Eastleigh Borough Council. 147 Wilkinson v Kitzinger. 148 Evans v Amicus Healthcare. 149 R v A (No 2). 150 Re N. 151 The recently enacted Coroners and Criminal Justice Act 2009, s 42(6) addresses some but not all of the issues concerning the defence of provocation raised by the feminist judgment in Attorney-General for Jersey v Holley. 146

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Feminist Judgments: An Introduction 29 draw upon the feminist judgments to illustrate their points, and thereby, alongside this chapter, provide an overview of the project as a whole. The feminist judgments themselves, and their accompanying commentaries, are divided into five Parts. During the course of the project, and for the purposes of discussion at the workshops, we organised the judgments according to the feminist jurisprudential approach of taking women’s lives rather than legal categories as the starting point for analysis.152 Our thematic headings at that stage were: parenting; equality; vulnerability, care and connection; property and markets; and crime and violence. The ‘vulnerability, care and connection’ theme grouped together cases that raised theoretical issues of vulnerability and care across doctrinal boundaries.153 For the purposes of the book, however, we have reverted to more traditional, doctrinally-based categories: parenting (including cases within the areas of family law and medical law); property and markets (including cases in property law, equity and contracts); criminal law and evidence; public law (including cases brought by or against state entities); and equality (the most heterogeneous category, encompassing cases dealing directly with the concepts of equality and discrimination). As the discussion in this chapter suggests, there are many other ways in which the feminist judgments could have been organised. But our major concern here has been to group the cases in a way that would be readily comprehensible and usable to some of our key audiences: lawyers and judges, feminist legal activists, policy-makers, law teachers, and law students.154 In terms of layout, while these initial chapters and the commentaries follow the ‘house’ style, the feminist judgments are presented so as to resemble, as far as possible, printed judgments in the Law Reports. This has resulted in some variations of style and formatting. Prior to 2001, UK judgments did not contain paragraph numbers, they cited administrative and criminal law cases as Reg. or Rex v X, used full stops for all abbreviations, and were printed in a more old-fashioned typeface. During some periods, the ‘v.’ in the case name was not italicised, while paragraph numbers in statutes were italicised (such as section 1(1)(a)). In 2001 the Law Reports adopted a more modern typeface and formatting style (without full stops), and all cases decided from 2001 onwards include paragraph numbers,155 in conjunction with the advent of medium neutral citations. As with our general concern to make the feminist judgments as authentic as possible, we have attempted to follow these formatting conventions as well. Finally, because this is a new venture, we are particularly keen to receive feedback from readers. During the course of the Feminist Judgments Project we established a website to provide information about the project, which incorporates a discussion forum for responses to the judgments. We encourage you to visit the website and to post your views at www.feministjudgments.org.uk.

152

eg R Graycar and J Morgan, The Hidden Gender of Law (Sydney, Federation Press, 2002). Re A; R v Portsmouth Hospitals NHS Trust, ex p Glass; R v Stone and Dobinson; Sheffield City Council v E; YL v Birmingham City Council. 154 We note that the feminist judgments in draft form are already being used for teaching purposes by a number of colleagues. 155 Practice Direction (Judgments: Form and Citation), 11 January 2001, www.justis.com/titles/iclr_20011018. html. 153

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2 An Account of Feminist Judging ROSEMARY HUNTER

Introduction This chapter addresses two basic questions to which the Feminist Judgements Project may give rise: those of distinctiveness and legitimacy. Can a distinctively feminist approach to judgment-writing be identified? If so, how does it differ from other approaches? And to what extent and in what form may a judge’s political commitments and social experience be introduced into her decision-making without violating the judicial oath, which requires her to ‘do right to all manner of people after the laws and usages of this realm without fear or favour, affection or ill will’? The answers to these questions suggested here are informed by previous literature, but are based in particular on the experience of the Feminist Judgments Project and its outcomes in the judgments published in this volume. Briefly, I argue that these judgments are both legitimate and distinctive. That is, feminist judging is not a contradiction in terms, but the judgments that follow evince very particular approaches that make a significant contribution to our theoretical understanding of what might constitute feminist judging.

The Question of Bias Turning first to the issue of legitimacy, it must be noted that we are not, of course, the first authors to write feminist judgments. Many real examples exist and we have drawn inspiration from them. Our well-known role models include Baroness Hale of Richmond, in her successive positions on the High Court and Court of Appeal of England and Wales, and the UK House of Lords and Supreme Court, Justices Bertha Wilson and Claire L’Heureux-Dubé on the Supreme Court of Canada, Justice Ruth Bader Ginsburg on the United States Supreme Court, Justice Mary Gaudron on the High Court of Australia, Chief Justice Sian Elias of New Zealand, and numerous other magistrates, trial and appeal court judges throughout the common law world. These judges have all demonstrated the possibility in practice of integrating judging and feminism. Nevertheless, in theoretical accounts of judging, the values of fairness, independence, impartiality, consistency and certainty are stressed, and there is a tendency to believe that ‘Feminism in a judge is . . . evidence of judicial partiality [and] a threat to judicial independence’.1 More generally, concerns are expressed that ‘subjective decision-making based on 1 W Baker, ‘Women’s Diversity: Legal Practice and Legal Education—A View from the Bench’ (1996) 45 University of New Brunswick Law Journal 199, 199.

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An Account of Feminist Judging 31 political or social or philosophical beliefs leads to unpredictable and arbitrary results’.2 This proposition is self-evidently true, but begs several questions if applied to the case of feminist judging. First, a feminist judge would not base her3 decision-making on her political, social or philosophical beliefs. Like all other judges, she would base her decision-making on the facts of the case and applicable legal principles. On the other hand, her decisionmaking may be informed by her beliefs. To the extent that this distinguishes her from any other judge, it is in the particular content of those beliefs, and in perhaps being rather more conscious of her beliefs and values than some other more ‘traditional’ or formalist judges might be. This does not make her decision-making ‘subjective’. In a similar vein, Lord Bingham of Cornhill4 has suggested that judicial decisions must be ‘legally motivated’, while the judicial role precludes decisions which are motivated ‘not by legal but by extraneous considerations, as by the prejudice or predilection of the judge, or worse, by any personal agenda of the judge, whether conservative, liberal, feminist, libertarian or whatever’.5 As Lord Justice Etherton6 has noted,‘agenda’ here suggests an approach based on a pre-conceived view of the correct outcome, ‘irrespective of the ordinary constraints of proper judicial analysis’.7 But operating within the ordinary constraints of proper judicial analysis does not preclude a feminist approach. As Etherton says, it is ‘impossible to exclude . . . a general outlook, or personal philosophy, based on an individual judge’s life experience’.8 Or as Baroness Hale has pointed out, decisions can indeed be legally motivated while also—inevitably—reflecting personal views: [T]he business of judging, especially in the hard cases, often involves a choice between different conclusions, any of which it may be possible to reach by respectable legal reasoning. The choice made is likely to be motivated at a far deeper level by the judge’s own approach to the law, to the problem under discussion and to ideas of what makes a just result.9

Hale goes on to point out that ‘an important project of feminist jurisprudence has been to explode the myth of the disinterested, disengaged, and distant judge’.10 Fairness, independence and impartiality do not—indeed cannot—require the judge to become a blank slate upon which the evidence and arguments in each case are written afresh. Realistically, a judge’s philosophical, religious and/or political beliefs, including feminism, are likely to inflect his or her decision-making, but should not intrude to the extent that the judge allows him or herself to prejudge the issue or to be biased against particular parties or particular 2

D Ipp,‘Maintaining the Tradition of Judicial Impartiality’ (2008) 12 Southern Cross University Law Review 87,

95. 3 I use ‘she’ and ‘her’ in the following discussion to reflect the fact that the majority of feminist judges—and all of the judgment authors in this volume—are women. I do not, however, mean to suggest or imply that only women can be feminist judges. 4 Prior to his retirement in 2008, Lord Bingham of Cornhill occupied successively the three most senior positions in the UK judiciary: Master of the Rolls, Lord Chief Justice and senior Law Lord. He has been described as ’the pre-eminent lawyer of his generation‘ (F Gibb and A Spence, ‘The UK’s most powerful lawyers: Lord Bingham of Cornhill’, The Times (London) 21 April 2008) and is generally hailed as a liberal judge. 5 T Bingham, ‘The Judges: Active or Passive?’ (2005) 139 Proceedings of the British Academy 55, 70. 6 Sir Terence Etherton was formerly Chair of the Law Commission and was appointed to the Court of Appeal in 2008. He is one of the very few openly gay members of the UK judiciary. 7 T Etherton, ‘Liberty, the Archetype and Diversity: A Philosophy of Judging’, paper dated 5 August 2009 delivered in the Birkbeck Judicial Conversations Series, Birkbeck, University of London, 13 November 2009 [56] (forthcoming in [2010] Public Law). 8 ibid. 9 B Hale, ‘Maccabaean Lecture in Jurisprudence: A Minority Opinion?’ (2008) 154 Proceedings of the British Academy 319, 320. 10 ibid.

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32 Rosemary Hunter arguments. A feminist approach must always be subordinated to judicial norms. But this allows considerable scope for feminism, as the feminist judgments written by the judges referred to above and found in this volume, illustrate. Since the feminist judgments in this volume are all appellate decisions, the following discussion is confined to appellate decision-making, and does not consider the scope for a feminist approach at trial level.11 In terms of the outcome of a case, a feminist judge is likely to be concerned to make decisions that correct perceived injustices, improve women’s lives, and promote substantive equality.12 The extent to which these kinds of feminist results are possible within the boundaries of the judicial role depends on the situation. If the case directly raises issues of equality and discrimination—as many cases do in countries that have adopted constitutional or legislative human rights instruments—then a decision that promotes substantive equality is likely to be ‘consistent with the fundamental principles of the law’,13 and as such, is hardly objectionable.14 Secondly, if the feminist judge is exercising discretion there is likely to be some scope for feminist decision-making. Discretion is not, of course, entirely unconstrained. It must be exercised within the bounds of any statutory or common law criteria to be taken into account, and more generally within the bounds of fairness, impartiality and consistency. It must also be exercised by reference to the arguments and evidence presented by the parties. Nevertheless, discretionary decision-making is an area in which a feminist philosophy may come into play. In this respect, the feminist judge is in no different position from the judge who exercises discretion in accordance with his or her predisposition towards liberalism, conservatism, the Christian faith, defendants, the state, institutions, or individuals. The same may be said for the interpretation of ambiguous statutory language and divergent precedents, and other instances of legal indeterminacy. In developing legal doctrine in a way that is informed by a feminist analysis, a lower or intermediate level judge faced with clear legislative provisions and/or clear precedent may have very little opportunity for feminist decision-making (unless, of course, the relevant precedent is itself the product of feminist decision-making by a higher court). Judges who are members of the highest court in the relevant court hierarchy clearly have more room to manoeuvre, although they may also adhere to a personal philosophy of incrementalism.15 It should be remembered, too, that decision-making on appellate courts is collegial.16 This gives rise to several possible roles for the feminist judge. She may agree with the other members of the court if satisfied with the result and the reasoning of the leading judgment, which may include cases in which she perceives no feminist issue to arise. In a case study I conducted of the judgments of Justice Marcia Neave, a feminist judge on an Australian intermediate appellate court during her first three years on the bench, this occurred in almost half of her cases.17 11 For a discussion of this issue, see R Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 International Journal of the Legal Profession 7, 17–19. 12 See the following section of this chapter, and also ibid 13–14. 13 Hale, above n 9 at 335. 14 B Hale, ‘Making a Difference? Why We Need a More Diverse Judiciary’ (2005) 56 Northern Ireland Legal Quarterly 281, 286. See also Judicial Studies Board, Equal Treatment Bench Book (September 2008) [1.1]: ‘Ensuring fairness and equality of opportunity may mean providing special or different treatment.’ 15 See Hale, above n 9 at 321–22, 336; Etherton, above n 7 at [30]. 16 See, eg, A Paterson, The Law Lords (London, Macmillan, 1982) for an interesting discussion of the ‘social process’ of decision-making in the House of Lords. 17 The Victorian Court of Appeal, like the Court of Appeal in England and Wales, sits as a bench of three judges. In 36% of her cases, Neave JA agreed with the leading judgment, and in a further 7% she agreed with a brief concurrence. See R Hunter, ‘Justice Marcia Neave: Case Study of A Feminist Judge’ in U Schultz and G Shaw (eds), Gender and Judging (Oxford, Hart Publishing, forthcoming).

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An Account of Feminist Judging 33 Alternatively, the feminist judge may write the leading judgment or a judgment with which another or other members of the court agree.18 She may agree or write a joint judgment19 with one or more other members of the bench, who may or may not constitute the majority. She may agree with the outcome but write a concurring opinion setting out different reasons for decision. Or she may dissent from the result, and write a separate dissenting opinion. In each case other than the separate concurrence or dissent, the feminist judge has either been able to persuade her judicial colleagues to her point of view, or has been persuaded by them. When she persuades other judges to adopt her view, they are presumably persuaded by the cogency of her construction of the case and the legal plausibility of her argument, rather than by any form of judicial impropriety. Indeed, Lord Justice Etherton argues that this is precisely the point at which a diverse judiciary is of the utmost importance. He refers to research on the behaviour of three-judge federal appeals court panels in the United States, which found that panels of judges with the same political outlook tended to move towards a more extreme position in decision-making in line with that outlook, whereas the presence of a single judge with a different outlook ‘has a marked disciplining or moderating effect’.20 From this, Etherton concludes that bringing to bear a range of personal experiences and judicial philosophies on a hard case: ‘make[s] it more likely that the decision, and the reasoning which underpins it, will reflect the evolving values and institutions of the community, and that relevant arguments are not overlooked or brushed aside, and that insupportable preconceptions are challenged’.21 By virtue of their ‘imagined’ nature, however, the majority of the feminist judgments in this collection are almost all either individual concurrences or dissents.22 The specific content of these judgments is analysed below, but as a general proposition, clearly, neither a feminist concurrence nor a feminist dissent introduces any form of ‘bias’ into the result of a case. Both rely on different reasoning from that of other members of the court, but this does not affect the outcome or change the law. Feminist concurrences and dissents do, however, demonstrate a different way of thinking about the issues in the case; provide an opportunity for judges to debate and analyse the merits of alternative approaches to those issues; and potentially lay the groundwork for future legal development.23 In turn, however, the authority and persuasive success of a concurring or dissenting opinion relies on the quality of its reasoning24 and ‘its ability to challenge the majority’s story and weaken its hold on our collective imagination’.25 18

For example, this was the case in 28% of Neave JA’s judgments. As noted in ch 1, joint judgments were not possible in the UK House of Lords, but they are possible in the Court of Appeal of England and Wales, and are now possible in the UK Supreme Court. 20 Etherton, above n 7 at [68]. 21 ibid [70]. 22 In the seven fictitious appeals, five are individual judgments, with the position of the other members of the bench unknown. Two are joint judgments in the Court of Appeal, which would have constituted the majority of a three-judge bench. 23 See C L’Heureux-Dubé, ‘The Dissenting Opinion: Voice of the Future?’ (2000) 38 Osgoode Hall Law Journal 495; C Sparks, ‘Justice L’Heureux-Dubé: Dimensions of a Quintessential Judicial Leader’ in E Sheehy (ed), Adding Feminism to Law: The Contributions of Justice Claire L’Heureux-Dubé (Toronto, Irwin Law, 2004) 382; Hale, above n 9 at 332. For more general discussion of dissenting judgments, see M-C Belleau and R Johnson, ‘Judicial Dissent: Early Reflections on Emotion, Reason and Passion in Law’ in M-C Belleau and F Lacasse (eds), Claire L’HeureuxDubé a la Cour suprème du Canada, 1987–2002 (Montreal, Wilson & Lafleur, 2004); M-C Belleau and R Johnson, ‘Judging Gender: Difference and Dissent at the Supreme Court of Canada’ (2008) 15 International Journal of the Legal Profession 57. 24 L’Heureux-Dubé, ibid 514. 25 E Rackley, ‘Difference in the House of Lords’ (2006) 15 Social and Legal Studies 163, 181. 19

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34 Rosemary Hunter It is difficult to see, therefore, how this form of feminist judging might violate judicial norms of fairness, impartiality, independence, consistency or certainty. The observation of fairness and impartiality requires that the arguments of both sides in the adversarial contest are given equally careful attention. If, in the course of a feminist judgment, the arguments with which the judge disagreed were ignored or summarily dismissed, this could create an appearance of partiality. But so long as a feminist judgment acknowledges and gives plausible reasons for rejecting opposing arguments, then no problem of unfairness or partiality arises. Indeed, to the extent that such a judgment pays careful attention to gender-sensitive arguments that are dealt with cursorily in other judgments, it may represent a fairer approach. Further, a concurring or dissenting judgment can not only preserve the judge’s personal integrity, but also strengthen judicial independence.26 In his book on The Law Lords, Alan Paterson sets out the expectations of a Law Lord (and by implication any senior appellate judge) in deciding ‘hard’ cases as follows: 1. to produce a decision between the parties to the appeal on at least one of the issues raised by the parties and not going beyond the issues raised in the case; 2. to justify their conclusion by reasoned argument framed as a judgment between competing claims of right made by opposing parties; 3. not to usurp the role of Parliament; 4. to make a decision consistent with existing rules and principles of law in precedents and statutes; and 5. to achieve a fair and just result between the parties taking account of contemporary social conditions.27 Paterson also notes that the relative weight given to each of these points has varied between individual judges and collectively over time. In particular, there is a perennial tension between points 4 and 5, justice and certainty, flexibility and stability.28 Apart from some stretching of point 1, where some of the judgments do go beyond the issues raised in the case in obiter comments designed to signal related matters of concern or potential future arguments, the feminist judgments in this collection conform to all of these requirements. They do tend to give greater relative weight to point 5 than to point 4, but there is no suggestion that point 4 or any of the other points should be ignored. They also conform to many of the judicial behaviours encouraged by the Judicial Studies Board’s Equal Treatment Bench Book, including being ‘well informed about the differing realities of life for all peoples of diverse backgrounds’;29 recognising the existence of ‘diversity within . . . minority groupings’;30 ensuring that ‘our experiences and aspirations, as women or of other women, are not taken as representative of the experiences of all women’;31 recognising that ‘factors such as ethnicity, social class, disability status and age affect women’s experiences and the types of disadvantage to which they might be subject’32 and that ‘women’s experiences as victims, witnesses and offenders are in many respects different to those of men’;33 conveying the message to the public that domestic violence will not be tolerated and 26 27 28 29 30 31 32 33

L’Heureux-Dubé, above n 23 at 513. Paterson, above n 16 at 127. ibid 123ff. Judicial Studies Board, above n 14 at [1.2.1]. ibid. ibid [6.1]. ibid. ibid.

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An Account of Feminist Judging 35 that abuse and violence in intimate relationships is unacceptable and a serious matter;34 ensuring that the article 8 rights of victims of sexual offences are respected;35 and being ‘careful not to judge same-sex relationships according to the principles of heterosexual married life’.36 Above all, they demonstrate how, ‘[a]s judges, we can go some way to ensuring that women have confidence in the justice process and that their interests are properly and appropriately protected’.37 Far from contravening the basic tenets of judging, therefore, these feminist judgments illustrate for appellate judges how the Equal Treatment Bench Book may be put into practice.

Judging Like a Feminist In relation to the issue of distinctiveness, in reviewing the literature on feminist judging, I have elsewhere identified several features of a feminist approach to judgment-writing.38 These do not represent any kind of programme or system; rather they are a collection of habits, techniques, concerns and dispositions that feminist judges have deployed, or that feminist theorists have argued ought to be deployed, in decision-making. These include: 1. ‘asking the woman question’:39 noticing the gender implications of apparently neutral rules and practices (as well as their implications for other traditionally excluded groups); 2. ‘including women’, both in terms of writing women’s experiences into legal discourse (as individual litigants and collectively, drawing on relevant research evidence), and in the construction of legal rules; 3. challenging gender bias in legal doctrine and judicial reasoning; 4. contextualisation and particularity: reasoning from context and the reality of women’s lived experience; making individualised rather than categorical or abstract decisions; paying particular and careful attention to the individuals before the court; and not judging women for making different choices from those the judge herself would have made; 5. seeking to remedy injustices and to improve the conditions of women’s lives; 6. promoting substantive equality; and 7. drawing on feminist legal scholarship to inform decisions. For the purposes of the Feminist Judgments Project, feminist legal scholars were invited to nominate judgments that they wished to re-write, and inevitably chose cases in which they perceived a particular gender issue to arise, and an injustice that they wished to remedy. In a number of cases, as noted in chapter one, this involved taking a substantive equality approach. Thus, the feminist judgments in this collection almost by definition fulfil points 1, 5 and 6. The discussion here, therefore, will focus on the remaining points. It will be noted that these all relate to procedures of decision-making. They do not suggest, let alone dictate, any particular outcome in any given case. Rather than looking to the result of the case, they focus attention on the reasons for judgment. Thus, it is to the texts of the judgments, not their ultimate conclusions, that we must turn to test these hypotheses about feminist judging. 34 35 36 37 38 39

ibid [6.1.6]. ibid [6.1.8]. ibid [7.1]. ibid [6.1]. See Hunter, above n 11; Hunter, above n 17. See KT Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829.

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36 Rosemary Hunter Two features of the feminist judgments in this volume are very striking. The first is their insistence on retelling the story (the facts) of the case, often in a very different way from that found in the original judgments (the art of storytelling is discussed further in Erika Rackley’s chapter). The second is their extensive reliance on contextual materials, including legal, socio-legal, social science, historical, medical—and to a lesser extent feminist theoretical— literature, and what I have elsewhere referred to as feminist ‘common knowledge’ about the realities of women’s lives.40 In doing so, they fulfil points 2 and 4 to a marked degree.

Telling the Story Differently Telling the story differently includes paying close attention to the persons involved, often giving voice to women who have been silenced, or at least sidelined, in other judgments in the case. Thus, for example, in YL v Birmingham City Council,41 ‘YL’, an elderly woman with Alzheimer’s disease, is restored to her position at the centre of the case as a subject, rather than being seen simply as the object of various contractual arrangements. In Evans v Amicus Healthcare, the particular situation of Natallie Evans, as an infertile woman whose only chance to have her own genetically-related child through the use of stored frozen embryos rested on the consent of her ex-partner, is sensitively explored. Similarly, the particular positions, experiences, contexts and (limited) choices available to minority ethnic women are carefully delineated in R (Begum) v Denbigh High School and R v Zoora Shah. In R v Portsmouth Hospitals NHS Trust, ex p Glass, Carol Glass, a mother battling to protect the interests of her severely disabled son, is acknowledged as his primary carer and accorded respect and authority on that basis. In Royal Bank of Scotland Plc v Etridge (No 2), the judgment insists on viewing the legal issues concerning third party loan guarantees not just from the perspective of businessmen who want to borrow money against the security of their houses, and the banks who lend them the money, but also the wives who risk losing their homes when their husbands default on the loans. In R v Stone and Dobinson, Re A (Children) (Conjoined Twins: Surgical Separation), and R v Dhaliwal, the judgments are concerned fully to comprehend and to represent the positions of people whose capacity to speak is either severely impaired or non-existent. In R v Stone and Dobinson, the defendants suffered from various physical and learning disabilities, but had been demonised for their failure to prevent the death from anorexia of Stone’s sister. The feminist judgment emphasises their efforts to care for the sister, and also draws attention to their own apparent need for, but failure to be provided with, social care. Re A concerned conjoined twin babies whose doctors strongly advocated separation but whose parents were opposed because it would inevitably result in the death of one of the twins. The feminist judgment attempts to bring to light the experience of conjoinity, as a counterpoint to near-universal assumptions that this is an undesirable state. As in the Glass case, it also accords greater respect and authority to the parents in their role as carers of the twins. The judgments in both R v Stone and Dobinson and Re A use the particular technique of ‘naming’ the parties in order to bring them more clearly into view. In R v Stone and Dobinson, the original judgment of the Court of Appeal refers throughout to the dead sister as ‘Fanny’, but to Stone and Dobinson only by their last names.42 The feminist judgment seeks to level 40 41 42

Hunter, above n 17. References to judgments without further citation are to the feminist judgments in this collection. R v Stone and Dobinson [1977] QB 354 (CA).

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An Account of Feminist Judging 37 the playing field by referring to ‘John’ and ‘Gwendoline’ as well. In the High Court and Court of Appeal judgments in Re A,43 the twins are given the names ‘Jodie’ and ‘Mary’, but the parents are simply referred to as ‘the parents’. Once again, the feminist judgment resists this erasure by also giving names to the parents: ‘Marcus’ and ‘Regina’. Finally, in R v Dhaliwal, the victim, Gurjit Dhaliwal, is dead, but the feminist judgment is concerned to draw attention to the conditions of her life with a violent husband, which tragically ended with her suicide: The following brief sketch of agreed facts cannot begin to convey the intolerable treatment that the victim, Gurjit Dhaliwal, was subjected to by her husband, Harcharan Dhaliwal, for over a decade. Victims of domestic abuse are too often silenced, metaphorically speaking, by abusers, society and the institutions of the state. The tragic suicide of Gurjit Dhaliwal also renders her voice literally absent from these, and earlier, court proceedings. Posthumous insights from her diaries, witness recollections and official records do, however, provide partial glimpses of her plight.44

Of course, telling the story differently does not just have the effect of exposing the realities of women’s lives. As all good lawyers know, and as Erika Rackley’s chapter explores further, the way in which the story is presented can have a material effect on the outcome of the case. This will not always be true, but in the majority of the cases just discussed, the re-telling of the facts leads to a conclusion that dissents from that of the majority judges.

The Introduction of Contextual Material Almost all of the feminist judgments introduce additional ‘social framework’ material to place the particular facts of the case and/or the legal issues involved in a broader context. This is probably the single most noticeable feature of the judgments in this collection.45 In many cases, this additional material is derived from research evidence, on topics ranging from rape trials;46 domestic violence,47 including its impact on child contact;48 parenthood, motherhood, lesbian motherhood, and post-separation parenting;49 the ageing population and gender differences in ageing;50 to conjoinity,51 sado-masochistic sexual preferences and practices;52 and the dynamics of commercial relationships.53 Legal materials are also drawn upon from international law,54 Canada,55 the United States,56 Australia57 and South Africa 43 Re A (Children) (Conjoined Twins: Medical Treatment) [2001] Fam Law 16 (Fam); Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254, [2001] Fam 147. 44 R v Dhaliwal [1]. 45 This is also true of the first six judgments of the Women’s Court of Canada—a group of feminist scholars, lawyers and activists engaged in rewriting Canadian Supreme Court cases on s 15 (the equality clause) of the Canadian Charter of Rights and Freedoms. See (2006) 18(1) Canadian Journal of Women and the Law. 46 R v A (No 2). 47 R v Dhaliwal. 48 Re L (A Child) (Contact: Domestic Violence). 49 Re G (Children) (Residence: Same-Sex Partner). 50 YL v Birmingham City Council. 51 Re A. 52 R v Brown. 53 Baird Textile Holdings v Marks & Spencer PLC. 54 eg EM (Lebanon) v Secretary of State for the Home Department (international legal materials on the norm of gender equality). 55 eg R v A (No 2); R (Begum) v Governors of Denbigh High School. 56 eg James v Eastleigh Borough Council. 57 Re G.

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38 Rosemary Hunter as well as domestic sources, together with policy documents, parliamentary committee reports, parliamentary debates, Law Commission reports and so forth. Two particular examples are the 1920s case of Roberts v Hopwood, in which the feminist judgment assembles a range of contemporary material to illustrate advances in women’s equality in the period during and immediately after the First World War, and the much more recent case of YL v Birmingham City Council, in which the feminist judgment makes use of, among other things, the corporate annual report of one of the parties, reports of the House of Lords/House of Commons Joint Committee on Human Rights, the United Nations Principles on Older People, and the South African concept of transformative constitutionalism. Apart from drawing upon published contextual materials, the feminist judgments also expound feminist ‘common knowledge’. Carol Smart has observed the way in which judges make statements about non-legal issues, and in applying their judicial authority to those issues, disqualify other knowledges that may exist on the subject.58 Similarly, in considering ‘The Gender of Judgments’, Reg Graycar has questioned the sources of judges’ knowledge of the world, and suggested that such knowledge is (masculine) gendered.59 A feminist judge, therefore, is in a position to correct this imbalance; the feminist judgments in this volume seek to synthesise feminist knowledge and judicial knowledge. This was also true of my feminist judicial case study mentioned above: the most common and obvious way in which Justice Neave ‘made a difference’ in cases concerning feminist or gender issues was in making generalised statements which brought previously excluded social experiences into legal discourse, to expand and transform law’s ‘common knowledge’ of the world.60 In the feminist judgments here we find common knowledge about caring;61 experiences of and responses to marriage,62 domestic violence,63 motherhood and fatherhood,64 infertility,65 and homophobia;66 the social and biological context of early pregnancy;67 gendered norms and power dynamics within South Asian communities;68 and the burdens placed on minority women in forcing them to choose between their identities as religious/cultural subjects and as British citizens.69 The introduction of both forms of contextual material has several effects. First, it enables the judge to engage in what Katherine Bartlett has termed ‘feminist practical reasoning’,70 that is, reasoning from context rather than in the abstract, in order to produce more particularised and just results. Secondly, contextualisation of the facts and/or legal rules can highlight the shortcomings of the current law and/or demonstrate why a particular rule may be inappropriate or inapplicable to the particular fact scenario. Thirdly, as indicated, it enables previously excluded experiences and perspectives to be incorporated into the stock of legal knowledge, which then becomes available to be cited by future judges, lawyers and litigants. 58

C Smart, Feminism and the Power of Law (London, Routledge, 1989) 17. R Graycar, ‘The Gender of Judgments: An Introduction’ in M Thornton (ed), Public and Private: Feminist Legal Debates (Melbourne, Oxford University Press, 1995). 60 Hunter, above n 17. 61 R v Portsmouth Hospitals, ex p Glass; Re A. 62 Royal Bank of Scotland Plc v Etridge (No 2); Sheffield City Council v E. 63 R v Dhaliwal; R v Zoora Shah; Attorney-General for Jersey v Holley. 64 Evans v Amicus Healthcare. 65 ibid. 66 Wilkinson v Kitzinger; Re G. 67 Mundon v Del Monte Foods Ltd. 68 R v Zoora Shah. 69 R (Begum) v Governors of Denbigh High School. 70 Bartlett, above n 39. 59

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An Account of Feminist Judging 39 The introduction of such material is not an entirely straightforward matter, however. Strictly, judges are confined in their decision-making to material raised before or by them in argument, and should not rely on material on which the parties have not had the opportunity to comment. In some other jurisdictions, major cases will often include third party interventions which may cite a range of social science, policy or other contextual material, which then becomes available to the judge in writing her decision.71 Although this is happening more frequently in UK cases under the Human Rights Act 1998, it is still a relatively rare phenomenon. Consequently, in order to introduce material of her own motion, it is necessary for a UK judge to rely on the doctrine of judicial notice. ‘Judicial notice’ enables courts to take cognisance of ‘matters which are so notorious, or clearly established, or susceptible to demonstration by reference to a readily obtainable and authoritative source, that evidence of their existence is unnecessary’.72 An alternative formulation is that in making decisions, judges may make use of ‘their general information and that knowledge of the common affairs of life which men of ordinary intelligence possess’.73 This may include knowledge of human affairs (such as common business practices), human nature, or natural phenomena,74 and presumably extends to the knowledge of the common affairs of life possessed by women of ordinary intelligence. Beyond the ‘general knowledge’ aspect of judicial notice, there are also a number of settled categories of information of which judicial notice will be taken. These include principles of international and EC law (as well as European human rights law, to which UK courts are compelled to have regard). For the purposes of statutory interpretation, courts may also take notice of reports of parliamentary commissions or official committees, to determine the mischief at which the particular statute was directed and the background against which it was enacted.75 Further, for the purpose of informing herself on matters of ‘common knowledge’, it is also permissible for a judge to make inquiries and consult sources ‘to which it is proper . . . to refer’.76 The exact scope of propriety in this context is unclear, although it appears to extend at least to sources which are publicly available, reasonably widely known, and unlikely to be the subject of serious dispute, and possibly goes well beyond this. In R v A (No 2), for example, two of the Law Lords cited an as yet unpublished paper on the admissibility of the complainant’s prior sexual history with the defendant in sexual offence cases.77 This example provides a licence for Clare McGlynn to refer to a forthcoming paper on a study of mock jurors’ use of sexual history evidence in sexual assault trials in her feminist judgment in the same case. Finally, the doctrine of judicial notice allows a judge to rely not only on ‘common knowledge’, but also on ‘local knowledge’ within reasonable limits, that is, where it is knowledge of a general character, not liable to be varied by the specific characteristics of the individual case.78 While ‘local knowledge’ has been understood to date only in a geographical sense, 71 eg the Women’s Court of Canada was able to use intervenor factums submitted by LEAF (the Women’s Legal Education and Advocacy Fund) in the relevant Supreme Court cases: see above n 45. 72 Archbold Criminal Pleading Evidence and Practice 2010 edn, (London, Sweet & Maxwell) principle 10-71. 73 ibid, principle 10-72. 74 Halsbury’s Laws of England (London, Lexis Nexis, 2009) [788]. Some examples include the judgments of Baroness Hale in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2002] QB 266 (as Hale LJ), and R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100. 75 Halsbury, ibid [565]. 76 Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191 (HL) 212; McQuaker v Goddard [1940] 1 KB 687 (CA); Halsbury, ibid [564]. 77 R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45 [29] (Lord Steyn), [54] (Lord Hope of Craighead). 78 Mullen v Hackney London Borough Council [1997] 1 WLR 1103 (CA).

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40 Rosemary Hunter this is another area in which there might be room for feminist manoeuvre. What a judge clearly cannot do, however, is to act on her own, private knowledge or belief concerning the facts of a particular case.79 If she does possess specialised knowledge of the circumstances forming the background to a particular case, she may draw upon that knowledge in interpreting the evidence presented, but it would be improper for her in effect to introduce her own evidence.80 In bringing contextual material to bear in the cases under consideration, the feminist judgments are careful to stay within these limits.

Challenging Gender Bias Point 3 on the above list of feminist judicial approaches concerns challenging gender bias in legal doctrine and judicial reasoning, and several of the feminist judgments do this. Examples include Re N (A Child),81 in which the courts’ strong disapproval of a woman who entered into a surrogacy arrangement deceptively appears to have coloured their decisionmaking, resulting in their construction of her as a ‘bad’ mother, and a skewed assessment of her child’s welfare. The feminist judgment notes that the evidence of the woman’s actual parenting does not support this construction, and expresses concern that the child is being inappropriately penalised for the sins of its mother. The feminist judgment also takes issue with the courts’ equation of the mother’s and father’s genetic connection with the child, pointing out that in addition to her genetic connection, the mother has also played a significant role in gestating, giving birth and providing early nurturance and care to the child. ‘Had the baby been gestated in an artificial womb’, the judgment contends, ‘the case would have been different. But until such a science fiction scenario comes to pass, the mother’s role in gestating and caring for the child ought not be ignored or underestimated’.82 In R v A (No 2), the feminist judgment questions whether evidence in a rape trial of the complainant’s alleged prior sexual activity with the defendant is relevant to the question of whether she consented on the occasion in issue, and consequently, whether its exclusion would necessarily infringe the defendant’s right to a fair trial—matters that are largely unquestioned by the other judges. More generally, the judgment argues that the right to a fair trial is not something that applies only to the defendant, but also embraces the victim and the interests of the community as a whole. In R v Dhaliwal, the feminist judgment seeks to expand the arguably arbitrary boundaries of the concept of ‘bodily harm’ in the Offences against the Person Act 1861, pointing out that the way in which the concept has been deliminated in law has a particularly adverse effect on women who have suffered psychological harm as a result of domestic violence. And in Attorney-General for Jersey v Holley, the feminist judgment systematically deconstructs the gender biases in the defence of provocation, and attempts to re-construct the legal rules in this area from the perspective not of jealous and possessive men who feel their masculinity has been threatened, but of battered women who kill their abusive partners after enduring years of violence at their hands. It is notable, too, that the feminist habit of critical questioning extends to challenging other kinds of biases in the judgments under review. These include class,83 ethnic, cultural 79 80 81 82 83

Ingram v Percival [1969] 1 QB 548 (DC); Wetherall v Harrison [1976] QB 773 (DC). Archbold, above n 72, principle 10-72. Re N (A Child) [2007] EWCA Civ 1053, [2008] 1 FLR 198. Re N (A Child) [22]. Roberts v Hopwood.

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An Account of Feminist Judging 41 and religious biases;84 heteronormativity;85 the minimisation of domestic violence;86 assumptions about the value of bodily separation and the undesirability of conjoinity;87 prejudice against those whose preferred form of sexual expression is sado-masochistic;88 and prioritisation of the interests of business entities.89

Anti-Essentialism Many of the feminist judgments also display a further feminist intellectual habit that has not previously been observed in the literature on feminist judging—what might be termed ‘anti-essentialism’. This could be seen as an aspect of feminist practical reasoning, that is, reasoning from context and avoiding abstractions. However it takes the very particular form of resistance to universal, essentialist classifications or categories. Contextualisation as traditionally understood and as described above more often refers to a process by which the facts of the case or the particular legal rules come to be more clearly and deeply understood, leading to a conclusion that the facts should not be crudely categorised in one way or another, or that the legal rules in question are not appropriate or applicable to the particular facts. It interrupts or complicates the deductive reasoning process by which the minor premise of a logical syllogism is held to be an instance of the major premise (such as ‘all convictions for murder carry a sentence of life imprisonment, the defendant was convicted of murder, therefore she must be sentenced to life imprisonment’), by either re-describing the minor premise (as not a case of murder), or narrowing the scope of the major premise (when the law, its history and rationale are properly understood, not all murder convictions should result in a sentence of life imprisonment). Anti-essentialism, on the other hand, engages inductive reasoning to disrupt the unity of taken-for-granted factual and legal categories. To give a particular example from the feminist judgments, the case of Porter v Commissioner of Police for the Metropolis90 concerned a woman who was forcibly ejected by the police from a London Electricity Board showroom, after she vowed not to leave until the electricity connection to her new flat, which had not occurred as planned, was effected. In classical legal terms, she would only have had a right to protest if she had been in a public place (perhaps outside the showroom holding a placard), but on private premises, the owner had an absolute right to have her removed as a trespasser. The feminist judgment, however, rejects this public/private dichotomy (and hence its legal consequences), and instead introduces a third category—fitting the nature of the premises here, and employed in other jurisdictions—of ‘quasi-public space’, in which people have a right to remain (and protest) so long as their behaviour is reasonable. In other examples, the authors of the feminist judgment in Baird Textile Holdings v Marks & Spencer reject the notion that there is only one way in which a valid contract may be formed (through offer, acceptance and the provision of valuable consideration), and instead 84 R (Begum) v Governors of Denbigh High School; R v Zoora Shah; EM (Lebanon) v Secretary of State for the Home Department. 85 Wilkinson v Kitzinger; Re G; R v Brown. 86 Re L; Sheffield City Council v E; R v Dhaliwal. 87 Re A. 88 R v Brown. 89 Mundon v Del Monte Foods; YL v Birmingham City Council; Royal Bank of Scotland v Etridge (No 2); Porter v Commissioner of Police for the Metropolis. 90 Porter v Commissioner of Police for the Metropolis [1999] All ER (D) 1129 (CA).

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42 Rosemary Hunter take seriously the possibility of implied contracts which are necessary to give effect to the relationship between the parties. The feminist judgment in Evans v Amicus Healthcare rejects the ‘bright line’ approach taken in the Human Fertilisation and Embryology Act 1990 of requiring both gamete donors’ consent to the continued storage and use of frozen embryos, and argues that in some kinds of circumstances, exceptions need to be made in order to protect one of the parties’ human rights. In Attorney-General for Jersey v Holley, the feminist judgment rejects the notion that for the purposes of the provocation defence, all adults should be held to a single expected standard of self-control, and prefers instead a variable standard that is capable of responding to the experience of life. At a factual level, the authors of the feminist judgment in Sheffield City Council v E reject the notion that ‘marriage’ has a universal, fixed essence and meaning, and hence determine that the question of whether or not a person has capacity to consent to marriage must be decided by reference to the particular marriage they are planning to enter. One does not consent to ‘marriage’ per se, but to marry a particular person. As noted previously, the feminist judgment in Re A rejects the view that bodily separation is the essence of humanity, and asserts that conjoinity is also a viable mode of human existence. In R v Brown, the feminist judgment is concerned to overcome an essentialised view of sado-masochistic sexual expression as violent and cruel (and hence universally condemned), and instead seeks to distinguish (legitimate) consensual activity from (harmful) non-consensual sexual violence. And in Re G, the feminist judgment insists that the notion of ‘parenthood’ should not be considered only in terms of the heterosexual norm, but must also incorporate lesbian parenting which is likely to differ from that norm.

The Role of Feminist Legal Theory Since concerns about the dangers of essentialism only entered feminist legal scholarship in the 1990s, it is perhaps not surprising that anti-essentialism has not yet been widely observed as an aspect of feminist judging. The judgments in this volume indicate, however, that it may well become so. This also suggests that other developing themes in feminist legal theory may ultimately make their way into the reasoning of feminist judges, illustrating that ‘feminist judging’ itself has no fixed essence. This brings us finally to point 7 on the list of feminist approaches to judging—drawing on feminist legal scholarship to inform decisions. Broadly speaking, this occurs (and ought to do so) implicitly rather than explicitly in feminist judgments, as the example of antiessentialism shows. Few of the feminist judgments in this volume refer explicitly to feminist legal literature, and when they do, it is largely in passing.91 More of them did so before we wielded our editorial red pens, but when we deleted references to feminist literature, it was because it was redundant to the development of the judicial reasoning. As a technical matter, feminist or any other kind of scholarship does not constitute legal authority, and thus cannot form part of the ratio of a judge’s decision. What is important is the account of the facts, the exposition of the law, and the application of the latter to the former. Empirical research and policy material may properly be incorporated as part of the reasoning process involved in the performance of these tasks, but the philosophical approach underlying their execution does not form part of the judgment itself. This is a further indication of the way 91

See R v Brown; EM (Lebanon) v Secretary of State for the Home Department; Sheffield City Council v E; Re G.

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An Account of Feminist Judging 43 in which, in Lord Bingham’s words, these judgments are ‘legally motivated’ rather than being the product of ‘extraneous considerations’.92 As the title of the collection suggests, feminist judging is not about theorising, but requires moving from theory to practice.

Conclusion To what extent does the feminist approach to judging identified here differ from any other critically aware judicial approach? Perhaps not a great deal, although it is likely to be well schooled in gender issues and feminist theoretical concerns, and to have a particular commitment to gender justice. Quite what follows from that, however, may be highly variable. Certainly, as discussed in chapter one, a feminist approach allows for internal differences between different theoretical positions and, as seen in this chapter, may evince different preoccupations over time. Like the common law itself, it has no fixed essence and does not lead to determinate results, but is located in methods which are themselves somewhat fluid. For these reasons, it is not at all incompatible with judicial norms of independence, impartiality and consistency, and it arguably values fairness more highly, or at least delivers it more surely. In particular, in making substantial use of knowledge, experience, and policy and research literature concerning women’s lives, within the bounds of judicial notice, it seeks to extend the range of law’s common knowledge and correct previous ignorance, unfounded assumptions and biases. In chapter one we discussed the process by which a group of feminist legal scholars came to write a series of feminist judgments. Having done so, and thereby explored the scope of the genre, run up against its boundaries, demonstrated its procedures and possibilities, contributed to its theoretical elaboration, and perhaps demystified its intentions, we hope that others will be encouraged to follow our lead. Although we can illustrate the ways in which theory may be put into practice, we cannot ourselves fully effect that transition. We hope, therefore, that the feminist judgments, the materials they use and the arguments they suggest will be taken up by advocates in the courtroom. We hope that such arguments may be attentively received. We hope that with or without the aid of such arguments, judges may find the feminist judgments informative and enlightening, and the feminist approaches to judging suggested here at least attractive, even compelling. Ultimately, we hope to see more examples of feminist judging appearing, not only in academic scholarship, but in the pages of the law reports.

92

Bingham, above n 5.

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3 The Art and Craft of Writing Judgments: Notes on the Feminist Judgments Project ERIKA RACKLEY*

Introduction Like the proverbial elephant, good judgment-writing is difficult to define but easy to recognise.1 ‘Writing judgments’, we are told, is ‘an art, not a science [that is] . . . not easily taught’.2 As a result, perhaps, judges have largely been left alone to learn their craft through ‘instinct’, ‘practice’ and ‘experience’.3 Formal tuition is, for the most part, eschewed in favour of the insights gained through a professional lifetime of reading other people’s opinions.4 The occasional ad hoc attempts, usually by senior judges, to provide guidance to their junior colleagues (or to explain their art to others) have generally been defensively cautious and accompanied by caveats as to the triviality of the topic or idiosyncrasy of their remarks.5 This apparently laissez-faire approach to judgment-writing is perhaps a little disquieting. After all, whatever one’s level of expertise or background, there is something distinctive about writing judgments. Judgments are different to other forms of legal writing. They differ not only in their purpose but also, importantly for a project concerned with writing feminist judgments, in their style or form. This chapter starts from the position that there is something to be learnt about the practice of judgment-writing. However, this is not to suggest that there is (or should be) a clear set of rules as to how judgments are written or presented. Just as there is no one style of novel, poem or academic article, there is not one style of judgment-writing but many. Judges are (and should remain) free to choose the form and language of their handiwork, to adopt and deploy the rhetorical and literary techniques best suited to the content of their judgment. Rather it is to suggest that when it comes to the actual practice of writing judgments there is more going on than the current hands-off * Many thanks are due to Neil Cobb, Rosemary Hunter, Roger Masterman, Clare McGlynn and Charlie Webb who took the time to comment on earlier drafts and discuss the ideas expressed in this chapter. 1 ‘Of course there is the old saying that it may be difficult to define an elephant but you will know one when you see one’: In Re Wigzell [1921] 2 KB 835 (CA) 859 (Scrutton LJ). 2 Lord Hope, ‘Writing Judgments’, Judicial Studies Board Annual Lecture (Judicial Studies Board, 2005) 1. 3 ibid. 4 Although the Judicial Studies Board now includes judgment-writing as part of its training programme: Judicial Studies Board, Prospectus April 2010–March 2011 Courts Judiciary, 42–44. 5 eg, Hope, above n 2; Lord Neuberger, ‘First Instance Judgments: Some Suggestions’, unpublished paper, 2009; Lord Carswell, ‘Reserve Thy Judgment—the Technique of Judgment Writing’, unpublished paper dated 26 September 2007, delivered to the Judicial Studies Board for Northern Ireland; Lord Rodger, ‘The Form and Language of Judicial Opinions’ (2002) 118 Law Quarterly Review 226; FH Newark, ‘The Anatomy of a Law Report’ (1965) 16 Northern Ireland Legal Quarterly 371, 372.

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The Art and Craft of Writing Judgments 45 approach suggests. In particular, it is to acknowledge the strategic nature of the judge’s linguistic choices—that the style and tone of a judgment is often crucial to, and revelatory of, both its subject and the judge.6 Thus, while the primary focus of the Feminist Judgments Project is, rightly, on the substance or ‘what’ of judgment, the stylistic and rhetorical choices that lie behind ‘how’ the feminist judgment writers communicate this are also deserving of attention.7 This chapter considers the art and craft of judgment-writing using examples from the Feminist Judgments Project. Combining the theoretical insights of law and literature scholars and judges’ practical advice about the judgment-writing process, it explores the narrative choices and persuasive strategies adopted by the feminist judgment writers as they seek to harness the unique authority and form of judgments and to craft legal arguments that are both subject to, and exploitative of, the freedoms and constraints of judgment-writing.8

Telling the Story The view that judges are—at least in part—storytellers, that judging and storytelling go hand in hand, is uncontroversial. The ubiquity of storytelling in law retains its status as ‘a truth universally acknowledged’.9 It is, perhaps, most obvious in the judge’s rehearsal of the facts. Here the parties’ disparate stories, the background to the dispute, information about the parties involved, the reasons why it came to court, and so on, are tried and tested (at least at first instance) before being translated into a legal narrative. The judge writes the ‘official’ story in which the parties’ experiences are re-told chronologically and, apparently,‘relatively neutrally’ and without reference to ‘irrelevant facts’:10 [T]ell the story . . . think of yourself as a storyteller. Getting stuck into the facts, though initially depressing, often turns out to be much more interesting (and much more challenging) than one expects . . . it is important to tell the story clearly; if you can make it engaging so much the better.11

Of course, storytelling—judicial or otherwise—is never as straightforward as this description suggests. Stories and storytelling have long been recognised as ‘iconoclastic tool[s] of persuasion for legal and social change’.12 They have political potential. Well told, they encourage empathy and acknowledge diversity. They open windows onto worlds in 6 D Klinck, ‘“Criticising the Judges”: Some Preliminary Reflections on Style’ (1985–1986) 31 McGill Law Journal 655, 656. 7 ibid. 8 In this way the Feminist Judgments Project differs from the imaginary judgments of Lon Fuller and Allan Hutchinson and Derek Morgan, which use the narrative technique and form of judgment-writing in imaginary cases as a jurisprudential exercise. See L Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616; A Hutchinson and D Morgan, ‘The Canengusian Connection: The Kaleidoscope of Tort Theory’ (1984) 22 Osgoode Hall Law Journal 69. 9 J Baron, ‘The Many Promises of Storytelling in Law: An Essay Review of Narrative and the Legal Discourse: A Reader in Storytelling and the Law’ (1991) 23 Rutgers Law Journal 79, 79. 10 Neuberger, above n 5 at [K2] 11 Neuberger, above n 5 at [H1], [H5]. 12 S Winter, ‘The Cognitive Dimension of the Agony between Legal Power and Narrative Meaning’ (1989) 87 Michigan Law Review 2225, 2228. See also Hunter, ch 2 in this volume; P Brooks and P Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law (New Haven, Yale University Press, 1996); and special edition of the Michigan Law Review (1989) 87(8) on ‘Legal Storytelling’.

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46 Erika Rackley which we do not and cannot live, enabling us to explore the world in which we do.13 In judgments, ‘storytelling is, or is made to function as, argument’.14 Its purpose is determinative as well as descriptive. Though the judge’s freedom to inquire into the story varies according to their judicial position, even at the very highest level, as the feminist judgments in R v Stone and Dobinson15 and R v Zoora Shah show, a judge has scope to shape—and reshape—the official ‘story’. In R v Zoora Shah, for example, in contrast to the original Court of Appeal who reduced the fresh evidence on which Zoora Shah’s appeal turned to a series of bullet points before dismissing her as a ‘most unsatisfactory witness’,16 the feminist judgment writers, Samia Bano and Pragna Patel, construct a detailed factual narrative, locating her actions (both in relation to the original charge—poisoning her abusive partner—and her silence during her trial—she gave no evidence in her defence) in their cultural and social context. They tell her story in a way that makes her, and her evidence, credible, allowing them to go on to accept the fresh evidence and order a retrial. Thus, though not engaged in making findings about disputed facts, an appellate judge can nonetheless retell the facts of the case, as presented and found, to reinforce their decision on the points of law. Stories and storytelling are, therefore, an essential part of the judge’s judgment-writing toolkit. The judge—like all authors—makes strategic choices about how to tell the story, including where to begin, the inclusion, exclusion, relevance or otherwise of certain facts, issues relating to style and tone, and so on. And the way in which the judge tells the story, alongside the form and language of their opinion, plays a role in determining how the judgment is received and whether it gains acceptance.17 Of course, this is one way in which who the judge is matters:18 It matters for the kind of story that it ultimately being told, and for the way that story reaches the law and the law reaches that story. Gender matters, race matters, and class matters. These things matter, not as potential sources of bias, but as a necessary and inevitable part of the story which is unfolding.19

This is nothing new. As Rosemary Hunter explored in the previous chapter, the Feminist Judgments Project is predicated on the reality that all judges have a particular approach or personal philosophy. However, for present purposes the point is this. This judicial worldview shapes not only what the judge writes, the content of judgment, but also how she does so, the form of judgment. As Richard Posner notes, the judge’s choice of style, her language and structure, ‘encodes’ her message, idea or outlook.20 So that—at least when it comes to good judgment-writing—were the judgment to be paraphrased or altered in some way, something tangible (not the decision, but something of its meaning or authority, its persuasive value) would be lost. In other words, the form of a judgment reflects its content; its style echoes substance. 13 I Durst, ’Valuing Women Storytellers: What They Talk About When They Talk About Law’ (1999) 11 Yale Journal of Law and Feminism 245, 267. 14 P Gewirtz, ‘Narrative and Rhetoric in the Law’ in Brook and Gewirtz, above n 12 at 5. 15 References to judgments without further citation are to the feminist judgments in this volume. The storytelling aspect of R v Stone and Dobinson, other feminist judgments and feminist judging generally is discussed further in Hunter, this volume. 16 R v Zoora (Ghulam) Shah [1998] EWCA Crim 1441 [7a]. 17 Rodger, above n 5 at 246–47. 18 S Berns, To Speak as Judge: Difference, Voice and Power (Dartmouth, Ashgate, 1999) 8. 19 ibid. 20 R Posner, ‘Judges’ Writing Styles (And Do They Matter?)’ (1995) 62 University of Chicago Law Review 1421, 1422.

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The Art and Craft of Writing Judgments 47

Knowing Your Audience A judgment at all levels has a number of distinct audiences, each of which engages with it in a different way. The parties to the case and their counsel will be interested in how the judge resolves their specific dispute, what the law gives to or requires of them. But at the same time, in a legal system where court cases are precedents, and in particular within a common law system, judgments have significance beyond their authoritative resolution of a specific dispute—particularly in the Supreme Court. Thus, as well as communicating to the parties the result, their rights and liabilities, the judge is also addressing the broader legal community—other lawyers, judges, legal academics, law students—and indeed the public at large. (Though, as Lord Neuberger notes, ‘unless the case involves sex, celebrities, very high or very low life’, the chances of the general public reading judgments is the stuff of dreams: ‘Your comments may or may not be quoted in the Daily Mail. If they are not, you will be cross; if they are, you will probably feel embarrassed’.21) Here too, who the judge is may once again come into play, as well as the court in which they are sitting. The judge at first instance, for example, is perhaps more likely to address (and/or have in mind) the parties appearing before them and the Court of Appeal; to use their judgment to persuade them that their decision is the right one. Once a case reaches the Supreme Court, however, the judgment is addressing a much wider audience, including the Court of Appeal, the Government, the European Court of Human Rights and so on. And, just like the judge, who the audience is (or at least, who the judge thinks their audience is) matters. Consider, from the Feminist Judgments Project, Clare McGlynn’s dissenting judgment in R v A (No 2) on the admissibility of sexual history evidence in rape trials in which she explicitly addresses the wider implications—and audience—of the case: This case is important, however, not just for the conduct of rape trials. The treatment of witnesses in court adversely impacts on decisions to report rape to the police. Who would want to put themselves before a voyeuristic court to have their sexual history trawled through and criticised, and often with little direct relevance to the issues at trial? The police and prosecutors often warn witnesses of the harrowing nature of giving evidence at trial, sometimes from the best of motives, with the result that many withdraw their complaint. Accordingly, while this case is about the admission of evidence at trial, its impact will reverberate throughout the criminal justice system in its dealings with rape.22

Though in R v A (No 2) very little was known about the parties to the case, the parties can often (though not always) disappear from view by the time a case reaches the upper echelons of the legal hierarchy. A recent notable exception to this can be found in Baroness Hale’s opinion in R (on the application of Gentle) v Prime Minister,23 which upheld the refusal by the lower courts to order an inquiry into the legality of the Iraq war. In her opinion, Baroness Hale deliberately and explicitly identified with the wishes of the families of deceased soldiers for an independent inquiry: ‘If my child had died in this way, that is exactly what I would want. I would want to feel that she had died fighting for a just cause, [and that, if not] then someone might be called to account.’24 A number of the feminist judgments 21 22 23 24

Neuberger, above n 5 at [E7]. R v A (No 2) [5]. R (on the application of Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356. ibid [53].

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48 Erika Rackley adopt a similar strategy, breaking with the conventions of distance and anonymity to become part of their judgment’s rhetorical performance.25 Consider, for example, feminist judgment writer Jo Bridgeman’s description of the applicant’s emotions in R v Portsmouth Hospitals NHS Trust, ex p Glass, a Court of Appeal decision involving the future treatment of her son following a significant disagreement with the hospital that was caring for him: The applicant in this case is a mother who has loved, cared for and nursed her child, dependent upon her as a result of disabilities with which he was born. She placed her trust and the care of her sick and disabled child with doctors. She then found herself ignored by the doctors both she and her child depended upon, unable to convince them that her child was not, as they believed, dying. This is an inconceivable situation to have been put in; I cannot imagine the emotions this mother must have gone through26

There is one final audience group worthy of note: the ‘Lords’ to whom a Law Lord’s speech is formally addressed. This anachronistic linguistic tic—a relic of a time when speeches were delivered orally in the debating chamber—has happily not been carried over the road to the new Supreme Court. And though in a couple of the feminist judgments it is accompanied by a deliberate ‘My Lady’,27 in most (usually due to the timing of the judgments) it sits uncomfortably at the start, as a reminder of the gender bias the project seeks to subvert.

Crafting Judgment Judgments can be written well and badly. The latter—derided by Mark Twain as ‘chloroform in print’28—are easy to spot. They are typically long, rambling, impenetrable and obfuscatory texts whose authors would do well to remember the advice of Lord Reid: ‘Technicalities and jargon are all very well among ourselves—a system of shorthand—but in the end if you cannot explain your result in simple English there is probably something wrong with it.’29 Well-written judgments are, then,‘concise, clear, interesting and accessible’.30 They use short sentences, plain language and clear reasoning to communicate the outcome in a way that persuades its diverse and distinct audiences of the correctness of the author’s decision. This is no mean feat. Typically, a good judgment is said to comprise a combination of two things: structure and style.31 At its most basic, a judgment must identify the relevant facts and legal issues, and make a clear decision on the application of the law to the facts supported by reasoning which justifies it.32 Within this, judges are largely free to shape their judgments as they wish. There are no specific requirements, standard layout or preferred structure. 25

S Levinson, ‘The Rhetoric of the Judicial Opinion’ in Brooks and Gewirtz, above n 12 at 187. R v Portsmouth Hospitals NHS Trust, ex p Glass, second paragraph. 27 EM (Lebanon) v Secretary of State for the Home Department; YL v Birmingham City Council and Others (Secretary of State for Constitutional Affairs intervening). 28 M Twain, Roughing It (1901), quoted in R Atkinson, ‘Judgment Writing’, paper delivered to QACT members, 6 February 2010, www.sclqld.org.au/qjudiciary/publications. 29 Lord Reid, ‘The Judge as Lawmaker’ (1972–73) 12 Journal of the Society of Public Law Teachers 22, 25. 30 Atkinson, above n 28. 31 ibid. 32 Neuberger, above n 5 at [G11]. 26

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The Art and Craft of Writing Judgments 49 If one is being methodical, there is a certain amount of material which must be incorporated, in a coherent order, if the judgment is to cover the subject matter of the decision properly. But beyond that it is a matter of individual choice how one sets it out.33

That said, it is possible to identify what FH Newark describes as a ‘common form’ pattern of judgment. This is where the judge simply ‘find[s] the facts—find[s] the law—fit[s] the facts to the law’ and structures their judgment accordingly.34 More recently, Queensland Supreme Court judge, Roslyn Atkinson, has put the same point thus: I have a simple acronym for the structure of judgments . . . FLAC. F—for facts; L—for law; A—for application; and C—conclusion. That basic structure of a judgment, modified to suit a particular situation, will ensure that you order your own thoughts in reaching a just, and indeed one might say, often inevitable conclusion.35

Despite its simplicity, the FLAC approach to judgment-writing—like its doppelganger ‘CLEO’ or ‘IRAC’ teaching methods36—has its critics. Newark dismisses the adoption of this structure as the mark of a somewhat ‘pedestrian’ (or, by necessity, Chancery) judge: ‘a map is a very useful piece of equipment, but though it may keep you on the right road a map does not tell you where to start from nor where to go’.37 A more positive assessment is that such a judgment is more likely to be clear and concise and, in particular, to meet the standards of accessibility—enabling ‘the reader . . . to pick up the bits that interest him without getting lost or necessarily having to comb through all of it’.38 The introduction of headings and paragraph numbers in judgments, as well as (less commonly) hyperlinked contents pages and appendices, reinforce this. In practice, the judge’s freedom to structure their judgment as they wish may be restricted by the type of judgment they are writing. The leading or ‘donkey-work’39 judgment in the Court of Appeal, House of Lords or Supreme Court, or a decision at first instance, is likely to require a more deliberate structure and rehearsal of the facts and legal issues, than a concurrence or postscript, where the judge is simply wanting to add to, clarify or mediate a particular point.40 While the author of the ‘donkey-work’ judgment may write, at least initially, to persuade their colleagues to join them, or perhaps to reduce the length of their concurrences, a concurring judgment seeks to incorporate a different perspective, to nudge the law in another direction, away from the leading judgment. It will often start from a different point or focus on particular issues. Consider, for example, Alison Diduck’s concurrence in Re G which begins: My Lords, I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I agree with her and with the rest of this House that this appeal should

33

Carswell, above n 5. Newark, above n 5 at 379. 35 Atkinson, above n 28. 36 CLEO and IRAC refer to two techniques or formulae used by students to answer legal problem questions. CLEO stands for Claim, Law, Evaluation and Outcome and IRAC for Issue, Rule, Application and Conclusion. See further SI Strong, How to Write Law Essays and Exams (Oxford, Oxford University Press, 2006); and criticism of such approaches in R Fischl and J Paul, Getting to Maybe: How to Excel on Law School Exams (Durham, NC, Carolina Academic Press, 1999). 37 Newark, above n 5 at 380–81. 38 Hope, above n 2 at 6. 39 B Hale and R Hunter, ‘A Conversation with Baroness Hale’ (2008) 16 Feminist Legal Studies 237, 246. 40 J Lee, ‘A Defence of Concurring Speeches’ (2009) 2 Public Law 305, 315–32. 34

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50 Erika Rackley be allowed, but because of the importance of the issues raised I wish to add some observations of my own.41

Alternatively, a concurring judgment may seek to reinforce the court’s decision,42 or ‘to provide a simple summary of the principles governing what we [the court] are doing and why we [the court] are doing it’.43 In contrast, a dissenting judgment (where the judge departs from the majority view in its entirety), as might be expected, is more likely to utilise varied structures, and stylistic features and techniques as it attempts to ‘win its way’.44 A dissent makes no difference to the case at hand. Instead, the judge is looking to the future and the possibility of change; the judgment seeks to subvert the dominant narrative by providing an alternative ‘story’ or way forward. This brings me to another aspect of good judgmentwriting—style.

Setting the Scene As with all good stories, the first few lines of a judgment set the scene and, crucially, the tone and approach of the judgment to follow. It is therefore important to get the opening sentence or paragraph right—something which, Lord Hoffmann is said to have acknowledged, sometimes took him longer than writing the rest of his opinion.45 Even within the constraints of judicial conventions, references to ‘My Lords’, order and type of judgment and so on, the judge has considerable freedom as to where to begin. There are three broad categories of judgment opening: narrative, technical and thematic.

Narrative—Or the ‘Once Upon a Time’ Beginning This category includes some of the most striking and explicitly story-like openings. These are often the most memorable way to start a judgment—the past master being Lord Denning.46 Whether it was ‘bluebell time in Kent’47 or extolling the virtues of country life,48 he had a way of catching his audience’s attention from the outset and of ‘foregrounding’ the conclusion that was to follow. Other judges have their Lord Denning moments. Rose LJ’s reference to AP Herbert, the author of a fictitious series of humorous cases at the turn of the last century, is perhaps, a case in point:

41

Re G (Children) (Residence: Same-Sex Partner) [1]. Lee, above n 40 at 316. 43 A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 [219] (Baroness Hale). 44 Rodger, above n 5 at 241. 45 Hope, above n 2 at 6. 46 Described in his obituary in The Guardian as ‘the last of a sparse succession of major judicial figures who have succeeded in shaping areas of the law into conformity with a strongly-held world view’ (S Sedley, ‘A benchmark of British justice’ The Guardian (London) 5 March 1999), Lord Denning was a prominent figure in the English judiciary for almost 40 years (including 20 years as Master of the Rolls). He famously wrote colourful judgments and held forthright (and highly conservative) views, both of which played a key part in his instrumental development of the common law. 47 Hinz v Berry [1970] 2 QB 40 (CA) 42. 48 Miller v Jackson [1977] QB 966 (CA) 976. 42

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The Art and Craft of Writing Judgments 51 It seems unlikely that AP Herbert, even at his most felicitously inventive could have imagined the scenario which this appeal presents to this court. In June 1995 a student bought, at a supermarket in Coventry, a packet of crisps manufactured by the appellant defendants. In it was a piece of white plastic, measuring in millimetres: 53 by 15 by 20. It was of an unusual and striking shape.49

Among the feminist judgment writers, Sonia Harris-Short’s opening to her fictional appeal in Evans v Amicus Healthcare is, perhaps, the most arresting. It leaves the reader in little doubt that (unlike in the Court of Appeal)50 the case will be resolved in Natallie Evans’s favour; she will be allowed to use the frozen embryos, which represent her last chance to have a genetically-related child, against the wishes of her ex-partner who is seeking to have them destroyed: My Lords, it is difficult to imagine the extreme distress experienced by a woman who is called into her doctor’s consulting room, first to be told that she is suffering from ovarian cancer and then to be advised that the cancer necessitates an almost immediate oophorectomy (removal of both ovaries).51

Harris-Short’s strategic use of Natallie Evans’s experience places her at the centre of the judgment. This is even more effective and affecting when read alongside the leading judgment in the original case where Natallie Evans is sidelined. Thorpe LJ draws on the legal hierarchy—perhaps to emphasise who he sees as the key player in the case: the judge. The judge in the family justice system is ordinarily required to exercise an experienced discretion that seeks to achieve fairness between adults or the protection and welfare of children. It is to be emphasised that in this case Wall J had the comparatively unusual task of arriving at an outcome that was solely dependent upon the resolution of the law. His first task was to construe the relevant provisions of the Human Fertilisation and Embryology Act 1990. His second task was to resolve whether the application of the statute once construed breached any of the appellant’s rights under the ECHR to an extent that could not be justified by the Secretary of State.52

Thematic and Technical Introductions Alternatively, the judge may chose to start her judgment by eschewing the particular factual or legal context of the case at hand, in favour of what has been termed ‘point-first writing’.53 A thematic opening puts context before detail. The judgment starts from (or goes back to) first principles. The facts of the case and/or the disputed legal issue are placed in their broader jurisprudential context. This style of opening, typically found in concurring or dissenting judgments, goes straight to the argument or ‘theme’ of the judgment to follow and may also (but does not always) include an explicit reference as to why the judge thinks an 49 Walkers Snack Food Ltd v Coventry City Council [1998] 3 All ER 163 (HC), referring to AP Herbert, Misleading Cases of the Common Law, 3rd edn (London, Methuen & Co Ltd, 1928). 50 And, ultimately the European Court of Human Rights: Evans v Amicus Healthcare Ltd and Others [2004] EWCA Civ 727, [2005] Fam 1; Evans v United Kingdom (2006) 43 EHRR 21; Evans v United Kingdom (2008) 46 EHRR 34. 51 Evans v Amicus Healthcare [1]. 52 Evans v Amicus Healthcare Ltd and Others, above n 50 at [1]. 53 JI Laskin, ‘Forget the Wind Up and Make the Pitch: Some Suggestions for Writing More Persuasive Factums’ (1999) 19 Advocates’ Society Journal 3, 4, in B McLachlin, ‘Legal Writing: Some Tools’ (2001–2002) 39 Alberta Law Review 695, 700.

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52 Erika Rackley additional judgment is necessary.54 As might be expected given the nature and purpose of feminist judging, outlined by Hunter in the previous chapter, particularly in relation to the importance of contextualisation, this style of opening is relatively well represented among the feminist judgments. Jo Bridgeman’s opening paragraph in R v Portsmouth Hospitals NHS Trust, ex p Glass, locates Carol Glass’s attempt to secure future treatment for her severely disabled son within the context of childcare: Children depend upon others to care for them especially when young, sick or disabled. Naturally, the primary responsibility for the care of children rests with their parents, as those most interested in ensuring their welfare and well-being. But it is not only parents who have responsibilities to children, so too do other relatives, and carers, including professionals.55

Again, the feminist judgment can be contrasted with the way Lord Woolf MR begins his leading judgment in the original case in the Court of Appeal, which adopts the expected technical or procedural tone: This is an application for permission to appeal which involves difficult and delicate decisions by the court. The applicant, the mother of David Glass who is to have his thirteenth birthday on 23 July 1999, is appealing against a decision of Scott Baker J that it was not desirable for him to give relief on an application for judicial review. His decision fundamentally involved an exercise of his discretion as to what was the right course for the court to take. The application for judicial review was appropriately heard by Scott Baker J since, not only is he a senior judge of the Queen’s Bench Division, he is also a judge who has had considerable experience concerning delicate issues such as this when he was a judge of the Family Division.56

Although, like their narrative counterparts, technical openings may outline the facts of the case, they do so while adopting a more ‘matter of fact’ tone. Consider, for example, Anna Grear’s concise opening paragraph in Porter v Commissioner of Police for the Metropolis, a case involving a woman who refused to leave a London Electricity Board showroom until the electricity connection to her new flat was established as had been previously agreed: My Lords, this case arose from a conflict between a woman and a corporate public service provider, and centres upon the woman’s refusal to leave the service provider’s public showroom. When the woman refused to leave, the police were called to remove her.57

Such openings are clearly less flamboyant (and, perhaps, less obviously ‘feminist’) than narrative or thematic introductions. Unsurprisingly perhaps, given the borrowed nature of their judicial authority, a number of feminist judgment writers adopt this manner of opening to good effect. Their formulaic style—a mark of a more traditional, familiar and expected approach to judgment-writing—lends their judgment an authoritative tone, and deliberately gives no indication of the difference that lies ahead.

54 eg Baroness Hale’s concurring judgments in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, [2002] QB 266 [56] and K v Secretary of State for the Home Department; Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1 AC 412 [83]. 55 R v Portsmouth Hospitals NHS Trust, ex p Glass, first paragraph. 56 R v Portsmouth Hospitals NHS Trust, ex p Glass [1999] 2 FLR 905 (CA) 905. 57 Porter v Commissioner of Police for the Metropolis, first paragraph.

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The Art and Craft of Writing Judgments 53

Persuasive Narration Efficient organisation of material and effective openings only go so far toward making a judgment ‘good’. Though clarity and concision of language and structure are central to the judge’s ability to engage ‘in the central conversation that is for us the law, a conversation that the opinion itself makes possible’,58 they are not the only virtues to be pursued. Good judgment-writing depends on the judge’s capacity to render these conversations intelligible, the effectiveness of the judge’s narrative as persuasion. Judgment-writing must be clear, but it need not be colourless. It should be competent, but also elegant. Rhetorical flourishes can sit alongside terse expositions of legal principle. Judgments ‘need persuasive force, or the impressive virtue of sincerity and fire, or the mnemonic power of alliteration and antithesis, or the terseness of proverb and the maxim. Neglect these allies, and it may never win its way.’59 Though, of course, we must not get carried away. Even the most unpersuasive and poorly written judgment still has material power. It still carries the authority of law, binds the parties and acts as precedent. A badly written judgment is still a judgment. Nevertheless, once the judge is recognised as a storyteller, narrative is revealed as an adjudicative technique. The ‘narrative path taken by the judge has a substantial impact on the readers of the final judgment . . . it is the key for acceptance and acknowledgement of the final legal outcome’.60 A case in which the judge clearly sympathises with the plight of one or other of the parties (usually in the face of a misunderstood or intractable precedent) is more likely to lead to what Newark terms a ‘crying shame’ judgment.61 This is where it is apparent (though not necessarily explicitly stated) that it will be a ‘crying shame’ if the claimant (or whoever) does not get judgment and the judge does their best to make this happen, whether or not ‘a lot of stuffy precedents stand in the way’.62 Vanessa Munro and Sangeeta Shah’s feminist judgment in R v Dhaliwal, in which they develop the law on unlawful act manslaughter, potentially bringing perpetrators of domestic violence within its scope, is perhaps the best example of this in the collection. Such cases stand in contrast to those where the resolution requires a ‘judgment of principle’,63 that is where the judge cites only a few cases and only to make a significant point (see, for example, Aileen McColgan’s reluctant concurrence in James v Eastleigh Borough Council). At other times, the pace or rhythm of the judgment-writer’s language—even in written form—works to reinforce their substantive point. Clare McGlynn’s tricolon in R v A (No 2)—‘Myths. Assumptions. Stereotypes.’64—works to slow down her narrative, drawing attention to her criticism of the treatment of rape complaints within the criminal justice system and paving the way for her turn to the facts two sentences later. Lord Rodger makes a similar point about the reinvigoration of paragraphs as a grammatical tool following the introduction of paragraph numbers in 2001: ‘short, staccato paragraphs can, whether intentionally or not, give a judgment an added appearance of decisiveness’.65 In contrast, 58 59 60 61 62 63 64 65

J Boyd White, ‘What’s An Opinion For?’ (1995) 62 University of Chicago Law Review 1363, 1367–68. B Cardozo, Selected Writings of Benjamin Nathan Cardozo, quoted in Rodger, above n 5 at 240. S Almog, ‘As I Read, I Weep: In Praise of Judicial Narrative’ (2001) 26 Oklahoma City Law Review 471, 487. Newark, above n 5 at 382. ibid. ibid 384. R v A (No 2) [4]. Rodger, above n 5 at 237.

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54 Erika Rackley Rosemary Auchmuty’s colourful retelling in her feminist judgment in Royal Bank of Scotland v Etridge (No 2) of earlier attempts by the courts to protect guarantors’ interests effectively harnesses a sense of the ridiculous, carrying her audience along while, at the same time, foreshadowing her later explicit focus on wives and the family home. There will no doubt be protests from both lenders and solicitors that the new guidelines impose duties too onerous, responsibilities too great. We have heard this many times before. I well remember the cries of anguish from conveyancing solicitors following Williams & Glyn’s Bank v Boland [1981] AC 487 when it became clear that they could no longer assume that the lady of the house had no separate interest in the property, and that they would have to ask her about her rights, lest their client be caught by her overriding interest. Too much work, they said! Too costly! And embarrassing, too, because they would need to enquire about the lady’s relationship to the legal owner. But the House of Lords of the time were not deterred.66

Other tools for persuasion in judgment-writing include metaphor and literary references. Judgments are full of imagery from many sources. Indeed, some of the most memorable passages of judgment-writing, Lord Rodger suggests, are such because they illustrate an important point with a commonplace example.67 Take, for example, Lord Steyn’s description of the state of the law relating to tortious recovery for pure psychiatric harm as ‘a patchwork quilt of distinctions which are difficult to justify’.68 Or, in a literary vein, Russell LJ’s suggestion in Sydall v Castings Ltd that one of his fellow judges, Lord Denning, had ‘acceded to the appeal of Bassanio in the Merchant of Venice’, while he, of course, was ‘a Portia man’.69 In fact, there are relatively few metaphorical or literary flourishes among the feminist judgments—the result, perhaps, of a desire to ensure the smooth and unencumbered transition of feminist theory into practice. That said, Susan Edwards, in her feminist judgment in Attorney-General for Jersey v Holley, effectively contrasts a ‘red mist’ used to describe the male experience of loss of self-control in cases where the defendant is attempting to raise the defence of provocation, with a ‘purple haze’ said to be experienced by women in the same situation.70 And in her dissenting judgment in Re A (Children) (Conjoined Twins: Surgical Separation), Geraldine Hastings adopts Ward LJ’s description of the parents as being on the ‘horns of a terrible dilemma’ as she gives legal effect to their wish to prevent the separation of their conjoined twin daughters because it would inevitably result in the death of one of the twins. As with the ‘once upon a time’ openings, which though ‘great fun’ are ultimately dismissed by Lord Rodger as ‘contrived’ and ‘faux naïf ’,71 there is always a danger of going too far. Not least, because, as Patricia Wald remarks, ‘litigants want judgments, not rhetoric, so that they can get on with their lives’.72 A judge can spend too long trying to come up with a striking sentence, only to succeed for all the wrong reasons. Lord Carswell offers the following example, from the judgment of Musmanno J in the Supreme Court of Pennsylvania: ‘Such a situation does not strike a melodious chord on the piano of justice which I always 66

Royal Bank of Scotland Plc v Etridge (No 2) [10]. Rodger, above n 5 at 243. 68 White v Chief Constable of South Yorkshire [1999] 2 AC 455 (HL) 500. 69 [1967] 1 QB 302 (CA) 321–22. 70 Attorney-General for Jersey v Holley [23]–[25]. 71 Rodger, above n 5 at 244. 72 P Wald, ‘The Rhetoric of Results and the Results of Rhetoric: Judicial Writings’ (1995) 62 University of Chicago Law Review 1371, 1385. 67

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The Art and Craft of Writing Judgments 55 try to keep tuned in the living room of my mind and heart.’73 Musmanno J might have done well to heed the advice of Lord Bingham who is said to have suggested the deletion of any sentence or phrase of which the judge is particularly proud.74 Like Henry Wadsworth Longfellow’s little girl, used well, metaphors can be very, very good, but used badly, they are horrid. Restraint, it seems, is key. The same is true when it comes to disagreeing with other judges, the court below or expert opinion. As noted in chapter one, judgment-writing is littered with stylistic conventions the purpose of which is to convey respect and courtesy even when disagreeing over the substantive issue. The feminist judgments mimic this tradition of deference. Whether it is having ‘had the advantage (or privilege) of reading in draft the speech of Lord X’ or simple references to ‘learned friends’, these written equivalents of verbal tics pepper the feminist judgments—even to the extent of including contemporarilyaccurate references to judicial ‘brethren’.75 Similarly, expert witnesses and judges in the courts below are accorded due, though not complete, deference. Bridgeman, for example, includes within her discussion of the actions of the doctors and health care trust in their treatment of David Glass and his family, the disclaimer that ‘[i]t is not my intention to question the medical judgment of his doctors’. And Alison Diduck prefaces her gentle criticism of the lower court’s lack of explicit discussion of the welfare checklist in Re G by acknowledging the expertise of the trial judge: While an experienced family judge such as Bracewell J can be assumed to have had regard to that checklist whether or not it is spelled out in the judgment, this is a particularly difficult and finely balanced case in which it would have been helpful for her to have addressed each of the factors on the list.76

Conclusion It has been suggested that the gap between judgments and academic writing is beginning to narrow, that developments in the form of judgments—in particular the use of headings, cross-referencing, footnotes, appendices, academic literature, and so on—mean that judges are increasingly ‘producing what to all intents and purposes amount to academic articles, mini-treatises, on the point at issue’.77 To the extent that judgments adopt the forms of academic writing, some sort of comparison is inevitable. After all, a good judgment, like a good academic article, is determined first and foremost by the substantive merits of its arguments. Both rely on effective communication of this argument through the strategic deployment of various rhetorical or literary techniques. The qualities of good academic writing—clear prose and persuasive argument—mirror those of a good judgment. And yet, such comparisons are likely to reveal the continuation of key differences between judgments and academic texts—beyond the obvious disparities in authority and effect. Thus, while (some) judgments might be becoming more ‘academic’, as we note in chapter 73 74 75 76 77

Vega v Borough of Burgettstown (1958) 147 A 2d 620, 625 in Carswell, above n 5. Neuberger, above n 5 at [G7]. Re A; R v Stone and Dobinson. Re G [34]. Rodger, above n 5 at 237.

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56 Erika Rackley one of this volume, key substantive differences between the practice of writing judgments and academic writing remain. Judgments and judgment-writing retain a unique power and status. There is something distinctive about the practice of writing judgments. The Feminist Judgments Project, by putting feminist theory into judgment form, seeks to harness and exploit this difference, to embrace the distinctiveness of judgment-writing—in all its guises—in a way that shows not only how cases could—and should—have been decided differently, but that also develops our understanding of the art and craft of writing judgments.

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Part II Parenting

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4 Commentary on Evans v Amicus Healthcare Ltd SALLY SHELDON

Introduction In October 2001, Natallie Evans was told that, due to the presence of serious tumours, both of her ovaries had to be removed. Before this occurred, in order to preserve a possibility of having the child she had always wanted, eggs were harvested from her and embryos were created from those eggs and the sperm of her then partner, Howard Johnston, to be stored for future use. Following the removal of her ovaries, whilst she was still able to carry a pregnancy normally, use of the frozen embryos represented Evans’s only hope of having her own genetic child. But in May 2002 her relationship with Howard Johnston broke down and, in July of that year, Johnston wrote to the clinic requesting that the embryos be destroyed. Evans was devastated and took legal action arguing that she should be allowed to use their stored embryos in order to become pregnant. The Evans case1 raised a number of issues regarding the appropriate interpretation of the Human Fertilisation and Embryology Act (1990) (‘the 1990 Act’). The Act provided that the storage and use of the embryos required the consent of both parties. Nonetheless, might it be argued that the stored embryos had already been ‘used’ in the provision of treatment services, with the result that Johnston’s consent could no longer be varied or withdrawn? Alternatively, was Johnston estopped from withdrawing his consent if, as Evans claimed, when she inquired about egg rather than embryo freezing, she had relied on his assurances that there was no need for this as they were not going to split up, and he wanted to be the father of her child? And finally, was there any merit to Evans’s argument that the consent requirements were an unnecessary infringement of her rights under the Human Rights Act 1998, in particular, her rights to respect for her private life, and to the enjoyment of rights without discrimination (articles 8 and 14 of the European Convention on Human Rights (ECHR)2 respectively)? Evans failed in both the High Court and Court of Appeal. Sonia Harris-Short’s feminist judgment is written as if she had then appealed to the House of Lords, assuming that only the human rights claims would have been pursued at that level. In reality, Evans was denied 1 Evans v Amicus Healthcare Ltd and Others [2003] EWHC 2161 (Fam), [2004] 2 WLR 713; hereinafter Evans (HC); Evans v Amicus Healthcare Ltd and Others [2004] EWCA (Civ) 727, [2005] Fam 1, hereinafter Evans (CA). See S Sheldon, ‘Evans v Amicus Health Care: Revealing Cracks in the “Twin Pillars”?’ (2004) 16 Child & Family Law Quarterly 437 for consideration of how these arguments played out in the High Court and Court of Appeal. 2 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended).

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60 Sally Sheldon permission to appeal to the House of Lords, but went on to take her case to the European Court of Human Rights in Strasbourg, where she was similarly forced to rely exclusively on the human rights arguments.3 While these claims persuaded Harris-Short, sadly for Evans, the majority of the Grand Chamber of the European Court was unconvinced. While accepting that article 8 ECHR was engaged with respect to both Evans and Johnston, it found that any interference with her rights was proportionate under article 8(2). The same reasoning was fatal to Evans’s discrimination claim under article 14. Evans had thus exhausted all available legal avenues, with the result that the disputed embryos would be destroyed. Evans’s progress through the courts attracted a storm of sympathetic media comment and popular attention.4 Since her case was argued, the 1990 Act has been extensively reformed, with one amendment clearly intended to address the kind of dilemma that she faced: the Human Fertilisation and Embryology Act 2008 introduces a ‘cooling off ’ period, so that where one party withdraws consent for the use and continued storage of embryos, such continued storage nonetheless remains lawful for 12 months.5 Yet this amendment, intended to give the parties time to reach an agreement regarding disposition of the embryos, leaves untouched the broad parameters of the consent requirements of the legislation. It is thus unlikely that it would have helped Evans, given the seemingly intractable nature of Johnston’s opposition. The remedy proposed by Harris-Short—a declaration of incompatibility between the 1990 Act and the Human Rights Act—would have required far more radical reform to bring the legislation into line with her reading of the UK’s human rights obligations.6 In addition to arriving at a different decision from the various courts which heard this case, a number of aspects of Harris-Short’s reasoning are worthy of note as indicative of a specifically feminist approach. Her opinion contains, first, a clear foregrounding of Natallie Evans’s experience and an implicit invitation to the reader to empathise with her feelings; second, a focus on the gendered reality of daily life; and third an attempt to go beyond an appearance of formal justice to seek substantive fairness between the parties. I consider each of these aspects below, before ending with a brief thought on the implications of HarrisShort’s judgment.

Experience and Empathy Particularly striking in Harris-Short’s judgment is the extent to which Evans’s experience is embedded throughout. Evans’s sense of devastation, vulnerability and powerlessness is 3 Harris-Short does not consider an additional human rights argument made by Evans: that the embryos deserved some protection under art 2. Evans’s arguments here, however, were very swiftly dispatched, with the Court of Appeal and European Court of Human Rights each confirming that embryos are not capable of enjoying the ‘right to life’. See respectively, Evans (CA), above n 1 at [19] noting that: ‘Evans’ case is not about the right to life; it is about the right to bring life into being’; and Evans v United Kingdom (2008) 46 EHRR 34 [56]. 4 For a very small taste, see J Murray,‘Cruel, Mean Spirited and Selfish’ The Guardian (London, 3 October 2003); AC Grayling, ‘Embryo Case’ Evening Standard (London, 2 October 2003). 5 Human Fertilisation and Embryology Act 1990 Sch 3, 4A(4) as amended. 6 For a recent academic intervention by Harris-Short on the case, which provides a more detailed exposition of her position, see S Harris-Short, ‘Regulating Reproduction—Frozen Embryos, Consent and the Equality Myth’ in R Deazley and S Smith (eds), The Legal, Medical and Cultural Regulation of the Body: Transformation and Transgression (Aldershot, Ashgate, 2009).

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Evans v Amicus Healthcare Ltd—Commentary 61 strongly advanced in the opening paragraphs, framing the discussion to follow.7 Readers are invited to share the anguish of Evans’s situation at the very outset and thus to approach the relevant law through this lens. This move also echoes a key strategy in other forms of feminist writing: the use of a story to draw in the reader. This ensures that the judgment is not abstract, but individualised;8 Harris-Short’s account of the facts is fully grounded in the realities experienced by the complainant. While Johnston’s interests and feelings are also considered, these are given less prominence. Harris-Short’s reading thus contrasts interestingly with my own initial reading of Evans, which was carried out in the context of research which would eventually lead to a coauthored book (with Richard Collier) on fatherhood,9 and hence was very specifically focused on what the case could tell us about fathers and how they figured in law. This led me to reflect on Johnston’s reasons for refusing fatherhood, which seemed to me to fit squarely within trends towards a more active, involved model of ‘new fatherhood’,10 which might be warmly welcomed by many feminists. Johnston professed to be guided not just by the legal and financial burdens of fatherhood, but also by a more hands-on vision of the appropriate role for fathers. The other concern which influenced my thinking about Evans, and which also arose from my research on fatherhood, was the emphasis which Evans placed on genetic accounts of parenthood. In the conclusion to our book, Collier and I discuss a ‘geneticisation’ of fatherhood, where genetic ‘facts’ have come to figure more heavily in determining which men should count as fathers and what rights and responsibilities they should acquire as such.11 While not wanting to discount the obvious significance which genetic links clearly have for many people (or, here, to deny Evans’s evident pain in losing the chance to carry her own genetic child), we were wary that this renewed focus on genetic links might come at the expense of understandings of parenting as a social practice. In this light, it is important to remember that Evans was arguing not for the right to gestate a pregnancy and raise a child (which remained biologically possible for her without access to the disputed embryos), but rather to be allowed to gestate a pregnancy using her own genetic material.

Context and Substantive Equality Two other key feminist moves which Harris-Short makes in her judgment can be detected in her focus on the gendered reality of daily life and, drawing on this, her attempt to move beyond formally equal treatment of the parties in search of substantive justice. Central to her judgment, as to some of the feminist commentary on this case, is a consideration of the relative costs and benefits to Evans and Johnston of the various possible outcomes.12 What does it mean to treat the two parties equally, taking account of the gendered reality of their 7 The foregrounding of women’s experience is one of five ‘opening moves’ described by Martha Chamallas as essential to ‘thinking like a feminist’: M Chamallas, Introduction to Feminist Legal Theory (New York, Aspen, 2003). 8 KT Bartlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829, 849–50; R Hunter, ‘Can Feminist Judges Make a Difference?’ (2008) 15 International Journal of the Legal Profession 7, 12. 9 R Collier and S Sheldon, Fragmenting Fatherhood: A Socio-Legal Study (Oxford, Hart Publishing, 2008). 10 ibid 97. 11 ibid 225–26. 12 See particularly N Priaulx, ‘Rethinking Progenitive Conflict: Why Reproductive Autonomy Matters’ (2008) 16 Medical Law Review 169.

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62 Sally Sheldon lives? Harris-Short’s carefully nuanced and grounded account of the meaning of parenthood for Evans and Johnston provides a striking contrast to the highly superficial and formalistic analysis of the High Court, where Wall J suggested that: [I]t is not difficult to reverse the dilemma. If a man has testicular cancer and his sperm, preserved prior to radical surgery which renders him permanently infertile, is used to create embryos with his partner; and if the couple have separated before the embryos are transferred into the woman, nobody would suggest that she could not withdraw her consent to treatment and refuse to have the embryos transferred into her. The statutory provisions, like Convention Rights, apply to men and women equally.13

This ignores the fact that an infertile man would be highly unlikely ever to find himself in the position described here, because he would choose to store his sperm (a simple, safe and effective procedure) rather than using it to create and store embryos. At the time Evans was treated, however, no successful pregnancy had ever resulted from stored eggs, so embryo storage was her only realistic option. Wall J also appears to believe that forcing Johnston to father a child against his will is directly comparable to forcing Evans to carry one against hers. In other words, the fact that Johnston cannot subject Evans to an unwanted and invasive medical procedure followed by nine months of unwanted pregnancy and the pain and risks of childbirth in order to create a child for him to raise is represented as directly equivalent to the fact that Evans cannot insist on making use of the embryos herself with the result that Johnston has an unwanted genetic child in the world.14 Harris-Short goes beyond Wall J’s analysis in recognising the significance of gestation, and she also attempts to understand the meaning of the stored embryos for Evans and Johnston in the context of the gendered realities of parenting. However, this is also—as Harris-Short recognises—to enter ‘difficult and controversial waters’ and to intervene directly in an ongoing, highly politicised debate regarding the parenting practices of men and women.15 She notes that Evans’s loss of reproductive capacity was ‘the loss of what for many women remains the defining feature of their lives’16 and, later, that ‘for many women, motherhood lies at the heart of who they are or what they hope to become. It sits at the core of their identity.’17 These statements will undoubtedly divide feminist commentators between those who will applaud them as a welcome recognition of simple social fact and others who will decry them as echoing sexist, essentialist reductions of women to nothing more than our reproductive capacity. Harris-Short’s contention that fatherhood simply does not have the same core meaning for men is likewise certain to polarise opinion. It is outside the scope both of her judgment and of this commentary to summarise the complex debate within which she is here implicitly intervening. However, it can be noted that while many men still struggle to reconcile the demands of acting as primary breadwinner alongside providing active care, growing numbers of fathers feel deeply committed to ‘doing their share’ and children have assumed a different significance within their life experience.18 As such, fatherhood does seem to have 13

Evans (HC), above n 1 at [320]. See further on the equality argument, S Sheldon, ‘Gender Equality and Reproductive Decision Making’ (2004) 12 Feminist Legal Studies 303; A Morris and S Nott, ‘Rights and Responsibilities: Contested Parenthood’ (2009) 31 Journal of Social Welfare and Family Law 3. 15 Evans v Amicus Healthcare, this volume [39]. 16 ibid [1]. 17 ibid [39]. 18 For a discussion of the literature, see Collier and Sheldon, above n 9 at ch 4. 14

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Evans v Amicus Healthcare Ltd—Commentary 63 achieved a greatly enhanced importance for men and the fact that men spend less time with their children cannot always be read as implying a less engaged relationship.19 Nonetheless, Harris-Short is undoubtedly right to note that women still provide the majority of handson care for children and that many women do view motherhood as central to their identity.

Consequences? A final question, by way of conclusion, echoes a perennial issue for feminist law reform: might creating further scope for legal intervention have unintended consequences which could ultimately prove detrimental to (some) women? The natural conclusion of the declaration of incompatibility issued by Harris-Short would be to extend the reach of the law, allowing for intervention regarding the disposition of embryos in those cases where couples are unable to reach their own agreement and where the embryos represent the final chance for one of them to have their own genetic child. Given the fact that circumstances may change following the creation of embryos (for example where a woman loses her ability to create further eggs in unforeseen circumstances), this means that all agreements are potentially liable to be reopened. Yet, if men do not enjoy a guarantee that they will be able to withdraw consent to continued storage of embryos in the future, might some men be less willing to allow their sperm to be used in this way? If so, this may restrict some women’s options to egg freezing (a procedure which has historically been less successful than the freezing of embryos20) or the creation of ‘fresh’ embryos at each IVF attempt, which may, in turn, perhaps further limit their opportunities to have their own genetic child.

19 20

See further, eg E McDermott, Intimate Fatherhood: A Sociological Analysis (London, Routledge, 2008). DA Gook and DH Edgar, ‘Human Oocyte Cryopreservation’. (2004) 13 Human Reproduction Update 591.

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House of Lords

Evans v Amicus Healthcare Ltd and others (Secretary of State for Health and another intervening) [2005] BARONESS HARRIS-SHORT Introduction 1 My Lords, it is difficult to imagine the extreme distress experienced by a woman who is called into her doctor’s consulting room, first to be told that she is suffering from ovarian cancer and then to be advised that the cancer necessitates an almost immediate oophorectomy (removal of both ovaries). Those who have suffered the pain of infertility may have some understanding of the sense of devastation and despair that Natallie Evans must have felt when she found herself in this position on 10 October 2001. For a childless woman who had struggled for eight years to realise her dream of becoming a mother, this painful news constituted a particularly devastating blow. The removal of both ovaries would end any chance of Natallie Evans realising her dream of motherhood, at least as understood and taken for granted by the majority of women. Whilst it is true to say that Natallie Evans could have become a mother using donated eggs or through adoption, the importance of genetic parenthood remains deeply entrenched within our society and the law should not be blind to that reality. Not only was Natallie Evans facing the shock and trauma of lengthy treatment for cancer, she was facing the loss of what for many women remains the defining feature of their lives: carrying and giving birth to their own genetically-related child. 2 However, Natallie Evans’s story is not just about the pain and distress of infertility. It is about her powerlessness: a powerlessness that is embedded in the law. Whilst infertility inevitably involves a considerable loss of autonomy to others, most patients are able to retain a limited sense of control—at the very least over choosing when and with whom to seek treatment. Natallie Evans’s circumstances were such that she was deprived of even this limited vestige of autonomy. Because of the nature of her illness, all Natallie Evans’s hope had to be channelled into a single cycle of IVF treatment and the resulting six embryos placed into storage. These embryos represented her very last chance to have her own geneticallyrelated child. However, the continued storage and future use of these embryos was completely dependent on the will of her former partner and the genetic father of the embryos under dispute, Mr Johnston. Ms Evans’s complete powerlessness in this situation was created by the Human Fertilisation and Embryology Act 1990 and has, to this point, been upheld as just and fair by some of the country’s most experienced judges. However, the law should not be blind to its own complicity in compounding the suffering of women such as Ms Evans. The law must be able to listen and respond appropriately to their undoubted despair and distress. Until now it has not done so. This House has the opportunity to put that right.

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Evans v Amicus Healthcare Ltd—Judgment 65 The facts of the case 3 The facts of the case are set down in detail and with admirable clarity by Wall J in his first instance judgment [2004] 2 WLR 713. Those facts, as found by Wall J, can be briefly summarised here. 4 On 10 October 2001, Natallie Evans and Howard Johnston attended a fertility clinic. Ms Evans was 29 years old and childless. Ms Evans had been attending the clinic with Mr Johnston since July 2000, although she had previously received treatment with her former husband. On the occasion of her visit on 10 October 2001, Ms Evans received terrible news. Tests had revealed she had cancerous tumours in both ovaries and both ovaries and fallopian tubes would therefore have to be removed. 5 In the midst of the emotional turmoil surrounding this news, the clinic advised Ms Evans and Mr Johnston that surgery could be postponed for a short period to allow Ms Evans to undergo the first stage of IVF treatment. Within minutes, the couple met with Mrs Spearman, a nurse at the clinic, to discuss this possibility. Not surprisingly, given the shock of these developments, accounts as to what happened at that crucial meeting differed somewhat between Ms Evans, Mr Johnston and Mrs Spearman. However, it was found by Wall J that in response to a question by Ms Evans, she had been advised by Mrs Spearman that the clinic did not offer egg freezing, at which point Mr Johnston had intervened to reassure Ms Evans that as they were not going to separate, egg freezing was unnecessary. 6 The couple then signed all the necessary consent forms. The crucial form for the purposes of this appeal is that headed “HFEA (00) 6 form for consent to storage and use of sperm and embryos”. This form is prescribed by the Human Fertilisation and Embryology Authority and is intended to comply with the consent requirements of Schedule 3 of the 1990 Act. 7 In accordance with the terms of form HFEA (00) 6, Mr Johnston gave his consent: (i) to the use of his sperm to fertilise eggs in vitro and to the use of embryos developed from the fertilised eggs in the treatment of himself and Ms Evans; and (ii) to the storage for a maximum period of 10 years of his sperm and embryos developed from the in vitro fertilisation of eggs using his sperm. Ms Evans similarly consented: (i) to her eggs being fertilised in vitro to develop embryos and to the use of those embryos for the treatment of herself and Mr Johnston; and (ii) to the storage for a maximum period of 10 years of her eggs and embryos developed in vitro from her eggs. 8 It is therefore clear that what both Ms Evans and Mr Johnston consented to was the use of their gametes in the development of embryos in vitro and for the use and storage of those embryos for the purpose of providing them with treatment together. Furthermore, Mrs Spearman advised them, in accordance with the terms of Schedule 3 of the 1990 Act, that nothing could be done with the stored embryos without the consent of both parties and that they would be contacted on an annual basis to check that both partners wished the embryos to remain in storage. It is notable that in his evidence to Wall J, Mr Johnston stated that he was reassured that they would retain the freedom to decide whether they wanted to start a family together and that he would maintain the same control regarding this decision as he would have enjoyed had the couple’s circumstances been different.

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66 Sonia Harris-Short 9 Ms Evans immediately embarked on the IVF treatment and on 12 November 2001, the couple attended the clinic for the egg removal. Eleven eggs were harvested and fertilised. Six embryos successfully developed and were placed in storage. Those six embryos represent Ms Evans’s last chance to have her own genetically-related child. 10 Following the egg removal, Ms Evans began receiving treatment for the cancerous tumours. That treatment was completely successful. Her ovaries and fallopian tubes were removed in November 2001 but she remains able to carry a normal pregnancy. 11 Ms Evans was advised to wait for two years before attempting an embryo transfer. Sadly, in May 2002, Ms Evans and Mr Johnston separated. In July 2002, Mr Johnston wrote to the clinic notifying them of the separation and informing them that as far as he was concerned the embryos could be destroyed. The clinic duly informed Ms Evans that Mr Johnston had withdrawn his consent to further storage of the embryos so they would have to be destroyed. In September 2002, Ms Evans issued these proceedings. The clinic has undertaken not to destroy the embryos until these proceedings have been finally concluded. The proceedings and the issues under appeal 12 In the proceedings at first instance before Wall J, Ms Evans sought declarations that Mr Johnston: (i) be prevented from varying or withdrawing his consent (or his consent be restored) to the storage and use of the embryos; (ii) that the embryos could lawfully remain in storage until the expiry of the 10 year storage period for which Mr Johnston had originally given his consent; and (iii) that she be permitted to use the embryos in future treatment during the storage period. Should she fail on these points, Ms Evans sought a declaration of incompatibility pursuant to section 4(4) of the Human Rights Act 1998 to the effect that Schedule 3 of the 1990 Act: (i) constituted an unnecessary interference with her right to respect for private and/or family life under article 8 of the European Convention on Human Rights; (ii) constituted an unnecessary interference with her right to found a family under article 12 of the Convention; and/or (iii) discriminated against her on the grounds of her infertility and/or disability contrary to article 14 of the Convention. Finally, she argued that Schedule 3 of the 1990 Act failed to accord due protection to the rights of the embryos under articles 2 and 8 of the Convention and/or to any proprietary or possessory interest Ms Evans may have in the embryos under article 1 of the First Protocol to the Convention. 13 Ms Evans failed on all counts. She appealed to the Court of Appeal on the following grounds: (a) That Wall J had misconstrued the expression “treatment together” within Schedule 3 to the 1990 Act; (b) That Wall J had misconstrued the phrase “in providing treatment services” in paragraph 4(2)(a) of Schedule 3 to the 1990 Act; (c) That, with respect to both the storage and use of the embryos, Wall J was wrong to hold that the conceded interference in the private life of Ms Evans resulting from the judge’s construction of Schedule 3 to the 1990 Act was “both necessary for the protection of the rights of both gamete providers, and proportionate”;

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Evans v Amicus Healthcare Ltd—Judgment 67 (d) That Wall J was wrong to hold that Ms Evans was not discriminated against in the enjoyment of her article 8 rights to private life contrary to article 14 of the Convention; (e) That Wall J was wrong to hold that Mr Johnston was not estopped from withdrawing his consent as expressed on 10 October 2001 on the grounds that estoppel could not run in the face of the Act; (f) That Wall J was wrong to find that no estoppel arose on the facts. The Court of Appeal refused permission to appeal on the additional ground that Wall J was wrong to hold that the embryos had no rights under article 2 of the Convention. 14 The Court of Appeal, consisting of Thorpe, Sedley and Arden LJJ, dismissed all six grounds of appeal. Ms Evans now appeals to this House. Counsel, on her behalf, did not pursue the first two grounds of appeal regarding the correct statutory construction of Schedule 3 to the 1990 Act. As will be made clear below, counsel was wise to adopt this course. Permission was sought by counsel to pursue the arguments based on estoppel. However, permission to appeal on this ground was refused on the basis that it raised no arguable point of law. Just two grounds of appeal therefore remain for consideration by this House: (a) With respect to both the storage and use of the embryos, the Court of Appeal were wrong to uphold the judgment of Wall J that the conceded interference in the private life of Ms Evans resulting from the judge’s construction of Schedule 3 to the 1990 Act was “both necessary for the protection of the rights of both gamete providers, and proportionate”; and (b) The Court of Appeal were wrong to uphold the judgment of Wall J that Ms Evans was not discriminated against in the enjoyment of her article 8 rights to private life contrary to article 14 of the Convention. 15 In determining this appeal, we have thus been solely concerned with whether or not Schedule 3 to the 1990 Act is compatible Ms Evans’s article 8 and article 14 rights under the Convention or whether a declaration of incompatibility should be made under section 4(4) of the 1998 Act. The statutory framework: Schedule 3 to the 1990 Act 16 The crucial provisions governing consent to the use and storage of gametes and embryos are contained in Schedule 3 to the 1990 Act. For convenience I will set the key provisions out in full: “Schedule 3 “Consents to the use of gametes or embryos “1. A consent under this Schedule must be given in writing and, in this Schedule, ‘effective consent’ means a consent under this Schedule which has not been withdrawn. “2(1) A consent to the use of any embryo must specify one or more of the following purposes—(a) use in providing treatment services to the person giving consent, or that person and another specified person together, (b) use in

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68 Sonia Harris-Short providing treatment services to persons not including the person giving consent, or (c) use for the purposes of any project of research, and may specify conditions subject to which the embryo may be so used.” “Procedure for giving consent “3(1) Before a person gives consent under this Schedule—(a) he must be given a suitable opportunity to receive proper counselling about the implications of taking the proposed steps, and (b) he must be provided with such relevant information as is proper. “(2) Before a person gives consent under this Schedule he must be informed of the effect of paragraph 4 below. “Variation and withdrawal of consent “4(1) The terms of any consent under this Schedule may from time to time be varied, and the consent may be withdrawn, by notice given by the person who gave the consent to the person keeping the gametes or embryo to which the consent is relevant. “(2) The terms of any consent to the use of any embryo cannot be varied, and such consent cannot be withdrawn, once the embryo has been used—(a) in providing treatment services, or (b) for the purposes of any project of research.” “In vitro fertilisation and subsequent use of embryo “6(1) A person’s gametes must not be used to bring about the creation of any embryo in vitro unless there is an effective consent by that person to any embryo the creation of which may be brought about with the use of those gametes being used for one or more of the purposes mentioned in paragraph 2(1) above.” “(3) An embryo the creation of which was brought about in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use for that purpose of the embryo and the embryo is used in accordance with those consents.” “Storage of gametes and embryos “8(2) An embryo the creation of which was brought about in vitro must not be kept in storage unless there is an effective consent, by each person whose gametes were used to bring about the creation of the embryo, to the storage of the embryo and the embryo is stored in accordance with those consents.” The correct interpretation of Schedule 3 17 A licensed clinic failing to comply with the requirements of Schedule 3 faces revocation of its license and/or criminal prosecution. There is, however, no ambiguity in the terms of Schedule 3. It is perfectly clear what is required by way of consent to the use and storage of gametes and embryos. 18 Paragraph 6(1) of Schedule 3 provides that a person’s gametes must not be used to bring about the creation of an embryo in vitro unless there is an “effective consent” by that person to the creation of the embryo for one or more specified purposes. Effective consent is defined in paragraph 1 of Schedule 3 as consent

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Evans v Amicus Healthcare Ltd—Judgment 69 which is in writing and has not been withdrawn. It is not contested that in this case Ms Evans gave effective consent to the creation of embryos using her eggs for the purpose of providing treatment services to her and Mr Johnston together. Similarly, it is not contested that Mr Johnston provided effective consent to the creation of embryos using his sperm for the purpose of providing treatment services to him and Ms Evans together. Nothing turns on these provisions. 19 Paragraph 6(3) of Schedule 3 provides that an embryo created in vitro must not be used for any purpose unless there is an effective consent by each person whose gametes were used to bring about the creation of the embryo to the use of that embryo for that purpose. Ms Evans thus faces two clear obstacles to the use of the six stored embryos in any future treatment. First, the original consents given by both Mr Johnston and Ms Evans were to the use of the embryos for the purpose of treating them “together”. They did not consent to the use of the embryos in the treatment of Ms Evans alone. It was made clear by Butler-Sloss P in the case of Leeds Teaching Hospital NHS Trust v A [2003] 1 FLR 1091, paras 24–33, that the consent requirements set down in Schedule 3 must be strictly construed. Moreover, since the decision of the Court of Appeal in this case, this House has made it clear in Re R (A Child) (IVF: Paternity of Child) [2005] 2 AC 621 per Lord Hope at paras 13–14 that the question of whether treatment is being provided to Ms Evans and Mr Johnston “together” must be determined on the evidence, as a question of fact, at the point of embryo transfer. Quite clearly, any future treatment provided to Ms Evans would not be in the nature of a “joint enterprise” with Mr Johnston and they could not therefore be said to be receiving “treatment together” at this critical point. There is therefore no effective consent by either of the gamete providers (although in the case of Ms Evans this could be easily remedied) to the use of the embryos for the desired purpose: the treatment of Ms Evans alone. 20 Second, and an equally intractable problem, is the fact that Mr Johnston has now purported to exercise his right, pursuant to paragraph 4(1) of Schedule 3, to withdraw his consent to the use of the embryos for any purpose. Once consent has been withdrawn it is no longer “effective” for the purposes of Schedule 3. 21 It is provided by paragraph 4(2) of Schedule 3 that the consent to the use of an embryo cannot be withdrawn once the embryo has been “used in providing treatment services”. The correct interpretation of this phrase was a matter of dispute before Wall J and the Court of Appeal. The point has not been pursued before us. However, I unreservedly agree with both Wall J and the Court of Appeal that the phrase “used in providing treatment services” should be interpreted to mean the point of embryo transfer. Whilst I would not wish to preclude the possibility that there may be some circumstances such as those considered in R (Quintavelle) v Human Fertilisation and Embryology Authority [2004] QB 168 in which investigatory or diagnostic procedures performed on an embryo can be said to constitute “use” of the embryo, in the vast majority of cases involving standard IVF treatment, the embryo cannot sensibly be said to have been “used in the provision of treatment services” until the point of transfer. This interpretation of paragraph 4(2) is clear and easy to apply and will provide a straightforward answer in the majority of cases. It also remains faithful to the emphasis placed by Parliament on ensuring the continuing consent of both gamete providers throughout the treatment cycle. Applied to the facts of this case, it means Mr Johnston was perfectly at

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70 Sonia Harris-Short liberty in July 2002 to withdraw his consent to the use of the embryos in the provision of any future treatment to Ms Evans. 22 These same considerations govern the question of Mr Johnston’s effective consent to the continued storage of the embryos. Paragraph 8(2) of Schedule 3 makes it clear that an embryo must not be kept in storage unless there is an effective consent by each of the gamete providers. Paragraph 4(1) is equally clear that Mr Johnston has an unqualified right to withdraw his consent to the continued storage of the embryos at any time. Without the effective consent of both gamete providers the clinic cannot lawfully store the embryos. The unavoidable consequence of Mr Johnston’s withdrawal of consent is that the embryos must therefore be destroyed. 23 The statutory regime governing consent to the creation, storage and use of embryos creates what has been termed a “bright-line” approach. The requirement for the consent of both gamete providers to the creation, storage and use of embryos is absolute. Schedule 3 does not permit of any exceptions. It does not afford any discretion to the clinic, the Human Fertilisation and Embryology Authority or to the courts to waive or override these strict requirements. The remaining issue to be determined by this House is whether this “bright-line” approach is consistent with Ms Evans’s rights under articles 8 and 14 of the Convention. The Convention arguments: article 8 24 It is argued on behalf of Ms Evans that the “bright-line” approach created by Schedule 3 of the 1990 Act violates her right to respect for her private life under article 8 of the Convention. Article 8 provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. “2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.“ If this argument can be sustained, counsel correctly points out that Schedule 3 of the 1990 Act must be interpreted, in accordance with section 3(1) of the Human Rights Act 1998, in such a way as to render it compatible with Ms Evans’s Convention rights. If such an interpretation is impossible then, counsel argues, a declaration of incompatibility should be made under section 4 of the 1998 Act. Does the right to reproductive freedom fall within the scope of article 8(1)? 25 Counsel on behalf of Mr Johnston accepted that Ms Evans’s inability to use the six disputed embryos to realise her dream of genetic motherhood constituted an interference with her article 8 right to respect for her private life. The “private life” limb of article 8 has been broadly defined by the European Court of Human Rights. In Van Kuck v Germany (2003) 37 EHRR 51, para 69, for example, the Court held:

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Evans v Amicus Healthcare Ltd—Judgment 71 “[T]he concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . . . It can sometimes embrace aspects of an individual’s physical and social identity . . . Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world . . . Likewise, the court has held that though no previous case has established as such any right to self-determination as being contained in article 8, the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.” Becoming a parent is regarded by many as core to the very purpose and meaning of life. Parenthood is often a defining feature of a person’s individual identity. It is central to a person’s well-being and to their physical and psychological integrity. As I will explore later, this is perhaps particularly so for women. The devastation felt by those who are unable to have children is a testament to this fact. As scholars such as John Harris (“The Right to Found a Family” in Ladd, Children’s Rights ReVisioned: Philosophical Readings (1995), at p 71) and Emily Jackson (“Conception and the Irrelevance of the Welfare Principle” (2002) 65 MLR 176, 177–78) have pointed out, the right to reproductive freedom—to decide whether or not one becomes a parent—therefore lies at the heart of an individual’s right to self-determination, or, to put it another way, to the right to fashion for oneself a personalised vision of the “good life”. Reproductive decisions are often regarded as being amongst the most important a person will ever make. Individuals should therefore be free to make those decisions without interference from the State. I am therefore in no doubt that the right to reproductive freedom falls within the scope of the private life limb of article 8 of the Convention. 26 Ms Evans argues that article 8 supports her right to choose to try and achieve genetic motherhood through the use of the six disputed embryos in future treatment. I agree. The private life limb of article 8 protects not only the right to choose to become a parent in the abstract sense but the right to employ the necessary assisted reproductive techniques to make that decision a reality. Has Ms Evans’s right to reproductive freedom been infringed? 27 Ms Evans’s inability to use the disputed embryos in her future treatment is a direct result of the strict statutory regime governing consent enshrined in Schedule 3 of the 1990 Act. The Court of Appeal were therefore correct to conclude that by choosing to regulate Ms Evans’s reproductive freedom in this way, the State has interfered with her right to respect for her private life under article 8(1) of the Convention. This case therefore turns on whether that prima facie violation of the Convention can be justified under article 8(2). Can the interference with Ms Evans’s rights under article 8(1) be justified in accordance with article 8(2)? 28 Article 8(1) is a qualified right. Counsel for Mr Johnston argued that any prima facie interference with the right of Ms Evans can be justified as necessary and proportionate for “the protection of the rights and freedoms of others”. Both Ms Evans and Mr Johnston are of course beneficiaries of the right to respect for private

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72 Sonia Harris-Short life under article 8(1) and both have invoked article 8 in support of their respective positions. Mr Johnston argues that article 8 supports his right to choose not to become a parent against his will, thereby protecting his right to withdraw his consent to the storage and future use of the disputed embryos. Again, I agree. Article 8(1) clearly protects the right both to choose and to reject genetic parenthood. 29 In balancing the respective rights of both gamete providers to reproductive liberty, Parliament has chosen to take the absolute “bright-line” approach of requiring the “effective consent” of both parties until the point of embryo transfer. However, in determining whether or not the resulting interference with Ms Evans’s article 8 rights can be justified under article 8(2), this “bright-line” approach adopted by Parliament needs to be considered with particular caution. Although the European Court made it clear in Pretty v United Kingdom (2002) 35 EHRR 1, paras 74–76, that it is not necessarily inconsistent with the requirements of article 8 for the State to adopt an absolute “bright-line” approach to regulating a particular aspect of an individual’s private life, an approach which permits of no genuine balancing of the various interests at stake, regardless of the particular circumstances of the case, is much more difficult to justify as both necessary and proportionate as required under article 8(2). 30 There are a number of points which can be made in favour of the “brightline” approach adopted in the 1990 Act. Ensuring the greatest possible legal certainty for all parties involved in fertility treatment is an important and legitimate objective for the State to pursue. On an issue of such fundamental importance, both gamete providers need to be clear as to their position under the law and, in particular, the nature of any risks they are undertaking. As noted earlier, it was clearly important to Mr Johnston that he retained control over whether or not he would start a family with Ms Evans. Schedule 3 of the 1990 Act gave him that control and thereby peace of mind. Without question, a more flexible, fact-specific regime in which the requirement for effective consent could be overridden by the courts depending on the circumstances would bring with it the significant disadvantage of considerable uncertainty for both parties. 31 Considerable weight should also be given to the fact that prior to the introduction of the statutory regime enshrined in the 1990 Act, the legal, social and ethical issues surrounding fertility treatment were the subject of thorough independent examination by a Committee of Inquiry established under the chairmanship of Dame Mary Warnock DBE. This was followed by a lengthy statutory process, including a public consultation exercise. The need to ensure continuing consent throughout the treatment cycle emerged from this process as one of the “twin pillars” of the legislation. Moreover, the Government has recently announced that it intends to review the provisions of the 1990 Act. As part of this review, a process of public consultation will be carried out later this year. My Lords, in my view, this House should be slow to intervene in such a sensitive area of public policy or to prejudge the outcome of the current consultation exercise. 32 However, whilst I take these considerations seriously, the Human Rights Act 1998 has charged this House with responsibility for ensuring that the Convention rights of the parties are afforded due respect and consideration under the statutory regime currently in force. Despite the arguments in favour of a “bright-line” approach, I am not satisfied that they are.

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Evans v Amicus Healthcare Ltd—Judgment 73 Ensuring equality of treatment between the parties 33 There are a number of assumptions underpinning the approach which has been adopted to “effective consent” in Schedule 3 which in my view can work to the particular detriment of women such as Ms Evans. The first such assumption is that the “bright-line” approach guarantees equality of treatment between the gamete providers. This was accepted by both Wall J and the Court of Appeal, it being assumed that the respective rights of Ms Evans and Mr Johnston to reproductive freedom as protected under article 8(1) are of equal weight and importance and therefore simply cancel one another out in the balancing exercise to be conducted under article 8(2). According to this view, the “bright-line” approach ensures neither right is privileged above the other, thereby striking a fair balance between the equal rights of the parties. As stated in the judgment of Arden LJ [2005] Fam 1, para 110: “The fact is that each person has a right to be protected against interference with their private life. That is an aspect of the principle of self-determination or personal autonomy. It cannot be said that the interference with Mr Johnston’s right is justified on the ground that interference is necessary to protect Ms Evans’s right, because her right is likewise qualified in the same way by his right. They must have equivalent rights.” 34 This argument, based on ensuring equality between the parties, has a certain appeal. The particular facts of this case allow for both gamete providers to have an “equal” say over the future of the embryos (albeit in reality a refusal to consent to the transfer of the embryos by either party has the effect of a veto) in a way that is not possible in cases of natural reproduction. It is well accepted in English law that in cases of natural reproduction, the mother has exclusive decision-making authority over the future of the embryo from the point of fertilisation. That exclusive decision-making authority is derived from the location of the embryo within the woman’s body and her overriding right to autonomy, self-determination and physical integrity. For that reason, the mother cannot be subjected to the will of the male gamete provider or the medical profession on such matters as abortion (subject of course to the necessary medical approvals where abortion is sought) or, as was considered in St George’s Healthcare NHS Trust v S [1998] 3 WLR 936, whether or not she should receive medical treatment for the benefit of either herself or the foetus during pregnancy. 35 The situation is, however, different in cases of assisted reproduction where the embryo is temporarily located outside the woman’s body. During this period, conferring equal decision-making authority on the male gamete provider does not interfere in any way with the physical integrity of the woman. It therefore creates an opportunity to achieve gender equality in the sphere of reproductive decisionmaking that cannot be achieved in natural procreation. 36 The possibility created by assisted reproduction to achieve gender equality in the sphere of reproductive decision-making sits well with the commonly accepted view that gender equality has become entrenched in family life. It is, for example, increasingly assumed in many areas of the law that both men and women now have an equal interest in issues surrounding reproduction and parenthood.

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74 Sonia Harris-Short Judges who have sat on the family bench will be more than familiar with the rhetoric of “new fatherhood” that now dominates residence and contact disputes. Fathers, we are consistently told, are no longer the bread-winning disciplinarians of a bygone age, but engaged, hands-on carers who play an equal and joint role with mothers in the raising of children. For those who have long been concerned with the impact of child-bearing and child-rearing on achieving wider equality for women, the apparent emergence of the “hands-on” father is no doubt a welcome development. It promises a vision of egalitarian family life in which raising children is recognised as a gender neutral activity, releasing women from damaging stereotypical assumptions as to their primary care-giving role. 37 In accordance with this approach, a woman’s reproductive and mothering roles should be accorded no greater significance or value in the law than the reproductive and fathering roles of a man. This concept of equality and gender neutrality is entrenched in Schedule 3 of the 1990 Act and has been a strong theme of the various judgments in this case. If parenting is not a gendered activity then decisions over whether or not to become a parent should likewise be free from gender considerations. The voices of Mr Johnston and Ms Evans should be accorded equal weight. 38 My Lords, it is certainly not my intention to question the importance of continuing to strive for gender equality in all aspects of our private and public lives. However, this House must deal in the realities of the lives of the men and women who come before it, not with an idealised vision of how we might like the world to be. It is a point well recognised in the law, that simply treating men and women the same (formal equality) in a world that is deeply gendered will rarely result in equality in fact (substantive equality). Indeed, such an approach can lead to a significant deterioration in the position of vulnerable women. To achieve true substantive equality we must sometimes recognise the differences between men and women (whether those differences are rooted in biology or socially constructed), and respond to them accordingly. Yet it is the formal, more limited concept of equality which has dominated these proceedings. 39 I do not doubt that I am about to enter difficult and controversial waters. However, it is my view that the law is wrong to assume that even in today’s changing society, reproduction and parenting are experienced in the same way by both women and men. The mother-child relationship is still widely perceived as being of unique significance. Women, of course, have a unique role in bearing a child. Pregnancy cannot be experienced by men and women in the same way. However, even beyond a woman’s unique role in child-bearing, women continue to make a distinctive contribution to child-rearing. It remains the case that parenting is a deeply gendered activity. The majority of women still take the primary role in providing day-to-day care for a child, with many giving up full-time employment in order to do so. Women therefore tend to invest much more in their parenting role than do men. For many women, motherhood lies at the heart of who they are or what they hope to become. It sits at the core of their identity. Despite recent changes in parenting patterns, it is suggested by Carol Smart and Bren Neale in their important work Family Fragments (1999) that fatherhood still does not have the same core meaning for men, with their identities tending to be much more focused on external activities such as employment.

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Evans v Amicus Healthcare Ltd—Judgment 75 40 This combination of social and biological factors gives motherhood and the mother-child relationship a special significance in our society, with important consequences for infertile women. To be unable to realise what, for many women, constitutes such a core aspect of their imagined identity can be the cause of immense pain. It can literally take away their entire life’s purpose. The devastation felt is acute. This is not to deny that some men may have equally strong feelings about fatherhood and that some women may feel very differently about motherhood. However, this House should not be blind to the fact that the reality within which we live now is one in which parenting, reproduction and infertility remain deeply gendered. I do not, therefore, agree that “equality of treatment” between the gamete providers in the sphere of reproductive decision-making necessarily means treating the man and woman in exactly the same way, as if there were no relevant differences between them. 41 Whilst I acknowledge the distress and anguish that fathering a genetic child against one’s will may cause (I am in no doubt that in these circumstances, legal fatherhood and the financial and other responsibilities attached thereto could effectively be avoided under the terms of the 1990 Act by varying the original consents), in light of the prevailing social norms and realities surrounding reproduction and parenting in contemporary society I would conclude that, in some circumstances, a woman’s right to reproductive freedom under article 8(1) will carry greater weight and significance than that of the male gamete provider. Unfortunately, however, the “bright-line” approach currently enshrined in Schedule 3 does not permit the courts, regardless of the circumstances, to undertake a genuine balancing of interests that would allow, in appropriate cases, the social and perhaps biological pressures and assumptions operating particularly strongly upon women in the sphere of reproduction to be given proper consideration and respect. 42 As noted earlier in my opinion, I do not deny the important benefits of a clear statutory regime governing consents to fertility treatment upon which individuals can safely rely. However, such is the fundamental importance of the article 8 rights at stake that the need for legal certainty cannot be determinative in all cases. Exceptions must be possible to ensure real respect for the rights of all parties. In this context, I am particularly concerned about the way in which Schedule 3 of the 1990 Act operates on the article 8 rights of women in the circumstances of Natallie Evans. In most cases involving standard IVF treatment, embryos placed in storage with the intention that they will be used in future treatment cycles will not represent the last opportunity for the female gamete provider to have her own genetically-related child. In other words, they will not constitute the last opportunity for the woman to realise her ambition of genetic motherhood. If her relationship with the genetic father of the disputed embryos has broken down, provided the woman has retained ovarian function, she can embark upon fresh cycles of IVF using donated sperm or the sperm of a new partner. Whilst allowing the destruction of the embryos will therefore undoubtedly interfere with her right to reproductive liberty under article 8(1), the right will not be destroyed. I therefore have considerable sympathy with the view that the need to protect the competing rights of the male gamete provider and to promote legal certainty for both parties to IVF treatment make such an infringement possible to justify—even on the basis of a “bright-line” approach.

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76 Sonia Harris-Short 43 The situation for women in the position of Natallie Evans is, however, very different. Where ovarian function has been destroyed, the embryos in question will constitute the last possible chance for the woman to have her own geneticallyrelated child. Her article 8(1) rights are therefore entirely vested in the embryos in issue. If the embryos have to be destroyed in accordance with Schedule 3, her article 8 rights will not just have been infringed but totally destroyed. The very essence of the right will have been negated. In such circumstances, it is particularly difficult to sustain the argument that the “bright-line” approach of the 1990 Act strikes the correct balance between the competing rights and interests of the parties. 44 It is important to pause here to make it absolutely clear that I recognise the fact that circumstances may arise in which the position of the man and the woman are reversed with equally devastating consequences for the article 8(1) rights of the infertile man. A scenario can clearly be envisaged whereby a man is rendered totally infertile as a result of treatment received for testicular cancer. Before beginning treatment he undergoes the first stage of IVF treatment with his then partner but before the embryos have been transferred they separate and she withdraws consent to further treatment. Clearly there would be no question of forcing her to carry the disputed embryos against her will. However, the infertile man may seek to use the embryos in future treatment with a new partner or using a surrogate. In such circumstances, the impact of Schedule 3 of the 1990 Act on his article 8(1) right to reproductive freedom may well be just as devastating as it has been in the case of Ms Evans. 45 However, there are two respects in which Schedule 3 can be seen, in general terms, to impact particularly harshly on women, thus giving rise to my strong misgivings about the “bright-line” approach and its appeal to equality. First, as I have now explored at length, such is the gendered nature of these issues in contemporary society, that denying a woman the chance of genetic motherhood may have a particularly harsh and devastating impact upon her. There is, however, a second reason why infertile women in the position of Natallie Evans are rendered particularly vulnerable by the terms of Schedule 3. As Professor Sally Sheldon has pointed out in her helpful discussions of the Court of Appeal decision in this case (”Case Commentary: Revealing Cracks in the ‘Twin Pillars’?” (2004) 16 CFLQ 437; “Gender Equality and Reproductive Decision-Making” (2004) 12 Feminist Legal Studies 203), the wide availability of sperm freezing makes it unlikely that a man undergoing treatment for testicular cancer would find himself in the same position as Natallie Evans. Rather than undergo the first stages of IVF, the usual course of treatment offered to a man would be the freezing of a sample of sperm, over the future use of which, subject to medical approvals, the man would retain absolute control. As egg or oocyte freezing, in contrast, remains at an experimental stage, this option will not usually be available for women, who will usually be advised to undertake the first stages of IVF treatment and to freeze the resulting embryos. Of course, as exemplified by this case, women do not then retain control over the future storage and use of the embryos. Indeed, from the point of fertilisation, her choices are constrained by the equal rights of the male gamete provider who, should he choose to, can effectively exercise a right of veto over her use of the embryos in any future treatment. This effective right of veto over the infertile woman’s reproductive choices again destroys the very core of her right to

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Evans v Amicus Healthcare Ltd—Judgment 77 reproductive freedom and makes the “bright-line” approach of Schedule 3 particularly difficult to justify as both necessary and proportionate. Consent as an expression of autonomous will 46 A second assumption underpinning the consent requirements in Schedule 3 has strengthened my concern regarding the inability of the courts to re-open the issue of consent regardless of the circumstances of the case. It would be easy to dismiss Ms Evans’s claim on the basis that she gave a fully informed consent to being treated with Mr Johnston on terms that had been carefully explained to her by Mrs Spearman. In particular, she had been advised at the outset that he was free to withdraw his consent to the storage and future use of the embryos at any time but had nevertheless decided to proceed. On this account, the signed consent form is an expression of a free and autonomous choice by a fully informed individual. Why then, it might be asked, should she not be held to the arrangements which she freely entered into, thereby depriving Mr Johnston of the legal certainty and security which was clearly so important to him? In this regard, it is important to pause here and note some of the more troubling aspects of events as they unfolded during the couple’s crucial visit to the clinic on 10 October 2001. 47 The couple’s entire visit to the clinic on 10 October 2001 in which these lifechanging decisions were made took no more than 90 minutes. Throughout that time Ms Evans was in a state of emotional turmoil. She described the meeting with Mrs Spearman “as like being in a room full of water . . . as if everybody was under water and she could not hear what he or she were saying”. In this emotionally charged situation, the couple were presented with a huge amount of information concerning the IVF process and asked to complete a bewildering array of forms. There was no time for reflection and consideration and they were not afforded the opportunity to speak with staff from the clinic on an individual basis. A process which for most couples would take a number of weeks was completed in a matter of minutes. 48 The circumstances surrounding this meeting were particularly problematic for Ms Evans. Not only was she trying to come to terms with the distressing news that she was suffering from cancer, but after years of struggling to become a mother she faced the devastating prospect of never being able to have her own genetically-related child. Given her circumstances, the options presented to Ms Evans were extremely limited. Oocyte freezing was effectively ruled out. The procedure remains at an experimental stage and was not available at that clinic. The clock was now running against Ms Evans and time was short to start investigating alternative clinics. Mr Johnston was, in any event, reassuring her that there was no need to worry. Moreover, Mrs Spearman’s evidence to Wall J was to the effect that had Ms Evans wanted to pursue the possibility of oocyte freezing (and presumably fertilising her eggs using donated sperm) it would have created doubt as to the suitability of treating Mr Johnston and Ms Evans as a couple and she would have referred the case back to the consultant for further consideration. The power of the medical profession as the “gate-keeper” to accessing fertility treatment should not be underestimated. It is perfectly understandable that both Ms Evans and Mr Johnston would have been extremely anxious throughout their

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78 Sonia Harris-Short meeting with Mrs Spearman not to say or do anything that may have thrown doubt on their suitability to proceed with the treatment. With the role of counsellor and “gate-keeper” being blurred in this way, full and frank discussion of the options available to Ms Evans was seriously compromised. 49 The sense of powerlessness felt by Ms Evans having found herself in this situation must have been overwhelming. Looking at the events of 10 October 2001 from her perspective, it must have seemed that there was in reality only one option available to her. She would have to proceed with IVF treatment together with Mr Johnston and place her faith in his reassurances that he would not leave her. Of course, this was sadly not how things were to turn out. The consent forms signed by each of the parties must therefore be viewed with some caution. Given the difficult circumstances in which consent was given they should not simply be assumed to represent a clear expression of the autonomous will of both parties. They should not, in other words, be regarded as determinative of this matter. 50 Concern regarding the way in which the consent of the parties was obtained in this case has reinforced my view that the courts should be free to look behind the original consents where circumstances dictate this is necessary to ensure a fair balance has been struck between the competing rights and interests of the parties. In particular, this House needs to look behind the legal formalities to understand the extent to which Ms Evans can be said to have been exercising any real choice when she gave her consent to treatment on 10 October. We need to ask to what extent her autonomy was compromised. Conclusion on article 8 51 I am satisfied that in the majority of cases the right of both parties enshrined in Schedule 3 to withdraw their consent to the storage and future use of embryos created during the IVF process strikes the right balance between the parties’ respective rights to reproductive liberty under article 8(1). However, such is the fundamental importance of the article 8 right at stake and the particularly disproportionate impact of Schedule 3 on the rights of infertile women such as Natallie Evans, I am equally satisfied that, in order to ensure a fair balance is struck between the rights and interests of the parties, exceptions must be possible. This will allow the court or the Human Fertilisation and Embryology Authority to conduct a genuine balancing exercise of the respective interests of the parties and, where necessary to do so to safeguard the reproductive liberty of one gamete provider, to override the withdrawal of consent of the other genetic parent to future storage and use of the disputed embryos. 52 It is not possible under section 3 of the Human Rights Act 1998 to read in any such exceptions to the clear statutory language of Schedule 3. I therefore propose to make a declaration of incompatibility under section 4(4)(a) of the 1998 Act and refer this matter back to Parliament. It is of course for Parliament to decide what, if any, exceptions it will make to the consent requirements under Schedule 3 to ensure the article 8 rights of both parties are given due consideration. I would, however, suggest that the minimum required in order to ensure compatibility with article 8 is that the courts or the Human Fertilisation and Embryology Authority should be free to re-open the issue of consent where the embryos in dispute repre-

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Evans v Amicus Healthcare Ltd—Judgment 79 sent the very last chance of one of the gamete providers (whether male or female) to have their own genetically-related child and the very core of the article 8(1) right to reproductive freedom is thus at stake. 53 Such a re-opening of the consent requirements will necessitate the courts or the Human Fertilisation and Embryology Authority undertaking their own assessment of the weight of the parties’ respective interests, in light of all the circumstances of the case, to determine whether the interference with the article 8(1) rights of the person seeking the use of the disputed embryos in future treatment can be justified or whether the need for the consent of the other gamete provider should be overridden. In the Court of Appeal, Thorpe and Sedley LJJ expressed strong concern about the feasibility of undertaking this balancing exercise [2005] Fam 1, paras 66 and 69: “the legislation would have to require the Human Fertilisation and Embryology Authority or the clinic or both to make a judgment based on a mixture of ethics, social policy and human sympathy. It would also require a balance to be struck between two entirely incommensurable things. Whatever decision was arrived at might be capable of being explained but would be practically impossible to justify . . . [M]aking the withdrawal of the man’s consent relevant but inconclusive would create new and even more intractable difficulties of arbitrariness and inconsistency.” With respect to such an experienced Court, I again disagree. Both the Human Fertilisation and Embryology Authority and the courts are very used to carrying out such difficult balancing exercises engaging fundamentally important social, ethical and philosophical considerations. A dispute over the future storage and use of frozen embryos is no more intractable than many other disputes that come before the courts on a daily basis. Moreover, where the Convention rights of the parties are engaged, the 1998 Act places a duty on the relevant public authorities to grapple with these difficult problems to ensure the Convention rights of both parties have been given due respect and consideration. We should not shirk from this duty by simply deferring to Parliament. Article 14 of the Convention 54 The second ground of appeal raised on behalf of Ms Evans contends that the Court of Appeal were wrong to uphold the judgment of Wall J that Ms Evans was not discriminated against in the enjoyment of her article 8 right to private life contrary to article 14 of the Convention. 55 Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion or other opinion, national or social origin, association with a national minority, property, birth or other status.” 56 The correct approach to a claim under article 14 of the Convention was set out in R (Hooper) v Secretary of State for Work and Pensions [2003] 1 WLR 2623, para 85. The court must ask four questions: (1) Do the facts fall within the ambit of

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80 Sonia Harris-Short one or more of the substantive Convention provisions? (2) If so, was there different treatment as regards that right between the complainant on the one hand and other persons put forward for comparison (“the chosen comparator”) on the other? (3) Were the chosen comparators in an analogous situation to the complainant’s situation? (4) If so, did the difference in treatment have an objective and reasonable justification? 57 The first question can be easily answered. Article 8 is clearly engaged on the facts of this case, bringing article 14 into play. The second question has proved more difficult and clearly troubled the courts below. Views differed amongst the three members of the Court of Appeal as to the material ground of discrimination or the comparator group against which the treatment of Ms Evans is to be compared. Arden LJ followed the approach of Wall J in analysing the issue as one of discrimination between, on the one hand, healthy fertile women who could conceive naturally and, on the other, infertile women who could not—infertility amounting to a disability clearly falling within the scope of article 14. This was also the basis on which the discrimination point was argued before us. Thorpe and Sedley LJJ took a different approach, holding that the only logical ground of discrimination would be between women seeking treatment whose partners have withdrawn their consent and those whose partners have not. As before the Court of Appeal, this second potential ground of discrimination was not argued before us and I do not, therefore, intend to pursue it. 58 Has there therefore been a difference in treatment between a healthy woman able to conceive naturally and an infertile woman requiring assisted reproduction? I would answer in the positive. There are clearly a number of respects in which women seeking assisted reproduction under the 1990 Act are treated differently from women who can conceive naturally—not least the operation of section 13(5) of the 1990 Act (the welfare assessment) on women seeking fertility treatment. The particular difference of treatment of which complaint is made in this case is that a man can withdraw his consent to the use of the embryos in cases of IVF (up until point of embryo transfer) whereas he cannot withdraw his consent to the use of the embryos at all in cases of normal sexual intercourse. The legislation therefore creates a difference in treatment between fertile and infertile women vis-à-vis the extent to which they can exercise control over their embryos. 59 Whilst the first two hurdles can, however, be successfully negotiated, the third question poses more difficulties: whether fertile and infertile women can be said, for these purposes, to be analogously situated? I have concluded, with some hesitation, that they are not. As counsel for the Secretary of State argued, the fundamental difference between women who conceive naturally and women undergoing IVF treatment is that in the case of natural procreation the embryo is located at all times within the woman’s body whereas in cases of IVF the woman and the embryo are physically separated. To put it another way, from the point of conception the woman in the first scenario is accurately described as pregnant whereas, until the point of embryo transfer, the woman in the second scenario is not. This difference in the location of the embryos and the resulting status of the woman means they cannot be regarded as analogously situated for the purposes of this complaint under article 14. The claim under article 14 of the Convention must therefore fail.

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Evans v Amicus Healthcare Ltd—Judgment 81 60 For the sake of completeness, I would, however, note that had I found that fertile and infertile women are analogously situated for the purposes of article 14, I would not have agreed with the Court of Appeal that the difference in treatment between them on the issue of the withdrawal of the male gamete provider’s consent could be objectively justified. Whilst it is clearly legitimate to accord the male gamete provider an important voice in decisions as to the future storage and use of embryos located outside the woman’s body, for the reasons explored in detail above, the “bright-line” approach under Schedule 3 of the 1990 Act cannot be said to constitute a proportionate response to that aim given its severe impact on the article 8 rights and interests of some infertile women. 61 Before leaving article 14, I would also note with some surprise that at no stage of these proceedings was it argued that infertile women were being discriminated against when compared with the position of infertile men. Because I have found for Ms Evans on the first ground of appeal, this potentially important omission will have no bearing on the way I would dispose of this case. However, given the particular vulnerability of infertile women under the scheme of the 1990 Act due to the experimental nature of egg or oocyte freezing, I would have welcomed argument as to how the apparently gender neutral, “bright-line” approach of Schedule 3 disproportionately impacts on infertile women when compared with similarly situated infertile men. In other words, I would have been open to the argument that Schedule 3 in its current form results in indirect discrimination against infertile women. Conclusions 62 It is sometimes easy to forget that at the heart of this case stands a woman who had endured several years of fertility treatment before receiving the devastating news that she had ovarian cancer. Natallie Evans is a woman who, throughout her adult life, has struggled, in tragic and difficult circumstances, to realise her ambition of genetic motherhood. No one can be in any doubt that to undergo the first stages of fertility treatment only to be told that the six resulting embryos representing her last possible chance of achieving genetic motherhood will have to be destroyed, has been the cause of unbearable pain and frustration for Ms Evans. Mr Johnston is of course entitled to take the position that he does not wish to become a genetic parent with his former partner against his will and to withdraw his consent to that treatment. No blame can be attached to him for his views on this matter. They are perfectly understandable. However, it falls to this House to determine whether the law is right to uphold that withdrawal of consent regardless of the particular circumstances of the case and the severe impact of that decision on the fundamental rights and interests of Ms Evans. 63 For the reasons set out above, it is my opinion that the “bright-line” approach enshrined in Schedule 3 of the 1990 Act, which requires the “effective consent” of both gamete providers to the continued storage and future use of the disputed embryos, is incompatible with Natallie Evans’s right to reproductive freedom as protected under article 8(1) of the European Convention on Human Rights. The inability of Schedule 3 to permit of any exceptions which would allow the court under article 8(2) to conduct a genuine balancing of the competing rights and

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82 Sonia Harris-Short interests engaged and, where appropriate, to override the necessity for the consent of both gamete providers, particularly where the embryos represent the last possible chance for one of the gamete providers to have their own genetically-related child, constitutes a disproportionate interference with the article 8(1) rights of the person seeking continued storage and use. 64 I would therefore allow this appeal under article 8 of the Convention and make a declaration of incompatibility under section 4(4)(a) of the Human Rights Act 1998. 65 I would dismiss the appeal under article 14.

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5 Commentary on Re N (A Child) EMILY JACKSON

Introduction In the UK, access to most fertility treatments is rigorously regulated by the Human Fertilisation and Embryology Act 1990 and by the Human Fertilisation and Embryology Authority. Surrogacy arrangements, in contrast, are subject to little regulatory oversight. Despite this, most surrogacy agreements do, in fact, go smoothly. In 95 per cent of cases, the baby will be handed over at birth.1 Within six months, the commissioning couple can, with the surrogate mother’s agreement, apply for a parental order, which enables them to be registered as the child’s legal parents without having to go through the cumbersome process of adopting ‘their’ child.2 The 1990 Act confined access to parental orders to married couples. The 2008 Human Fertilisation and Embryology Act removes this restriction, hence a samesex couple or an unmarried heterosexual couple will, from 2010, have access to this fasttrack method for the transfer of parenthood. Although in the vast majority of cases, the parties do keep to their pre-conception agreements, they are not bound to do so by law.3 The commissioning couple have no rights if the surrogate mother refuses to hand over the baby, and she cannot force them to take the baby if they have a change of heart. So while it is lawful to enter into surrogacy contracts, none of the commitments they contain are legally enforceable, making them extraordinarily precarious arrangements. Such contracts are often based upon an entirely illusory relationship of ‘trust’ between strangers. Under the Surrogacy Arrangements Act 1985 it is an offence for anyone to provide services for the initiation or negotiation of a surrogacy arrangement ‘on a commercial basis’, making it difficult for lawyers or other professionals to become involved.4 And as noted above, unlike other types of fertility treatment, there is no regulatory authority for surrogacy. Taken together, the result is that adults seeking to enter into these arrangements are often assisted only by what McFarlane J has referred to as ‘groups of well-meaning amateurs’.5 As a result, some people—like Mrs P and Mr J in the case of Re N6—enter into ill-advised agreements leading to disputes over the parenthood of children born as a result, which must then be resolved by the courts. In recent years, in a number of cases, judges have expressed 1 M Brazier, A Campbell and S Golombok, Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation (Cm 4068) (London, HMSO, 1998). 2 Human Fertilisation and Embryology Act 1990 s 30, replaced in April 2010 by the Human Fertilisation and Embryology Act 2008 s 54. 3 Surrogacy Arrangements Act 1985 s 1(b). 4 Surrogacy Arrangements Act 1985 s 2. 5 Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam), [2008] 1 FLR 1047 [29]. 6 Re N (A Child) [2007] EWCA Civ 1053, [2008] 1 FLR 198.

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84 Emily Jackson their dissatisfaction with the legal tools available to them,7 and many would argue that the law which governs surrogacy arrangements is now in dire need of radical reform.8 In 1997, the incoming Labour government commissioned a committee chaired by Professor Margaret Brazier to consider the options for reform of the law relating to surrogacy, but their proposals—for a ban on payments to surrogate mothers and a statutory Code of Practice for agencies involved in surrogacy9—were never implemented.

The Facts of Re N While many feminist commentators have criticised surrogacy arrangements on the grounds that they invariably involve the exploitation of (poor) surrogate mothers by (wealthy) commissioning couples,10 Re N offers a compelling illustration of the vulnerability of commissioning couples. Mr J and his wife entered into an agreement with Mrs P to bear a child for them when, in reality, Mrs P had no intention of handing over the baby. Mrs P wanted to have more children, but Mr P’s vasectomy prevented her from conceiving naturally. Mrs P effectively duped Mr J—the commissioning father—into becoming an informal sperm donor. In UK law, the woman who gives birth is always the child’s legal mother,11 a status that can be removed only by an application for a parental order or adoption. Mrs P, therefore, knew that she would be the legal mother of any child born as a result of her agreement with the Js, and, as Lloyd LJ pointed out, her husband, Mr P, would be the legal father.12 Clearly, the Js had only resorted to such an uncertain and risky arrangement because they were desperate to have a baby. They were undoubtedly ‘taken for a ride’ by Mrs P, who made promises to them which she never intended to keep. When the Js discovered that Mrs P had not—as she had told them—miscarried early in the pregnancy, but had given birth and was intending to keep ‘their’ baby, their decision to institute court proceedings is readily understandable. The decision of Coleridge J in the High Court that the child should be handed over to the Js, with a residence order to Mr J, instinctively therefore seems both fair and reasonable. This decision was upheld on appeal by the Court of Appeal.

The Welfare of the Child As Samantha Ashenden’s feminist judgment makes clear, however, the decision in Re N is anything but straightforward and in fact represents an extraordinary exception to some 7

Re G, above n 5; Re: X & Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR 733. See the comments of McFarlane J in Re G and of Hedley J in Re X & Y, ibid. See also N Gamble, ‘Why UK Surrogacy Law Needs an Urgent Review’ Bionews (28 April 2008) www.bionews.org.uk. 9 Brazier et al, above n 1. 10 E Anderson, ‘Is Women’s Labor a Commodity?’ (1990) 19 Philosophy and Public Affairs 71; M Radin, ‘Market Inalienability’ (1987) 100 Harvard Law Review 1849; J Raymond, Women as Wombs: Reproductive Technologies and the Battle over Women’s Freedom (New York, Harper Collins, 1993). 11 Human Fertilisation and Embryology Act 1990 s 27; Human Fertilisation and Embryology Act 2008 s 33. 12 Human Fertilisation and Embryology Act 1990 s 28; Human Fertilisation and Embryology Act 2008 s 35—if a married woman is provided with fertility treatment with the consent of her husband, but an embryo implanted in the woman was created using the sperm of another man, the husband will be the father of the child born as a result of the treatment. 8

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Re N (A Child)—Commentary 85 basic family law principles. There are, in short, two critical facts in this case which militate against the Court of Appeal’s conclusion. The first is that N, who was 18 months old, had lived with Mrs P and her husband for the whole of his childhood. The second is that all of the evidence suggested that N was well cared for and had become attached to Mr and Mrs P. To remove a settled child from a satisfactory family life in order to punish one of his parents for their wrongdoing is radically at odds with the way the courts normally decide disputes about where a child should live. As Latey J said in Re C (A Minor) (Wardship: Surrogacy):13 The baby is here. All that matters is what is best for her now that she is here and not how she arrived. If it be said (though it has not been said during these hearings) that because the father and his wife entered into these arrangements it is some indication of their unsuitability as parents, I should reject any such suggestion.

In disputed surrogacy arrangements, as with all disagreements involving children, the courts are bound to make the child’s welfare the paramount consideration.14 Because avoidable disruption and upheaval is not in a child’s best interests, priority is generally given to the person or couple who has or have been the child’s principal caretaker(s). If the child is already settled with the commissioning couple, the court will invariably decide that he or she should be allowed to stay with them, despite the surrogate mother’s change of heart. As Callman J explained in Re MW (Adoption: Surrogacy),15 a case in which the child’s home had so far been with the commissioning couple, ‘to introduce uncertainty, to disturb the present position, is contrary to the welfare and interests of this small boy’. On the other hand, if the child has been living with the surrogate mother from birth and is settled with her, the courts have been extremely reluctant to contemplate the child’s removal. In Re P (Minors) (Wardship: Surrogacy),16 the twins born as a result of a surrogacy agreement had been living with the surrogate mother since birth, and this factor was held to outweigh the considerable material and other advantages of being brought up by the commissioning couple. The surrogate mother, another Mrs P, did little more than ‘sitting at home with little E and overeating, because she has no ability from a financial point of view to undertake anything more resourceful than that’. Nevertheless, the commissioning couple’s much more affluent and stimulating environment did not ‘outweigh the advantages to these children of preserving the link with the mother to whom they are bonded and who has, as is amply testified, exercised over them a satisfactory level of maternal care’.17 Accordingly, it was ‘the duty of the court to award the care and control of these babies to their mother’.18 It is therefore well established that the fact that the commissioning couple can provide a ‘better’ standard of upbringing for a child than the surrogate mother does not justify removing a child from a settled albeit relatively impoverished environment. The courts have also been clear that, whatever their view of parental conduct, it is not appropriate to effectively punish a child in order to exact some sort of retribution for parental wrongdoing. In Re AW (Adoption Application),19 despite admitting that she had ‘grave reservations’ about the prospective adopters’ behaviour, their health and the state of their marriage, Bracewell J 13 14 15 16 17 18 19

Re C (A Minor) (Wardship: Surrogacy) [1985] FLR 846 (Fam) 848. Children Act 1989 s 1. Re MW (Adoption: Surrogacy) [1995] 2 FLR 759 (Fam) 765. Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421 (Fam) 426. ibid 427. ibid. Re AW (Adoption Application) [1993] 1 FLR 62 (Fam).

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86 Emily Jackson explained that she had no option but to find that the welfare of the child still demanded that she should not be removed: I am regrettably compelled to the finding that the Bs have sought to tie the hands of this court by presenting a situation whereby A has been in the family for so long that nobody concerned with her welfare can contemplate her removal. Indeed, they have achieved that object.20

As Ashenden explains, the Court of Appeal did not have any evidence before it that the Ps were dangerously inadequate parents. If they had such evidence, then the decision to remove not only N, but also their other minor children (T and C) would be easily justifiable under section 31(2) of the Children Act 1989.21 On the contrary, on the evidence before the court, T, C and N all appeared to be contented and settled. If T and C were making good progress and were ‘happy and well turned out’ children, why should the Ps’ capacity to continue to offer what already appears to be good care to N be in doubt? Of course, it is possible that there was evidence before the court of which we are not aware. At the relevant time, all family proceedings took place in private and so it is impossible to be absolutely sure that the published case reports represent the last word on the family circumstances of the Ps. Nevertheless, we should be entitled to rely on the written reasons the courts give for their decisions, and to assume that there are not extraneous facts which, in this case, would put a different bearing upon the Ps’ ability to care for N.

The Expert Evidence on Attachment A further surprising aspect of the judgments both at first instance and in the Court of Appeal was their reliance on the claim made by the expert witness, Dr Eia Asen, an eminent child and adolescent psychiatrist, that if N were moved to live with the Js, his distress would only be ‘short term’, and would be likely to last ‘about two months’.22 Invoking the transience of childhood distress is a peculiarly retrograde step. Disrupting a child’s early years is now widely believed to be capable of causing much more than temporary unhappiness.23 Early attachment is now widely agreed to be important, and disrupting a toddler’s bond with his or her mother will generally not be contemplated unless there are grounds for believing that the care he or she is receiving, or is likely to receive in the future, will be dangerously inadequate. The courts’ reliance on Dr Asen’s evidence that N might suffer distress for a couple of months, but that this did not matter very much, recalls to mind the now almost laughable dismissal of childhood unhappiness in the 1926 case Re Thain (An Infant):24 It is said that the little girl will be greatly distressed and upset at parting from Mr and Mrs Jones. I can quite understand it may be so, but, at her tender age, one knows from experience how mercifully transient are the effects of partings and other sorrows, and how soon the novelty of fresh surroundings and new associations effaces the recollection of former days and kind friends, and I cannot attach much weight to this aspect of the case. 20

ibid 68. Under s 31(2) a court may make a care order or supervision order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm, and that the harm is attributable to the parent’s care or lack of care. 22 Re N (A Child) [2008] 1 FLR 177 (Fam) 195. 23 J Bowlby, Maternal Care and Mental Health (Geneva, World Health Organisation, 1952); J Holmes, John Bowlby and Attachment Theory (London, Routledge, 1993). 24 Re Thain (An Infant) [1926] Ch 676 (CA) 684. 21

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Re N (A Child)—Commentary 87 If N would be upset at being separated from his mother, with whom he has spent the first 18 months of his life, it seems extraordinary to dismiss this as no more than ‘short term distress’.

Enforcement of Surrogacy Arrangements As we have seen, surrogacy arrangements are unenforceable in the UK, but Re N comes very close to suggesting that where the surrogate mother has acted particularly egregiously, the courts will be willing to hold her to her agreement. This looks at the issue of the enforcement of surrogacy agreements from entirely the wrong direction. If surrogacy arrangements were, in fact, to be enforceable in all cases, it would be necessary to introduce a regulatory system that, at the very least, involved some vetting or screening of would-be surrogate mothers. This is what happens in Israel, one of the only countries to set up a regulatory scheme in which, in the ordinary course of things, surrogacy contracts are binding on all concerned.25 Under the Israeli scheme, would-be surrogates are vetted by an approvals committee which is supposed to ensure that women only become surrogates with full information about what this involves and where it is clear that they will be willing to give the baby up after birth.26 An effective approvals process would undoubtedly have prevented Mrs P from entering into this surrogacy arrangement with Mr J in the first place. By contrast, in the UK, a would-be surrogate mother like Mrs P is able to enter into as many surrogacy arrangements as she likes, because there is no external regulatory control over these agreements. Holding her to her agreement when things go wrong is a much less satisfactory approach than stopping a self-evidently unsuitable surrogate mother from entering into an ill-advised arrangement with commissioning parents desperate for a baby. Another interesting dimension to this case is the difference between UK law’s preservation of the surrogate mother’s right to change her mind once the child is born, and the courts’ evident distaste for a woman whose decision not to hand over the child was made before pregnancy was initiated. As noted above, in the UK, the surrogate mother is the child’s legal mother from birth, and a parental order can be made only with her free and unconditional consent. Adoption orders can be made without the surrogate mother’s agreement, but this has only ever happened where her change of heart has come after the child has been settled with the commissioning couple. A surrogate mother who changes her mind immediately after the child has been born, perhaps because of the powerful feelings of attachment she experiences to her newborn baby, is treated with much more sympathy than the scheming Mrs P. This may be right, but I wonder whether the law is overly patronising in giving pregnant women and new mothers—with their fuzzy hormonal minds—a wide berth when it comes to complying with contractual arrangements. Perhaps it would be better to keep all women to their agreements, rather than enforcing arrangements haphazardly depending upon whether the surrogate mother has behaved well or badly. But what of Mr J and his wife? Again, it is not clear that their interests are best served by being awarded a residence order of an 18-month-old child who has already formed 25

A Benshushan and JG Schenker, ‘Legitimizing Surrogacy in Israel’ (1997) 12 Human Reproduction 1832. R Schulz, ‘Surrogacy in Israel: An Analysis of the Law in Practice’ in R Cook, SD Sclater with F Kaganas (eds), Surrogate Motherhood: International Perspectives (Oxford, Hart Publishing, 2003). 26

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88 Emily Jackson attachments to the ‘parents’ who have brought him up since birth. The Js’ interests would have been better protected by a regulatory system which ensured that the surrogate mother with whom they entered into this arrangement had made a binding commitment to hand the baby over to them at birth. N may be living with them now, but one assumes that future contact arrangements between N and Mr and Mrs P will be fraught with difficulty. In contrast, if they had entered into an agreement along the lines of the Israeli model, they would have been able to enjoy their baby’s first words and first steps; have been able to set up amicable and positive contact arrangements with their child’s birth mother, and would have avoided what must have been exceptionally distressing legal proceedings.

Conclusion In the past, some judges undoubtedly tended to reify and romanticise the bond between young children and their mothers. There used to be a presumption of maternal custody for children under the age of seven,27 but this has been replaced in our more enlightened times by the view that mothers and fathers are equally capable of providing a nurturing environment for a child. If mothers more commonly have custody of children than fathers, this is simply because the welfare principle translates into a desire to minimise disruption, and a preference for the status quo will often mean that children stay with their mothers. The decision in Re N, from which Samantha Ashenden dissents, oddly gives comparatively little weight to the need to avoid upheaval in a young child’s home life. It could be argued that the Court of Appeal’s decision shows how far the courts have come from the days when judges tended to believe that being children’s primary caretaker was women’s natural—as opposed to social—role in life. An alternative explanation, however, implicit in Samantha Ashenden’s feminist judgment, might be that the judges who heard Re N were, in fact, romanticising motherhood in a different way. Their judgments draw a sharp distinction between good or deserving mothers—like the almost invisible wife of Mr J—and badly-behaved and undeserving mothers like Mrs P, whose duplicity was punished by the removal of a toddler who had spent his whole life in her care. As Ashenden argues, it is hard to reconcile this result with the duty to make the child’s welfare the paramount consideration.

27

Custody of Infants Act 1839.

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Court of Appeal

In re N (A Child) [2007] EWCA Civ 1053

ASHENDEN LJ 1 This case concerns the residence of baby N, an eighteen-month-old child, born as a result of a surrogacy agreement between Mrs P, the genetic and gestational mother, and Mr SJ and his wife TR (for convenience referred to here as “the Js”), the genetic father and commissioning couple. Mrs P entered the surrogacy agreement deceptively in order to conceive a child that she and her husband intended to keep; she told the Js that she had miscarried early in the pregnancy and then kept N as her own baby. 2 The court below decided in favour of Mr J. Coleridge J found that, notwithstanding the high level of care given to N through his first eighteen months, in the long run his interests would be best served by residence with the commissioning couple. Mr and Mrs P have appealed that decision. I have had the advantage of reading in draft the judgments of My Lords, Lord Justice Thorpe and Lord Justice Lloyd, with whom Lord Justice Toulson agrees. Each concludes that the appeal should be dismissed. However, I find myself in the unfortunate position of being unable to agree with their conclusion, and consider that the appeal should be upheld. 3 This a difficult case, made more so by the inadequacies of the existing legal regulations. In my view, under the current legal framework, there is insufficient justification for taking the child away from his existing family and resettling him with the Js. 4 In my opinion, this case also demonstrates the urgency of a thorough review of the legislative framework surrounding surrogacy, and an end to Parliamentary squeamishness with respect to regulating in this area. 5 The background to this case is unusual. Mrs P has entered into two surrogacy agreements (only one of which is the subject of the appeal today), each time with the intention of keeping the child. But this conduct, whilst undoubtedly regrettable, must be judged against the unenforceability of surrogacy agreements in English law, the failure of Parliament to clarify the status of such agreements, and the inadequacies of regulation that result. 6 At the time of the birth of N, Mrs P already had four children. Two, P and S, are adults. P, a son aged 20, is described by Coleridge J as “a healthy young man with no apparent problems”. S is 19. She has a troubled relationship with Mr and Mrs P. Having moved out of the family home to live with her boyfriend during the summer of 2005, S was the person who notified the surrogacy agency COTS that her mother had had two children through surrogacy agreements whilst telling the commissioning parents that she had miscarried. Mr and Mrs P’s third child is T; she is almost 11. Finally, C, aged six, was born as a result of the earlier surrogacy

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90 Samantha Ashenden agreement reneged upon by Mrs P. Both T and C are described by the health visitor and school as making good progress, and as happy and well turned out children. 7 Mrs P entered the surrogacy agreement with the Js deceptively. Mr P had a vasectomy before his marriage to Mrs P. Mr and Mrs P had previously attempted to receive artificial insemination, and had also attempted to adopt a child, both to no avail. N was conceived following artificial insemination using sperm from Mr J. On discovering that Mrs P had not, as she had claimed, lost the foetus but rather had carried it to term, Mr J commenced proceedings to attempt to secure residency of N. 8 The original application by Mr J for a section 8 order was made on 6 January 2006, just ten days after N’s birth. Coleridge J’s judgment awarding residence to Mr J was given on 10 July 2007. Although the majority of this court upholds that decision, for the reasons that follow, I would have reached a different result. The legal framework 9 The legal regulation of surrogacy occurs under the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 1990. The Surrogacy Arrangements Act 1985 outlaws commercial surrogacy but allows altruistic surrogacy where no payment takes place other than for reasonable expenses. Section 1A of the 1985 Act specifies that “no surrogacy arrangement is enforceable by or against any of the persons making it”. Section 27(1) of the 1990 Act provides that the “woman who is carrying or has carried the child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child”. Section 28 of the 1990 Act specifies that the husband of the birth mother is to be treated as the father as long as he consented to the procedure. Section 30 makes it possible for a court to grant a parental order in favour of the commissioning parents as long as one of them has a genetic link to the child. 10 Within the current regulatory framework, therefore, no surrogacy agreement is legally binding. A woman who gestates a child is legally its mother; a surrogate may change her mind, renounce the surrogacy agreement and decide that she wishes to keep the baby. If the commissioning couple object, their only option is to seek leave to apply to the court for residence of the child under section 8 of the Children Act 1989. Decisions concerning residence in family courts are decided on the basis of the welfare of the child, in accordance with section 1 of the 1989 Act, which specifies that in such cases, the welfare of the child is the court’s paramount consideration. The first instance judgment 11 There is no dispute that in this case both parties are capable of providing N with a good level of care. In his judgment, Coleridge J emphasised that N is more than adequately cared for in his current home, and that he was therefore deciding between two possible viable solutions with respect to residence, based on N’s welfare considered overall and in the long term. On this basis he decided in favour of residence with the Js.

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Re N (A Child)—Judgment 91 Grounds for appeal 12 The grounds for appeal are set out in the judgment of Thorpe LJ and I need only summarise them briefly here. Counsel for the mother argued that Coleridge J had erred in the exercise of his discretion in determining N’s welfare on three principal grounds, that is, that he had: (i) not sufficiently accounted for the child’s early attachment to the biological mother; (ii) overestimated the likelihood of satisfactory contact; and (iii) given insufficient consideration to the biological mother’s capacity as a parent. For convenience, I will deal first with grounds (i) and (iii), followed by ground (ii). Attachment to the biological mother 13 Mr Wildblood, counsel for the Ps, argued that Coleridge J failed to give sufficient weight to N’s early attachment to the Ps. In particular, he took issue with the statement in para 21 of the judgment that: “The fact that both families constitute one of the child’s natural parents means that both sides start from the same position, neither side being able to claim that the blood tie should favour their claim.” Mr Wildblood argued that this analysis is flawed in failing properly to consider the importance for N of his secure early attachment to the Ps. 14 In my view this submission is well founded, and raises two interrelated issues. One is centred on the importance of early attachment to later well-being; the second concerns the status of claims to parental rights that are rooted in genetics alone. In my view, N’s early attachment to the Ps was insufficiently considered. Moreover, the claimed equivalence of the parties in this case, via their respective genetic contributions, is mistaken. This mistake is premised on a failure to recognise the importance of gestation, birth and weaning as biological processes, and on the discounting of the importance of the social aspects of parenthood, premised on ongoing relationships of care and nurturance. 15 There is no doubt that N is closely attached to the Ps. In his judgment, Coleridge J took pains to emphasise that N is doing well in his mother’s care and that it can never be in the best interests of a child needlessly to undermine attachments. Moreover, he emphasised that the Js’ situation as new parents is not risk free. These facts should not be underestimated. Removing N from residence with the Ps and placing him with the Js would undermine existing attachments in the hope that a new and better family environment might be developed. Such a move cannot be undertaken lightly, especially since by all accounts N is flourishing in the care of the Ps: a considerable weight of evidence would be required to overturn the residential status quo. In Re MW (Adoption: Surrogacy) [1995] 2 FLR 759, for example, Callman J held in favour of the adoption of a child born as a result of a surrogacy agreement, notwithstanding the objection of the genetic and birth mother, on the grounds that the residential status quo with the commissioning couple provided

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92 Samantha Ashenden amply for his welfare. Callman J stated at 765 that “to introduce uncertainty, to disturb the present position, is contrary to the welfare and interests of this small boy”. 16 But, Coleridge J went on at para 104 to outline the matter to be determined as follows: “on the one hand, I have a settled parental regime that seems to be working well. On the other hand I have grave predictions from the experts as to the medium- and long-term future based upon the behaviour of the Ps, the so-called culture of deceit/falsehood in their household and S’s development. And the very pessimistic predictions as to the success of ongoing long-term contact arrangements.” 17 I agree that the expert evidence is of great significance. But with all due respect to as experienced a family judge as Coleridge J, what was put before the court amounted not to “grave predictions from the experts”, but concerns from one expert, Dr Asen, a child and adolescent psychiatrist, whose views were reiterated by the guardian ad litem. The evidence provided by the health visitor, social worker and teachers also stands in need of proper consideration. I refer to Mr Wildblood’s opening skeleton in which he observed that the thorough investigation into every aspect of the lives of the Ps demonstrated their provision of a good level of care for their children. In particular, the social worker recorded that “the children are not at risk of harm” and that “the parents provide a loving and stable home for the children”. The inquiries made under section 37 of the Children Act 1989 all pointed to there being “no concerns regarding the general care given to N and his siblings”, with the added comment that “the Ps have engaged very well with professionals involved”. N was described as “happy and settled”, with an affectionate relationship with both his parents, and was making normal developmental progress. The health visitor reported no concerns about the Ps’ parenting of their children, commented favourably that both parents were involved in the children’s care, that the children were happy and appropriately dressed, and that appointments were kept and medical advice sought in a timely manner. The school reported the “really good progress” of C, and that Mr P was actively involved with the children’s education. This, plus the recognition by Coleridge J that the Ps’ eldest son, P, had grown into a healthy young man, appears to me not only to provide evidence of N’s secure attachment to the Ps, but also to offer substantial evidence of the capacity of the Ps to parent their children. 18 The opinions of the professionals just cited appear to have been discounted, or at least given insufficient weight, in Coleridge J’s judgment. And yet these professionals, through their ongoing contact with the Ps, would seem to have been best placed to make a rounded judgment of N’s welfare and best interests. 19 Dr Asen asserted that, were N moved to live with the Js, he would suffer only “short term” distress, the disruption to him estimated to last approximately two months. It is on this basis, and Dr Asen’s assessment that N’s long-term care would be optimised were he to live with the Js, that Coleridge J found in favour of awarding residence to the Js. This decision contrasts sharply with previous cases in which concern for continuity of care has weighed heavily in favour of a child remaining with current caregivers. In Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421, Sir John Arnold P held that continuity of care and attachment to the surrogate

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Re N (A Child)—Judgment 93 mother, with whom the child had lived for the first five months, outweighed a range of other factors, including material advantages and intellectual resources, that might otherwise have favoured the commissioning couple. In Re A (Adoption: Mother’s Objections) [2000] 1 FLR 665, a case in which a mother placed her child for adoption, changing her mind when the child was nearly one, the decision was against returning the child because of the danger of disturbance and lasting damage to the child. In Re MW (Adoption: Surrogacy) [1995] 2 FLR 759, as noted above, Callman J decided in favour of the continuation of adoption proceedings against the surrogate mother’s wishes because the child was already settled with the commissioning parents. To summarise, the existing case law strongly supports the principle of continuity of care with early caretakers. Dr Asen’s evidence and Coleridge J’s decision are out of step with these authorities. Although Coleridge J’s judgment is, of course, ultimately a matter for the exercise of discretion, such an established line of authorities should not be departed from without compelling reasons; I do not find such reasons to be present in this case. 20 In my view, Coleridge J accorded too much weight to the psychiatrist’s report. In particular, the assertion that N would take just two months to resettle if moved is markedly different from the assessment of potential difficulties attending separation from the existing carer in previous cases, and also stands in sharp contrast to the evidence of the other professionals concerning N’s strong attachment to the Ps and the capacities of the Ps to parent N. 21 The second issue raised by the first ground of appeal concerns Coleridge J’s assumption of the equivalence of the parties on the basis of the blood tie. My Lord, Lloyd LJ has already drawn attention to the fact that under sections 27–29 of the Human Fertilisation and Embryology Act 1990, Mrs P is the legal mother of N, and Mr P (as her husband who consented to her treatment) is, legally, the father. The only claim that can be made by Mr J is that of a genetic connection to the child. Had Mrs P, a married woman, become pregnant as a result of an extra-marital relationship with Mr J, or with another man, that man would not automatically have had parity of rights or responsibilities in respect of the child. He could potentially have applied to a court for contact with, and possibly also parental responsibility in relation to the child, but he would be unlikely to apply for, even less be granted, residence of the child. This case is only different from such a case by virtue of the (unenforceable) surrogacy agreement. 22 Further, while Coleridge J equated the respective genetic contributions of Mrs P and Mr J, this is not, in fact, a situation in which there is parity between the parties. Mr J’s biological connection to N is as a contributor of gametes. Mrs P’s biological connection is as contributor of gametes, provider of the environment for gestation of the foetus, birth mother, and provider of early nurturance. As Baroness Hale recently emphasised in Re G (Children) (Residence: Same Sex Partner) [2006] 1 WLR 2305, the court should not underestimate the importance to a child’s well-being of its relationship with the birth mother. The genetic contribution of Mr J should not be held to outweigh the genetic, gestational and social contribution, including ongoing care, given by Mrs P and her husband. Had the baby been gestated in an artificial womb the case would have been different. But until such a science fiction scenario comes to pass, the mother’s role in gestating and caring for the child ought not be ignored or underestimated.

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94 Samantha Ashenden 23 In my view, therefore, Coleridge J erred in the exercise of discretion in this case by giving insufficient emphasis to the importance of continuity of care and the likely detriment to N’s welfare of moving him from a happy and settled home. He also erred in giving disproportionate weight to Mr J’s genetic connection to N, and correspondingly, insufficient weight to Mrs P’s role as N’s genetic, gestational and social mother. The biological mother’s capacity as a parent 24 The third ground of appeal concerns Coleridge J’s assessment of the relative merits of each contending household and the respective parenting capacities with regard to N of the Ps and the Js. 25 Paragraph (c) of the welfare checklist in section 1(3) of the Children Act 1989 draws attention to the likely effect on the child of any change in his circumstances. This serves as a reminder that the role of the courts is not to take a maximal view of the welfare principle—one that seeks to determine the objectively optimal living arrangements for a child—but rather to consider the sufficiency of the arrangements currently in place. The correct question in this case, therefore, is whether there were sufficiently good reasons for removing N from the Ps’ care. 26 The Ps are judged by all the professionals involved with them to have been exemplary parents of N during his first eighteen months. And yet my Lords Thorpe, Lloyd and Toulson LJJ propose to uphold a judgment in which this loving environment is swept away. In my view, to make such a judgment means overriding existing relations of care in favour of more “optimal” ones, the Js having more resources than the Ps and being apparently more receptive to expert advice and intervention. But material advantages should not outweigh continuity of care. This principle was demonstrated, for example, in Re P (Minors) (Wardship: Surrogacy) [1987] 2 FLR 421, where Sir John Arnold P expressly preferred continuity of care with the birth mother over clear material and intellectual advantages of life with the commissioning couple. A decision in favour of the Js in the present case would involve, in my opinion, a profound shift in the way courts have hitherto approached the question of the child’s welfare, one which would potentially licence a significant redistribution of children in the UK from existing parents to more optimal ones, with potentially totalitarian implications. 27 Was the care provided to N by the Ps sufficient? Coleridge J’s summary assessment of the Ps, at para 90 of his judgment, as a “dysfunctional family” sits ill with the rounded picture of a functional family presented by the professionals involved with the family and cited earlier in my reasons. Coleridge J also noted the fact that Mrs P’s children have different fathers, as well as making mention of her involvement in prostitution and her conviction for related offences when she was a teenager. Mrs P is now 38, and there is no evidence of her continued involvement in prostitution or criminality despite thoroughgoing interrogation into the circumstances of her life. One cannot help thinking that her supposed moral turpitude has been given excessive weight in the determination of this case. These facts should have been deemed utterly irrelevant to the matter under consideration. Moreover, we do not usually ask of parents that they achieve perfection. The Ps have other children who appear to be a testament to their parenting skills. It would be unfair

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Re N (A Child)—Judgment 95 and inappropriate to expect the Ps to achieve standards of care beyond those deemed adequate in order to be allowed to keep their child. 28 If there is a fault to be identified here, it lies in society’s inability or unwillingness to face up to the reality of surrogacy and the requirement that it be properly regulated. It is difficult to avoid the conclusion that Mrs P is being punished for taking advantage of the fact that surrogacy agreements are legally unenforceable, with the regrettable consequence of also penalising N for his mother’s behaviour. I would prefer to allow N to remain in his stable and well-cared-for family life with the Ps and to call upon Parliament to reform the legal provisions surrounding surrogacy. This case demonstrates amply the inadequacies of the regulatory regime with respect to surrogacy. A robust regulatory regime, such as exists in Israel, for example, could have prevented the unfortunate facts of this case from arising. Such a regime, with its rigorous screening of the parties to surrogacy agreements, would not have licensed this agreement. Alternatively, making surrogacy contracts enforceable, whilst not resolving all of the issues concerned, would have the benefit of offering greater clarity and certainty to the parties involved in surrogacy agreements. This need not—indeed should not—imply specific performance, or a disregard for the child’s welfare, but it may have the effect of preventing a case such as this from arising, with all its tragic consequences. It would certainly prevent surrogacy agreements being made enforceable by the back door, as in this case, under the guise of a maximal conception of the child’s welfare that has potentially wide-ranging and deleterious consequences. 29 In sum, I conclude that Coleridge J gave insufficient consideration to Mrs P’s capacity as a parent, and at the same time overemphasised factors telling in favour of the Js and against Mrs P. Conclusion 30 In light of my conclusions on the first and third grounds of appeal, it is unnecessary for me to consider the second ground of appeal concerning the issue of future contact between N and the Ps. For the reasons given above, I would allow the appeal against the residence order granted to Mr J: N should remain in the care of the Ps.

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6 Commentary on Re G (Children) (Residence: Same-Sex Partner) DANIEL MONK

The Facts G and W lived together in a lesbian relationship from 1995 to 2002. Wanting to have a family together, they arranged for G to be artificially inseminated, using sperm from an anonymous donor. She gave birth to two children, born in 1999 and 2001. In 2002 the relationship broke down, and the parties entered into relationships with new partners. In September 2003 W applied for an order for contact and a shared residence order, and an order was made for alternate weekend and holiday contact. The judge prohibited G from moving without W’s consent or the court’s leave, but rejected W’s proposal for a shared residence order, largely because of hostility between the parties. The Court of Appeal allowed W’s appeal against that refusal. Shortly afterwards, G moved secretly with her new partner and the children to Cornwall. W, who lived in Shropshire, applied for the children’s primary home to be with her. The judge, who said that she had no confidence that if the children remained in Cornwall G would promote their essential close relationship with W and her family, ordered that the children should have their primary home with W. While the Court of Appeal dismissed G’s appeal, she appealed, successfully, to the House of Lords and primary residence was restored to G, albeit with clear warnings that this was dependent on her adhering to contact arrangements with W.1 In her leading judgment in the House of Lords, Baroness Hale concluded that the lower courts had ‘allowed the unusual context of this case to distract them from principles which are of universal application’2 and asserted two key points. First, in accordance with section 1 of the Children Act 1989, the ‘welfare of the child’ is the paramount consideration of the courts. Consequently, while there is no presumption in favour of a parent with a biological link to a child, this is ‘undoubtedly an important and significant factor’3 in determining what is best for the child, and the failure of the lower courts to address it was critical to the judgment. Secondly, she held that changing children’s living arrangements should only be contemplated when a parent is failing to promote the child’s welfare, and not as a form of punishment for bad behaviour. The first point was made in stronger terms by Lord Scott of Foscote who emphasised that ‘mothers are special’,4 and by Lord Nicholls of Birkenhead 1 2 3 4

Re G (Children) (Residence: Same-Sex Partner) [2006] UKHL 43, [2006] 1 WLR 2305. ibid [44]. ibid. ibid [3].

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Re G (Children) (Residence: Same-Sex Partner)—Commentary 97 who held that, ‘in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child’s best interests . . . I decry any tendency to diminish the significance of this factor’.5

The Social, Policy and Legal Context In many respects the case is an everyday tale of a relationship breakdown and subsequent disagreement about the upbringing of the children. But it is one of the most important recent family law decisions and one that touches on a wide range of broader social developments.

Lesbian and Gay Law Reform The Civil Partnership Act 2004 (CPA) was enacted during the time that this case was working its way through the courts—a hugely symbolic social and legal moment for lesbians and gay men. By the time the Lords heard the case, G had entered into a civil partnership with her new partner and W was about to do so with hers; an option that was not available to them during their seven-year relationship. The CPA has given rise to supportive, ambivalent and critical commentary from within the lesbian and gay community.6 For some it represents (almost) an end point in the process of law reform that began with the (partial) decriminalising of male homosexual acts by the Sexual Offences Act 1967. Oscar Wilde, on being released from Reading Gaol, is recorded as saying, ‘Yes, we shall win in the end; but the road will be long and red with monstrous martyrdoms’.7 In family law most of the ‘martyrs’ were lesbian mothers who frequently lost all contact with and, later, custody of their children solely on the basis of their sexuality.8 This case seems worlds away from that, recent, past. But it is salutary to remember that the ‘violence of law’ in the old cases was a result of judicial interpretation of the ‘welfare of the child’—the paramount consideration enshrined in the Children Act 1989—the same principle that Baroness Hale defended, with some passion, in this case. It was not a high profile, publicly debated Act of Parliament that radically changed the position of lesbian mothers but incremental judicial law making in the name of children, not women. Progress indeed, and unquestionably cause for celebration, but, almost, like so much about law’s relationship with lesbians, an invisible one— shrouded from ‘public’ view and contingent on the rights of another. But in this new age or ‘The World We Have Won’, as Jeffrey Weeks, the leading British historian of sexuality puts it,9 the question that many critical and feminist commentators have 5

ibid [2]. See, eg, N Barker, ‘Sex and the Civil Partnership Act: The Future of (Non) Conjugality?’ (2006) 14 Feminist Legal Studies 241; L Glennon, ‘Strategizing for the Future through the Civil Partnership Act’ (2006) 33 Journal of Law and Society 244; R Auchmuty, ‘Same-Sex Marriage Revived: Feminist Critique and Legal Strategy’ (2004) 14 Feminism and Psychology 101. 7 Hansard HL vol 285 col 52 (21 July 1967) Earl of Arran. 8 See H Reece, ‘Subverting the Stigmatization Argument’ (1996) 23 Journal of Law and Society 484; S Beresford, ‘Get Over Your (Legal) “Self ”: A Brief History of Lesbians, Motherhood and the Law’ (2008) 30 Journal of Social Welfare and Family Law 95. 9 J Weeks, The World We Have Won (London, Routledge, 2007). 6

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98 Daniel Monk asked is: what does winning mean? At a moment when the principle of ‘equality’ dominated the mainstream discussion of lesbian and gay law reform, it is perhaps not surprising that it dominated the judgment of Baroness Hale. Yet as Herman commented 15 years ago, ‘the extension of existing liberal categories to “new identities” not only “recognises”, but regulates, contains, and constitutes them’.10 This insight questions the progressive narrative and suggests that we need to continue to examine the discourses through which lesbian mothers are viewed. This project requires a quite different form of political engagement with law. For whereas the explicit homophobia in the old cases positioned all lesbians and gays against the law, cases such as Re G demonstrate how the new era of legal recognition creates both winners and losers within the lesbian and gay community. And this shift from a juridical prohibition to a more complex legal narrative might test the very political notion of a community. Indeed, it is significant that while lesbian and gay campaigns have been highly vocal in demanding equality of treatment in relation to becoming partners and parents (through civil partnership, adoption or reproductive technology) there is a notable silence about the possible meanings or application of the principle of equality in relation to separating lesbian and gay couples.11

Family Law Debates and Parenting The order made in the case was a shared residence order. As the feminist judgment explains, this order can be made for both symbolic and practical reasons. The context of recent debate about such orders has been attempts by certain parts of the fathers’ rights movement to argue for an increase in their use in order to reflect a normative ideal of legal equality between parents.12 This debate goes to the heart of divergent and frequently gendered perceptions of parenting, between those who see it as a status and those who view it as practice.13 This conceptual distinction is also critical in addressing the issue of enforcing contact. This issue has dominated recent debates in family law, is a major issue for the fathers’ rights movement, and has led to new initiatives in the Children and Adoption Act 2006. As in this case, the issue requires courts to consider the extent to which the primary carer’s own interests and desires are intimately connected to the child’s best interests. Feminist commentaries have highlighted how the courts’ approach impacts on mothers and, in particular, have critiqued the construction of women resisting contact as ‘implacably hostile’. It could be argued that these debates and concerns inform Baroness Hale’s judgment and even those critical of the judgment acknowledge that the case will be useful for mothers in dispute with fathers.14 Specific questions relating to lesbian parenting have occurred in the context of debates about reproductive technology. In this case, G and W used sperm from an anonymous donor and Baroness Hale commented that for both safety reasons and to avoid potential 10 D Herman, ‘The Politics of Law Reform: Lesbian and Gay Rights Into the 1990s’ in J Bristow and AR Wilson (eds), Activating Theory: Lesbian, Gay, Bisexual Politics (London, Lawrence and Wishart, 1993) 250. 11 See, eg, the Stonewall website, which makes no reference to Re G. 12 S Gilmore, ‘Court Decision-Making in Shared Residence Order Cases: A Critical Examination’ (2006) 18 Child and Family Law Quarterly 478; F Kaganas,‘Domestic Violence, Men’s Groups and the Equivalence Argument’ in A Diduck and K O’Donovan (eds), Feminist Perspectives on Family Law (London, Routledge-Cavendish, 2006). 13 C Smart, B Neale and A Wade, The Changing Experience of Childhood: Families and Divorce (Cambridge, Polity Press, 2001). 14 See, eg, E Woodcraft, ‘Re G: A Missed Opportunity’ (2007) 37 Family Law 53.

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Re G (Children) (Residence: Same-Sex Partner)—Commentary 99 conflict with a known sperm donor, ‘many might see this as the more responsible choice’.15 Where conflicts with a sperm donor have arisen, the parental claims of the biological father can be a threat to the lesbian parents’ family unit.16 Since Re G was decided, the Human Fertilisation and Embryology Act 2008 now enables both members of a lesbian couple who use the services of a licensed clinic to be accorded the status of legal parents, in exactly the same way as heterosexual couples. The Act, however, describes the lesbian co-parent who does not give birth to the child as ‘the second female parent’; the refusal to call her a mother reflecting what Herring describes as ‘law’s obsession with a child only having one mother and one father’.17

How the Decision was Received The central focus of responses to Re G has been the significance of the biological link between a parent and child. Some commentators support the decision. Bainham, for example, argues that the ‘recognition given to the value of natural parenthood and the significance attached to the beginnings of life are much to be applauded’.18 By contrast, Woodcraft argues that the reason for the trial judge, Bracewell J, not having given sufficient indication of having considered the issue of the birth mother’s role, ‘may well have been because she was treating the two women as equals, which is how, as Thorpe LJ said, they will appear to the children’.19 Beresford notes in relation to W, that ‘nowhere is she referred to as the children’s mother’ and in the only commentary that draws on queer theory, argues that ‘As a lesbian mother, her non-conformity with heterosexuality continues to threaten the dominant legal discourse’.20 Critics of the decision, nevertheless, all note with approval the fact that Baroness Hale explicitly includes the social and psychological parent within the category of ‘natural parenthood’.21 Their criticisms focus on the lack of clarity and/or the unfairness to the non-biological parent. For example, Woodcraft argues that the decision undercuts ‘any suggestion that the different forms of parenthood might be regarded as of equal importance’, and ‘taken overall’ says that ‘genetic and gestational parenthood trump psychological parenthood and birth mothers trump them all’.22 The language in the commentaries of ‘hierarchies’ and ‘trumps’ to describe the relationship between the competing forms of parenthood, overshadows Baroness Hale’s insistence on the paramountcy of the welfare principle and the rejection of any legal presumption. But lawyers as well as academics have drawn the same conclusions—the headline in the 15

Above n 1 at [8]. See Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] EWHC 2 (Fam), [2006] 1 FCR 556; Re B (Role of the Biological Father) [2007] EWHC 1952 (Fam), [2008] 1 FLR 1015. 17 J Herring, Family Law 4th edn (Harlow, Longman, 2009) 339. 18 A Bainham, ‘Who or What is a Parent?’ (2007) 66 Cambridge Law Journal 30, 32. See also A Bainham, ‘Arguments About Parentage’ (2008) 67 Cambridge Law Journal 322; D Coombes and L Whitesmith, ‘Natural Born Children: The House of Lords and the Blood Tie’ (2006) 36 Family Law 953, 955. 19 E Woodcraft, ‘Madonna Complex’ (2006) 150 Solicitors Journal 1095, 1096 (emphasis added). 20 Beresford, above n 8 at 103. 21 See, eg, K Norrie, ‘Lesbian Families, Parenthood and Contact’ (2006) 51 Journal of the Law Society of Scotland 24. 22 Woodcraft, above n 19 at 1095. See also Beresford, above n 8; Norrie, ibid. 16

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100 Daniel Monk Solicitors Journal boldly stated that ‘Lords back biological parents’ rights’.23 That this is the dominant message drawn from the decision may have important implications in practice. A crude ‘truth’ has been established which can function as a powerful form of law.24 It is too early to know the full impact of the case but, as Bennett notes, ‘It makes the decision as to who biologically parents a child within a same-sex relationship a crucial and potentially difficult question’.25 Coombes and Whitesmith suggest the possibility that some lesbian couples ‘will review how they choose to go about having children’ and that ‘there may be more children born as a result of one partner carrying the other’s egg or more couples choosing to have one child each’.26 The application of Re G in subsequent cases has also focused on the significance of biological connection. In Re R (A Child) (Residence Order),27 the Court of Appeal upheld the appeal of a mother against a decision to award residence to the paternal grandparents, with Wall LJ stating that the judge had not ‘grappled with the fundamental proposition that children have a right to be brought up by their natural parents unless their welfare positively demands the replacement of that right’.28 In Re B (A Child),29 however, Wall LJ conceded that he ‘went too far’30 in Re R, and held that the idea of there being any presumption in favour of a biological parent is ‘plainly inconsistent with Re G. Rather, the test . . . is welfare alone, and . . . it is wrong to talk in terms of “rights” ’.31 Terminology also remains uncertain. For example in Re A (A Child) (Joint Residence: Parental Responsibility),32 Potter P cited Re G to emphasise the importance of psychological parenting, but at the same time used the expressions ‘natural’ and ‘biological’ interchangeably33 to the extent that, despite Baroness Hale’s definition, social parenthood is effectively excluded from the privileged category of ‘natural’.

The Feminist Judgment In important respects, the feminist judgment is in substantial agreement with that of Baroness Hale. Alison Diduck not only concurs that the appeal should be allowed but agrees that the overriding principle is the welfare of the child and not parental rights. And applying the welfare principle, after a critical appraisal of the uses and recent history of shared residence orders and conditional residence orders, she agrees that the Court of Appeal placed too much attention on the bad behaviour of G. That there should be substantial areas of agreement is not surprising—Baroness Hale is, after all, a feminist judge. Moreover, the differences in the judgments of Hale and Diduck go to the heart of long-standing debates 23

Solicitors Journal (26 July 2006) 958. Only in the text is a more nuanced interpretation provided. See A Diduck, ‘Solicitors and Legal Subjects’ in J Bridgeman and D Monk (eds), Feminist Perspectives on Child Law (London, Cavendish, 2000). 25 A Bennett, ‘Re G—Changing the Face of Parenthood?’, www.familylawweek.co.uk/site.aspx?i=ed2147. 26 Coombes and Whitesmith, above n 18 at 956. 27 Re R (A Child) (Residence Order) [2009] EWCA Civ 358, [2009] 2 FLR 819. 28 ibid [85]. 29 Re B (A Child) [2009] EWCA Civ 545, [2009] 2 FLR 632. 30 ibid [41]. 31 ibid [60], [40]. 32 Re A (A Child) (Joint Residence: Parental Responsibility) [2008] EWCA Civ 867, [2008] 2 FLR 1593. 33 ibid [73], [91]. 24

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Re G (Children) (Residence: Same-Sex Partner)—Commentary 101 within feminism about sameness and difference and the tension between formal equality and the social realties of family life and relationships of care. The most critical difference is Diduck’s rejection of the attempt by Baroness Hale to treat W and G in the same way—in the name of equality—as she would a heterosexual couple. She does this for two distinct reasons. The first reason arises from an awareness of the lack of equality that same-sex parents face in society. In other words, she recognises that formal legal equality too often assumes a level playing field and in doing so further exacerbates unfair treatment. The second ground for treating them differently would apply even if it could be established that social discrimination were no longer experienced by same-sex parents. Here, Diduck argues that ‘formal equality of treatment obscures what is different about same-sex parents’.34 This approach is critical for Diduck’s subsequent and key argument: that the House of Lords were wrong to attach as much significance as they did to the biological connection in determining both the fact of parenthood and child welfare. For the emphasis on biology presumes a heterosexual context and in doing so, places a lesbian co-parent in a uniquely vulnerable position as ‘only one [member of a lesbian couple] can be genetically related [to any child they have together] and that fact should not become a legal disability for either the other parent or the child’.35 The reference to the child here is significant. For while expressing sympathy with the position of the co-parent, she does not go as far as to claim rights for this parent. This is important, for the father’s rights movement also challenges the notion that biological mothers have automatic claims resulting from their privileged status, while asserting that fathers have equal rights to spend time with their children. Diduck’s approach carefully demonstrates how the vulnerability of the lesbian co-parent can be addressed without weakening the position of women in heterosexual relationships. She achieves this by emphasising the importance of making welfare judgments in a non-presumptive way on the basis of the realities of care rather than ‘an abstract and possibly equivocal principle . . . and . . . claims to rights of the formal equality of parents’.36 As a result, by neither equating it with heterosexual parenting, nor emphasising a difference between biological and non-biological parenting, Diduck’s feminist judgment makes lesbian parenthood visible—an important political move. But this is achieved within a flexible framework that creates space for and recognises, the social, cultural and individual contingencies of both children’s and parents’ lived experiences. In other words it is good for lesbian parents because it is good for families.

34 35 36

Re G, this volume [7]. ibid [17]. ibid [28].

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House of Lords

In re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43

BARONESS DIDUCK 1 My Lords, I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I agree with her and with the rest of this House that this appeal should be allowed, but because of the importance of the issues raised I wish to add some observations of my own. 2 I agree with Baroness Hale’s outline of the history of this case. I am also sympathetic with her characterisation of the issues that arise therefrom as issues of universal application whenever there is a dispute about the care and upbringing of children. I further agree that the context in which this dispute arises is in many ways a novel or unusual one. It is, however, a context that may become more usual as more non-traditional families come to the courts to help them resolve their disputes. Until they do, however, the courts remain equipped only “with concepts and language which were not designed with them in mind”: see Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] 1 FCR 556, per Black J at para 34. Courts must therefore do the best they can with those concepts, acknowledging and remedying when necessary, their ill-fit to new relationship contexts. Further, while non-traditional families such as Ms G’s and Ms W’s continue to achieve increased respect and recognition in contemporary society, fully equal respect and recognition is not yet achieved and same-sex parents often face a difficult struggle for social recognition of their familial and parenting roles. For both of these reasons, I regard the “unusual” context of this case to be of crucial importance to it. It means that this family cannot be compared directly with those in more “usual” contexts and compels this House to attempt to achieve a form of equality among different family and parenting arrangements without requiring assimilation of all to a standard that was not set with all in mind. 3 In December 2005 the Civil Partnership Act 2004 became law, and the Adoption and Children Act 2002 also came into effect, permitting same-sex partners jointly to adopt children. The law was changed in these respects in order to achieve some measure of equality between partners of the same sex and those of the opposite sex. As my noble and learned friend Baroness Hale said in Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 132, equal treatment and non-discrimination are not only guaranteed in the European Convention on Human Rights, they are “essential to democracy”. For this very basic reason, one might say that same-sex parenting must, in fairness, be assessed according to the standards set for all parents: the welfare of the children. All are equal before the law. 4 But here is the first place where the unusual context of this case becomes important; all do not always start from the same social, structural or economic position. Some begin from a position of inequality. In these situations the uneven

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Re G (Children) (Residence: Same-Sex Partner)—Judgment 103 playing field created by that social inequality must be recognised and acknowledged by law, so that legal equality can have substantive rather than merely formal or rhetorical meaning. Courts must be sensitive to conditions which affect the life chances and choices available to individuals, the way they are able to exercise them and the meaning of the concepts by which those choices are assessed. This observation means that in this case, as in all cases in which the welfare of children is paramount, welfare cannot be assessed in the abstract. The court must be sensitive to the conditions in which A and B were being reared by Ms G and Ms W both before they separated, and after they separated and formed new relationships. 5 The social conditions are thus. While social acceptance of same-sex partnerships is increasing, those partnerships are yet not accorded an equal degree of social acceptance to opposite-sex partnerships, regardless of legal equality of the two. Indeed, the government intended the Civil Partnership Act 2004 itself to help combat discrimination and homophobic social attitudes. Its Final Regulatory Impact Assessment of the Civil Partnership Act (2005), pp 16–17, made this clear: “The Government believes that the creation of a new legal status for samesex couples would play an important role in increasing social acceptance of same-sex relationships, reducing homophobia and discrimination and building a safer and more inclusive society . . . It is not acceptable that same-sex couples still have to struggle to have their families recognised and the creation of a civil partnership scheme will be a way through which society acknowledges and values their relationships.” Although attitudes are also changing with respect to gay men and lesbian women becoming parents, there remains much division socially on this issue also. Expert evidence given by Dr Sturge in the case of Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] 1 FCR 556, para 62, confirmed that for A and C, the lesbian parents in that case, “a lot of life is a struggle to assert themselves and get recognition [as a family]”. 6 It is in this context of suspicion and sometimes disapproval, not only of their parenting but for many, of their very relationship, that the dispute between Ms G and Ms W must be resolved. To treat their dispute in all respects the same as a dispute between heterosexual parents may recognise the equality of the legal context in which it arose, but it does not recognise the unequal social position relative to heterosexual couples from which they begin. While the court’s paramount consideration must be the welfare of the children A and B, their welfare depends, as Dr Sturge observed in Re D, in part on the well-being of their family and on their acceptance as a legitimate and loving family. In order to promote this element of their welfare while at the same time achieving fairness and substantive equality for their newly diverse form of family, the court must recognise rather than remain blind to the climate in which same-sex parents raise their children. It is a climate very different from that in which opposite-sex parents live with their children. In this context, therefore, comparing same-sex parents to opposite-sex parents in order to treat them equally may gloss over the social inequality from which same-sex parents begin and create further disadvantage for them relative to their opposite-sex counterparts. 7 Formally equal treatment also requires that same-sex parents be compared to opposite-sex parents in order to discern and remedy any disadvantage they may

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104 Alison Diduck suffer. Yet here lies another problem. While Ms G may, in some respects and subject to what I say below about context, be compared to a heterosexual mother, there is no clear comparator against whom Ms W’s parenting in this case can be measured. First, she is not and cannot be, legally, either the children’s mother or their father. She thus suffers from a legal disadvantage at the outset. Secondly, formal equality of treatment of same-sex parents and opposite-sex parents would serve to obscure what is different about same-sex parents themselves. The first difference is the context that I discussed above. The second relates to the first. “Parent” is not only a legal concept. It is also a social concept. While the roles of mother and father may be changing so that mothers and fathers may now be more likely than in the past to take on roles and responsibilities for their children that do not fit within traditional gendered roles, the Equal Opportunities Commission in its “Policy Statement: Facts About Dads Today” (2005) reports that mothers still provide approximately 67 per cent of the childcare whether they work outside the home or not, and after parental separation, over 80 per cent of children live primarily or exclusively with their mother: see The Government’s Response to the Children Act Sub-Committee Report, “Making Contact Work” (2004), citing research by Hunt, “Child Contact with Non-Resident Parents” (2003). While many same-sex parents may organise their families along these traditional lines, many others adopt egalitarian parenting roles that are still only aspirational socially for many heterosexual parents. Rather than saying they are adopting a “mother” or a “father” role, many same-sex parents would say they are acting as a “co-parent” the meaning of which, both in law and in society, is only just being forged: see Dunne, “Opting in to Motherhood: Lesbians Blurring the Boundaries and Transforming the Meaning of Parenthood and Kinship” (2000) 14 Gender and Society 11; Gabb, “Locating Lesbian Parent Families: Everyday Negotiations of Lesbian Motherhood in Britain” (2005) Gender, Place and Culture 419. 8 My Lords, lesbian co-parenthood is like no other kind of parenthood. It is certainly unlike the usual cases of heterosexual, biological parents. It is also unlike step-parenthood, heterosexual parenthood by assisted reproduction or even single parenthood, all of which bear some similarity to it, but are practised within a heterosexual parenting norm that gives meaning to the concepts and practices of motherhood and fatherhood. In both the legal and social realms, parenthood is infused with gendered meaning within which lesbian co-parenthood struggles to fit. 9 For all of these reasons, same-sex parenting cannot be treated in all respects like heterosexual parenting. It must be assessed in its still unusual social and practical context, and that assessment may require adaptations to the long-standing legal principles that were developed and consistently have been applied outside it. As Thorpe JA said in the court below at [2006] 2 FLR 614, paras 39 and 42, “the speeches in the House of Lords cases [on the importance of biological connection to the child’s welfare] were given in an earlier age and in a different context” and now “we have moved into a world where norms that seemed safe 20 or more years ago no longer run”. It is in this new world that the dispute about A and B’s welfare must be resolved.

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Re G (Children) (Residence: Same-Sex Partner)—Judgment 105 The facts 10 Ms G and Ms W cohabited from August 1995 to May 2002. They agreed that Ms G would be inseminated with sperm from an anonymous donor so that they could raise a family together. Their elder daughter, A, was born in 1999 and B in 2001. While they cohabited, Ms W and Ms G shared the children’s care more or less equally. Ms W has a son, C, now 17 years of age, from a previous relationship. The three children have a positive relationship with each other and regard each other as siblings. 11 The relationship between Ms W and Ms G broke down in 2002 and Ms G moved out of the family home with the two children. Both subsequently formed new relationships. 12 After the separation of the parents, Ms W and the children enjoyed alternate weekend contact and while Ms W initially did not wish to contest the girls’ primary residence with Ms G, in 2003 she brought an application for contact and a joint residence order in order that she could have parental responsibility for them. Her evidence at the hearing, held in 2004, was that parental responsibility would “give the children a clear understanding; that she was in their lives to love, support and help them and was involved in important areas of their lives”: see Re G (Children) (Residence: Same-sex Partner) [2005] 2 FLR 957 per Thorpe LJ at para 11. During the initial hearing, however, it became clear that Ms G did not any longer regard Ms W as the children’s parent. Further, she and her new partner, MG, had purchased a house in Cornwall and wished to relocate there with the children. The CAFCASS officer felt that such a move would not be in the children’s interests, as they were happy and settled in their current situation. Ms W’s application for joint residence was refused at trial, but the contact arrangements were confirmed and specified and Ms G was ordered to continue to reside in Leicester. Ms W appealed the refusal of joint residence and in 2005 her appeal was allowed: Re G (Children) (Residence: Same-sex Partner) [2005] 2 FLR 957. A shared residence order was made confirming in all other respects the order of the lower court. 13 Contrary to that order, in August 2005 Ms G and MG drove through the night with the children to Cornwall. They did not inform Ms W. They did not even inform the children of where they were going. After locating them, Ms W applied for primary residence of the children. Ms G at this time applied for the residence restriction to be lifted so that she and MG could reside lawfully with the children in Cornwall. The hearing came before Bracewell J who preserved the shared residence order but reversed the times allocated to each home. By this order the children were to live primarily with Ms W and her new partner, LP, in the former family home in Shropshire. Ms G appealed this order to the Court of Appeal and Bracewell J’s order was stayed pending the hearing of that appeal. In April, 2006, the Court of Appeal dismissed Ms G’s appeal: Re G (Children) (Residence: Same-sex Partner) [2006] 2 FLR 614. She now appears before this House. The grounds of her appeal, both in the Court of Appeal and in this House, are as follows: 1. The judge did not pose the correct question, namely whether there are compelling factors requiring the displacement of the children’s right to be brought up by their mother. Instead she appears to have asked whether the mother or CW would provide the better home, and in consequence, gave no

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106 Alison Diduck weight to the fact that the Appellant is A and B’s mother and their only natural parent. 2. She did not carry out a methodical survey of all significant features of the case (as required by Section 1(3) of the Children Act 1989) and as a result (i) Attached no weight to the ascertainable wishes and feelings of the children. (ii) Ignored the strong attachment between the children and their mother. (iii) Ignored the glowing reports about the children’s development. (iv) Minimised the immediate effect of a change of circumstances on the children. (v) Overlooked the lifelong disadvantages of children not being brought up by their mother. She instead elevated the mother’s misconduct from being an important issue to being the crucial issue in the case to the exclusion of all others, leading to an unbalanced assessment of the mother’s ability to meet the children’s overall needs. Welfare versus right to be raised by natural parent 14 The Children Act 1989 is clear that in cases such as this, when the court is called upon to determine any question with respect to the upbringing of a child, the child’s welfare is to be the paramount consideration. I can do no better to review that law than my noble and learned friend Baroness Hale in her comprehensive account of the cases before and after the 1989 Act came into force, and the parliamentary thinking behind that Act. The issue is welfare; it is not the right of a parent to rear his or her “natural” child or the right of a child to be reared by his or her “natural” parents. While article 8 of the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998, protects respect for one’s private and family life, that right is conditional, particularly upon the welfare of the child: see Payne v Payne [2001] Fam 473. Rights, whether of children or of parents, are relevant only insofar as they impact upon a child’s welfare. 15 That is not to say, however, that the “fact” of parenthood, as my noble and learned friend Baroness Hale describes it, is irrelevant. The fact of parenthood is not always sufficient to determine a child’s welfare, but is an important factor in that determination. Where the dispute is between a parent and a non-parent, for example, the fact of parenthood is an important part of the welfare test. On this point also I am in agreement with my noble and learned friend Baroness Hale. Finally, I am also in agreement with her point that the fact of parenthood may be established in a number of ways; a person may have different types of parental relationships with a child. Where I must respectfully disagree with her, however, is on the weight to be given in this case to the genetic connection between parent and child in determining both the “fact” of parenthood and a child’s welfare in its light. 16 A parent may have one relationship or a combination of relationships with a child, ranging from merely a genetic one to a biological relationship that takes into account more than merely genetic factors (see Johnson, “A Biomedical Perspective

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Re G (Children) (Residence: Same-Sex Partner)—Judgment 107 on Parenthood”, in Bainham, Day Sclater and Richards (eds), What is a Parent? (1999)), to a social one such as marriage to the child’s mother, to a material one in which children are loved and cared for by a parental figure who treats them as his or her children, and finally to the psychological relationship created by a parent who “fulfils the child’s psychological needs for a parent as well as the child’s physical needs”: see Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973). Not all of these relationships are recognised by law, but all can be felt strongly by both parents and children. 17 The law recognised historically the gestational connection between mothers and their children and, through the presumption of legitimacy or paternity, the social connection between married fathers and their children. With the advance of scientific technology, however, the genetic connection gradually took priority in law over the social connection between fathers and children: see section 20 of the Family Law Reform Act 1969, and Re H and A (Children) (Paternity: Blood Tests) [2002] 1 FLR 1145, per Thorpe JA. Biology, either in its gestational (for mothers) or genetic (for fathers) form in this way has now become the primary determinant of legal parenthood. But here is where context becomes important and where law may lag behind. The concepts of legal parenthood and their importance to a child’s welfare were developed in the context of married, and subsequently unmarried, opposite-sex parents. Are they still applicable now that social changes have overtaken this presumptive heterosexual context? Children now are reared by parents who not only may not be married to each other, but who may be of the same sex. In these contexts it makes little sense, particularly from the child’s point of view, to say that a person who is genetically related to her is her parent, while another who may be a social, emotional and material parent is not. Both are parents. Where parents are of the same sex, this observation becomes crucially important because (on the current state of medical technology) only one can ever be genetically related and that fact should not become a legal disability for either the other parent or the child. And so, if these parents are unable to agree on the upbringing of their children, the court must determine their dispute with reference to the welfare of the child, an assessment of which can be determined only in small part by reference to the source of their connection with the child. This, in my view, is the situation before this House today. It is a prime example of where the still unusual context of this case becomes important. Both Ms G and Ms W are A and B’s parents. The “fact” of their parenthood by reference either to its legal or biological source, while relevant, is of less importance than the care they have given and are able to give to A and B in the future. 18 Thorpe JA in the court below [2006] 2 FLR 614, para 40, put it this way: “take the heterosexual couple whose desire for a family has been frustrated by the wife’s infertility. They opt for IVF treatment with donated eggs. The eggs are fertilised by the husband’s sperm. Should the relationship founder some years after the birth of the child or children, it would seem to me of little moment if the father in any ensuing dispute were to assert some enhanced position resulting from the biological connection.” 19 Or take an example closer to the case before us: the case of a cohabiting heterosexual couple who received treatment together at a licensed clinic by which

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108 Alison Diduck the wife was inseminated with donated sperm. The couple shared the care of the resulting child for four years before their relationship foundered. It would be difficult for the mother then to argue that the father’s case for residence or contact would be weakened by the fact that he was not biologically related to the child. The principle proposed by the appellant, that compelling factors are required to displace the children’s right to be brought up by their mother and only natural parent, would surely not be accepted. The role and importance of a loving and involved father in the lives of his children would not be able to be dismissed in this way. Indeed, in such a case the question the appellant concedes Bracewell J asked herself would be the correct one: which of the parents would provide the better home? 20 That question is apposite in this case as well, not because Ms W must be compared to and treated equally with a loving and involved father whose role and importance in a child’s welfare has been consistently recognised by the courts, but because of her own unique place as a parent in the lives of A and B. If it were otherwise, it would be too easy for a separated lesbian co-parent to cease to be regarded as a parent on separation. After all, she is neither a mother nor a father. Hers is a parenthood that is unique and because it is still new to law, is particularly vulnerable. Simply because Ms W’s parenthood cannot fit within the biology or the gendered roles of mother or father it ought not in any way be marginalised, diluted or treated less favourably in law. Equally, Ms W’s parenthood must not be assimilated into the only legal concepts we now have: motherhood and fatherhood. It must be recognised on its own terms. 21 I agree with Thorpe JA’s conclusion at [2006] 2 FLR 614, para 38, that the principle the appellant relies upon “has been limited in its application to cases in which the dispute is between a parent and a non-parent”. It is not applicable between mothers and fathers and it cannot be applicable between mothers and lesbian coparents. While the sentiment expressed by my noble and learned friend Lord Scott of Foscote that “mothers are special” may be shared by many, indeed I share it myself—I am a mother—I must respectfully disagree that it become elevated to legal principle. 22 As against a non-parent, while there may be a prima facie right for a child to be brought up by his or her parent (see, for example, Re K (A Minor) (Ward: Care and Control) [1990] 1 WLR 431, Görgülü v Germany [2004] 1 FLR 894) and therefore compelling reasons are required to displace that right, there seems to me to be no similar right of a child or a biologically related parent as against another parent. While the fact of Ms G’s maternity is relevant, it is relevant only to the determination of A and B’s welfare. I would therefore hold that Bracewell J asked herself the correct question, and I would reject the first ground of appeal. The welfare test versus Ms G’s misconduct 23 The crux of the appellant’s second ground of appeal is that both Bracewell J and the Court of Appeal had insufficient regard to the welfare of the child, and, in particular to the checklist in sub-section 1(3) of the Children Act 1989. The appellant says that they instead elevated her misconduct from being an important issue in the case to being the crucial issue. Ms G’s perceived misconduct stems from her

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Re G (Children) (Residence: Same-Sex Partner)—Judgment 109 behaviour in flouting the court’s order to remain resident in Leicester with the apparent view to frustrating the relationship between Ms W and the children. 24 It is in rare and unfortunate cases that a court will order a change in a child’s living arrangements if its order, made to promote and protect a child’s welfare, is not being observed. And it will only do so if alternative arrangements would be better for the child: see V v V [2004] 2 FLR 851. I do not, therefore, take the appellant to be saying that the order made and confirmed in the courts below is intended to punish her for her misconduct; that is not the law. A court must not use the terms of a residence order to punish a parent. Where, however, a residence order no longer promotes a child’s welfare, that order may be reviewed. The question in this case is whether the terms of the order made by the Court of Appeal in 2005 fell to be reviewed. It must be answered by reference to the welfare of the children. 25 The order which is the subject of the appeal is an unusual form of order. First, it is a joint residence order. Such an order is appropriate where it reflects the real living arrangements of the children and thus is in their best interests. My noble and learned friend Hale LJ as she then was said as much in Re D (Children) (Shared Residence Orders) [2001] 1 FLR 495. It is a comparatively infrequent order, although it is not any longer to be considered an exceptional order. Recently, joint residence orders have been made not only to reflect the reality of the children’s lives, but also for symbolic reasons: to “reflect the fact that the parents are equal in the eyes of the law”, in the words of Wall J in A v A (Children) (Shared Residence) [2004] 1 FLR 1195, para 124. They have been made in situations, like in the case before us, of hostility between parents with a view to encouraging cooperation between them and they have been made even where parents live a great distance apart: see Re F (Children) (Shared Residence Order) [2003] 2 FLR 397. A joint residence order may also be made in order to confer parental responsibility upon one who is caring for a child. In this case, the joint residence order confers parental responsibility upon Ms W, it reflects the symbolic equality of the importance of both Ms G and Ms W in the eyes of the law and their social and legal legitimacy as A and B’s parents and it reflects the reality of A and B’s lives. For these reasons it is entirely appropriate. I query whether a joint residence order ought also to be used as a tool to coerce or encourage cooperation between parents who disagree about the upbringing of their children, but because there are other compelling reasons to support the order in this case, I will leave discussion of this issue for a different time. 26 The second unusual aspect of the order before this House is its condition restricting Ms G’s place of residence. Like joint residence orders, conditional residence orders are also comparatively infrequent. As Butler-Sloss LJ explained in Re E (Minors) (Residence: Imposition of Conditions) [1997] 2 FLR 638, absent exceptional circumstances, a conditional residence order is inconsistent with the nature of the order itself, and, where the condition restricts where the resident parent is entitled to live, it amounts to an unwarranted imposition upon the right of that parent to choose, where, in the UK, she will live. While such orders have been called “exceptional”, courts recently have held them to be appropriate in situations where to permit the primary carer to move the children too great a distance from the non-primary resident parent would amount to marginalisation of that parent: Re S (A Child) (Residence Order: Condition) (No. 2) [2003] 1 FCR 138; B v B (Residence: Condition Limiting Geographic Area) [2004] 2 FLR 979. This is especially the case

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110 Alison Diduck when the proposed move appears to be motivated by the desire to marginalise the non-resident parent. 27 In addition, therefore, to having before us an unusual situation, we also have an unusual form of order. It is a joint residence order and it contains a restriction on the appellant’s place of residence. Does the welfare of the children continue to justify it? The Children Act 1989, sub-section 1(3) offers a checklist to which judges must have regard when they determine questions of a child’s upbringing, including residence and contact. That checklist is not exhaustive, however, and to it must be added the “assumption” created by Thorpe LJ in Re L (A Child) (Contact: Domestic Violence) [2001] Fam 260 that contact with a non-resident parent is “almost always” in the interests of the child, and the statement of Sir Thomas Bingham MR (as he then was) in Re O (A Minor) (Contact: Imposition of Conditions) [1995] 2 FLR 124 that the primary carer is subject to an “enforceable duty to promote contact” where the court judges it is in the welfare of the child. While this dispute is not, strictly speaking, a contact dispute, it is this perceived need not only to promote the continued relationship between Ms W and the children, but to confirm Ms G’s duty to do so, that has weighed most heavily in this case and led the courts below to retain the joint residence order but reverse the times spent by the children with each of their parents, effectively turning Ms G into a non-primary resident parent. This appeal thus raises similar issues regarding assumptions about the benefits for children of creating or maintaining for them a form of shared parenting or “post separation family” and the primary carer’s responsibility for doing so. 28 Where, prior to their separation, both parents were involved in caring for the children, and after separating both wish to continue their involvement, assumptions about the benefit to children of that continued relationship are borne out: see Wallerstein and Kelly, Surviving the Breakup (1990). Where there has been little or no caring relationship between the non-resident parent and the children prior to the parents’ separation, the evidence upon which the assumptions are based is more equivocal: see Maclean and Eekelaar, The Parental Obligation: A Study of Parenthood Across Households (1997); Hunt, Researching Contact (2003). In these cases, promoting a relationship between a non-resident parent and the children may be important, but cannot fall within the sweeping assumption in favour of contact, or increasingly, shared residence, that the child’s welfare might otherwise demand. Each case must be considered on its own merits, taking into account the welfare of the particular children in their particular situation, including the social and economic conditions in which they and their parents are living. To do otherwise would, in the pursuit of an abstract and possibly equivocal principle, devalue the importance of the history of the actual work of caring for children and the social and psychological bonds between parent and child that history establishes, and privilege unduly statements of future intent, claims to rights of the formal equality of parents and a partial or indeed mythical understanding of how parenting is shared pre-separation. 29 My Lords, the welfare of children demands that their parents not only love their children but that they manifest this love in the form of meeting their children’s emotional, social, physical and developmental needs. It demands, as Professor Carol Smart has characterised it in “Losing the Struggle for Another

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Re G (Children) (Residence: Same-Sex Partner)—Judgment 111 Voice: The Case of Family Law” (1995) 18 Dalhousie Law Journal 173, that parents both care about and care for their children. In this case, while they cohabited, Ms G and Ms W shared A and B’s care more or less equally. A and B regarded both as their parents. After they separated, the children’s primary home was with Ms G, but they were cared for by Ms W on a regular basis. A and B have the benefit of two loving and caring parents and for this reason, their welfare demands that they remain in regular contact with both. 30 Because she is the parent with primary residence, any conditions the court imposes upon her residence order affect Ms G directly. Such conditions, in fact, affect women disproportionately to men in the majority of cases because mothers make up the overwhelming majority of primary resident parents. Primary carers, usually mothers, who wish to move home are subject to a court’s power to restrict them from doing so, while parents who are not primary carers are not subject to the same potential restrictions. 31 This gendered social reality was faced directly by the minority of the High Court of Australia in U v U (2002) 211 CLR 238. While that case was concerned with the mother’s application to relocate herself and her children to another jurisdiction, the comments of Kirby J at para 141 are à propos in any case where a restriction is imposed on a resident parent’s place of residence: “In practical terms, court orders restraining movement of a custodial (or residence) parent ordinarily exert inhibitions on the freedom of movement of women, not men”. Kirby J went on to say at para 142: “The failure of the primary judge to give separate and full consideration to the true proposal of the mother, as designated primary carer and residence parent, to discharge her assigned responsibilities overseas . . . constitutes a serious injustice to the proper evaluation of that application. The burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband’s whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.” 32 It is difficult to imagine what it must be like for a non-primary resident parent to have their contact with their child diminished due to geographical distance. But it is equally difficult to imagine being confined to a place feeling that one has limited prospects and support. As Thorpe LJ said in the relocation case of Payne v Payne [2001] Fam 473, para 11, the court must have regard to the “emotional and psychological well-being of the primary carer. In any evaluation of the welfare of the child as the paramount consideration great weight must be given to this factor”. Ms G now has satisfying employment in Cornwall and a supportive partner with whom the children have a good relationship. While the courts below found that her relocation to Cornwall was motivated at least in part by a desire to marginalise Ms W, she has, since these proceedings began, abided by the shared parenting arrangements in the order. I agree with my noble and learned friend Baroness Hale that in moving to Cornwall contrary to the terms of the order, the

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112 Alison Diduck appellant behaved very badly. But the court must not assume that because she moved house in the way she did, she acted against what she believed to be in her and her children’s best interests. Sometimes a resident parent wishes to relocate after separation to start a new life, sometimes it is a matter of self-preservation. In this case, Ms G’s solicitors advised that the move was precipitated by her feeling that her situation in Leicester had become “unbearable”. While the court below doubted the sincerity of that sentiment, it is important to recall that she has been carrying out the contact arrangements since these proceedings began. Further, it is noteworthy that there is no evidence that the possibility was explored by anyone of Ms W moving home to be closer to the children. 33 Judging the welfare of A and B in this case at this time involves having regard not only to the benefits they accrue from shared parenting as ordered in the joint residence order, but also to the other factors on the statutory checklist. On this point also I agree with and am indebted to my noble and learned friend Baroness Hale. While an experienced family judge such as Bracewell J can be assumed to have had regard to that checklist whether or not it is spelled out in the judgment, this is a particularly difficult and finely balanced case in which it would have been helpful for her to have addressed each of the factors on the list. 34 If then, the test is the welfare of A and B in the context of their unremarkable and yet at the same time still unusual situation, we must look to the evidence that sheds light on all the statutory factors, not only on how or if contact with Ms W will be maintained. The court must enquire into the potential long and short term effects upon the children of a change in their living arrangements, the quality of their relationships, their development and the capabilities of each of their parents to provide for them, including their parents’ well-being. Evidence on these factors is provided from, inter alia, the very thorough and helpful reports prepared by Mr Martin, the Guardian in this case. 35 We have evidence of the children’s relationship with Ms G and their educational, social and emotional development while in her care. In all respects, they are doing well. Regarding Ms G’s care of and relationship with the children, Mr Martin reports: “She is clearly devoted to her children and they are to her. Observation of her interaction with them displays two very confident and happy children. There is a lot of laughter in the household and even when tired from work CG’s interaction with them is positive and child-need led.” 36 We also have Mr Martin’s assessment of Ms W’s commitment to the children: “CW is an impressive woman who has clear and well thought out ideas. I did not gain the impression that she was seeking control via her children. I believe that is genuinely driven by a desire to protect her children and that she has tried always to act in their best interests.” 37 Mr Martin’s opinion was that the risks of leaving the children in Cornwall and of removing them back to Shropshire were finely balanced. His recommendation was that a further move would not be in the children’s welfare. Like my noble and learned friend Baroness Hale, I agree with him. I also agree with her that in attributing undue weight to the appellant’s misconduct in relation to apparent

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Re G (Children) (Residence: Same-Sex Partner)—Judgment 113 moves to frustrate contact with Ms W, the courts below failed to have sufficient regard to the children’s welfare more broadly. Unlike my noble and learned friend, however, with so much of whose opinion in this case I have agreed, I consider the weight to be attributed to Ms G’s biological relationship with the children to be of less importance to their welfare than the facts that Ms G has been either a joint or primary care giver for virtually all of A and B’s lives, that they are thriving in her care and that she now accepts her share of the responsibility for maintaining their relationship with Ms W. Conclusion 38 A and B have lived all of their lives with Ms G. While together with Ms W, they had the benefit of two loving parents sharing their care more or less equally. After their parents separated, for the past four years, they have been in the primary care of Ms G and have enjoyed extensive contact with Ms W. Both parents have cared for and about them and both wish that care to continue. While they regard both Ms G and Ms W as their parents, the children’s home for the last four years has been with Ms G. And they have done well in that home. All in that home, including Ms G, are happy and thriving. For these reasons I would allow Ms G’s appeal, restore the original residence and contact arrangements and lift the residence restriction in the joint residence order. Ms G and Ms W must, however, be aware that their responsibility to ensure that the children have meaningful contact with the other parent is joint. The burden does not lie solely upon the parent with primary residence. I would, therefore, agree once more with my noble and learned friend Baroness Hale that a fresh family assistance order should also be made.

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7 Commentary on Re L (A Child) (Contact: Domestic Violence) CHRISTINE PIPER

Introduction The context for Re L (A Child) (Contact: Domestic Violence); Re V (A Child); Re M (A Child); Re H (Children)1 was complex: the case brought into focus—and was also precipitated by— several developments in the previous decades. First, there had been a ‘growing recognition by academics, policy makers, legislators and the judiciary of the risks posed to women by domestic violence’.2 Further, research suggested that ‘violence continues and even escalates after separation and that child abuse is associated with woman abuse’.3 However, there was also growing evidence that increasing awareness of domestic violence amongst professionals in the family justice system was not automatically leading to a change in practice in relation to the encouragement of ongoing contact between violent fathers and their children.4 Some of the reluctance, particularly amongst mediators and family court welfare officers, appeared to stem from fears of undermining an agreed settlement or of encouraging allegations.5 Other barriers were that lawyers over-estimated their ability to ‘pick up’ a client’s history of domestic violence.6 There was, therefore, a need for a clear, unequivocal judicial line on the importance of screening for, and taking account of, domestic violence in these cases.7 However, to achieve a higher public profile regarding the dangers of contact in the context of domestic violence was not easy in the 1990s. The last two decades of the twentieth 1 Re L (A Child) (Contact: Domestic Violence); Re V (A Child); Re M (A Child); Re H (Children) [2000] EWCA Civ 194, [2001] Fam 260. 2 F Kaganas, ‘Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence)’ (2000) 12 Child and Family Law Quarterly 311, 311. See, eg, Home Office, Living without Fear (London, Home Office, 1999); M Hester and L Radford, Domestic Violence and Child Contact Arrangements in England and Denmark (Bristol, Policy Press, 1996). 3 ibid; see also A Mullender and R Morley (eds), Children Living with Domestic Violence: Putting Men’s Abuse of Women on the Child Care Agenda (London, Whiting & Birch, 1994); M O’Hara, ‘Domestic Violence and Child Abuse—Making the Links’ (1992) 88 Childright 4. 4 See F Kaganas and C Piper, ‘Divorce and Domestic Violence’ in S Day Sclater and C Piper (eds), Undercurrents of Divorce (Dartmouth, Ashgate, 1994) especially 199. 5 M Hester, M Pearson and L Radford, Domestic Violence, A National Survey of Court Welfare and Voluntary Sector Mediation Practice (Bristol, Policy Press, 1997). 6 C Piper and F Kaganas, ‘The Family Law Act 1996 s 1(d): How Will “They” Know There Is a Risk of Violence?’ (1997) 9 Child and Family Law Quarterly 279. 7 See, eg, C Humphreys, ‘Judicial Alienation Syndrome—Failures to Respond to Post-Separation Violence’ (1999) 29 Family Law 313.

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Re L (A Child)(Contact: Domestic Violence)—Commentary 115 century had also witnessed widespread concern about divorce and separation and the harm it was believed to be causing children. This led to a focus on how to maintain the ‘separated but continuing’ family after parental separation,8 with continuing contact seen as the key to presenting families as ‘unbroken’. This approach was supported by reference to research which suggested that conflict was deleterious to children’s development and that ‘good’ parents came to agreed settlements, preferably via mediation. Parents wishing to use the courts to oppose contact therefore risked being labelled as ‘bad’.9 The 1990s also witnessed a vast amount of media coverage and public discussion given to the question of non-resident father contact (or rather lack of contact) with his children after parental separation.10 Further, both in relation to separated parents and lone mothers, law and policy began to focus on the importance of the father as a positive influence on the child and, in particular, the importance for the child’s present and future welfare of the child’s awareness of, and contact with, her genetic father.11 Family lawyers and mediators12 had imbibed the general gist of research which suggested that contact was beneficial for children. Judicial decisions were justified with reference to the ‘obvious’ good of contact for children such that there appeared to be a judicial presumption that contact would be ordered.13 Research suggested that what resulted was a lack of detailed analysis as to whether contact was beneficial for a particular child.14 By the time the judgment was given in Re L, however, these assumptions about the welfare of the child were beginning to be questioned. An article written by the then Hale J in 1999 pointed out the lack of clear research evidence for the benefits of a child’s contact with a non-resident parent.15 Rodgers and Pryor similarly challenged the assumption that children are generally harmed by divorce16 and Wall J had chaired a committee that issued a consultation paper and subsequent report on contact in cases where there is domestic violence.17 Academics were also beginning to point out that strong adherence to the assumption that contact is beneficial was leading the courts to ‘explain’ parental opposition to contact as implacable (unreasonable) hostility and a child’s reluctance to stay overnight with a non-residential father as ‘the result of deliberate alienation by the other parent’.18 8 F Kaganas, ‘Contact, Conflict and Risk’ in S Day Sclater and C Piper (eds), Undercurrents of Divorce (Aldershot, Ashgate, 1999). 9 B Neale and C Smart, ‘“Good” and “Bad” Lawyers? Struggling in the Shadow of the Law’ (1997) 19 Journal of Social Welfare and Family Law 377; see also B Cantwell and S Scott, ‘Children’s Wishes, Children’s Burdens’ (1995) 17 Journal of Social Work and Family Law 377. 10 See, eg, F Kaganas, ‘Domestic Violence, Men’s Groups and the Equivalence Argument’ in A Diduck and K O’Donovan (eds), Feminist Perspectives on Family Law (London, Routledge-Cavendish, 2006). 11 See, eg, J Fortin, ‘Re D: Is Blood Really Thicker than Water?’ (1999) 11 Child and Family Law Quarterly 435. 12 See, eg, M King, ‘Being Sensible: Images and Practices of the New Family Lawyer’ (1999) 28 Journal of Social Policy 249; C Piper, ‘How Do You Define a Family Lawyer?’ (1999) 19 Legal Studies 93. 13 See, eg, Re H (Minors) (Access) [1992] 1 FLR 148 (CA) 152 (Balcombe LJ); Re W (A Minor) (Contact) [1994] 2 FLR 441 (CA) 447 (Brown LJ); Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124 (CA) 128 (Bingham MR). 14 See, eg, C Piper, The Responsible Parent: A Study of Divorce Mediation (Hemel Hempstead, Harvester Wheatsheaf, 1993); H Rhoades,‘The “No Contact Mother”: Reconstructions of Motherhood in the Era of the “New Father”’ (2002) 16 International Journal of Law, Policy and the Family 71. 15 B Hale, ‘The View From Court 45’ (1999) 11 Child and Family Law Quarterly 377. 16 B Rodgers and J Pryor, Divorce and Separation: The Outcomes for Children (York, Joseph Rowntree Trust, 1998). 17 Advisory Board on Family Law, Children Act Sub-Committee, A Report to the Lord Chancellor on Contact Between Children and Violent Parents (London, TSO, 2000). 18 C Piper,‘Assumptions About Children’s Best Interests’ (2000) 22 Journal of Social Welfare and Family Law 261; see also G Davis and J Pearce, ‘The Welfare Principle in Action’ (1999) 29 Family Law 144.

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116 Christine Piper

Case Law Before Re L Two years before the Re L judgment, Wall J had posed the question which explicitly brought together the presumption of contact and the growing concern about domestic violence. He asked whether it would be in the best interests of children ‘to impose an order for contact on a mother who is caring for them well in favour of a father who has treated her with such violence as to give her good and valid reasons to oppose contact?’.19 His answer was that ‘as a matter of principle, domestic violence of itself cannot constitute a bar to contact. Each case must inevitably be decided on its facts. Domestic violence can only be one factor in a very complex equation’.20 Nevertheless, in several other cases at this time Wall J questioned the presumption of contact in cases of violence.21 Wall J’s approach therefore paved the way for change and the decision in Re L had the potential to give more weight to the effects of domestic abuse when evaluating the best interests of the child. It could also define domestic violence more widely to include the long and short term effects of the child witnessing emotional or physical abuse, the potential harm to the child via the effect of abuse on the child’s mother and her capacity to parent, and the potential harm of continuing contact with an inappropriate role model. Further, some commentators had argued for a presumption against contact to be established in these circumstances.22

The Decision in Re L Re L did bring change. In line with the recommendations of the Report of the Children Act Sub-Committee chaired by Wall J,23 the court limited the operation of the ‘presumption’ in favour of contact. Indeed, Thorpe LJ preferred the word ‘assumption’ as, he said, a presumption could impede the court’s assessment of welfare. Butler-Sloss P set out a new approach for the courts which entailed, first, investigating and adjudicating on allegations of violence. To have any effect, an allegation had to be substantiated by proof of past violence. The court did not appear to attach significance to the risk of future harm, an astonishing omission given the Family Division’s concern with future risk in child protection cases. Butler-Sloss P then specifically noted that the welfare checklist—a list of factors which the court must consider when determining the best interest of the child24—should be applied, and that it should be used in the light of expert evidence on the effects of domestic violence on children. The court could then come to a decision as to whether contact should be denied in the particular case. The court would, therefore, need to balance factors for and against contact in relation to the child in question. The court commissioned an expert report from two child psychiatrists, Drs Sturge and Glaser, on the psychiatric principles of contact between children and non-resident 19 20 21 22 23 24

Re H (Contact: Domestic Violence) [1998] 2 FLR 42 (CA) 56. ibid. Kaganas, above n 2 at 312. See, eg, Hester and Radford, above n 2. Above n 17. Children Act 1989 s 1(3).

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Re L (A Child)(Contact: Domestic Violence)—Commentary 117 parents,25 but although the judges relied on the report to some extent, they did not ultimately accept its recommendation that there should be a presumption against contact in domestic violence cases. Rather, they agreed that domestic violence was not necessarily a bar to contact. At most, it could ‘offset’ the ‘assumption’ in favour of contact. Further, the judgment of Butler-Sloss P can be read as being limited to a narrow definition of domestic violence,26 despite the availability in 2000 of evidence justifying a wider definition. Thorpe LJ also stated that ‘the ability of the offending parent to recognise his or her past conduct, to be aware of the need for change and to make genuine efforts to do so, will be likely to be an important consideration’.27

Subsequent Developments The Re L case ensured domestic abuse became an important issue in the context of contact. Best practice guidance was issued in 200228 and, more recently, detailed guidance for the courts has been issued in the form of Practice Directions in 2008 and 2009. The factfinding process is now detailed and established. However, there is a reluctance to engage the process because of its potential to polarise the parties and exacerbate conflict. Moreover, like any ‘private’ harm, the existence of past violence is very difficult to prove, and allegations that cannot be proved are disregarded. Even where allegations are proved, they may not be sufficient to offset the assumption in favour of contact. Further, the change of nomenclature from ‘presumption’ to ‘assumption’ has proved inadequate to prevent a narrow—or non-existent—use of the welfare checklist in such cases. Re L also stated that parental alienation syndrome was not a ‘condition’, but that has again proved insufficient clarification to prevent references to the syndrome which might obscure legitimate reasons for parental opposition to contact.29 ‘Implacable hostility’ has also continued to be referred to in contact cases, with results potentially detrimental to the child concerned. For example in Re C (Residence Order)30 an order was made transferring residence from the mother to the father. Ward LJ endorsed the two main reasons apparently given by the judge—that the mother’s opposition to contact ‘was intractable’ and that ‘Her failing as a mother was to isolate this little girl’.31 Yet the evidence showed that the child had a close relationship with her half brother, there was a ‘very strong bond’ with her mother, her father was ‘a virtual stranger’ to her, and there had been no discussion of the ‘isolation’ factor in the court below. Re L left the court with discretion to continue to give considerable ‘positive’ weight to the promises of a perpetrator of domestic violence to attend classes and amend his behaviour. 25

C Sturge and D Glaser, ‘Contact and Domestic Violence—The Experts’ Court Report’ (2000) 30 Family Law

615. 26

See Kaganas, above n 2 at 316–17. [2001] Fam 260, 273. 28 See, eg, Advisory Board on Family Law, Children Act Sub-Committee, Report to the Lord Chancellor on the Question of Parental Contact in Cases Where There is Domestic Violence (London, HMSO, 2002) section 5: ‘Guidelines for Good Practice on Parental Contact in Cases Where There is Domestic Violence’. 29 See, eg, Re C (Prohibition on Further Applications) [2002] EWCA Civ 292, [2002] 1 FLR 1136 [14] (Thorpe LJ). See also T Hobbs ‘Parental Alienation Syndrome and the UK Family Courts—The Dilemma’ [2002] Family Law 381, 386. 30 Re C (Residence Order) [2007] EWCA Civ 866, [2008] 1 FLR 211. 31 ibid [14] (see also [21]). 27

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118 Christine Piper A clear example is the recent case of Re P (Children) in which domestic violence on the part of the father had been proven in the lower court and the eight-year-old child had told the reporter that when his father shouted or smacked him ‘I curl up and get small and hide my face’.32 Attendance at an anger management course for the father was endorsed by Ward LJ who stated that the father could then: explain his feelings of anger and bitterness at this whole horrible six years of unhappiness, from the day the marriage broke down, his being removed from the home, the constant difficulties over the children. It is enough to make any ordinary man just a little bit angry, but that anger has to be contained.33

Such a statement exudes sympathy rather than condemnation and, moreover, fits uneasily with the further requirement that the mother, although the judge had found that she was not suffering from a mental disorder, undergo some form of therapy and counselling ‘which might go some little way to assuaging the father’s implacable conviction that she is a woman with severe mental problems such as spill over to the detriment of his children’.34 Finally, the original judgment did not give sufficient attention to the problematic nature of indirect and supervised contact. Judges have continued to see supervised or supported contact ‘as an extremely useful’ measure, especially in cases where there has been previous violence or alcoholism.35 However, there are outstanding questions as to the level of supervision and the safety of the child concerned.36

The Feminist Judgment Felicity Kaganas’s feminist judgment seeks to respond to the shortcomings of the original decision in the following ways. First, it queries—in the light of research evidence—the appropriateness of the assumption that contact is in the child’s best interests when the context is that of a contested and highly conflictual case. Accordingly, it states that the courts should determine all contested cases with reference to the welfare checklist rather than beginning with an assumption in favour of contact. Where, however, the court decides that there has been domestic abuse or there is a risk of significant future harm, the court should assume that there will be no contact. Such an assumption could be displaced only by sufficient and weighty factors in favour of contact. Further, the expressed desire of an abusing father to attend a course and/or to ‘change’ would not constitute such a factor. Only evidence of actual change should be weighed in the balance. The feminist judgment also makes clearer the court’s view that so-called parental alienation syndrome and the notion of ‘implacable hostility’ are not ‘conditions’ and are based on assumptions not supported by research. Rather than focusing on the mother as ‘the problem’, it suggests that the problems on which the courts should focus are the parental relationship, the parenting capacity of the non-resident parent, and the effect of diminish32

Re P (Children) [2008] EWCA Civ 1431, [2009] 1 FLR 1056 [31]. ibid [36]. 34 ibid [37]. 35 A Perry and B Rainey, ‘Supervised, Supported and Indirect Contact Orders: Research Findings’ (2007) 21 International Journal of Law, Policy and the Family 21, 36. 36 ibid 37. 33

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Re L (A Child)(Contact: Domestic Violence)—Commentary 119 ing (further) the parenting capacity of the resident parent by continued contact with the perpetrator of abuse. Finally, the judgment adopts a broader definition of domestic violence than that evidenced in the original judgments, and gives a detailed explanation of what would count as adequate evidence not only for the purpose of establishing that domestic violence has taken place but also for establishing a risk of future harm. The original judgment may have raised awareness and led to new procedures in relation to allegations of abuse but it has not proved sufficiently robust to change assumptions about the prevalence and effects of such abuse. If this feminist judgment had been the determinative judgment in 2000 then—in those cases where domestic abused has occurred—the dangers and difficulties now faced by women and children who must accept unwanted contact or change of residence would be reduced.

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Court of Appeal

In re L (A Child) (Contact: Domestic Violence) In re V (A Child) In re M (A Child) In re H (Children) 2000 June 19 KAGANAS LJ I have had the privilege of reading in draft the judgments of the President, Thorpe LJ and Waller LJ and I agree that all four appeals should be dismissed. Before addressing the specific appeals before the court, however, I would like, as the other judges have done, to make some general comments regarding the way in which contact cases, and more specifically contact cases where there are allegations of domestic violence, should be approached by the courts. In particular I would like to take this opportunity to re-evaluate the emphasis placed by courts on contact in their efforts to safeguard children’s well-being. The presumption in favour of contact The fundamental principle in contact disputes is that the welfare of the child is the paramount consideration. As the court in Re O (A Minor) (Contact: Imposition of Conditions) [1995] 2 FLR 124, 128–130 made clear, the interests of the mother and the father can be considered only insofar as they bear on the welfare of the child. This approach has not been altered by the advent of the Human Rights Act 1998. In Dawson v Wearmouth [1999] 2 AC 308, Lord Hobhouse of Woodborough said at p 329 that nothing in the European Convention on Human Rights requires the court to act otherwise than in the best interests of the child: see also Re KD (A Minor) (Ward: Termination of Access) [1988] AC 806, 808. For many years now the courts have regarded it as axiomatic that, if parents divorce or decide to live separately, children ought to have contact with the parent who is living apart from them; to order contact in contact disputes is normally thought to be in the child’s best interests. Indeed, the courts have considered contact so important that they have disregarded the distress that their orders cause to many children and resident parents. In M v M (Child: Access) [1973] 2 All ER 81, for example, Latey J at p 88 conceded that “access . . . often results in some upset to the child”, but assumed that these upsets are “usually minor or superficial”. They are: “heavily outweighed by the long-term advantages to the child of keeping in touch with the parent concerned so that they do not become strangers, so that the child later in life does not resent the deprivation and turn against the parent who the child thinks, rightly or wrongly, has deprived him, and so that the deprived parent loses interest in the child.” He further stated at p 85 that no court should deny access unless “wholly satisfied” that this would be in the child’s best interests, and that this is a conclusion at which

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Re L (A Child)(Contact: Domestic Violence)—Judgment 121 a court should be slow to arrive. Latey J’s views appear to have become accepted wisdom and in later cases, the courts have gone further and constructed what was described in Re M (Contact: Welfare Test) [1995] 1 FLR 274, 281 as a “strong presumption” in favour of contact. A number of other reported cases referring to such a presumption are listed by Thorpe LJ in his judgment in this case. The presumption is perhaps most clearly articulated in Re H (Minors) (Access) [1992] 1 FLR 148, 152. Balcombe LJ said that the court should ask the question: “Are there any cogent reasons why this father should be denied access to his children, or putting it another way: are there any cogent reasons why these two children should be denied the opportunity of access to their natural father?” Similarly, in Re O (A Minor) (Contact: Imposition of Conditions) [1995] 2 FLR 124, 128, the court took the view that it is “almost always” in the interests of the child to have contact with the non-resident parent. Child welfare knowledge and the presumption or assumption in favour of contact Thorpe LJ in his judgment expresses concern that use of the term “presumption” could detract from the welfare assessment. He accordingly prefers the term “assumption”. He goes on to suggest that the assumption that children benefit from contact with the non-resident parent is drawn from current opinion among the majority of mental health specialists. My reading of the available research, however, brings into question the proposition that the courts should make decisions on the basis of an assumption in favour of contact. Arguably, such an assumption could be justifiable if it reflected a consensus among researchers about the welfare of a significant majority of children in a similar position to those whose cases come before the courts. However, there is no such consensus and the evidence presented to this court does not give unqualified support for contact either. The expert psychiatric report presented to us by Dr Sturge and Dr Glaser provides support for the proposition that contact generally benefits children where the child’s relationship with the non-resident parent is a positive one and the quality of the contact is good. Similar findings can be seen in a well-known book by Wallerstein and Kelly, Surviving the Breakup (1980) (Grant McIntyre), which is often cited in support of the advantages of contact. However, the experts’ report draws attention to a number of disadvantages of contact. Among the many risks they enumerate are the risks of emotional abuse, of undermining the child’s sense of stability and of the continuation of unhealthy relationships. In addition, my understanding of Dr Trowell’s response to Wall J’s consultation paper differs from that of Thorpe LJ. Dr Trowell states that for most children, regular contact is beneficial. This by no means confirms the assumption that it is good for almost all children. Nor does it endorse contact which is sporadic and unreliable. These sources do not, therefore, unequivocally support either a presumption or an assumption that contact is almost always in the child’s best interests. It is my view that the courts and court welfare officers alike have been emphasising the importance of contact to an extent not warranted by the available research evidence and that they have paid little attention to studies that cast doubt on

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122 Felicity Kaganas their approach. For instance, in a well-known analysis of 92 studies on children’s well-being in the context of divorce, “Parental Divorce and the Well-Being of Children: A Meta-Analysis” (1991) 110 Psychological Bulletin 26, Amato and Keith found at p 39 that “the evidence is not strong that continued contact with the noncustodial parent improves children’s well-being”. This is not an isolated view and Hale LJ recently acknowledged extra-judicially in “The View from Court 45” [1999] CFLQ 377 that the research does not clearly demonstrate the importance to children of maintaining or creating a new relationship with non-resident fathers. Dr Sturge and Dr Glaser state, in their report, that decisions about contact must relate to the specific child in question with his or her individual needs and that these may change over time. When evaluating the advantages of contact, they say, it is necessary to consider both the child’s past experiences and the ability of the non-resident parent to “understand and respond appropriately” to the child’s needs. They explain that the best arrangements are those that are supported by both parents and that enable the child’s needs to be “consistently” met. However, they point out, these types of arrangements are unlikely to be achieved in contested contact cases. In such cases it becomes important to balance the potential benefits and detriments of contact. When dealing with contested contact cases, it is important to bear in mind the effects of parental conflict. Rodgers and Pryor’s analysis of the available research in Divorce and Separation: The Outcomes for Children (1998) (Joseph Rowntree Foundation) shows widespread acceptance of the view that conflict between parents is not conducive to children’s well-being. Most parents make their own arrangements without resorting to litigation; contested contact cases tend to be cases in which conflict levels are high. The cases which come to court are, it would seem, those that are not susceptible to resolution by negotiation or mediation. Research conducted by Maclean and Eekelaar and reported in The Parental Obligation (1997) (Hart Publishing) pp 123ff, indicates that, while some parental relationships improve over time, many do not. Rodgers and Pryor report in Divorce and Separation: The Outcomes for Children (1998) (Joseph Rowntree Foundation), p 41 that post-separation conflict can have an adverse impact on children and that this is particularly true if the conflict is expressed in the form of verbal or physical abuse, if the conflict is poorly resolved or if the child feels “caught in the middle”. Amato and Keith in “Parental Divorce and the Well-Being of Children: A Meta-Analysis” (1991) 110 Psychological Bulletin 26, 40 found conflict to be the most significant factor affecting children’s well-being and suggest that, because conflict persists after divorce, children tend to show little improvement over time. Even the work referred to by Thorpe LJ and cited by Dr Trowell (Dowling and Gorrell-Barnes, Working with Children and Parents through Separation and Divorce (1999) (Macmillan Press)) asserts only that children do better if there is no ongoing conflict between the parents, where contact is free and easy and where contact arrangements offer stability and predictability. A contact order does not ensure stability, reliability, easily implemented arrangements or absence of conflict. Parents who litigate are in conflict and it cannot be assumed that this will dissipate or leave children unscathed once a contact order is put in place and enforced. What is more, contact can, as Dr Sturge and Dr Glaser observe, escalate conflict.

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Re L (A Child)(Contact: Domestic Violence)—Judgment 123 It follows, then, that in contested cases, children’s welfare cannot straightforwardly be assumed to be best served by ordering contact; it is relevant to consider the reasons for the conflict as well as the impact it is having on the child and on the child’s carer. The reasons behind a resident parent’s or a child’s resistance to contact should be taken seriously. The child It is necessary to take cognisance of the wishes and feelings of the child. Children of sufficient age and understanding should be listened to. According to the experts’ report, children who resist contact for reasons such as the unreliability of the non-resident parent should usually have their wishes respected. Claims that children’s resistance is the effect of parental alienation syndrome cannot be entertained because such a “syndrome” is not recognised as a mental disorder and is not recognised by mental health professionals. And while there are some resident parents, whether they be mothers or fathers, whose hostility to contact is rooted in their own feelings of anger and rejection, there are also many other reasons for opposing contact. The mother’s hostility is not necessarily groundless. Nor is a child’s resistance necessarily the result of the mother’s malign influence. The resident parent The assumption that a resident mother’s objections to contact are without justification is implicit in the term “implacable hostility” that is often applied to describe a mother’s attitude. However, it is now accepted that a resident parent is not necessarily being irrational or vindictive if she opposes contact. In Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48, 53, Hale J (as she then was) sitting in the Court of Appeal said: “It is important to bear in mind that the label ‘implacable hostility’ is sometimes imposed by the law reporters and can be misleading. It is . . . an umbrella term that sometimes is applied to cases not only where there is hostility, but no good reason can be discerned either for the hostility or for the opposition to contact, but also to cases where there are such good reasons. In the former sort of case the court will be very slow indeed to reach the conclusion that contact will be harmful to the child. It may eventually have to reach that conclusion but it will want to be satisfied that there is indeed a serious risk of major emotional harm before doing so. It is rather different in the cases where the judge or the court finds that the mother’s fears, not only for herself but also for the child, are genuine and rationally held; as indeed the court did in this case.” In Re P (Minors) (Contact: Discretion) [1998] 2 FLR 696, 703–4, Wilson J divided maternal hostility to contact into three main categories: “It seems to me that a mother’s hostility towards contact can arise in three different situations. The first is where there are no rational grounds for it. In such a case the court will be extremely slow to decline to order contact and will do so only if satisfied that an order in the teeth of the mother’s hostility would create a serious risk of emotional harm for the child. The second is where the mother advances grounds for her hostility which the court regards as sufficiently potent

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124 Felicity Kaganas to displace the presumption that contact is in the child’s interests. In that case the mother’s hostility as such becomes largely irrelevant: what are relevant are its underlying grounds, which the court adopts. The third is where the mother advances sound arguments for the displacement of the presumption but where there are also sound arguments which run the other way. In such a situation, so it seems to me, the mother’s hostility to contact can of itself be of importance, occasionally of determinative importance, provided, as always, that what is measured is its effect upon the child.” I would adopt this approach, but with two qualifications. I question the justification for either a presumption or an assumption that contact is in the child’s best interests in contested cases. In addition, I would stress that a resident mother’s irrational but genuine anxieties can be a good reason for denying contact in cases where violence is a factor; as Hale LJ reminds us in “The View From Court 45” [1999] CFLQ 337, post-traumatic fears might be genuine but might not be proportionate to the level of threat faced. I would agree with the suggestion made in the Children Act Sub-Committee’s report to the Lord Chancellor, para 3.23, that a mother who has suffered significant domestic violence should not be perceived as groundlessly “implacably hostile” but should rather be seen as within the second or third of the categories proposed by Wilson J in Re P (Minors) (Contact: Discretion) [1998] 2 FLR 696. More generally, it seems to me that the courts have been failing to examine, or too readily discounting, the reasons underlying some resident parents’ resistance to contact. Reasons may range, for example, from fear of abduction, fear of violence, concern that the non-resident parent is using contact to reassert control over the resident parent, concerns about the non-resident parent’s poor parenting skills, or concern about the non-resident parent’s substance abuse. Instead of focusing primarily on the “implacable hostility” of the caretaking parent, usually the mother, it is necessary to pay attention to the contribution or otherwise of the non-resident parent to the welfare of the child in question. I agree with Thorpe LJ that it is more important to preserve an existing relationship than to create one that has not yet come into existence. Yet it is also important to remember that not all established relationships are positive. Consideration must be given to the effects of the non-resident parent’s past conduct on the child and on the resident parent. Account must be taken of any effects it might have had on the resident parent’s present and future parenting capacity. Assumption or checklist? Since agreement about the advantages of contact does not extend to cases where parents are in conflict, it cannot be assumed that contact is in the child’s best interests in these situations. A better way of dealing with these cases, in my view, is to apply to each individual case the checklist in section 1(3) of the Children Act 1989. This enables the court to take into consideration all the circumstances of the case and to engage in a balancing exercise, weighing the advantages and disadvantages of contact in the particular circumstances of the case before it. A similar approach was suggested by Wilson J in the Court of Appeal in the case of Re M (Minors) (Contact) [1995] 1 FLR 274, 279. While this approach could have resource

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Re L (A Child)(Contact: Domestic Violence)—Judgment 125 implications, it is the one most consistent with section 1 of the Children Act 1989; the Act avoids any presumptions about what is best for any particular child. And while the term “assumption” avoids the precise legal implications of a presumption, it too might have the same effect as that mentioned by Thorpe LJ in relation to presumptions: it can impede the search for a welfare solution. Contact and domestic violence When it comes to cases involving domestic violence, however, I would adopt a different approach. In contrast to the differing opinions and the qualified support for contact in general, there does appear to be a consensus in relation to cases involving domestic violence. Professor Mary Hayes is quoted at para 3.3.2 of the Children Act Sub-Committee’s report to the Lord Chancellor as saying that “[j]udicial certainty that contact will virtually always promote a child’s welfare sits uneasily with research into the effects of domestic violence on children”. I would go further. It strikes me that while there is no substantial evidence to support an assumption that contact is almost always good for children, there is much stronger evidence to support an assumption that in cases of domestic violence, contact is undesirable. Hester and Radford, who have conducted extensive research on this matter, maintain in Domestic Violence and Child Contact Arrangements in England and Denmark (1996) (The Policy Press) p 3, that contact “tends not to work in circumstances of domestic violence . . . because of the men’s continuing violence and abuse”. The majority of women they surveyed were assaulted after separation and all these incidents were linked to child contact. Moreover, Hester and Radford found that children as well as resident mothers face danger. Men who are violent to their partners are likely to be abusive to their children too, or they may use the child to exacerbate the violence or abuse. Alternatively, children may be harmed in an attempt to protect their mothers and may be damaged by witnessing violence against their mothers; see also Mullender and Morley (eds), Children Living with Domestic Violence (1994) (Whiting & Birch). In such cases, the potential advantages of contact are unlikely to be present and the potential disadvantages and risks multiply and increase in severity. The report by Dr Sturge and Dr Glaser likewise points out that children of violent parents are at risk of direct physical abuse and can also be harmed by witnessing or by being aware of violence. In addition, children’s attitudes to violence can be affected and boys, especially, may show signs of anti-social behaviour. Also, children may suffer from post-traumatic symptoms, or they may experience continuing fear and anxiety. The benefits of contact, such as the influence of a role model and a contribution to the child’s self-esteem and sense of identity, are unlikely to be discernible in such cases. The research also suggests that the impact of abuse on the resident parent can affect children. Drawing on the experts’ report, Butler-Sloss P notes in her judgment that violence to a partner involves a significant failure in parenting. Indeed, Dr Sturge and Dr Glaser refer to research indicating that “threats to the carer on whom the child is dependent have more serious consequences in young children than attacks on themselves”. They point out that domestic violence entails a failure to protect the carer and the child. This, they say, qualifies as child abuse.

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126 Felicity Kaganas There appears, then, to be a general consensus among researchers in the field about the negative effects on children and their caretaking parents (usually mothers) of domestic violence and it is on this basis that I consider it appropriate to speak of an assumption. I agree with the experts that there should be an assumption that direct contact is not in the child’s best interests in cases of domestic violence. The violent non-resident parent should bear the burden of adducing evidence to persuade the court, in the context of section 1(3) of the Children Act 1989, that contact would be in the child’s best interests. It would then be open to the court to order contact if satisfied that, for example, the violent incident was a minor and isolated one, or that the perpetrator has addressed his behaviour. I respectfully disagree with Thorpe LJ that the approach I am putting forward would lead to an excessive emphasis on physical abuse or past behaviour. First, as long as domestic violence is understood in its wide sense, courts should be able to extend their inquiries to abuse other than physical abuse. Secondly, Hester and Radford in Domestic Violence and Child Contact Arrangements in England and Denmark (1996) (The Policy Press) p 7, have found that abusers often continue to abuse post-separation so that past conduct is relevant to a determination of the child’s future welfare. Further, depending on the research available, it may well be appropriate to apply the assumption that contact is not in a child’s best interest in relation to some of the other factors identified by Thorpe LJ such as child abuse, including emotional abuse. I find implicit support for this approach in the judgment of Wall J in Re H (Contact: Domestic Violence) [1998] 2 FLR 42 where he said at p 57: “The father must also demonstrate that he has the capacity to behave appropriately with the children; that he recognises the corrosive effect of his constant denigration of the children’s mother, that he recognises the real basis of her justified fears of him; that he can show that he is not a threat to the children or the mother; that he will not seek to undermine the children’s affection for their mother and their placement with her; and that he can demonstrate a consistency of commitment to them.” Similarly, he said in Re M (Minors) (Contact: Violent Parent) [1999] 2 FLR 321, 333: “Often in these cases where domestic violence has been found, too little weight . . . is given to the need for the father to change . . . a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.” And in Re K (Contact: Mother’s Anxiety) [1999] 2 FLR 703, 716, Wall J instructed the father that if he wished to reapply for direct contact, “to come armed with either a psychiatric or psychological report” showing that he had begun to understand the effects of his violence. I also respectfully disagree with Butler-Sloss P when she suggests that it is enough that the perpetrator makes a genuine effort to change. To discharge the burden upon him, the violent parent should have to produce evidence that there has been actual change. Good intentions are no guarantee, and provide scant evidence, that the victims of abuse will be safe if exposed again to the abuser.

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Re L (A Child)(Contact: Domestic Violence)—Judgment 127 According to Dobash and Dobash, Women. Violence and Social Change (1992) (Routledge) pp 230ff, it is common for perpetrators of domestic violence to make promises to change in order to persuade their partners to relent. Often contrition is designed to induce the abused partner to return or, in cases where contact is in issue, to get the abused partner to allow them to see the children. I concur with the recommendation made by Dr Sturge and Dr Glaser that, to persuade the court that contact should be granted, the parent seeking it should have to acknowledge responsibility for the violence and exhibit understanding of its effects. There would also need to be evidence of abstention from violence. The court would need to be satisfied that the parent is committed to the well-being of the child and that he is not seeking contact in order to track down the resident parent or to use contact to perpetuate an oppressive relationship with that parent. The court would have to consider whether the perpetrator’s behaviour has improved, and, irrespective of this, whether the resident parent or the child are so badly affected by past violence and the fear evoked by the perpetrator that contact would be harmful to the child. Proof of violence I have said that an assumption against contact with the non-resident (violent) parent should arise in cases of domestic violence. This raises two questions. First, how ought we to define violence? Too narrow a definition would leave too many women and children exposed to intimidation and to harm. I would therefore endorse the approach taken by the Law Commission in “Family Law, Domestic Violence and Occupation of the Family Home” (1992) (Law Com 207), para 2.3. Domestic violence is defined more widely than physical abuse. It includes “any form of physical, sexual or psychological molestation or harassment which has a serious detrimental effect on the health and well-being of the victim”. Examples of molestation or harassment include behaviour other than physical abuse such as intimidation. Research reported in Stark and Flitcraft, Women at Risk: Domestic Violence and Women’s Health (1996) (Sage Publications) p 3, suggests that domestic violence often takes the form of a “pattern of ongoing, systematic and escalating abuse” and this observation may assist in enabling courts to distinguish between the trivial cases Thorpe LJ mentions and cases where there is harmful behaviour. Stark and Flitcraft’s work also alerts us to the fact that although a particular act taken in isolation does not appear significant, it may be part of an ongoing pattern. In any event, the question for the court is whether it is in the child’s best interests to have contact with the non-resident parent. Even if a court classifies an isolated, minor slap as violence, this is unlikely to prejudice the non-resident parent unduly; he would probably succeed in offsetting the assumption that contact is contrary to his child’s best interests. If the minor slap is part of a pattern of abuse, he ought to have more difficulty in doing so. The second question is: what evidence of violence suffices to support an allegation? The fact that there is no independent evidence of past violence such as, for instance, reports to the police, does not necessarily mean that contact is safe for the resident parent and the child. It is well known that domestic violence is under-reported. Only a small proportion of victims notify the police or seek court

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128 Felicity Kaganas orders. And they tend to do so only after enduring multiple attacks, threats and incidents of intimidation. For example, Mirrlees-Black, in a recent report, “Domestic Violence: Findings From a New British Crime Survey Self-Completion Questionnaire” (1999) (Home Office Research Study 191) p 54, states that only 36 per cent of even chronic victims alerted the police to their situation. Butler-Sloss P remarks in her judgment that allegations of domestic violence may be untrue or grossly exaggerated. I agree with her that it is necessary to scrutinise the evidence carefully, but the court should, in my view, be slow to adopt an overly sceptical attitude when doing so; there is no research that bears out the popular belief that women commonly exaggerate or make false allegations of violence. Indeed, according to Hester and Radford, Domestic Violence and Child Contact Arrangements in England and Denmark (1996) (The Policy Press ) p 6, women’s accounts of violence failed to surface or tended to disappear in the course of contact negotiations. Courts should also be aware that the fact that the parties have separated does not necessarily mean that the violence has stopped. Butler-Sloss P indicates in her judgment that the court needs to consider domestic violence where the existence of past violence has been proved. I would like to stress that, in my view, proof of risk of harm ought to suffice. Section 1(3)(e) of the Children Act 1989 refers to the need to consider any harm that the child has suffered or is at risk of suffering. It should similarly suffice to show threats of violence or a risk of violence to the child or resident parent. This would reflect the realities of domestic violence and would offer protection to more victims. An approach analogous to that used to determine significant harm or the likelihood of significant harm in terms of section 31 of the 1989 Act should be the starting point. The question of when this threshold has been crossed was addressed by the House of Lords in Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Lord Nicholls of Birkenhead, delivering the opinion of the majority, concluded at p 585 that the word “likely” refers to a “real possibility, a possibility that cannot be sensibly ignored having regard to the nature and gravity of the feared harm in the particular case”. This formulation is apt for assessing whether there is a risk of harm if a contact order is made in a case involving allegations of domestic violence. The risk must be proved on a balance of probabilities. However, as Lord Nicholls pointed out in Re H at p 591, it is open to a court to make a finding that there is a real possibility of future harm although harm in the past has not been established. Where there is evidence of a combination of worrying factors affecting the care of the child, a court is justified in finding that, although there is no evidence of past abuse, there is a real likelihood that harm will occur in the future. The same reasoning would apply if there is evidence of worrying features relating to the treatment of the resident parent by the non-resident parent; the child or the resident parent or both could be at risk. And in assessing the risk of future violence, the court needs to keep in mind the research showing that violence often escalates and in some cases only begins after separation. What could be seen as relatively minor incidents could be precursors to far more severe harassment or even physical attacks. Courts should also be mindful of the dangers of allowing contact orders in circumstances where to do so would be oppressive to caretaking mothers. To do so is to risk adverse effects on the mother’s ability to care for the child, to risk

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Re L (A Child)(Contact: Domestic Violence)—Judgment 129 damaging the relationship between the child and the primary caretaker and to risk destabilising the child’s home life. In addition, as the experts’ report says, children may well be aware of the fear that the violent parent arouses in the resident parent. Counselling and mediation Thorpe LJ has eloquently expressed the problems contact cases pose for the courts and the legal system. I will add only a brief comment of my own. Courts and, for that matter, the new Children and Family Court Advisory and Support Service (CAFCASS), cannot address family dysfunction and change behaviour. Many families or individual family members embroiled in contact disputes would benefit from therapeutic intervention. However, counselling or mediation should not, in my opinion, be presented to victims of domestic violence as obstacles to be overcome in order to reach the courts. There are cases, particularly where domestic violence is involved, where it is the perpetrator, not the victim, who needs to change and where such change is unlikely. These are also cases where allowing a victim to be potentially subjected to pressure to come to an agreement would not result in safe, beneficial contact arrangements. Victims need to be screened by mediation services in order to identify cases of domestic violence before mediation commences. Where domestic violence is identified, there should be a presumption against mediation. Supervised contact Supervised contact is often seen as the solution to the problem of maintaining contact with violent or potentially violent parents. It is assumed to provide safety. It is also assumed that it will lead to a situation where unsupervised contact becomes possible. However, it is apparent from the experts’ report that supervised contact is no panacea. Safety from physical and emotional abuse requires a “high level of constant supervision” and not all contact centres provide this. In addition, they say, supervised contact is artificial and often disliked by the child. These problems should not be easily dismissed on the assumption that supervised contact is a temporary measure which will be replaced by more beneficial, unsupervised contact. Supervised contact is, the experts say, unlikely to improve parenting skills or to make it safe for the child to see the parent alone. It should therefore only be used where change over the short term is likely. Indirect contact Dr Sturge and Dr Glaser set out the benefits and risks of indirect contact in their report. Indirect contact can provide the child with an awareness of the non-resident parent’s interest and concern. It can enable the child to gain information about the parent and to keep open the possibility of a relationship at a later date. However it can impose stress on the resident parent and the child. It has the potential also to enable an abusive parent to continue inflicting emotional abuse. There is also the risk that it could be used to discover the whereabouts of the child and mother. For these reasons, I would go further than the experts’ recommendations and apply the assumption against contact in relation to indirect contact as well as direct contact in cases of domestic violence. The evidence required to persuade the court of the benefits and safety of indirect contact would be different, and it would

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130 Felicity Kaganas probably be easier to convince the court, but it should still be the task of the nonresident parent to adduce it. The appeals The facts of all these cases are set out in some detail in the judgment of ButlerSloss P and will be only briefly adverted to here. Appeal in In re L This case involves a child who is not yet two years of age and who has had no relationship with the father. The father has subjected the mother to sadistic violence and intimidation, and attacked her even while she was feeding the child. He has never shown any sense of remorse or acknowledged the effects of his behaviour. The court below came to the conclusion that contact would cause the mother great anxiety and that her attitude to contact would put the child at risk of significant emotional harm. This seems to me to be a classic example of a father who should be denied direct contact unless he can convince the court that contact would be in the child’s best interests. He has offered no evidence to that effect. This case falls squarely within the set of circumstances contraindicating direct contact which the experts outlined in their report: “In the event that there is no meaningful relationship between the child and the non-residential parent and an established history of domestic violence with or without opposition to contact by the resident parent, there would need to be very good reason to embark on a plan of introducing direct contact and building up a relationship when the main evidence is of a non-residential parent’s capacity for violence within relationships.” The only factor put forward by his counsel that makes some form of contact desirable is that the father is black and the child is mixed race. Some knowledge of her roots might contribute to her sense of identity. In some cases there may be other people in a child’s life who can serve this purpose but we are told in this case that the father’s input is necessary. As the experts’ report tells us, in every case the purpose of contact must be considered before deciding whether it should be ordered and, if so, what form it should take. Certainly it is possible to achieve the purpose set out in the father’s argument by means of indirect contact. The judge was right to order this and the family assistance order he made may be of some help in setting it up. It is to be hoped that the use of a family assistance order will give the mother as much protection as possible from the dangers that indirect contact can present. Dr Sturge and Dr Glaser suggest that vetted letters instead of telephone calls may help to avoid the potential for intimidation and undermining of the resident parent and this might be the preferred option. Hopefully, while the family assistance order is in place, it need not be the mother who has to read and vet any letters if she does not want to do so. Thereafter, if the letters contain material that is threatening or intimidatory, the mother would in my view be justified in seeking to terminate contact completely.

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Re L (A Child)(Contact: Domestic Violence)—Judgment 131 The father also appeals against the dismissal of his application for parental responsibility. I agree that his appeal should be dismissed for the reasons given by Butler-Sloss P. I would add a comment, however, on the trial judge’s indication that he might reconsider at a later stage in the light of the father’s commitment to indirect contact, his response to the judgment and any acknowledgement of his violence and its effect on the mother. I would caution against reconsidering too quickly or too readily. I would expect the father to provide evidence that he has changed before I place the burden on the mother of dealing with him in important matters. Appeal in In re V The child, a boy now aged nine, last saw his father when he was four. Contact ceased after the father attacked the mother with a knife. He was convicted of causing grievous bodily harm and jailed. He has since undergone counselling in anger management. Anger management is not always the solution to domestic violence which is often motivated by a wish to control the victim rather than being an uncontrolled outburst of rage. Nevertheless, in this case it appears to have had some effect; a report by a Dr Brenner to the court below records that there has been a “big change”. There has been indirect contact in terms of a court order and it is against that order that the father appeals. It might be questioned whether indirect contact is proving in any way beneficial to the child; the future potential benefits are at best speculative. Nevertheless, that order is not in dispute before the court; the mother does not appeal against it. A change in behaviour is evidence that could go some way to displacing an assumption against direct contact in such a case. Nevertheless, while the mother and step-father would support contact, the boy steadfastly refuses to talk about his father and does not wish to have contact with him. He has shown no interest in the letters the father has written to him. As mentioned earlier, the experts’ report urges courts to take children’s wishes seriously. The report also notes that children may be traumatised even after being removed from a violent situation. This child showed great distress and began bedwetting during the course of these proceedings. The judge decided to leave it up to the mother and step-father to encourage contact when they think it appropriate to do so. I agree with the President who observes that this decision was made with the best interests of the child at the forefront of the judge’s mind; contact cannot be seen as a reward for reformed conduct on the part of a parent. I agree that there is no reason to interfere with the exercise of the judge’s discretion. I agree with Butler-Sloss P that the additional evidence raised by the mother concerning the fragility of her mental state and the father’s limited uptake of indirect contact will be of considerable relevance in relation to any future application the father may make. Appeal in In re M This was a case where there had been violence in the past on the part of the father. Since then, there have been five years of contact at a contact centre supervised by the mother. This ended when the parents had a row in front of the child,

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132 Felicity Kaganas G. He has since refused to see the father and is now aged nine. The father applied for direct contact but the judge refused, ordering indirect contact. It is against that order that the father appeals. The evidence does not disclose any violence or frightening conduct on the part of the father during the periods of supervised contact, although we do know that there was a final confrontation between the parents. The domestic violence in the past has left its mark on the mother but this does not appear to be her main reason for opposing direct contact. Her reason is that she does not want to put pressure on G and force him to have contact. This would appear to be a case where subsequent events have had the effect of displacing the assumption against contact and the case should be decided, as the judge did decide it, by the application of the section 1(3) checklist. I would agree that indirect contact is appropriate. The father alleged that G suffered emotional harm as a result of the cessation of contact and that this is a case of parental alienation syndrome. The judge, for the reasons explained by Butler-Sloss P, rightly rejected both submissions. There is no such generally recognised syndrome and to subject a child of eight to therapy when there is no evidence, as the judge pointed out, that he needs it, would be unacceptable. The mere fact of his resistance to contact is not evidence of any abnormality. Butler-Sloss P has remarked that although there is no recognised syndrome, there are parents who alienate their children from the other parent without good reason. I would like to add a comment to that observation. It should not be assumed that this alienation is common. The court should always scrutinise the resident parent’s reasons carefully and take them seriously. Nor should it be assumed that it is primarily mothers who are the culprits. There are fathers who use contact to seek to undermine the relationship between mother and child. I, like the judge in this case, would be reluctant to rebuke mothers for failing to show enthusiasm for contact when they have suffered abuse at the hands of fathers who apply for it; it seems unreasonable to expect them to actively facilitate and encourage contact. It should perhaps suffice that they do not obstruct it where it is in their children’s best interests that it should take place. Appeal in In re H This case concerns two children. The father is a practising Muslim and lives in Germany. During the marriage, he subjected the mother to violence in response to her refusal to conform to the precepts of the Muslim religion. In particular, the court below found that the father had threatened to kill the mother, that she is very frightened of him and also fears, on reasonable grounds, abduction of the children. The father has not seen the children for more than three years and has applied for defined contact. There is a residence order in favour of the mother. She and the children lead westernised lives. While the children were removed from the father without permission, he did not attempt to institute abduction proceedings. And while it is true that, in consequence of the mother’s actions, the children have been brought up outside the Islamic faith, I disagree with Thorpe LJ who appears to criticise her for making the choices she has and so, he says, impoverishing her children. It cannot be right, if

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Re L (A Child)(Contact: Domestic Violence)—Judgment 133 this is what he means, to suggest that a mother as primary caretaker of a child might be expected to forego life choices such as religious affiliation to conform with the non-resident parent’s convictions. Furthermore, it cannot, in my view, be relevant that she was raised in and married into her husband’s religion; this surely cannot deprive her of the right to choose to abandon that religion. She might be expected to make her children aware in a general way of their heritage but, in such cases, the parent with contact is normally the children’s link to that aspect of their background. In normal circumstances it would have been open to the father to see his children and to inculcate in them some knowledge of his religion and culture. The reason that he does not have the opportunity to see them is that he subjected the mother to the extreme threats and intimidation that led her to flee with the children, coupled with his refusal to recognise the mother’s new lifestyle. All the evidence indicates that the father expects the children to be brought up as Muslims. I agree with Butler-Sloss P that the father will seek to assert his cultural and religious influence over the children and so undermine the stability of their lives with their mother. This concern is heightened in the context of the threats and intimidation to which he subjected the mother in the past. I do not share the view of Thorpe LJ that the fact that there was little actual violence might have warranted a less restrictive order. I would not lightly dismiss conduct that induces high levels of fear in the mother merely because the level of physical violence is not severe. The trial judge’s decision to deny direct contact is in my view justified. However, although there should be indirect contact which might serve to maintain the children’s awareness of their Muslim heritage, this ought to be confined to letters and cards. As the expert report warns, it is possible to use indirect contact to undermine the resident parent and to issue threats.

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8 Commentary on Re A (Children) (Conjoined Twins: Surgical Separation) RICHARD HUXTABLE

Introduction At the close of his controversial novel Atomised, Michel Houellebecq envisages the end of contemporary society (and, indeed, humankind) as we know it. In a futuristic epilogue, he writes: Though it may be difficult for us to understand this now, it is important to remember how central the notions of ‘personal freedom’, ‘human dignity’ and ‘progress’ were to people in the Age of Materialism . . . The confused and arbitrary nature of these ideas meant, of course, that they had little practical or social function—which might explain why human history from the fifteenth to the twentieth centuries was characterised by decline and destruction. Nonetheless, the educated or semi-educated classes, having succeeded in inculcating these ideas, clung desperately to them.1

Houellebecq’s novel made its English-language debut in the autumn of 2000 and its appearance was serendipitous, since it coincided with the desperate efforts of the judges in Re A2 to cling to the social values with which the author seemed so disillusioned. In that case, the (alleged) merits of individualism and (so-called) scientific advance were poignantly played out in courtroom deliberations prompted by the birth of ‘Jodie’ and ‘Mary’,3 conjoined twins whose fate(s) were ultimately to be determined by the Court of Appeal.

The Facts of Re A: Two of Us After pre-natal tests disclosed their daughters’ conjoinity, Jodie and Mary’s parents left the Maltese island of Gozo and headed to the UK. The girls were born on 8 August 2000 in Manchester, and they were found to be joined at the base of their spines (‘ischiopagus tetrapus conjoined twins’). The doctors believed that Mary was wholly dependent on Jodie for 1

M Houellebecq, Atomised, trans F Wynne (London, Vintage, 2001) 371–72. Re A (Children)(Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254, [2001] Fam 147. 3 When reporting restrictions were lifted, it was revealed that the twins had been named Gracie (Jodie) and Rosie (Mary) Attard. 2

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Re A (Children)(Conjoined Twins: Surgical Separation)—Commentary 135 her survival, since her own heart and lungs did not function, but they thought that Jodie could nevertheless survive—and, indeed, thrive—as a singleton. However, the doctors concluded that surgical separation would inevitably result in Mary’s death. The twins’ parents, who were Roman Catholic, declined to authorise the separation. The hospital promptly sought a declaration from the High Court, to the effect that it would be in the best interests of the children for them to be separated. Johnson J arrived at his decision to grant the declaration by employing an analytical framework familiar to medical lawyers: he argued that the surgery amounted to the withdrawal of the life-support that Jodie was supplying to Mary, which was warranted in both of their best interests.4 The parents launched an appeal but without success, although the Court of Appeal rejected Johnson J’s reasoning. The appellate judges accepted the medical evidence, which suggested that the twins would be likely to die within six months to two years, and which further implied that, as a singleton, Jodie could be expected to live a ‘normal’ life.5 Notwithstanding the parents’ objections, the judges felt that, on balance, separation would be in the best interests of (at least) Jodie. Only Robert Walker LJ was prepared to accept that this would also be in Mary’s best interests. Furthermore, and in stark contrast to Johnson J, Ward LJ and colleagues concluded that separation amounted to a positive act, albeit one that was justified. Despite resulting in her certain death, the surgeons would not be murdering Mary, because their actions could be deemed necessary (to save Jodie) or otherwise viewed as a form of self-defence (again, of Jodie).

Re A in the Court of Appeal: One (Is the Loneliest Number) According to the leading judge, Ward LJ, the prospect of sacrificing Mary to save Jodie caused the panel sleepless nights.6 No doubt this insomnia was induced by the intense ethical dilemma at the heart of the case. However, when he came to issue his judgment, Ward LJ sought to remind the parties (and the watching world) that he and his brethren sat ‘in a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us—a situation which is quite unique’.7 Even leaving aside the dubious idea that there might be degrees of uniqueness, Ward LJ’s proposed separation not only of Jodie and Mary but also of ethics and law appeared questionable. Indeed, the judge promptly embarked on an exhaustive trawl through the sanctity of life principle in an effort to find an answer. In doing so Ward LJ could not avoid engaging with a myriad of intrinsically ethical concepts, among them the meaning of intention (and the associated doctrine of double effect8), and the value to be accorded to human life. 4 D Burnet, ‘Re A (Conjoined Twins: Medical Treatment): Conjoined Twins, Sanctity and Quality of Life, and Invention the Mother of Necessity’ (2001) 13 Child and Family Law Quarterly 91. 5 [2001] Fam 147 at 182 (Ward LJ). 6 In a tragic development, a year later Ward LJ endured the accidental death of one of his own twin daughters: C Milmo, ‘Teenage daughter of Appeal Court judge killed on safari by rock fall’ The Independent (London, 21 August 2001). 7 Above n 5 at 155. 8 The doctrine of double effect justifies an action that might have two effects, one ‘good’ and one ‘bad’, provided that it is the good effect which is aimed at and the bad effect is only incidental. It is this principle which enables doctors to administer symptom relief, even if (in the rare case) this might mean shortening the patient’s life: R Huxtable, Euthanasia, Ethics and the Law: From Conflict to Compromise (London, Routledge-Cavendish, 2007)

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136 Richard Huxtable Despite apparently favouring the idea that life has an intrinsic value, many commentators detected a rather different ethic at work, premised instead on an instrumental conception, which accorded greater worth to a life of sufficiently good quality (such as Jodie’s) than to a compromised existence (such as Mary’s).9 Other approaches were available,10 but for many observers the arguments for and against separation were very finely balanced; unsurprisingly, then, attention was rapidly re-directed towards another fundamental question: who should decide? For many commentators it was obvious where authority should lie: with the girls’ parents.11 Nevertheless, as it had been approached, the court had little choice but to reach its own assessment.12 It is notable that it sought various opinions on the dilemma, even accepting written submissions from the Archbishop of Westminster and the Pro-Life Alliance.13 Notwithstanding considerable ethical arguments to the contrary, the court felt that its preferred solution could be supported in law. Yet, the legal dimensions of the case proved no less controversial than the underlying normative framework. Experts in family law and human rights law had cause to complain, not least over the doubtful (and, sometimes, potentially offensive) evaluations of the twins’ ‘best interests’ and the judges’ failure to engage adequately in rights-based analysis (despite the looming importance of the Human Rights Act 1998). It was, however, criminal lawyers who faced the biggest break with tradition, in the majority’s decision to introduce necessity as a defence to murder. The Court of Appeal nevertheless (remarkably) insisted that it had not set a precedent or, if it had, that the ratio was only applicable to extremely closely analogous cases—similarly ‘unique’ cases, if you will.14 Somewhat surprisingly, the reasoning was soon applied in a Queensland court; rather more surprisingly, that court chose to apply Robert Walker LJ’s (minority) view that separation was in the best interests of both twins.15 The Nolan sisters were joined at the head and separation was apparently indicated as a matter of urgency. Bethany lacked kidneys and a bladder, and relied on Alyssa’s support, via a shared cranial draining vein. Bethany developed hypertension that proved resistant to treatment, and drug treatment was contra-indicated, as this would have an adverse impact on Alyssa. The weaker sister deteriorated to the point where her death was imminent (within 24 hours) and it was accepted that if she died, her sister would die soon after. The doctors and parents wanted separation to occur, as, although Bethany would be killed, they believed that separation would offer Alyssa a 20 to 40 per cent chance of survival. The Supreme Court of Queensland ruled in favour of separation. Chesterman J found that this would be in the best interests of the 84–114. In a 1997 article cited by the Court of Appeal, Sheldon and Wilkinson had noted that the principle might be called on in a case like this: S Sheldon and S Wilkinson, ‘Conjoined Twins: The Legality and Ethics of Sacrifice’ (1997) 5 Medical Law Review 149. 9 eg R Huxtable, ‘The Court of Appeal and Conjoined Twins: Condemning the Unworthy Life?’ (2000) 162 Bulletin of Medical Ethics 13. 10 eg B Clucas and K O’Donnell, ‘Conjoined Twins: The Cutting Edge’ (2002) 5 Web Journal of Current Legal Issues, webjcli.ncl.ac.uk/2002/issue5/clucas5.html. 11 eg R Gillon, ‘Editorial: Imposed Separation of Conjoined Twins—Moral Hubris by the English Courts’ (2001) 27 Journal of Medical Ethics 3. 12 R Huxtable, ‘Separation of Conjoined Twins: Where Next for English Law?’ [2002] Criminal Law Review 459. 13 Concern was expressed by some commentators about the legitimacy of involving religious organisations in matters of public policy, and particularly in legal proceedings: L Skene and M Parker, ‘The Role of the Church in Developing the Law’ (2002) 28 Journal of Medical Ethics 215. 14 Above n 5 at 155 (Ward LJ). See R Huxtable, ‘Logical Separation? Conjoined Twins, Slippery Slopes and Resource Allocation’ (2001) 23 Journal of Social Welfare and Family Law 459. 15 State of Queensland v Alyssa Nolan and Another [2001] QSC 174; (2002) 10 Medical Law Review 100–102.

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Re A (Children)(Conjoined Twins: Surgical Separation)—Commentary 137 twins (following Robert Walker LJ in Re A) and would be lawful in offering the chance of life to Alyssa, in light of the doctor’s conflict of duties (to Alyssa and Bethany respectively). As Chesterman J found, conflict seems to occupy the core of a case like Bethany and Alyssa’s and, indeed, Mary and Jodie’s. Whether this is desirable or appropriate is entirely open to question, although it does seem to be an all-too-common feature of the adversarial legal process. Thus, Jodie is pitted against Mary, parents must square up to doctors, and different concepts of the value of life are also forced to slug it out, albeit in the shadows. However, conflict need not dominate. As Geraldine Hastings demonstrates in her feminist judgment, there is a different way of lighting the legal landscape, one which better illuminates the conjoinity enjoyed (and sometimes endured) not only by twins like Jodie and Mary but also by the majority of singletons.

The Feminist Judgment: Two Become One Hastings’ re-evaluation of the twins’ dilemma begins with a re-evaluation of the facts, at least as they were accepted by the majority. She finds reason to question the alleged necessity to separate, drawing on groundbreaking work by Alice Domurat Dreger, who disputes the apparent presumption that ‘a life joined is no life worth living (no mind what conjoined twins themselves say)’.16 That presumption surfaced in Ward LJ’s judgment, who asserted that separation would grant Jodie, the twin expected to survive the operation, ‘the dignity of independence’.17 Robert Walker LJ invoked a similar appeal, but in relation to Mary, and he further commented that ‘to remain alive and conjoined in the way they are would be to deprive them of the bodily integrity and human dignity which is the right of each of them’.18 This line of reasoning then assumed a central place in the judgment developed by Chesterman J in the case involving the Nolan sisters. Hastings’ feminist judgment argues that such thinking misrepresents what evidence we have about conjoined twins, by forcing a (false) dichotomisation whereby one twin is situated in opposition to the other. Such thinking is needlessly divisive and it rests on, and encourages, highly contestable judgements about individuality, identity, welfare, and even the ownership of organs.19 Hastings helpfully re-directs us towards a normative framework better equipped to accommodate the realities of conjoinity. Alert to the risks of paternalism and unwarranted exercises of power, Hastings re-unites the twins via a more holistic, principled concept of ‘individual’ autonomy, under which Jodie and Mary’s parents—themselves given greater substance by the simple act of giving them names (‘Regina’ and ‘Marcus’), whereas in the original judgments they are unnamed—are re-empowered as the defenders of their daughters’ welfare and integrity. Using this framework, Hastings comes to the conclusion that there is no necessity to separate. She does not 16 AD Dreger, ‘The Limits of Individuality: Ritual and Sacrifice in the Lives and Medical Treatment of Conjoined Twins’ (1998) 29 Studies in History and Philosophy of Science Part C: Studies in History and Philosophy of Biological and Biomedical Sciences 1, 4. 17 Above n 5 at 197. 18 ibid 258. 19 See S Hölm and CA Erin, ‘The Manchester Conjoined Twins: An Ethical Analysis’ (2001) 6 Jahrbuch für Wissenschaft und Ethik 67; V Munro, ‘Square Pegs in Round Holes: The Dilemma of Conjoined Twins and Individual Rights’ (2001) 10 Social and Legal Studies 459.

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138 Richard Huxtable overlook those dilemmas that persist: for example, she hints that concepts of quality of life are under-theorised in paediatric practice. Furthermore, Hastings notes how unlikely it was that Jodie and Mary would survive to the point they did, a fact which also bolsters the arguments in favour of separation. In the best light, Jodie’s fight to make it that far arguably reinforces the doctors’ duty to save her. However, even if we assume more questionable motives—for example, that separation was driven by a desire to progress the science—then this could still have been morally worthwhile, for example, in potentially benefitting future patients through the development of new knowledge. Although aware of such arguments, Hastings nevertheless prefers the case against separation. To borrow a concept from criminal law employed by the judges in the Court of Appeal, Hastings’ judgment is premised on an alternative account of ‘self-defence’, in which a different concept of the ‘self ’ is introduced, safeguarded by a new ‘defender’—in this case, the parents of conjoined twins, rather than their doctors, the judges or some other agents of the state. Hastings’ approach need not be so confined and it will undoubtedly resonate with singletons in caring relationships; with the ‘sociopagus’, if you will. There will still be difficult questions to tackle, such as where we are to draw the line between legitimate and illegitimate ‘defence’ and who is to wield the pencil, but at least Hastings offers a more constructive way of posing these questions. In short, Hastings mirrors Houellebecq’s belief that: Love binds, and it binds forever. Good binds, while evil unravels. Separation is another word for evil; it is also another word for deceit. All that exists is a magnificent interweaving, vast and reciprocal.20

20

Houellebecq, above n 1 at 362.

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Court of Appeal

In re A (Children) (Conjoined Twins: Surgical Separation) 2000 Sep 22

HASTINGS LJ The circumstances leading to the appeal The appellants are the parents of the twins. I shall refer to them as “Marcus” and “Regina” in accordance with Johnson J’s order to protect the identification of the parties. The father, “Marcus”, is 44 years old and the mother, “Regina”, is 34 years old. Both are devout Roman Catholics. They have been married for two years and have no other children. Four months into her pregnancy, an ultrasound scan revealed that Regina was carrying female conjoined twins. One of the local doctors also worked part-time at St Mary’s Hospital in Manchester and he advised the parents to seek treatment there. Marcus and Regina did so with a belief that the surgeons might be able to save both girls. Unfortunately, the medical team at St Mary’s Hospital advised that their daughters might not survive to term. They recommended that Regina give birth early by caesarean section but she rejected that advice. Regina eventually gave birth to conjoined twins known to the court as “Jodie” and “Mary” on 8 August 2000, two weeks past her due date. Jodie and Mary were born as ischiopagus tetrapus conjoined twins, meaning that they are joined at the ischium and have four lower limbs. The ischium is one of four bones which forms the lower and posterior part of the pelvis—the part which bears the weight of the body in sitting. Their conjoinment is such that their heads are pointing in opposite directions and their legs jut from their torso at sharp right angles. The lower ends of their spines and their spinal cords are fused. There is a continuation of the coverings of the spinal cord between Jodie and Mary. Their bodies are fused from the umbilicus to the sacrum. Each perineum is rotated through 90 degrees and points laterally. Each twin has an imperforate anus and a complex anorectal anomaly whereby the vagina, urethra and rectum converge as a single common channel. The vulva, vagina and uterus for each twin is composed of two halves (this confluence is positioned between Mary’s right leg and Jodie’s left leg) revealing a markedly splayed perineum. There is a single orifice in each vulva, which drains urine and meconium. They share a large bladder which lies predominantly in Jodie’s abdomen but which empties spontaneously through two separate urethras. The medical team are unable to provide information about the existence or integrity of the gonads and fallopian tubes at this time. Each baby girl has her own brain, heart, lungs, liver and kidneys. Jodie and Mary’s blood supply is also shared. Jodie’s aorta feeds into Mary’s aorta and the arterial circulation runs from Jodie to Mary. The venous return passes from Mary to Jodie through a united

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140 Geraldine Hastings inferior vena cava and other venous channels in the united soft tissues. Mary also has under-developed lung tissue and what the paediatric surgeon in evidence described as a “primitive” brain. Jodie is in all other essential respects functioning and developing as one would expect. The medical team have explained to the parents that in their opinion the best option is to separate the twins. This would save Jodie, as in their assessment Jodie is capable of independent existence. Jodie is not currently thriving, it is thought because her circulatory system is also supporting Mary. The operation carries for Jodie a small risk of brain damage or death but would extend her life expectancy to that which would be expected of a non-conjoined twin. She would require some reconstructive surgery. Immediately after separation her pelvis would be broken to re-align her hips and legs, and an anus would be constructed. It is accepted that further surgery might be required in the future but it is considered that she would otherwise develop normally. However, such medical intervention to separate the twins would result in the death of Mary. The medical team are convinced that, given the twins’ anatomy, without the operation both Jodie and Mary would probably die within three to six months. Marcus and Regina have refused to consent to the separation surgery. Thus on 22 August 2000 St Mary’s Hospital sought an urgent declaration from the High Court in the exercise of its inherent jurisdiction and in accordance with section 1 of the Children Act 1989, that it would be lawful and in the children’s best interests to (a) carry out such operative procedures not amounting to separation upon Jodie and/or Mary, (b) perform an emergency separation procedure upon Jodie and/or Mary and/or (c) perform an elective separation upon Jodie and Mary. Johnson J made an ex tempore ruling in favour of the National Health Trust and made the declarations sought. The grounds of appeal Marcus and Regina appeal on the grounds that Johnson J erred in holding (i) that the operation was in Mary’s best interests, (ii) that it was in Jodie’s best interests and (iii) that in any event it would be legal. I find myself in the unfortunate position of being unable to agree with Ward LJ, Brooke LJ and Robert Walker LJ in deciding the outcome of this case. My learned brethren premise their reasons on assumptions of individualism based on a model of physically separate, individual human beings with competing interests. In my view, however, in a context in which there is a clear physical connectivity, such as Jodie and Mary’s, as well as a relational bond, it is necessary to treat Jodie and Mary as they are, that is, as two interdependent persons. As such I must consider not only Jodie’s and Mary‘s best interests but also their conjoined interests. In doing so, I find it necessary to give considerable weight to the views of the parents. My approach leads me to conclude that there is insufficient reason to interfere with the parents’ decision. I take a different view of the twins’ best interests from those advanced by the other members of this court and, accordingly, I find no necessity surgically to intervene to protect or promote those interests. As a consequence, it is unnecessary for me to address the criminal law issues raised in the court below and by the majority judgments in this court.

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Re A (Children)(Conjoined Twins: Surgical Separation)—Judgment 141 An alternative view of Jodie and Mary Brooke LJ has helpfully set out the medical literature on conjoined twins in his judgment. I have found it useful to consider some aspects of this review in association with some other literature in coming to my conclusions. Ward LJ, Brooke LJ and Robert Walker LJ start from the position that Jodie and Mary are separate persons and that the court must consider the welfare and best interests of each of them in turn. Taking this approach to its logical conclusion, should the interests of one twin be found to be irreconcilable with those of the other, the court must decide whose interests should prevail. Such an approach is more in keeping with traditional understandings of personhood and identity than with notions of conjoinity. An alternative, relational view, does not assume that individuals themselves or their interests are independent from others. This view does not position the twins against each other in a relationship of conflict but rather considers the importance of the potential bond, both physical and emotional, that is likely to exist between the twins as siblings. Accordingly, I prefer to view Jodie and Mary as human beings whose interdependence will enable them to function in the world. I have thus given careful consideration to the best interests of Jodie and Mary as distinctive, if physically and emotionally connected persons, capable of independent thoughts and beliefs. I reject any implication that the state of being a conjoined twin is in some way inferior, or even comparable to a diseased state. In particular, I cannot agree with any depiction of Mary as a parasite “poisoning” Jodie and sucking out her “lifeblood”. I certainly do not believe that we can stipulate how Jodie would respond, and I find little to support Ward LJ’s assertion that “If Jodie could speak, she would surely protest, ‘Stop it, Mary, you’re killing me’”. We (particularly as non-conjoined adults) cannot assume what most children would want or feel, let alone what conjoined twins themselves would want—what Jodie and Mary would want and what they would say if they were able. I note the recent work of Alice Domurat Dreger, “The Limits of Individuality: Ritual and Sacrifice in the Lives and Medical Treatment of Conjoined Twins” (1998) Studies in the History and Philosophy of Science Part C: Studies in the History and Philosophy of Biological and Biomedical Sciences 29, which conveys a perspective based on what conjoined twins have actually said about their own lives. Dreger finds that conjoined people do not think there is anything fundamentally wrong with their conjoinment, and most would refuse surgical separation were it offered to them. This challenges the individualistic view that being separated is necessarily better than being conjoined and that compassion requires intervention in order to preserve the dignity of independence. There is equal legitimacy in conjoinity. Thus, the relationship between Jodie and Mary should be understood as one involving connection and mutual support rather than the imputed selfishness of one sister. Medical literature on conjoinity and separation As set out in the judgment of Brooke LJ, it is well documented that births of conjoined twins are very rare. The incidence of conjoined twins is estimated at 1 in 50,000 pregnancies; however, as approximately 40 to 60% of conjoined twins arrive stillborn, this figure should be viewed alongside the statistic of one in every

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142 Geraldine Hastings 200,000 live births. In addition, about 35% of conjoined twins survive only one day so the overall survival rate is somewhere between 5% and 25%. Although more male twins conjoin in the womb than female twins, more females survive to birth. Consequently, approximately 70% of all surviving conjoined twins are girls. The medical custom is to classify conjoined twins according to the location of the conjoinment. Jodie and Mary’s particular classification, “ischiopagus” (“ischio” meaning pelvis; “pagus” meaning fused), is very rare at only 6% of the total incidence. Mortality rates for conjoined twins who undergo separation vary, depending on their type of conjoinment, and the organs that they share. Although the Roman writer Pliny referred to conjoined twins nearly 2,000 years ago, and one of the earliest documented cases of conjoined twins in the UK were Mary and Eliza Chulkhurst of Biddenden, who were born in 1100 and survived into adult life, conjoined twins were not mentioned significantly in medical literature until 1678. The earliest recorded successful surgical separation was performed in 1689. Between 1689 and 1988 there were approximately 100 successful separations. Conjoined twins gained international notoriety in the 19th century when Eng and Chang Bunker were born in Thailand (then called Siam) in 1811—hence the origin of the term “Siamese twins”. They were joined at the lower chest by a narrow band of flesh, which connected their livers. They were exhibited in circus shows around the world before settling in the United States, where they married two sisters and had nearly two dozen children. They were successful businessmen and ranchers in Wilkes County, North Carolina, where they lived until 1874. They were 63 years old when they died. Of course, the term “Siamese twins” is no longer considered appropriate as conjoined twins are not limited to any racial or ethnic group and indeed have been born all over the world. In spite of the obvious happiness of these two men, historically there has been a tendency to demonise conjoined twins, doctors often describing them as “double-headed monsters” in medical literature, even into the 20th century. Until relatively recently, very few conjoined twins survived for more than a few days and only a handful grew up into adulthood. As a result, separation was rarely attempted before the 1950s. Since then, despite varying degrees of success, separation is the indicated treatment in the case of most conjoined twins. Medical authorities take the view that separation surgery is attempted for the benefit of the conjoined twins, if such treatment affords at least one of the twins a chance to live. The court has been referred to papers from the few centres of medical and surgical excellence in the world which specialise in the separation of conjoined twins. However, this particular conjoinment is so unusual that no comparative case has been found. Unfortunately, it appears that the outcomes of separation surgeries are inadequately studied, with few studies providing any generalisable findings to the conjoined population at large. One 1989 article, “Twenty-Three Year Follow-up of Separated Ischiopagus Tetrapus Conjoined Twins”, by Dr Hoyle and Dr Thomas from the School of Medicine at the University of North Carolina, has reported follow-up data on performed pelvic separations. However, outcomes are expressed only in terms of two possibilities: “dead” or “alive and well”. I would have found it more helpful in reaching my decision to have had more detailed data about how the surviving twins are faring, in terms of morbidity, psychosocial health and quality of life. There also appear to be no long-term comparisons between separated

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Re A (Children)(Conjoined Twins: Surgical Separation)—Judgment 143 twins and twins who remain conjoined. The paediatric surgeons have, to date, focused more on the practicalities of how to separate conjoined twins than on whether they should perform such surgeries. The majority of this court base their conclusions on the medical opinion that without separation, both Jodie and Mary would be likely to die within three to six months. I note from Ward LJ’s summary of the medical evidence in favour of surgical separation, however, that there are differences of opinion between the medical experts regarding Jodie and Mary’s chances of survival and prognosis. The degree of uncertainty in the evidence in this case seems consistent with Dreger’s suggestion at p 20 of her article that “doctors cannot always be sure that a given set of conjoined twins will quickly die without separation”, and that “dire predictions have not always been borne out”. Hubbard’s article, “A Gift of Grace” (1991) People 34 provides evidence of at least one documented case of twins who survived against such a prediction. As I understand it, Jodie and Mary are medically stable at this time. As such, it is far from certain that their prognosis is “hopeless”. Hence, I doubt the necessity to separate these babies when there is the possibility of two connected and interdependent lives, even if for an apparently shorter life span. Assessment of the twins’ best interests The Children Act 1989 provides that each of the parents in the case before the court has parental responsibility for their children. Parental responsibility is defined in section 3 of the 1989 Act as: “all the rights, duties, powers and responsibilities and authority which by law a parent of a child has in relation to the child and his property.” Accordingly, parents have the right and the duty to make decisions about the provision of and/or withholding or withdrawal of, medical treatment to a child from the range of treatments available. Since parents are legally empowered to make decisions about the medical treatment of their children, the hospital is no more entitled to disregard their refusal than they are to disregard an adult patient’s refusal. To operate against the parents’ refusal would, therefore, be an unlawful assault upon the child. However, it is important to ensure that a child receives proper treatment. Thus the law also requires that parents’ duties and responsibilities in relation to a child must be exercised in the best interests of the child. Where there is a difference of opinion between parents exercising parental responsibility and the medical professionals responsible for providing care, the course of action that is in the best interests of the child must be referred to the Family Division of the High Court for resolution. The High Court will make a decision on the best interests of the child, having heard medical evidence of the nature of the child’s condition and of the treatment options, and the views of independent experts and the Official Solicitor. Sub-section 1(1) of the 1989 Act provides that “the child’s welfare shall be the court’s paramount consideration”. In Re MB (Medical Treatment: Male Sterilisation) [1997] 2 FLR 426, 439 Butler-Sloss LJ noted that the child’s welfare or best interests “are not limited to best medical interests”;

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144 Geraldine Hastings and in Re A (Male Sterilisation) [2000] 1 FLR 549, 555 she further stated that “In my judgment best interest encompasses medical, emotional and all other welfare issues”. In their assessment of best interests, Ward LJ and Robert Walker LJ make reference to the rights of Jodie and Mary: Ward LJ refers to the right to life, Walker LJ also to the right to physical integrity, individual bodily autonomy, self determination and human dignity. An alternative view, however, is that Jodie and Mary’s natural connection affords them dignity and bodily integrity, which surgery would serve to threaten, rather than create. The parents’ views Paragraph 1(3)(a) of the 1989 Act requires the court to give consideration to the wishes and feelings of the child concerned as far as they can be established and according to the child’s age and understanding. As Jodie and Mary are very young it is not possible to hear from each twin, therefore I must be guided by Regina and Marcus who have and will have the care of Jodie and Mary. I agree with Ward LJ that Regina and Marcus are placed on the horns of a terrible dilemma. On the one hand, they are told that if they consent to separation surgery, one of their daughters will certainly die while the other has the chance of an independent life, but if they do not consent, both daughters are likely to die quite soon. It would be as difficult to condemn a parent for making this terrible choice, as it is to condemn them for refusing to make it. There is nothing inherently uncaring either way; indeed, Marcus and Regina have reached their difficult decision because they care. Fully aware of what is at stake for their daughters, Marcus and Regina consider that the best interests of their daughters lie in continuation of their permanent union. Appealing to their Roman Catholic faith, they believe that the act of separating Jodie and Mary would be tantamount to murder. In their statement to the court below they said: “We cannot accept or contemplate that one of our children should die to enable the other to survive. That is not God’s will. Everyone has the right to life so why should we kill one of our daughters to enable the other to survive? This is not what we want and that is what we have told the doctors treating Jodie and Mary.” As noted by Johnson J, Regina gave evidence that her feelings were strengthened not just by her faith, but by her growing relationship with both girls. Demonstrating her nurturing, loving and protective connection with Jodie and Mary, she said: “[t]he more I stay with them, the more I do things for them, the more my love grows for them.” These do not appear as the words of an uncaring parent. Both parents have clearly formed a caring relationship and bonded with Jodie and Mary. In the words of Waite LJ in Re T (A Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242, 254: “It can only be said safely that there is a scale, at one end of which lies the clear case where parental opposition to medical intervention is prompted by

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Re A (Children)(Conjoined Twins: Surgical Separation)—Judgment 145 scruple or dogma of a kind which is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind; and that at the other end lie highly problematic cases where there is genuine scope for a difference of view between parent and judge. In both situations it is the duty of the judge to allow the court’s own opinion to prevail in the perceived paramount interests of the child concerned, but in cases at the latter end of the scale, there must be a likelihood (though never of course a certainty) that the greater the scope for genuine debate between one view and another the stronger will be the inclination of the court to be influenced by a reflection that in the last analysis the best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature.” Further, in J v C [1970] AC 668, Lord Macdermott said at p 670: “While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over other considerations, such rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way and must therefore preponderate in many cases.” In my view, this case falls within the category of those in which the views of the parents must be given very considerable weight. Although I have emphasised the religious beliefs of Marcus and Regina, it is clear that they are only one of the factors upon which they have based their decision. It seems to me that it would be possible for different parents of the Catholic faith to reach different decisions, particularly in a case such as this where moral arguments are so finely balanced. Parental responsibilities are born out of relationships and individual interpretation, including beliefs about the way life should be lived and the values by which children should be raised. Parental life experience and interests are an important factor in the needs and well-being of their child. The majority of the court envisage a relationship of conflict between the parents and the twins, by presenting parental assessment of the best interests of their daughters as fundamentally flawed and contrary to their best interests. This perceived conflict between the parents and the twins belies the strong connection between them. In my view, there is no conflict between Marcus and Regina and their daughters. In my judgment, Marcus and Regina are devoted and loving parents who are acting as defenders of their daughters’ welfare and integrity. Their reluctance to submit their daughters for surgery is founded in love and care for Jodie and Mary. I do not find those views to be outweighed by the medical evidence as to the prognosis either for Jodie as a separate individual, or for Jodie and Mary if they remain conjoined. As I have also made clear, I do not accept that either Jodie or Mary’s best interests would necessarily be served by their separation at any time. I cannot take the view that being different is not in these sisters’ best interests. I acknowledge that Jodie and Mary as conjoined twins exist on the margins of society’s notions of embodiment and individuality. But it is clear that many adult conjoined twins are

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146 Geraldine Hastings happy in their conjoined lives. In my view, such evidence supports the idea of legitimacy in conjoinity. Accordingly, my assessment of Jodie and Mary’s best interests is based on a view of the sisters as interrelated and interdependent human beings. Conclusion In my view, in this very difficult case, the best interests of Jodie and Mary require the course of conduct determined by Marcus and Regina. That is, surgery to separate Jodie and Mary would not be in their best interests and should not be authorised. For these reasons, I would allow the appeal.

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Part III Property and Markets

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9 Commentary on Royal Bank of Scotland Plc v Etridge (No 2) ALISON DIDUCK

Introduction There were eight appeals decided by the House of Lords in Royal Bank of Scotland Plc v Etridge (No 2) and Other Appeals.1 In the words of Lord Nicholls: Each case arises out of a transaction in which a wife charged her interest in her home in favour of a bank as security for her husband’s indebtedness or the indebtedness of a company through which he carried on business. The wife later asserted that she signed the charge under the undue influence of her husband.2

In seven of the appeals the bank sought to enforce the charge against the wife. In the eighth, the wife brought a claim of negligence against the solicitor who advised her before she signed the guarantee. These disputes probably were inevitable as (joint) home ownership increased, small businesses were encouraged and banking was deregulated throughout the 1980s and 1990s. Indeed, Lord Nicholls acknowledged in Etridge that the problem before the House was one of ‘comparatively recent origin’, with the causes being the ‘substantial growth in home ownership over the last 30–40 years’ and the ‘great increase in the number of homes owned jointly by husbands and wives’.3 In reality, it probably took more than this combination of factors to create the surge in the number of these disputes. ‘Big Bang’ in October 1986 marked the beginning of the deregulation of business, banking and the market in the UK. It began with deregulating the stock market, but signalled a wider approach of opening up the market to competition by reducing the regulatory burden upon business. When this approach is combined also with government financial, tax and other incentives for the UK to realise its ‘full entrepreneurial potential’4 by starting and growing small businesses, the ground for business’ need to raise capital at almost any cost was laid.

1 Royal Bank of Scotland Plc v Etridge (No 2); Barclays Banks Plc v Harris and Another; Midland Bank Plc v Wallace and Another; National Westminster Bank Plc v Gill and Another; UCB Home Loans Corporation Ltd v Moore and Another (Conjoined Appeals); Bank of Scotland v Bennett and Another; Kenyon-Brown v Desmond Banks & Co [2001] UKHL 44, [2002] 2 AC 773. 2 ibid [5]. 3 ibid [34]. 4 HM Treasury, Enterprise Britain: A Modern Approach to Meeting the Enterprise Challenge (London, HMSO, 2002) 1 [E2]. I am grateful to Philip Rawlings for discussion on these issues.

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150 Alison Diduck

Barclays Bank v O’Brien It was in this economic context that the legal problem of the ‘surety wife’ (the wife who grants surety over her home to her husband’s business) came to a head, in the 1994 case Barclays Bank Plc v O’Brien.5 In O’Brien, the House of Lords attempted to deal with this problem by outlining the steps a lender must take to ensure it is not affected by a wife’s claim that she was wronged or influenced unduly by her husband. The House in O’Brien created a set of guidelines that it hoped would balance the function of releasing capital—in the form of the family home—for business purposes, with the protection of vulnerable wives from exploitation by their husbands. It then proceeded to lay down rules for when lenders would be put on notice of possible undue influence by anyone in a relationship of ‘trust and confidence’ with another and the steps lenders ought to take to avoid being fixed with that notice, which would otherwise invalidate the wife’s guarantee. The way in which the court framed the problem in 1994 is indicative of the way in which it attempted to refine the solution to it in Etridge in 2001. In neither case was the problem seen to be one faced by women who lost their homes after suffering undue influence, deception or negligence. Instead, the problem was seen to be one faced by the lender: how could it ensure that it was not affected by that undue influence, deception or negligence? The House’s solution in 2001, as in 1994, did not focus upon how equity could assist the wronged women, but upon how it might assist the lender. In O’Brien lenders argued against being placed under too onerous a duty in meeting their responsibility to avoid being fixed with notice of undue influence.6 Despite the House not being ‘impressed with that submission’7 and holding that a personal interview with the ‘surety wife’ would meet the lender’s duty, lenders continued to avoid the personal interview and to recommend simply that the wife obtain independent legal advice. It is because this practice was, in the event, ineffectual, that the issue came back before the courts.

Royal Bank of Scotland Plc v Etridge (No 2) and Other Appeals As in O’Brien, the House of Lords in Etridge set out the situations in which a bank is put on inquiry whenever someone in a non-commercial relationship with a debtor stands as surety for the debt. It said that the bank in these cases must do no more than take reasonable steps to satisfy itself that the surety enters the transaction with her eyes open, and it outlined what those steps must be. It further outlined the responsibilities of a solicitor acting for a surety to advise her of the risk of the transaction. As a result of the new Etridge guidelines, it is to be expected that banks will adhere to their voluntary Code of Practice,8 to which in 1997 was added the provision that unlimited guarantees would not be taken from an individual guarantor.9 Because, however, the onus in the 5

Barclays Bank Plc v O’Brien [1994] 1 AC 180 (HL). See, eg, ibid 430 (Lord Browne-Wilkinson). 7 ibid 8 British Bankers’ Association, Business Banking Code (March 2002) [11.3]. The Code has been updated annually for both business and personal services, but the section on sureties has not changed since 1997. 9 British Bankers’ Association, The Banking Code—Guidance for Banks (1998) 25. 6

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Royal Bank of Scotland v Etridge (No 2)—Commentary 151 Etridge guidelines was placed primarily upon solicitors to whom potential sureties are referred by lenders, the Law Society also issued practice guidance to its members on how to meet them.10 And so, in the Etridge guidelines, the law found the ‘balance’ it sought by way of protecting lenders’ interests. But it could not, according to the House of Lords, find a way to protect wives from the ‘bad behaviour’11 of their husbands: ‘What passes between a husband and wife in this regard in the privacy of their own home is not capable of regulation or investigation as a prelude to the wife entering into a suretyship transaction’.12 Of course, the immediate question is ‘why not?’ and Rosemary Auchmuty’s feminist judgment takes on that question directly. Etridge was reported in property law reports, commercial and banking law reports and family law reports, as well as in general report series.13 It is mentioned in family law texts, contract law texts, property law texts, equity texts and banking law texts.14 Academic commentary on the case flourished in periodicals. Simply typing the name of the case into an electronic legal database yields over 250 matches.15 Scholars have debated its effect upon the development of legal doctrine,16 its applicability to wills,17 what its discussion of presumptions and notice means for the law of evidence;18 how it affected solicitors’ and lenders’ practices19 and how it ought to be interpreted in other common law jurisdictions, including South Africa, New Zealand, Malaysia and Canada.20 There seems to be no doubt about it: Etridge is a landmark case. But again, it is important to realise with what, exactly, the House of Lords was concerned in these appeals. The House was not concerned with the family law or social implications of a family losing its home as a result of husbands taking advantage of their relationships with their wives, although some of the commentary focused upon this aspect.21 Nor was it concerned with developing the equitable concepts of 10 Law Society Conveyancing and Land Committee, Undue Influence—Solicitors’ Duties Post Etridge 2002 (May 2002). 11 R Auchmuty, ‘Men Behaving Badly: An Analysis of English Undue Influence Cases’ (2002) 11 Social and Legal Studies 257. 12 Above n 1 at [37] (Lord Nicholls). 13 It has been reported at, eg [2002] 2 AC 773, [2002] 2 All ER Comm 1061, [2002] 1 P & Cr D 25, [2002] 1 Lloyd’s Rep 343, [2001] 3 FCR 481, [2001] 43 EGCS 184, [2001] 5 LRC 684. 14 See, eg, N Lowe and G Douglas, Bromley’s Family Law, 10th edn (Oxford, Oxford University Press, 2007); E McKendrick, Contract Law, Text Cases and Materials, 3rd edn (Oxford, Oxford University Press, 2008); A Hudson, Equity and Trusts, 6th edn (London, Routledge-Cavendish, 2009); EP Ellinger, E Lomnicka and RJA Hooley, Ellinger’s Modern Banking Law, 4th edn (Oxford, Oxford University Press, 2006); K Gray and SF Gray, Elements of Land Law, 5th edn (Oxford, Oxford University Press, 2008). See also M Pawlowski and J Brown, Undue Influence and the Family Home (London, Cavendish, 2002). 15 On 1 October 2009 I typed ‘Etridge’ into Westlaw’s Legal Journals Index. 16 See, eg, J Devenney and A Chandler, ‘Unconscionability and the Taxonomy of Undue Influence’ (2007) 8 Journal of Business Law 541; D O’Sullivan, ‘Developing O’Brien’ (2002) 118 Law Quarterly Review 337. 17 See, eg, L Swerling, ‘Undue Influence in Will Cases and Royal Bank of Scotland v Etridge No 2’ (2007) 5 EMIS Property Service 66. 18 See, eg, D Sim, ‘Burden of Proof in Undue Influence: Common Law and Codes on Collision Course’ (2003) 7 International Journal of Evidence and Proof 221. 19 See, eg, D Dabbs, ‘Banking on a Proper Job’ (2003) 153 New Law Journal 831; G Skipworth, ‘Banks, Solicitors, Husbands and Wives’ (2003) 95 Advisor 40. 20 See, eg, M Ogilvie, ‘The Reception of Etridge (No 2) in Canada’ (2008) 3 Journal of Business Law 191; M Hemraj, ‘Lenders’ Duty to Act in Good Faith in South Africa’ (2003)14 International Company and Commercial Law Review 279; N Yaacub and A McGee,‘Undue Influence in Three-Party Bank-Lending Transactions in Malaysia: Why is Reform Needed?’ (2007) 22 Journal of International Banking Law and Regulation 53; L Gowing, ‘New Zealand: Guarantees—Undue Influence’ (2006) 21 Journal of International Banking Law and Regulation 67. 21 See, eg, F Burns, ‘The Elderly and Undue Influence Inter Vivos’ (2003) 23 Legal Studies 251; J Wadsley, ‘Bank Lending and the Family Home: Prudence and Protection’ (2003) 3 Lloyd’s Maritime and Commercial Law Quarterly 341; D Morris, ‘Surety Wives in the House of Lords: Time for Solicitors to “Get Real”?’ (2003) 11 Feminist Legal Studies 57. Examples of the very few analyses of what the cases meant for women specifically are Auchmuty, above

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152 Alison Diduck undue influence or unconscionability in that context. Rather, the House of Lords in these appeals seemed concerned primarily with protecting the interests of business—both small businesses operated by husbands and commercial lending businesses operated by banks. Notwithstanding, therefore, that it has become a leading case in contract and property textbooks under the heading of ‘undue influence’, these cases were less about what kind of influence was considered to be ‘undue’, or about whether or not the husband had in fact exercised undue influence on his wife in order to obtain her consent to guarantee his debt, than they were about whether or not the bank could rely upon her apparent consent, whether it was obtained by undue influence or not.

The Feminist Judgment In considering the business transaction also from the perspective of the wife, Auchmuty’s judgment fills in these gaps. It highlights some of the facts of the cases that are glossed over in the House of Lords’ opinions as they reframe the appeals to produce broad principles which are then said to apply to a lender’s responsibility on receiving a guarantee from a third party. The first important fact Auchmuty draws out in her judgment is that these cases concerned eight wives alleging that their husbands exercised undue influence upon them in order to obtain their agreement to stand as surety for their husband’s debt. The House of Lords, rather than taking on the ideological and material realities of the marital relationships before them, framed its decision so as to apply to all ‘non-commercial’ relationships between debtors and their guarantors. Auchmuty acknowledges that social change, including increasing formal equality between men and women and between marital and other relationships is important, but that ‘for historical, social, and cultural reasons there are special pressures upon women in marriage’.22 Research in the UK23 and Australia24 bears out Auchmuty’s observation. Many wives acting as guarantors value their relationship over and above any concerns they may have about the transaction, or feel they have no choice but to sign because of factors such as economic dependence upon their husband, trust in him, fear of violence, an overwhelming sense of obligation, emotional pressure or feeling a duty to protect domestic harmony.25 As Lovric and Millbank suggest, looking at the point of signing for potential vitiating factors such as duress or undue influence does not give a complete picture of the wife-surety situation. It is the structural circumstances surrounding the relationship and often the subjective pressures on a guarantor that exist behind the scene that may be most significant.26 Another important aspect of Auchmuty’s feminist judgment is that she emphasises that while the House said that the principles enunciated in Etridge were applicable in all surety cases, the cases were in fact about banks seeking possession of the family home. While the n 11 and R Auchmuty, ‘When Equality is not Equity: Homosexual Inclusion in Undue Influence Law’ (2003) 11 Feminist Legal Studies 163. 22 Royal Bank of Scotland Plc v Etridge (No 2), this volume [4]. 23 B Fehlberg, Sexually Transmitted Debt: Surety Experience and English Law (Oxford, Clarendon Press, 1997). 24 J Lovric and J Millbank, Darling, Please Sign this Form: A Report on the Practice of Third Party Guarantees in New South Wales, Research Report 11 (Sydney, Law Reform Commission of New South Wales, 2003). 25 ibid. 26 ibid [3.35].

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Royal Bank of Scotland v Etridge (No 2)—Commentary 153 home has intangible, personal, and other value to its inhabitants/owners, these cases accounted only for its commercial value: For most home-owning couples, their homes are their most valuable asset. They must surely be free, if they so wish, to use this asset as a means of raising money, whether for the purpose of the husband’s business or for any other purpose . . . If the freedom of home-owners to make economic use of their homes is not to be frustrated, a bank must be able to have confidence that a wife’s signature of the necessary guarantee and charge will be as binding upon her as is the signature of anyone else on documents which he or she may sign. Otherwise, banks will not be willing to lend money on the security of a jointly owned house or flat.27

Unlike the judges in the House of Lords, Auchmuty does not accept as axiomatic that the family home should always be available as security for business capital. She acknowledges the complicated nature and status of ‘home’, particularly for women. Indeed, while there is increasing legal recognition of interests other than financial or proprietary in the home, law still lags behind other disciplines in conceptualising home and an individual’s relationship with home more broadly.28 Article 8 of the European Convention on Human Rights has been invoked successfully, for example, to protect one’s enjoyment of the amenities of home, including one’s security, personal well-being and privacy.29 However, while courts have acknowledged these interests, and the fact that one may have great emotional investment in one’s home, they have also said that emotional security is not an interest they can protect.30 Women may also have a particular connection to home. Since the nineteenth century middle-class domestication of the home, women have been associated with home and family in a way that men have not. The association of family and home may, therefore, exert an impact upon women’s conception of and connection to home that is different from men’s.31 Home, as Auchmuty says, is women’s territory, even for women who work outside it. As more and more disputes between wives and banks reached the courts between 1994 and 2001 (more than 20 cases came before the Court of Appeal during that period) it became clear that further direction to banks and to debtors was required. Lord Hobhouse described the practice that grew out of O’Brien: The crux of this situation is that the bank requests the solicitor to give a certificate which the bank then treats as conclusive evidence that it has no notice of any undue influence which has occurred. But the wife may have no knowledge that this certificate is to be given and will not have authorised the solicitor to give it and, what is more, the solicitor will deny that he is under any obligation to the wife (or the bank) to satisfy himself that the wife is entering into the obligations freely and in knowledge of the true facts. The law has, in order to accommodate the commercial lenders, adopted a fiction which nullifies the equitable principle and deprives vulnerable members of the public of the protection which equity gives them.32

Lord Hobhouse here sets the stage for a reconsideration of how the equitable principle may be developed to protect a wife against her husband’s undue influence. Principles could have 27

Above n 1 at [34]–[35] (Lord Nicholls). See L Fox, Conceptualising Home: Theories, Laws and Policies (Oxford, Hart Publishing, 2006). 29 See, eg, Hatton and Others v United Kingdom (2003) 37 EHRR 28; Karner v Austria (2004) 38 EHRR 24. 30 See Le Foe v Le Foe [2001] EWCA Civ 1870. 31 See Fox, above n 28, and also L Fox, ‘The Meaning of Home: A Chimerical Concept or Legal Challenge?’ (2002) 29 Journal of Law and Society 580. See also, eg, B Honig, ‘Difference, Dilemmas, and the Politics of Home’ (1994) 61 Social Research 563. 32 Above n 1 at [115]. 28

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154 Alison Diduck been developed to ensure that undue influence was not tolerated by the law. But, despite acknowledging the need for greater protection for ‘vulnerable members of the public’, Lord Hobhouse fails to follow through. While equity may require an examination of the parties’ actual knowledge and actual behaviour, his and all the other opinions in Etridge appear either to assume that husbands and wives share the same interest in protecting his business, or to shy away from, in the name of the privacy of the marital unit, too close an investigation of their interests, knowledge and behaviour. Auchmuty’s judgment, on the other hand, focuses upon all of these questions and consequently focuses squarely upon the role that equity can play to solve the real problem in these situations: the undue exercise of power by the husband over the wife. In short, her judgment goes back to equitable basics. It looks to the specificities of the cases before it in their social and economic context. It puts the undue influence back into these ‘undue influence’ cases.

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House of Lords

Royal Bank of Scotland plc v Etridge (No 2) and other appeals [2001] UKHL 44

BARONESS AUCHMUTY 1 My Lords, we are all aware that the problem of undue influence in mortgage transactions is a serious one. It is serious for people who are pressured into a financial commitment they do not want. It is serious for lenders who want to be able to rely on their legal rights under a contract. And it is serious because it happens a lot. When this House last considered the matter, in Barclays Bank v O’Brien [1994] 1 AC 180, Lord Browne-Wilkinson noted that there had been no fewer than eleven decisions on this matter in eight years. In that landmark decision, their Lordships not only acknowledged the potential liability of lenders for mortgage contracts obtained through the exercise of undue influence by one mortgagor upon another, they also laid down practical guidelines to enable lenders to avoid liability. It was hoped that this would settle the question, but the reverse has happened. Since then, the Court of Appeal has heard more than 20 undue influence cases, and they keep on coming. It is indicative of the extent of the problem that we are called upon today to decide no fewer than eight conjoined appeals, all involving wives alleging that they signed mortgage agreements under the undue influence of their husbands. The O’Brien guidelines 2 When Lord Browne-Wilkinson gave the decision of the House of Lords in O’Brien eight years ago, he explained that the challenge before the courts was to provide not simply an analysis of the law but a set of workable guidelines for lenders which would balance the important function of releasing capital for business purposes on the security of the family home with the protection of vulnerable wives from exploitation by their husbands. He gave considerable attention to equity’s longstanding role in the protection of married women, for centuries disadvantaged in law and now, though formally equal, still disadvantaged in terms of access to economic resources. After lengthy examination of the case law, however, he rejected the need for a “special equity” or automatic presumption of undue influence in the case of married women, though he readily accepted, at [1994] 1 AC 180, 191, that “the risk of undue influence affecting a voluntary disposition by a wife in favour of a husband is greater than in the ordinary run of cases where no sexual or emotional ties affect the free exercise of the individual’s will”. I would add here that sexual or emotional ties are not the only factors affecting the free exercise of a wife’s will: there may also be social or even physical pressure (or the threat of it) or economic dependence upon the husband so great as to make disagreement with his wishes a practical impossibility.

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156 Rosemary Auchmuty 3 Whilst accepting the greater risk of undue influence to married women, and couching the whole of his opinion in terms of “wives” and “husbands” (a style replicated, I note, in the opinions of your Lordships in the present case), Lord Browne-Wilkinson emphasised that the equity should, in line with social change, be equally available to unmarried cohabitants, including same-sex couples, as well as people in other relationships where one party reposes “trust and confidence” in the other. 4 By declining to make married women a special case requiring special protection, the House of Lords in O’Brien reinforced an important point of principle: that of the equality of the sexes and the irrelevance of marital status in the application of legal and equitable principles. This is, I am sure, correct, for differential treatment has usually proved to be an impediment to the advancement of women. But the knowledge that women enjoy formal equality should not blind us to the fact that almost all the case law concerns married women and that, for historical, social, and cultural reasons, there are special pressures upon women in marriage. As Lord Browne-Wilkinson wisely observed at [1994] 1 AC 180, 188: “although the concept of the ignorant wife leaving all financial decisions to the husband is outmoded, the practice does not yet coincide with the ideal”. He continued: “In a substantial proportion of marriages it is still the husband who has the business experience and the wife is willing to follow his advice without bringing a truly independent mind and will to bear on financial decisions. The number of recent cases in this field shows that many wives are still subjected to, and yield to, undue influence by their husbands. Such women can reasonably look to the law for some protection when their husbands have abused the trust and confidence reposed in them.” The guidelines in practice 5 The rule laid down in O’Brien [1994] 1 AC 180, 196 for the protection of these wives was that a lender would automatically be put on notice if (1) the proposed mortgage was manifestly not to the wife’s financial advantage, and (2) there was a substantial risk that the husband had obtained his wife’s consent through undue influence or negligent misrepresentation. Lenders could avoid being fixed with constructive notice of undue influence by conducting a personal interview with the wife in which they made clear to her the risk she was running and advised her to take independent legal advice. 6 Lord Browne-Wilkinson clearly anticipated resistance from banks and building societies to the extra duties thenceforth expected from them. He noted at p 197 that “Mr Jarvis QC for the bank urged that this is to impose too heavy a burden on financial institutions. I am not impressed by this submission.” He regarded the personal interview as essential for the wife’s protection because “a number of decided cases show that written warnings are often not read and are sometimes intercepted by the husband” (at p 198). Such is the power of the nation’s lending industry, however, that the requirement of a personal interview with the wife was never adopted. Lenders continued to use their existing Code of Banking Practice according to which wives were advised to seek independent legal advice as to the nature and effect of the transaction, and banks received the solicitor’s confirmation

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Royal Bank of Scotland v Etridge (No 2)—Judgment 157 that they had been so advised. They avoided the requirement of the interview because, as Stuart-Smith LJ frankly observed in the court below [1998] 4 All ER 705, 720, it was “likely to expose the bank to far greater risks than those from which it wishes to be protected”. 7 This state of affairs was, I am afraid, tolerated by the courts. By the time the appeals in the current proceedings reached the Court of Appeal, lenders had succeeded in shifting the entire burden of ensuring that the wife’s consent was freely obtained to the solicitors they instructed to advise her. Lenders were not required to be concerned with the quality of the advice those solicitors gave, or even whether it had been given at all. They were entitled to assume that the advising solicitor had acted independently, professionally and competently—even though, in the very series of cases in which these principles were laid down, many solicitors quite evidently had not done so. They were entitled to go ahead and process the transaction without waiting for the solicitor to confirm that the advice had been provided. This was the position we had reached when the eight appeals presently under discussion came to this House. 8 I do not think that this was a satisfactory state of affairs. The purpose of Lord Browne-Wilkinson’s guidelines was to ensure that banks took a modicum of care when lending to businessmen on the security of the family home. That care had been so reduced as to be virtually non-existent. A bank could discharge its duty to a surety-wife simply by including a sentence in a standard communication advising her to take independent legal advice. In fact, it was worse: in UCB Home Loans Corp Ltd v Moore [1998] 4 All ER 705 (one of the appeals before this House), the Court of Appeal held it to be sufficient that a lender reasonably believed that a wife had received advice from an independent legal adviser, even when the lender did not request it and did not require a confirmatory letter from the solicitor. New guidelines 9 I therefore welcome the new guidelines laid down by my noble and learned friend Lord Nicholls of Birkenhead, whose opinion I have had the advantage of reading in draft, as to the steps that lenders need to take to avoid being fixed with constructive notice of undue influence, and the duties of solicitors in advising sureties in these kinds of actions. I agree, too, with his widening of the categories of relationships to which automatic protection will be available to all those which are “non-commercial” in character. Reform was clearly needed, and implementation of these guidelines should provide a solution to many of the problems we have experienced up till now. 10 There will no doubt be protests from both lenders and solicitors that the new guidelines impose duties too onerous, responsibilities too great. We have heard this many times before. I well remember the cries of anguish from conveyancing solicitors following Williams & Glyn’s Bank v Boland [1981] AC 487 when it became clear that they could no longer assume that the lady of the house had no separate interest in the property, and that they would have to ask her about her rights, lest their client be caught by her overriding interest. Too much work, they said! Too costly! And embarrassing, too, because they would need to enquire about the lady’s relationship to the legal owner. But the House of Lords of the time were not

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158 Rosemary Auchmuty deterred. Lord Wilberforce pointed out at 508 that “What is involved is a departure from an easy-going practice of dispensing with enquiries as to occupation beyond that of the vendor and accepting the risks of doing so”. Lord Scarman at p 510 described the difficulties anticipated as “exaggerated: solicitors exist to provide the service which the public needs. They can—as they have successfully done in the past—adjust their practice, if it be socially required”. That is exactly what happened: they adjusted their practice. Twenty years on, we hear no more complaints about the intolerable burden, and we see no evidence that mortgagees or solicitors have suffered, financially or in any other way. 11 In the lamentable series of undue influence cases before us, however, the coowner wife continues to be cast as an impediment to the smooth running of the mortgage industry—a clog in the wheel of capitalism—just as she was in Boland. The cases have much in common, for having to make separate enquiries of a wife is a similar kind of conveyancing burden to having to give her separate advice. It was so much easier when property was held by men alone, and wives’ interests could be ignored. But if the gender equality that Lord Browne-Wilkinson stressed is to be truly supported, then wives must be treated with respect. Their priorities are often different from those of husbands and mortgagees. Too often, it seems to me, those priorities disappear from the case narratives because they are seen as irrelevant to the “real” issues. Too often their interests are unthinkingly elided with those of their husbands, as they used to be in the family home cases before Boland. This may be because most English judges find it hard to imagine what a woman’s life is like. But there is another reason. It is clearly easier for the mortgage industry to operate on the basis that wives only want what their husbands want, and the courts have been reluctant to interfere. 12 Whenever it is suggested that banks and building societies should show more responsibility in their lending practices, the institutions respond by threatening to withhold or limit easy access to capital. The fact that this has never actually occurred has not prevented the courts, in the years since O’Brien, from being perhaps excessively careful not to tread on the lenders’ toes. As a consequence, mortgages are more freely and casually available than ever before. That businesses should be able to raise capital on the security of the family home is regarded as axiomatic. I note that your Lordships accept it without question. I, however, do not. Is lending on the scale and of the sort we see in the case law so obviously defensible? Most, if not all, of the wives before us would rather have kept their homes than take the kinds of risks their husbands took. Yet the courts have been zealous to ensure that equity’s role of protecting the weak and vulnerable is subordinated to the requirements of business. The duty of care has not been allowed to curtail the free availability of capital raised on the security of the home. 13 If these cases tell us anything, it is that lenders are too careless in the dispensing of their funds to businesses. To those who say that it is not the role of the courts to stop them—that this is a matter of government policy, and the solution lies in the hands of Parliament—I would reply that this House should certainly express its disquiet about the way things are going. It ill behoves the judiciary to bow to pressure from commercial interests as I believe it has done. The law should by all means try to facilitate the smooth and safe transfer of loan moneys into worthy projects. But let us not absolve the lender of every element of risk. Some of the

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Royal Bank of Scotland v Etridge (No 2)—Judgment 159 burden must fall on those who seek to gain the most. Likewise, some of the court’s protection must be reserved for those who need it most: the wives, who have so much to lose. Otherwise the “balance” of which so many judges have spoken, echoing Lord Browne-Wilkinson in O’Brien, is an empty term, for it is so heavily weighted in favour of the lenders and against the surety wives. The appeals 14 I turn now to the eight substantive appeals. As far as five of them are concerned, I am in agreement with your Lordships as to the outcome. I would allow the appeals of Mrs Harris, Mrs Wallace, Mrs Moore and Mrs Bennett, for the reasons given by my noble and learned friends Lord Nicholls of Birkenhead and Lord Scott of Foscote, whose speech I have also been privileged to read in draft. I note, however, that Mrs Harris died in March of this year. I do not see how Mr Harris can continue resisting the bank’s claim for possession of his home on the basis of his own undue influence over his wife. This would hardly comply with the equitable maxim about clean hands, even as relaxed by this court in Tinsley v Milligan [1994] 1 AC 340. To succeed, Mr Harris would be forced to rely on his own wrongdoing, and that is not permitted. I would also allow the appeal of Desmond Banks & Co, though with some regret. I accept that here there is no evidence that the solicitor did not discharge his duty, such as it was at the time, to Mrs KenyonBrown. I would note, however, that, had the guidelines devised by my noble and learned colleague Lord Nicholls been in force at the relevant time, that duty would have been a more rigorous one and Mrs Kenyon-Brown might well have succeeded in obtaining damages from the solicitor to the extent of her loss. Royal Bank of Scotland plc v Etridge 15 On the other three appeals I must respectfully disagree with your Lordships. I shall begin with Mrs Etridge, who has the misfortune to give her name to what may well come to be seen as a case laying down a fair and important point of law, but one from which she will not herself benefit. This is the sixth court in which aspects of her case have been argued, from the original claim for possession by the bank, through three Court of Appeal judgments and a re-trial, to the present hearing. There were two claims in Mrs Etridge’s case: first, that the unlimited bank charge to which Mrs Etridge agreed should be set aside because of presumed undue influence; and second, that Mrs Etridge was entitled to damages from the solicitors who failed to advise her as to the true nature of the documents she signed. 16 In 1988 the Etridges purchased a new family home, the Old Rectory, with funds raised partly from the sale of their old home, Harewood House, and partly from loans from the Royal Bank of Scotland and a separate trust fund. Both loans, as well as an overdraft facility for Mr Etridge’s business, were secured by charges on the Old Rectory. The bank asked their own solicitors to explain the effect of the charges to Mrs Etridge, who was the legal owner of the Old Rectory, before obtaining her signature. The nominated solicitor obtained the signature but, as the evidence established, gave her no explanation of the charge; he told the bank, however, that he had. Mrs Etridge subsequently claimed to have had no idea that

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160 Rosemary Auchmuty the document she signed was a legal charge and no idea of its extent. Mr Etridge fell behind with the mortgage repayments and both the trustees and the bank sought possession of the Old Rectory. Mrs Etridge resisted possession on the ground that her consent to the mortgage had been obtained through her husband’s undue influence and contended that the bank were fixed with constructive notice of that undue influence since she had received no advice whatsoever as to the nature and effect of the transaction she was entering into. 17 Possession was granted but, on appeal, the Court of Appeal held in Royal Bank of Scotland plc v Etridge (No 1) [1997] 3 All ER 628 that the solicitor was the agent of the bank for the purpose of giving advice to Mrs Etridge and thus his knowledge of the fact that he had not given that advice must be imputed to the bank. On a re-trial, however, His Honour Judge Behrens ordered possession on the ground that the bank were entitled to rely on the solicitor’s confirmation that he had given the appropriate advice. This decision was upheld by the Court of Appeal in Royal Bank of Scotland plc v Etridge (No 2) [1998] 4 All ER 705. Mrs Etridge appeals to this House against that decision and also against the decision of a different Court of Appeal in Etridge v Pritchard Englefield [1999] Lloyds Rep PN 702 that the solicitors, while negligent in failing to advise her, owed her only nominal damages, as she would have entered into the transaction even if she had received proper advice. Presumption of undue influence 18 Judge Behrens at first instance found no evidence of actual undue influence but accepted that the presumption of undue influence arose because of the relationship of “trust and confidence” between Mrs Etridge and her husband and because she left all financial decisions to him. My noble and learned friend Lord Scott of Foscote in his opinion has been critical of the way the judge and the Court of Appeal dealt with the presumption of undue influence. With respect, I have difficulty accepting his argument. Lord Scott says that, if the judge finds no evidence of undue influence, then the presumption is rebutted. That is not how I understand presumptions to work. The presumption of undue influence exists precisely to deal with those situations where evidence of actual undue influence is hard to find, but where there are nevertheless reasons to doubt that the consent of the surety has been freely obtained. Lord Scott says there is no undue influence here because there was no evidence of abuse by Mr Etridge of the couple’s relationship or of bullying of Mrs Etridge in order to persuade her to support his decisions. That may be so; but that is not the point. Where the presumption of undue influence arises—as the judge accepted it did in this case—then the onus is shifted to the presumed influencer to demonstrate that undue influence was not present. It is not up to the alleged victim, or indeed the judge, to find evidence of actual undue influence. I see no evidence from Mr Etridge rebutting the presumption. It is one thing for a husband to handle the family finances, quite another for him to conceal from his wife, whose consent he needed for a further plunge into unnecessary risk (they did not need to buy a new house), the extent of the proposed borrowing and his existing indebtedness. The presumption of undue influence might have been rebutted by evidence that Mrs Etridge gave her consent in full knowledge of what she was

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Royal Bank of Scotland v Etridge (No 2)—Judgment 161 doing. That knowledge could have come from her own understanding of the transaction, from her husband, the bank, or the solicitor. But Mrs Etridge did not have full knowledge; her husband had deliberately withheld relevant facts from her, and no one else told her. Manifest disadvantage 19 In his excellent analysis of the law, my noble and learned friend Lord Nicholls has finally laid to rest the debate about whether the transaction must be to the “manifest disadvantage” of the complainant for a presumption of undue influence to arise. It is enough for the surety to be in a non-commercial relationship with the principal debtor for the presumption to arise. Disadvantage remains, however, evidentially relevant to establishing whether the presumption has been rebutted. Unfortunately, “manifest disadvantage” has frequently been interpreted in ways that betray a lack of understanding of (or sympathy with) the priorities of the wives in these cases. In Mrs Etridge’s case, the trial judge and the Court of Appeal were united in finding that this transaction was not of manifest disadvantage to her, a view shared by my noble and learned friends Lord Nicholls and Lord Scott. While there were some aspects which were clearly disadvantageous, there were others which, they say, were advantageous. Without the loans from the bank and the trust, the Etridges would not have been able to purchase their new home. And while the bank charge was an unlimited one (and thus on the face of it disadvantageous), this was no different from the charge that the bank had held over the old family home. Moreover, it allowed money to be injected into Mr Etridge’s business, upon whose profits the family lived. 20 I must respectfully differ from this assessment of the disadvantage to Mrs Etridge of this transaction. The judge at first instance accepted that she had no idea she was creating charges over the new house (just as she had not known that a charge existed over the old house) and was “wholly unaware” of the extent of Mr Etridge’s existing liabilities. It should also be noted that Harewood House was sold for £240,000, while the Old Rectory was purchased for £505,000. There was, therefore, a great deal more money to lose should the bank call in its unlimited charge on the new property by comparison with the old. 21 Mrs Etridge was, in short, in total ignorance of the fact that she was in imminent danger of losing her home should her husband’s business fail. I am sure she knew that the bank could possess and sell the property if the couple defaulted on the mortgage repayments—everyone knows that—but she clearly had no idea of the likelihood that this would happen. In the event, the Etridges defaulted within 18 months, which demonstrates only too clearly how precarious their financial situation was at the time of the conveyance, and how a sensible person in full knowledge of the facts might well have refused to agree to its terms. 22 Was Mrs Etridge such a “sensible person”? From the facts, she was a woman who conformed to the social mores of the time and place in which she grew up and married. She was born in 1938—that is, before the Second World War, when ideas of women’s role were very different from today’s. She trained and worked as a physiotherapist before her marriage, in 1970, at the age of 32. For a short while she ran a restaurant with her husband. Then the children arrived—four of them, born

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162 Rosemary Auchmuty between 1971 and 1977—and she gave up work to devote herself to domestic and family life. With four children so close together, she would have had her hands full when they were young. At the time of the events in this case, the children were aged between 11 and 17—a very demanding stage, as any parent of teenagers will tell you. At this age they are out and about and busy with a thousand different activities, but not yet fully independent. They must be ferried from place to place. They need help with their school work, their social lives, the problems of growing up. With her husband preoccupied with his business, Mrs Etridge would have done the lion’s share of the parenting and homemaking—a full-time job. 23 The breadwinning role was Mr Etridge’s. He was a businessman—that was his calling and his area of expertise—and the family lived off his earnings. Mrs Etridge was neither uneducated nor unintelligent. She had had many years of earning her own money in a professional occupation. But she was not a businesswoman. For that reason, it made perfect sense to allow her husband to make all financial decisions. He had always provided for the family; she had no reason not to trust his judgment. She knew she was the legal owner of Harewood House, the house they were selling, and also that the Old Rectory, the house they were purchasing, was to be transferred into her name, for business reasons; she knew, therefore, that she must sign the documents of conveyance. She knew that a mortgage of £100,000 had been arranged and there would be papers to sign for that. But she did not read the documents because she thought she knew the contents and in any event she would probably not understand the obscure language in which they were couched. Her behaviour was, therefore, both rational and unexceptional. She agreed to the legal charge because she thought that the chances of the bank calling in its loan were minimal and that, even if it did so, the charge was limited to £100,000. She thought this because nobody told her otherwise. 24 There is a wider principle at stake. When we talk of the “advantage” of obtaining funds for the development of businesses, even those that provide the family income, we tend to forget that those funds are usually raised on the security, not of any old property, but of the family home. I need hardly reiterate—but I will, since it is so often overlooked—that a home has a particular significance for someone who, like Mrs Etridge, is a homemaker. It is not simply the domestic heart of the family and a shelter against the elements. It is her domain—hers, not his. Mr Etridge had his business affairs to occupy him. Mrs Etridge’s job was to run the home. I doubt that she would wilfully have put that at risk. Most people have mortgages and most people expect to have a limited indebtedness to a bank at some stage in their lives. But Mrs Etridge knew that she and her husband had put considerable equity into the new house, and it seems to me inconceivable that the combined effect of this particular transaction—the potential loss of all their capital as well as their home—was something she would have contemplated with equanimity. It was a transaction that was manifestly disadvantageous to her. For this reason, and in light of the lack of any other evidence to do so, the presumption of undue influence was not rebutted. Constructive notice 25 There remains the question of whether the bank were fixed with constructive notice of the undue influence affecting Mrs Etridge’s signature of the loan guarantee.

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Royal Bank of Scotland v Etridge (No 2)—Judgment 163 The bank requested Robert Gore & Co, the solicitors they had instructed to act for them, to explain the contents and effect of the legal charge to Mrs Etridge and to confirm to the bank that she understood the same by signing the legal advice clause prior to witnessing her signature. In fact the duty solicitor, Mr Ellis, did not explain the contents and effect of the documents to Mrs Etridge—but he told the bank that he had. 26 The Court of Appeal held that the bank were “entitled to assume that the solicitors had discharged their professional duties to Mrs Etridge whether or not [they] had actually seen the certificate indorsed on the respective legal charges before authorising the release of the money” [1998] 4 All ER 705, para 22. In this case, the bank did not bother to wait for the solicitor’s certificate before releasing the money. The certificate eventually came, falsely testifying that Mrs Etridge had received advice when, in fact, she had not. But by then completion had taken place. My noble and learned friend Lord Scott holds that, because the bank knew that there were solicitors acting for Mrs Etridge (albeit solicitors instructed by the bank), and because those solicitors assured the bank that they had advised her about the content and effect of the legal charge, the bank were entitled to be satisfied they were safe in relying on her apparent consent. In my view, if the bank paid out the money without waiting for the solicitor’s assurance that she had been properly advised, they cannot be said to have relied on this assurance and they cannot be said to have avoided being fixed with constructive notice of any undue influence. It is irrelevant that the solicitor’s certificate, when it arrived, was a meaningless fabrication. In my view, the bank were fixed with constructive notice of the presumed undue influence because they acted without confirmation that the consent had been freely given, and Mrs Etridge is entitled to have the charge set aside. 27 In making this finding, I am aware that I am departing from a substantial body of Court of Appeal jurisprudence, as well as the opinions of your Lordships in this House. In my view, however, if the purpose of the equitable rule is to try to ensure that consent is freely obtained, then the least a lender can do is to refrain from acting until they have been told that advice has been given and the surety understands what she is doing. I accept that the bank cannot be bound by information they do not know—for instance, that the solicitor’s advice had been poor (or non-existent)—since whether the bank has notice of undue influence can only be determined by how the transaction appears to them, as Stuart-Smith LJ explained in this case in the Court of Appeal [1998] 4 All ER 705, para 41. But “constructive notice”, whether or not one accepts that this particular jurisdiction falls within the ambit of section 199 of the Law of Property Act 1925 (as Stuart-Smith LJ did), requires that the party who wishes to escape it at least ascertains that the appropriate inquiries have been answered. One cannot be excused from constructive notice by simply passing the buck to a solicitor or by recklessly going ahead with the transaction without waiting for confirmation from the advising solicitor. Negligence 28 Mrs Etridge’s second claim relates to the negligence of the solicitors who said they had advised her as to the nature and effect of the legal charge she agreed to, but who did not do so. As a consequence of Mrs Etridge’s successful appeal against

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164 Rosemary Auchmuty possession by the bank in Royal Bank of Scotland plc v Etridge (No 1) [1997] 3 All ER 628, Robert Gore & Co (by this time merged with another firm, Pritchard Englefield) amended their defence to admit, as Mrs Etridge had argued all along, their liability to Mrs Etridge for breach of duty. On the re-trial, Judge Behrens found that the solicitors were in breach but that, on the balance of probabilities, Mrs Etridge would have signed the two charges even if she had had a full explanation of their content and effect. He awarded her nominal damages of £2. 29 Following the Court of Appeal’s decision in the present case, Mrs Etridge sought leave to appeal on the negligence issue on the basis that the solicitor owed a wider duty to the surety than that which had been previously considered. She contended that, given the manifest disadvantage of the transactions and her husband’s existing indebtedness, the only proper advice the solicitor could have given was that she should not sign the documents relating to the sale of Harewood House, the purchase of the Old Rectory and the legal charges. Had he done so, she submitted, she would not have agreed to any of the transactions. In Etridge v Pritchard Englefield [1999] Lloyds Rep PN 702, the Court of Appeal refused permission to amend her notice of appeal on the ground that the proposed amendments would introduce new arguments that had not been considered in the court below. 30 Morritt LJ (May and Tuckey LJJ agreeing) further held that Judge Behrens had been entitled on the evidence to conclude that Mrs Etridge would have signed the documents whatever advice she had been given. Because of a delay between the sale of the old house and the purchase of the new, the family had been given permission to continue to reside in the old home until completion on the new—but completion was dependent upon the signing of the charge. The “exigencies” of the situation—the fact that the Etridges would have lost their deposit and the family would be homeless—would, the court considered, have impelled Mrs Etridge to agree to the charge. 31 I find it difficult to see how this finding was arrived at. It is true that, had Mrs Etridge refused to go ahead with the purchase of the Old Rectory, they would have lost their deposit of £50,505—not a small sum by any means. But it pales into insignificance by comparison with the sum they eventually lost by entering into the purchase of a house worth ten times as much. As for the issue of homelessness, I regret to say that I regard this kind of pronouncement as evidence for the oftrepeated assertion that the judiciary is out of touch with ordinary people. If Mrs Etridge had refused to agree to the charge, the family would indeed have been without a home that they owned. But many people in England and Wales do not own their own home. What was there to stop the Etridges from renting for the time being? It is not difficult to find rental property. The rent payments, though doubtless substantial on a home large enough to accommodate a family of six, would still have been less than the mortgage repayments on the Old Rectory. 32 For these reasons, I do not think that the case that Mrs Etridge would inevitably have agreed to the charge is made out. Her refutation of the suggestion would have been further strengthened if the court had accepted, as she submitted, that the undue influence she suffered dated from the time of the sale of Harewood House, rather than from the date of the signing of the legal charge on the Old Rectory. If the earlier date had been accepted, and she had been in a position to resist the sale of Harewood House, the issue of homelessness would not have arisen.

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Royal Bank of Scotland v Etridge (No 2)—Judgment 165 33 In any case, the nominal damages of £2 awarded to Mrs Etridge were clearly inadequate—the kind of award only made to wholly unworthy claims, which this was not. Who knows whether Mrs Etridge would really have signed the legal charge if she had understood its full effect? We can never know, because the situation did not arise. She was not put to the test of having to choose between her own interests and inclinations and the wishes of her husband, because she was never given the opportunity. That being the case, it is at the very least patronising, and may even constitute evidence of actual undue influence, to assume she would have signed the document anyway, even in full possession of the facts. 34 The solicitors had a duty to advise her; they failed in that duty, and they have admitted their failure. Lacking proper advice, and therefore in ignorance of what she was doing, Mrs Etridge signed the legal charge. As a consequence of signing, she suffered serious loss. To my mind, the case is clear. I would allow her appeal and remit the matter to the trial judge for the assessment of damages. National Westminster Bank plc v Gill and another 35 Mrs Gill’s husband wished to raise £100,000 secured on the family home to purchase new premises for his second-hand car business and associated business expenses. Mrs Gill was enthusiastic about the new premises but reluctant to secure the loan on the family home. She said in evidence that she and her husband had a heated altercation about the matter. However, following a private meeting arranged by the bank with the family solicitor, in which the nature and effect of a legal charge were explained to her, she agreed to the transaction. 36 Unfortunately, both Mrs Gill and the solicitor were under the misapprehension—almost certainly implanted in their minds by Mr Gill—that the charge was limited to £36,000 (that being the amount needed to purchase the garage), rather than the £100,000 it actually was. £36,000 was, as Mrs Gill said, a sum they could easily afford. £100,000 was not. In the event, the business failed to prosper and the bank sought possession of the family home. Mrs Gill resisted possession on the ground that the bank had notice of the fact she had signed the documents under undue influence or as a result of misrepresentation by her husband. 37 The judge at first instance accepted that this was a case where there was a presumption of undue influence, but held that the bank were entitled to rely on the solicitor’s certificate of confirmation that he had advised her as requested by the bank. Such advice having been given (and found in this case to have been competent), the bank were not fixed with constructive notice of any undue influence or misrepresentation. The Court of Appeal in National Westminster Bank plc v Gill [1998] 4 All ER 705 agreed. In this House, too, my noble and learned friends Lord Nicholls and Lord Scott, whilst emphasising that lenders should inform solicitors advising wives of the amount of the proposed loan and of any existing indebtedness by the husband, nevertheless hold that the fact that the bank did not disclose this information here does not constitute a failure to take reasonable steps to ensure that Mrs Gill’s consent was not procured through undue influence or misrepresentation. 38 I must respectfully disagree. Even if the adequacy of the legal advice is not a matter with which a bank should be concerned, since it must accept the solicitor’s

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166 Rosemary Auchmuty confirmation at face value, the same cannot be said when the solicitor was prevented from giving proper advice by reason of the poor quality of his instructions from the bank. How can a person who is not himself in full possession of the facts advise a client in any useful or meaningful way? In this case, both solicitor and client imagined the charge to be limited to £36,000 rather than £100,000. Their discussion would, therefore, have revolved around the pros and cons of signing in terms of a particular level of risk, when, unknown to them, the risk was much greater. Not only was there more money to lose if the business failed to prosper, but the level of repayments that must be sustained to feed a mortgage of almost three times the envisaged amount would be very much higher. This situation seems to me analogous to that of a junior doctor who, told to seek a patient’s consent before a routine operation, tells him or her that the risk of complications is relatively small, not knowing, because the surgeon has not told the junior doctor, that this operation is not really routine, and that its attendant risk will be much higher. Would the patient’s consent be viewed as truly free and informed in such circumstances? I do not think so. A hospital that allowed this to happen would not be considered to have discharged their duty of care to their patient. 39 In Mrs Gill’s case, as in this example, the fault did not lie with the professional who advised her; he was as misinformed as his client. The fault lay with the bank, who cannot be said to have taken all possible care to ensure that Mrs Gill’s consent was freely obtained. I would therefore hold that the bank are fixed with notice of the undue influence or misrepresentation that may have induced Mrs Gill to enter into a transaction which, leading to the potential loss of her home—the thing she expressly feared—was clearly of manifest disadvantage to her. Accordingly, I would allow her appeal. Barclays Bank plc v Coleman 40 I turn finally to the case of Mrs Coleman. She was the joint legal owner of the family home in Clapton, East London. Her husband, a diamond cutter, having lost his job, moved into property brokerage and then property investment. In 1991 he bought two commercial properties in Hayes, Middlesex, and a half-share in an apartment block in Brooklyn, New York, the other half of which was owned by his wife’s brother. The purchases were enabled by an “all-moneys” charge on the family home. An all-moneys charge secures not only loans for property purchases but all future borrowings from the bank. All three investments failed, for the income from rent was never sufficient to meet the liabilities. In 1995 the bank sought to enforce their charge over the family home, and a possession order was granted. 41 Both Mr and Mrs Coleman appealed against possession, and both were unsuccessful. Mr Coleman’s appeal need not concern us here. Mrs Coleman contended that her consent to the charge had been obtained by reason of her husband’s undue influence and that the bank had not taken adequate steps to avoid being fixed with constructive notice of this. His Honour Judge Wakefield, sitting in the Central London County Court, agreed that the bank had not taken adequate steps to ensure that Mrs Coleman’s consent had been freely obtained because, although she had received independent advice, it had been given by the solicitor’s

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Royal Bank of Scotland v Etridge (No 2)—Judgment 167 managing clerk, a legal executive, not the solicitor himself. In his view, however, the transaction had not been of “manifest disadvantage” to Mrs Coleman and therefore undue influence was not established. As reported in the Court of Appeal’s decision in Barclays Bank plc v Coleman & Another [2001] QB 20, 33, he said: “Perhaps the best that can be said is that Mr Coleman’s departure from property broking to property speculation was a new departure and had risks which had not hitherto been undertaken by Mr Coleman. However, notwithstanding those risks, I take the view that he was providing for his family’s livelihood.” 42 In the Court of Appeal, Nourse LJ (with whom Pill and Mummery LJJ agreed) took exactly the opposite view on both points. On manifest disadvantage, after a lengthy analysis that prefigures this House’s rejection of the requirement, he concluded that Judge Wakefield’s view was too narrow. Counsel for Mrs Coleman in the Court of Appeal suggested several reasons why the transaction was disadvantageous to her client, including the fact that her husband had significant other assets so there was no need for the bank to impose a charge on the family home at all. The factor that found favour with the Court of Appeal, and the rationale for their finding that the transaction had been of manifest disadvantage to Mrs Coleman, was the “all-moneys” clause, which exposed her to unlimited risk. If the mortgage on the family home was unnecessary, the all-moneys clause was gratuitous: a charge to the extent of the existing borrowings would have sufficed. Mrs Coleman was therefore able to establish actual undue influence as against her husband. But this availed her little, since he was bankrupt. 43 The more serious question was whether the bank were fixed with notice of the undue influence. Here again the Court of Appeal disagreed with Judge Wakefield. They held that the bank were entitled to rely on the legal executive’s certificate of confirmation of advice given to Mrs Coleman because delegation to legal executives in solicitor’s firms was a widespread, normal and entirely proper practice. 44 Three features of this case call for further attention. The first is the matter of the all-moneys charge. These have featured repeatedly in the undue influence case law. Yet it is almost impossible to envisage any situation in which a wife would freely agree to her home being used as security for an unlimited guarantee of her husband’s debts. In almost every case, this would clearly be disadvantageous to her. No solicitor with her interests at heart would advise a wife to sign such a charge. No lender, if they thought about it, could seriously believe that a woman who did had done so of her own free will. When the bank received Mrs Coleman’s signed charge, they should immediately have been put on notice that she had not been properly advised. But of course these processes are so routine and normal, such a thought would never have crossed the relevant official’s mind. My view is that unlimited guarantees of this kind should not be used in these circumstances. If they ceased to be available—or were only employed in exceptional situations— then banks would have to adopt more prudent policies in regard to business loans, fewer homes might need to be repossessed, and we would not have to devote so much court time to these unfortunate undue influence cases. 45 The second feature to note in this case is that, once again, the appointed legal officer claimed to have advised the wife, when in fact he had not. The trial evidence

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168 Rosemary Auchmuty indicates that, in a meeting of very short duration, the managing clerk merely asked Mr Coleman if he had explained the documents to his wife and, on being assured that he had, requested Mrs Coleman’s signature. The judge accepted this evidence; and it is perhaps for this reason that he held that the duty Lord BrowneWilkinson imposed on lenders, to make sure that sureties received competent legal advice, should be delegated no further than to accredited solicitors. Certainly what happened to Mrs Coleman was the very mischief that Lord Browne-Wilkinson sought to avoid. I do not wish to cast aspersions on all legal executives, many of whom are, I am sure, as knowledgeable and competent as many solicitors. But the fact remains that legal executives are often employed to do the more routine, less contentious work of a solicitor’s practice. The duty of explaining to a wife that, if she signs the documents her husband wants her to sign, she may lose her home, is, with respect, not a routine or uncontentious task. It is one that should be reserved for qualified solicitors with their more rigorous training and wider experience of complex work. I am in full agreement with the trial judge here, and would hold that the bank could not discharge their duty of care towards Mrs Coleman by accepting confirmation for advice given by a legal executive. 46 My finding is reinforced by the knowledge that there was so much in this case to put the bank on inquiry that undue influence might be present. This brings me to its third noteworthy feature. The bank knew that Mr and Mrs Coleman were Hasidic Jews, with very traditional views as to the roles of husband and wife. In accordance with her religious principles, Mrs Coleman left business and financial decisions to her husband and concerned herself with domestic responsibilities. For that very reason, however, she would have been loath to expose her home to unnecessary risk. She testified in court that, had she been given proper advice as to the meaning and effect of the legal charge, she would not have agreed to it. My noble and learned friend Lord Scott doubts this. His view is that, for religious and cultural reasons, Mrs Coleman would have found it impossible to disagree with her husband. He thinks she would have felt she had to do what he asked her to do. Neither of us has the benefit of personal acquaintance with Mrs Coleman in order to form any assessment of her character and degree of subservience to her husband. But she has certainly been prepared to say in court that she would have refused to go along with his plans, so either she is more independent-minded than my noble and learned friend Lord Scott allows, or she is only pleading undue influence because her husband put her up to it. We do not know the truth of the matter. But I do not think it is for this court to make assumptions about how individuals will behave based on a general and incomplete knowledge of religious and cultural norms. The trial judge, who saw the witnesses, accepted that Mrs Coleman would normally go along with her husband’s wishes. But this was partly because it was necessary to demonstrate a relationship of “trust and confidence” to establish presumed undue influence. She might not have done so in this case, where her home was at stake and there were other assets against which to secure the loans. As with Mrs Etridge, we shall never know, since she was never given an opportunity to make an informed choice. 47 In my view, then, the bank were clearly put on notice that undue influence was possible in this case. Undue influence was, in fact, found. By accepting written confirmation from the solicitor’s managing clerk, a legal executive, rather than

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Royal Bank of Scotland v Etridge (No 2)—Judgment 169 the instructed solicitor himself, the bank failed to take adequate steps to ensure that Mrs Coleman’s consent was freely obtained. I hold that they are fixed with constructive notice of the undue influence and that she is entitled to have the charge set aside. Accordingly, I would allow her appeal.

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10 Commentary on Porter v Commissioner of Police for the Metropolis MAUREEN O’SULLIVAN

Introduction Once upon a time, an Englishman’s home was his castle. Women did not feature prominently as landowners. When the franchise was first extended, only property owners could exercise the right to vote and the law rendered invisible certain categories of people, such as married women and children, by denying them rights of legal ownership, and hence excluding them from membership of the evolving democracy. Over time, the exercise of power through the ownership of property has shifted from sovereigns of nation states and wealthy landowners to multinational corporations in an increasingly globalised world. Much of what previously was public property has been privatised, extending the scope for the exercise of property rights and narrowing the scope for individuals to exercise civil rights against private owners. Sometimes, too, courts and the legislature can be slow to react to change, as can be seen in the case of Porter.1

Relevant Facts and Law Porter v Commissioner of Police for the Metropolis involved an appeal from the Central London County Court in which the plaintiff ’s claim for damages against the Commissioner of Police for the Metropolis for assault, battery, wrongful arrest, false imprisonment and malicious prosecution, was dismissed. The plaintiff was similarly unsuccessful in the Court of Appeal. Porter had a dispute with the London Electricity Board (LEB), at one of their showrooms, over the supply of electricity to her new flat. Whilst she claimed that the electrician never arrived to connect her supply, the LEB asserted that she hadn’t answered her door when their electrician did call. Accordingly, Porter would now have to pay a further fee and wait three days before the connection would be made. Porter demanded an immediate supply of electricity to her flat at no extra charge, and made it clear that she would remain in the LEB showroom, with her children, until this demand was met. The two parties reached some1

Porter v Commissioner of Police for the Metropolis [1999] All ER (D) 1129 (CA).

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Porter v Commissioner of Police for the Metropolis—Commentary 171 thing of an impasse, whereupon the police were called. After unsuccessfully endeavouring to persuade her to leave of her own volition, the police resorted to using force, whereupon she engaged in obdurate, passive resistance. Either before or after being carried out of the showroom, Porter was arrested for a breach of the peace and charged with assault on a police officer. However, the Crown Prosecution Service did not ultimately pursue the case. Porter then sued the police for damages, on the aforementioned grounds, and when her claim failed, she appealed. The Court of Appeal held that the plaintiff became a trespasser when she refused to leave at the LEB employees’ request. The police were thus entitled to use reasonable force to remove her, when asked to do so. Moreover, her resistance occasioned a breach of the peace for which the police were entitled to arrest her. The court considered itself bound by CIN Properties Ltd v Rawlins,2 in which the right of private landowners to exclude at will was upheld. In that case, the owners of a shopping mall had excluded a group of youths from their premises. The case was especially controversial as the ban on the youths in question from entering the town shopping centre was perpetual and had the effect of excluding them from job opportunities and participation in civic life, despite the fact that no criminal charges against them were ever upheld. The judges in Porter held that the same principles applied, and they thus upheld the decision of the trial judge that the police conduct was lawful. The feminist judgment imagines an appeal to the House of Lords against this ruling.

Property Rights and Civil Rights Central to the case, in its socio-political context, is a realm of competing rights in private and public spaces: the right of different entities to exclude from their premises whomsoever they choose, versus civil society’s rights of assembly and expression, the exercise of which must be facilitated in vibrant democracies. It highlights that rights and property concern people’s relations with each other in different geographical spaces and that harmonious interaction between these competing rights should be sought. Since the advent of the Human Rights Act 1998, a balance between these rights should have been open for consideration. Anna Grear has argued elsewhere, however, that instead of improving the equilibrium between competing rights, this legislation has carried forward a pre-existing trend to privilege the rights of private property owners over access rights.3 The case also illustrates the fact that those who claim competing rights are often stereotyped by the law. For instance, it would be fair to say that the profile of people who tend to be excluded while exercising rights such as the right to protest, tends not to conform to our received images of traditional property owners. Owners, in the subconscious eyes of the law, are white, settled English men who, in Lockean terms, work the land and increase its productivity. Green portrays the ideal English landowner as ‘an adult Anglo-Saxon male, and at least of average mental and physical competence. He is the heterosexual father of the family. He sees himself as a free and rational individual who makes a permanent mark on the world.’4 The survival in England of an exclusive right to private property, and its adjunct 2

CIN Properties Ltd v Rawlins [1995] EGLR 130 (CA). A Grear, ‘A Tale of the Land, the Insider, the Outsider and Human Rights’ (2003) 23 Legal Studies 33. 4 K Green, ‘Citizens and Squatters’ in S Bright and J Dewar (eds), Land Law: Themes and Perspectives (Oxford, Oxford University Press, 1998) 248. 3

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172 Maureen O’Sullivan right to control unilaterally the access of others, is linked profoundly to the law’s construction and recognition of white, English men’s property rights together with their status as full citizens. The law of trespass operates as a sort of exclusive branding of the land by the ideal landowner in order to exclude all others: women, transients, other races and other ethnicities. Property rights historically did not extend to women, and although women have more recently begun to acquire (circumscribed) rights to land (see also the Etridge case in this volume), gendered ideological constructions of property are still arguably in play today, albeit with far more subtlety than in the past.

The Feminist Judgment Anna Grear’s feminist judgment homes in on two specific aspects of the issues outlined above. First, she reopens the seemingly sealed debate on the absolute nature of property rights, seeking to balance the public’s right to assemble, protest and exercise other civil rights on quasi-public property. Thus, she construes Porter as a citizen in the course of exercising a right deriving from the common law, and recognised in other jurisdictions, of reasonable access to quasi-public spaces—a right which has been denied by the English courts’ interpretation of the law of trespass. In doing so, she draws upon the arguments made in an important academic article by Kevin and Susan Gray 5 which was considered but ultimately dismissed by the Court of Appeal. She also draws upon feminist critiques of the liberal notion of the ‘private’ sphere as an area of unfettered freedom for the masculine, propertyowning subject. Grear respects, not without reservation, a guarded use of the law of trespass as a means of protecting ‘zones of intimacy’ and human dignity, but holds that the element of privacy associated with forms of private property such as the home, does not necessarily apply to all forms of property. Therefore, there may be spaces where exclusionary property rights need to accommodate other rights, such as reasonable access. She cites authorities from other common law jurisdictions alongside the eighteenth-century English jurist, Sir William Blackstone, none of which have upheld or supported an unmitigated right to exclude arbitrarily from places that might be characterised as ‘quasi-public’, as in the present case. Grear proposes that the common law in fact recognises a ‘doctrine of reasonable access’6 to quasi-public space, which would prevent the exclusion of members of the public, unless there were ‘objectively reasonable’ grounds on which to do so. Had this right been recognised by the lower courts, all of Porter’s subsequent ‘offences’ would have been rendered permissible and the police conduct itself would have been called into question. Secondly, Grear’s feminist judgment grapples with how ‘reasonable behaviour’ should be legally delineated during the exercise of one’s rights. Again, context cannot be ignored in the endeavour to deal with this issue. The construction of a standard of reasonableness inevitably encapsulates an element of subjectivity and women’s perspectives have not traditionally been included in this process. The competing rights at play in this case: rights of access to quasi-public space and to exercise civil rights, contrasted with the quasi-private 5 K Gray and S Gray, ‘Civil Rights, Civil Wrongs and Quasi-Public Space’ (1999) 1 European Human Rights Law Review 46. 6 ibid.

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Porter v Commissioner of Police for the Metropolis—Commentary 173 property rights of another relating to the same space, provide the setting in which any behaviour must be assessed. Grear acknowledges that, as Porter was not carrying out a political protest, her actions do not fit into a neat category of enumerated rights which she can invoke. However, her actions still raise issues in the terrain of rights, deriving from democratic principles. Reasonableness must be construed within the broad context of individual human rights and freedoms. There are, of course, limits also on the latter set of rights: for example, few would argue that Porter had an unlimited right to sit in the LEB showroom but, perhaps, she could have been left alone until closing time, given that she was not causing any obstruction.

Conclusion The right to property, reassessed from a feminist perspective in a non-exclusionary format, offers the hope of a holistic, inclusionary blueprint for a more balanced approach to the weighting of competing rights. In a world in which privatisation increasingly encroaches upon and subverts other civil rights, the alternative feminist judgment promises a radical reinterpretation of an area of the law which underlies so may others and hence, offers a more just paradigm on which to base our society.

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[HOUSE OF LORDS] PORTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPELLANT and THE COMMISSIONER OF POLICE FOR THE METROPOLIS . . . RESPONDENT 2000 Baroness Grear.* My Lords, this case arose from a conflict between a woman and a corporate public service provider, and centres upon the woman’s refusal to leave the service provider’s public showroom. When the woman refused to leave, the police were called to remove her. The appellant brought a claim for damages against the Commissioner of Police for the Metropolis for assault, battery, wrongful arrest, false imprisonment and malicious prosecution concerning her removal from the public showroom. The appellant’s initial claim failed before His Honour Judge Cowell and a jury sitting in the Central London County Court. It also failed on appeal before Judge, May and Sedley L.JJ. in the Court of Appeal. The Appellate Committee of this House has granted leave to appeal, as concerning a matter of general public importance, the central questions of law arising in the case regarding the correct application of the law of trespass to spaces such as the public showroom, and the proper application of police powers in relation to alleged breaches of the peace in such spaces. The case can be cast as one concerning a commercial dispute between a customer, Ms. Porter, and a corporation, the London Electricity Board (“the L.E.B.”): a dispute which threatened to get out of hand in a way that meant that the police were justified in removing Ms. Porter as a trespasser lest the L.E.B. staff resort to self-help to remove her from the showroom. That is broadly how the Court of Appeal chose to view the matter. Mr. Blaxland, counsel for Ms. Porter, however, characterised the case in different terms, arguing that it is one in which the police acted as the agents of a private landowner to eject Ms. Porter from their showroom—something they were not entitled to do. Mr. Blaxland submitted that the showroom is a space open to the public in pursuit of the L.E.B.’s statutory duty to provide electricity under the terms of the Electricity Act 1989. Accordingly, the L.E.B. could not, at will, revoke the plaintiff’s licence to enter and remain there. Instead, according to Mr. Blaxland, the L.E.B. have to apply a standard of reasonableness before ejecting a customer. When the matter is viewed in this way, Ms. Porter never became a trespasser susceptible to ejection, and furthermore, the police had no grounds on which to remove her. That is why Ms. Porter originally chose to sue the police for assault, battery, wrongful arrest, false imprisonment and malicious prosecution. The case thus concerns the delimitation of the law of trespass—a question of great public importance. The exercise of a private landowner’s right of arbitrary exclusion in quasi-public space has a profound impact upon important social and political freedoms and important considerations of dignity implicated in and foundational to such freedoms. In the age in which we live, there is a deepening trend towards the privatisation and control of public space. This is a trend with troubling implications for democ* The author is indebted to Kevin Gray and Susan Francis Gray for the seminal article invoked in the judgment, and also to the editors of this book for their invaluable guidance.

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Porter v Commissioner of Police for the Metropolis—Judgment 175 racy, social equality and social inclusion. It is therefore a timely opportunity to consider the plaintiff’s challenge with respect to the issue of the applicability of the law of trespass to her as a member of the public—a citizen—expressing her convictions in an L.E.B. showroom. This is a question, moreover, rendered all the more salient in the light of the imminent coming into force of the Human Rights Act 1998. The facts For Ms. Porter, the conflict in this case was occasioned by a wasted day spent waiting in an uninhabited flat for an electrician who never arrived, and the disputation of that fact by the L.E.B., who maintain that their electrician called but that no one was in. Ms. Porter had paid £100 to the L.E.B. as “security” towards the cost of supplying electricity to her new home and she, presumably, would either have had her three-yearold daughter and baby son with her, or have had to arrange for childcare. In either case, the day would doubtless have had its inconveniences and costs, and she was naturally frustrated by the waste of her time and effort. The next day, at 13.33, Ms. Porter took her young children down to the L.E.B. showroom to resolve matters. Once there, she met the L.E.B.’s insistence that she had not been in the flat, and that she should pay a further £17.50 for connection of the electricity supply. She refused to pay the further sum, and declared her intention not to leave the showroom until the matter was resolved in her favour. An employee of the L.E.B. informed her that she would have to leave at closing time and that if she did not, the police would be called. Ms. Porter responded that the police may as well be called straight away Understandably, Ms. Porter was frustrated by the whole chain of events. However, she did not become abusive. She did not create a scene. As noted by Judge L.J. in the Court of Appeal, the video recording of events that day in the showroom certainly revealed a clash of wills, but without evidence of Ms. Porter showing any threatening gesture, or creating alarm or concern among those involved or among other customers who were present. She simply refused to leave until the matter was resolved. At 14.02, just less than half an hour after Ms. Porter entered the showroom, Kentish Town police received a message reflecting the bottom-line issue upon which this appeal turns: “female refusing to leave premises”. What happened next is at the heart of Ms. Porter’s initial decision to sue the police. First, two male officers tried to mediate a resolution. They rang the L.E.B. head office. To no avail. They spoke to the deputy manager of the L.E.B. To no avail. They spoke to the appellant who, again, refused to abandon her position. At 14.20, two female officers were called who again failed to resolve the stand-off. The deputy manager of the L.E.B. requested that the police remove Ms. Porter, who again refused to move. The police explained that they would have to remove her by force. Again, she refused to leave. She wrapped her legs around the chair she was sitting on in order to resist the police officers’ attempts to move her. She was still holding her baby, so the baby was carefully taken from her, and a police officer looked after him and the little girl. After this, things became more dramatic. Four officers tried to carry Ms. Porter from the showroom, and in the course of her resistance, she and some of the officers crashed into a wall and fell down. Ms. Porter was at that point handcuffed and carried out of the showroom. She does not dispute that she resisted the police as best she could. She was informed at some point in the proceedings that she was under arrest for breach of the peace, and it is also agreed by the parties that at some point, she bit a police officer.

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176 Anna Grear The decision of the Court of Appeal As I have said, the legal heart of the issue before this House concerns the law of trespass as it applies to quasi-public spaces. The attention of the Court of Appeal was drawn to an article by Kevin and Susan Gray, “Civil Rights, Civil Wrongs and QuasiPublic Space” [1999] E.H.R.L.R. 46. In the article, Gray and Gray argue that the United Kingdom courts should now recognise, in line with other common law jurisdictions, a “doctrine of reasonable access” to quasi-public space under which, in the words of the authors, “owners of quasi-public property may exclude members of the public only on grounds that are objectively reasonable”: p. 46. For the reasons that follow, I accept that the law does indeed recognise such a doctrine. The current legal position was stated by the Court of Appeal in C.I.N. Properties Ltd. v. Rawlins [1995] 2 E.G.L.R. 130. In that case, the Court of Appeal rejected an argument that members of the public have a right in equity to access and remain on private property open for a public purpose (a shopping centre) subject to a standard of reasonable conduct. The court considered the general proposition enunciated in the American case of Uston v. Resorts International Inc. 445 A.2d 370 (N.J. 1982) that: “when property owners open their premises . . . to the general public in pursuit of their own property interests, they have no right to exclude people unreasonably but, on the contrary, have a duty not to act in an arbitrary or discriminatory manner towards persons who come on their premises.” However, this proposition was dismissed by Balcombe L.J., with whom the other members of the court agreed, as having no application in English law. The Court of Appeal in C.I.N. Properties based their conclusion concerning the absence of a public right of this kind on two lines of argument. The Court first held that a line of English cases establishing such a public duty (invoked by Mr. Blaxland with respect to the present case) offered no assistance on the particular facts of C.I.N. Properties itself, because those cases concerned a statutory duty binding the landowner. On that basis, as I shall explain below, C.I.N. Properties can be distinguished from the present case. Secondly, Balcombe L.J.’s assertion that the proposition concerning a public right of access and its related standard of reasonableness had no application in English law hinged upon his characterisation of the right as dependent upon the existence of the First Amendment Constitutional right to freedom of speech in the United States. However, with the imminent advent in this jurisdiction of a new quasi-constitutional statute enshrining, for the first time, fundamental civil and political rights, including freedom of expression, this reasoning is no longer—if it ever truly was—sustainable. It should also be noted that the Court of Appeal in C.I.N. Properties accepted that social change can necessitate adaptations in the common law, but it did not consider it necessary to do so in that case. The Court of Appeal in the present case likewise declined to take up the challenge of adapting the law of trespass to the contemporary complexities of quasi-public space. Judge L.J. declined because he considered the court to be bound by the doctrine of precedent to follow C.I.N. Properties, while May and Sedley L.JJ. felt unable to accept that the present case was a suitable one for the application of a doctrine of reasonable access to quasi-public space. It is precisely to the possibility of the development of the common law in this direction that I nonetheless wish to turn. In my view, the common law already contains the

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Porter v Commissioner of Police for the Metropolis—Judgment 177 foundations of a doctrine of reasonable access. The present case, moreover, is entirely suitable for the application of such a doctrine. The law of trespass The application of the law of trespass in the present case turns on three important and related questions: (a) Did the L.E.B. have an unfettered right to exclude Ms. Porter from their premises? (b) Was the L.E.B. showroom a quasi-public space in which a right of reasonable access arose? And if so, (c) was Ms. Porter’s behaviour reasonable, and did the L.E.B. have the right to terminate her licence to remain on their premises? I will address each of these questions in turn, and will comment, finally, upon the police action against her, the question of the lawfulness of which rests on an analysis of their breach of the peace powers. Did the L.E.B. have an unfettered right to exclude Ms. Porter? According to the traditional English legal conception of the rights of the private landowner to exclude persons entering upon private land, the answer to the question of whether the L.E.B. were entitled to rescind Ms. Porter’s licence to enter and remain upon their premises would be: “of course they were”. It would seem that on the basis of the authority of C.I.N. Properties Ltd. v. Rawlins [1995] 2 E.G.L.R. 130, this outcome would be inevitable, even where the land in question is dedicated to the public or used for a particular public purpose. Accordingly, the L.E.B. would have the unqualified right to remove, even arbitrarily, Ms. Porter from their premises. The traditional understanding of English law is that a person in exclusive possession of land has, as a general principle, an uncontrolled discretionary right to eject any person, for any reason, from that land. This right is often referred to as the common law right of arbitrary exclusion, a right that has long formed a central commitment of common law jurisprudence—not only in this jurisdiction. The “fundamental right” of the landowner “to object to trespass” (see Newbury D.C. v. Russell (1997) 95 L.G.R. 705 per Rattee J. at p. 713), and the right to determine who shall and shall not invade private space (see Colet v. The Queen (1981) 119 D.L.R. (3d) 521 per Ritchie J. at p. 526) form central planks of the traditional Anglo-American jurisprudence of space. In intimate, personal space, a right of exclusion makes profound sense. It is important that the special intimacy of the home, for example, is protected both from state and private interference. While the “private sphere” is a notion that can be notoriously abused, for example, to justify non-intervention in domestic violence cases, it is nonetheless important to preserve the sense in which the law of trespass can be seen as protecting an important and valuable zone of particular intimacy close to our embodied lives and the vulnerability that attends them: see Semayne’s Case (1604) 5 Co. Rep. 91. The doctrine of trespass has also long been a cornerstone of libertarian instincts, particularly against the unwarranted intrusion of state power: Southam v. Smout [1964] 1 Q.B. 308; Robson v. Hallet [1967] 2 Q.B. 939. Accordingly, the true, underlying concern of the law of trespass can be characterised as fundamentally protective. This protective core is aptly enshrined by the European Convention on Human Rights, which in article 8 proclaims a right to respect for “private and family life” and the “home”. It is clear that, in fact, in the words of Estey J. in Lyons v. The Queen (1985) 14 D.L.R. (4th) 482, at p. 501, “[t]he inviolable nature of the private dwelling is a basic part of our free society.”

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178 Anna Grear Trespass has a closer relationship with concerns of social freedom and the protection of human dignity than is often supposed. The crucial question, then, is whether the arbitrary power of exclusion that reflects the self-determination so vital to dignity in intimate spaces extends to the kind of spaces at issue in C.I.N. Properties Ltd. v. Rawlins [1995] 2 E.G.L.R. 130 and the present case. These cases do not concern intimate zones of privacy. This fact alerts us to the need for caution concerning the application of the arbitrary rule of exclusion. In fact, as I shall explain below, the common law has, for a long time, exercised a careful calibration of the application of the rule across a spectrum of spaces, allowing wider considerations fundamental to a fair and accessible society to modify the application of the law of trespass. Case law across the common law world accepts the operation of a rule of arbitrary exclusion as appropriate to a range of locations beyond the home that can be characterised as purely private. Such spaces have been held in Diamond v. Bland 113 Cal. Rptr. 468, 478 (1974) to include “modest retail establishments”—establishments small enough to be meaningfully conceptualised as a zone of private autonomy in which the right of self-determination at the heart of the trespass rule can be taken to preclude any right of uncontrolled access by a stranger. However, there are other spaces, such as the showroom in the present case, which cannot be understood meaningfully to be subject to the protective concerns archetypically located in the family home or the modest retail establishment threatened by the uncontrolled access of a stranger. We are presented with space of an entirely more complex nature. The common law has long recognised a category of space that can be understood as quasi-public and in which the unqualified rule of arbitrary exclusion no longer applies. In such spaces, the common law has exercised a more nuanced understanding of property relations, carefully limiting the exercise of private powers in the public interest; producing, in effect, a doctrine of reasonable access to quasi-public space. Mr. Blaxland referred, in the course of his submission, to Allnutt v. Inglis (1810) 12 East 527, 537, in which Lord Ellenborough reasoned that if the public have a right to resort to private premises for a particular reason, and if the landowner has the benefit of a monopoly with the public for that purpose, then “he must as an equivalent perform the duty attached to [that monopoly] on reasonable terms.” The wording adopted by Lord Ellenborough in Allnutt merely encapsulates a wider, long-standing common law principle governing access to space invested with a public purpose, the earliest manifestation of which is reflected in the law governing the traditional calling of the innkeeper under the doctrine of common callings. It has long been settled law in common law jurisdictions that the business of innkeepers, carriers and ferrymen and their like are callings of a quasi-public character. The innkeeper, for example, is bound by common law and custom to receive and provide accommodation to all comers who are travellers, subject only to some reasonable ground for refusal: Hawthorn v. Hammond (1844) 1 Car. & K. 404, 407. In fact, as Werner J. insisted in De Wolf v. Ford, 86 N.E. 527, 529 (1908), “the business of an innkeeper is of a quasi-public character, invested with many privileges, and burdened with correspondingly great responsibilities.” Indeed, Blackstone stated two and a half centuries ago, in Commentaries on the Laws of England, Book 3, chapter 9, that: “if an inn-keeper, or other victualer, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and

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Porter v Commissioner of Police for the Metropolis—Judgment 179 upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler.” This general principle of access to spaces affected with a public interest, governed by considerations of reasonableness, is supplemented by another argument discernible in the precedents and implicated in Allnutt v. Inglis (1810) 12 East 527. This is the argument that where the purpose of the property owner’s open invitation to the public is intrinsically devoted to the furtherance of his own economic interests then he is, in effect, prevented from making arbitrary or selective derogations from the inclusiveness of the invitation. As Justice Black declared in the 1946 United States Supreme Court case of Marsh v. Alabama, 326 U.S. 501, 506: “[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Mr. Blaxland also sought support from Cinnamond v. British Airports Authority [1980] 1 W.L.R. 582, a case in which Lord Denning held that a statutorily established airport authority would have the right to exclude persons only in circumstances that were such as would fairly and reasonably warrant such exclusion. While the quasipublic status of the airport was directly established by statute, and the L.E.B. showroom is not four-square with the airport in that regard, the L.E.B. showroom is nonetheless open in furtherance of a commercially profitable provision of statutorilydefined and governed services. It is hard to see any coherent or consistent reason for withholding the requirement of reasonable cause for exclusion from premises whose quasi-public status arises not directly from statute but from their open commercial invitation to the public in respect of a matter of general public importance. The showroom is open not only for the convenience of customers, but for the furtherance of L.E.B.’s own commercial interests in the performance of its statutorily-defined public service. The authorities just discussed suggest that while quasi-public space has gained a new and pressing complexity in the present age, the recognition that certain spaces are invested with a quasi-public quality is, in essence, nothing new at all. And there is nothing new, as a result, in the principle that such spaces are subject to a standard of rationality not applicable to purely private land or intimate space. Indeed, when all is said and done, the notion that private property can be “clothed with a public interest” when such property is used in a way that makes it of “public consequence” and that has an impact on “the community at large”, in the words of Chief Justice Waite in Munn v. Illinois, 94 U.S. 113, 126 (1887), is a well established and fundamental theme in 19th and 20th century Anglo-American jurisprudence, apparently overlooked at present in the law of England and Wales. In the present case, therefore, May L.J. was wrong to assert that Allnutt v. Inglis (1810) 12 East 527 had “no concern with matters relevant to the law of trespass”. The fact of the matter is that the common law has long endorsed the notion that quasi-public space is burdened with standards of rationality not ordinarily applicable to the defence of purely private space by private individuals. These standards applying to quasi-public spaces moderate, inevitably, the application of the doctrine of trespass.

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180 Anna Grear Is the L.E.B. showroom quasi-public space? If the L.E.B. showroom can be shown to be a quasi-public space, Ms. Porter should not have been ejected unless she behaved in such a way as to make the request for her to leave an objectively reasonable one in all the circumstances. The L.E.B. showroom is open to the public for the furtherance of the economic interests of the L.E.B. In addition, the L.E.B. opened the showroom in partfurtherance of its statutory duty as a public supplier of electricity within the meaning of the Electricity Act 1989. While, as May L.J. reasoned, the statutory duty to supply electricity does not embrace an obligation to provide showrooms, the fact is that the showroom was provided and is open to the public. The showroom exists to facilitate the L.E.B.’s statutory duty to supply electricity to consumers and to facilitate the furtherance of the L.E.B.’s commercial interest in so doing. Accordingly, the L.E.B. showroom is clothed with a public interest on two independent bases found in the law: on the basis of the fact that it is open to the public in the furtherance of L.E.B.’s economic interest, and additionally because it is open to the public in pursuit of the provision of an important resource as governed by a statutory duty. It is abundantly clear that the L.E.B. showroom, on either ground, cannot be construed as purely private space. Since the L.E.B. showroom must rightfully be conceived of as quasi-public space, it follows that Ms. Porter had a right to remain on the premises so long as her behaviour could not be regarded as objectively unreasonable. Was Ms. Porter’s behaviour reasonable, and did the L.E.B. have a right to terminate her licence to remain on their premises? The fact that the L.E.B. showroom is a quasi-public space raises an issue of public importance concerning the future organisation of relationships between the state, public service providers, corporations (increasingly involved because of the widespread privatisation of public space and the related tendency of the state and its agencies to contract out its functions) and individual citizens. In C.I.N. Properties Ltd. v. Rawlins [1995] 2 E.G.L.R. 130, a town centre shopping mall was at the centre of the dispute. The outcome in that case effectively endorsed the private landowner’s arbitrary power to exclude a group of citizens from their own town centre indefinitely. It is easy to see how the decision in C.I.N. Properties raises the spectre of the frustration of important civil and political rights, the most obvious being freedom of association and assembly, by effectively rendering their exercise subject to the arbitrary control of private landowners. Less obvious, perhaps, are the issues raised by the present case where a worried customer stages a sit-in against the action of a corporate provider of a public service in a showroom. Nonetheless, the same issues are at stake, albeit more mutely registered. Ms. Porter wished to protest against what she saw as the unjust insistence of the L.E.B. that she pay a second time for a service that they had apparently failed to provide, and insisted on sitting on a chair and not moving until the matter was dealt with. While she was not deliberately making a political point, or even an explicit or conscious point about her own dignity, rights-based considerations are nonetheless invoked by her case, notwithstanding the commercial resonance of the location and the dispute in question. Ms. Porter is not just a consumer, but a citizen. She was

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Porter v Commissioner of Police for the Metropolis—Judgment 181 addressing a landowner whose statutory duty concerned the provision of a service vital to most people’s lives. How then, is reasonableness to be construed in such cases? We can take our cue, I think, from other common law jurisdictions where a right of reasonable access is, as I mentioned earlier, well established. The underlying impetus in each of those jurisdictions reflects the proposition that “uncontrolled powers of exclusion are ultimately inconsistent with the basic principles of freedom and dignity”: Gray and Gray, “Civil Rights, Civil Wrongs” [1999] E.H.R.L.R. 46, 78. These principles of freedom and dignity are the very principles at the heart of the protective role of the law of trespass as it applies to intimate space, lending legitimacy in that context to an arbitrary right of exclusion, but indicating, just as potently, its inappropriateness in quasi-public space. It is hard to see how Ms. Porter’s dignity was respected by her arbitrary ejection, at the hands of the police, from the L.E.B. showroom. It is equally hard to see how she could be adjudged unreasonable for simply staging a non-obstructive refusal to leave when asked to do so by a corporation she felt had treated her unfairly. By refusing to move from the showroom until the matter was cleared up, Ms. Porter can be seen to invoke the dignity of expressive activity embraced by the right to freedom of expression. There is good reason to accept that Ms. Porter was acting as an entirely reasonable citizen-consumer when she staged her non-disruptive protest. There is nothing in the agreed statement of facts to suggest otherwise. In short, reasonable behaviour in relation to a right to access and remain in quasipublic spaces must be construed in a human rights-conscious way, one that allows citizens to express themselves freely on matters of concern to them. Provided Ms. Porter did nothing that could be construed as unreasonable behaviour, she had a right to remain, subject to the continuing requirement of reasonableness. May and Sedley L.JJ. were concerned to note that if the L.E.B. showroom could be regarded as quasi-public space, Ms. Porter’s reasonable access did not extend to a right to remain there indefinitely until electricity was provided. Of course, as stated, that must be correct. No such right can exist. But it is possible to say that Ms. Porter had a right to remain on the premises until closing time unless offering the kind of unreasonable behaviour that could objectively justify her removal. L.E.B. staff initially told Ms. Porter that she would have to move at closing time— and that if she did not, at that point, the police would be called. There is no evidence that her refusal to move, or her protestations, upset any customers or affected the commercial interests of the L.E.B. in any discernible way. The evidence suggests the opposite. Given her natural anxiety about the need for her electricity supply to be connected, as the mother of two small children, and her frustration at the blank refusal to connect her supply without a further financial payment, it is all the more notable that her behaviour was calm and assertive without turning to violence, provocation or abuse. The turning point in events came when the police decided to remove Ms. Porter from the showroom. The lawfulness of the police action to remove the appellant It is clear that Ms. Porter was not a trespasser at the time the police arrived. At the same time, the L.E.B. did nothing unreasonable by calling the police if they feared that matters would get out of hand, but they had no right to expect the police to act as their agents in removing Ms. Porter from their showroom since she had done nothing

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182 Anna Grear unreasonable to warrant removal. Indeed, the original response of the L.E.B. employees, that she would have to leave at closing time if matters remained as they were, was arguably entirely reasonable and reveals the fact that there was absolutely no pressing reason to remove her before that time. The L.E.B. had no right to remove Ms. Porter, nor, on the basis of trespass, could the police have had. Moreover, the police powers in respect of a breach of the peace— the legal basis on which they might possibly lawfully remove her—do not arise simply because she refused to leave: Percy v. D.P.P. [1995] 1 W.L.R. 1382. It is clear that the police, even if they are present as ordinary citizens as Mr. Blaxland sought to argue in part of his submission, have a duty to keep the peace. As it was stated by Lord Diplock in Albert v. Lavin [1982] A.C. 546, 565: “Every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking the peace or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although except in the case of the citizen who is a constable, it is a duty of imperfect obligation.” If there was room for a reasonable apprehension that a breach of the peace was imminent, the L.E.B. employees, and the police, would have the right to take reasonable steps to avoid it. Such steps could reasonably include asking Ms. Porter to leave, or using reasonable force to make her do so. Thus, the lawfulness of Ms. Porter’s removal from the showroom turns on this question: Was there room for reasonable apprehension of a breach of the peace? What constitutes a breach of the peace was recently summarised in Steel v. United Kingdom (1999) 28 E.H.R.R. 603, 637, a case providing a useful distillation of the English law on this matter: “[T]he concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence. . . . It is also clear that a person may be arrested for causing a breach of the peace or where it is reasonably apprehended that he or she is likely to cause a breach of the peace.” On the evidence available, it is difficult to see that Ms. Porter was committing or could be reasonably apprehended to be about to cause a breach of the peace. Indeed, the evidence shows that during the entire 40 minutes of conversation with the police when they were trying to persuade her to leave, Ms. Porter appeared entirely passive. She showed no undue physical agitation, let alone violence. It is difficult to see that any justification for the removal of Ms. Porter arose on the basis of breach of the peace laws. May L.J. placed great emphasis in his judgment on the case of Reg. v. Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] Q.B. 458. In that case the police refused to exercise their power to remove or arrest objectors to the proposed location of a nuclear plant who were obstructing the

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Porter v Commissioner of Police for the Metropolis—Judgment 183 C.E.G.B. from entering the relevant land. The Court of Appeal held that the police were entitled to remove the objectors who were breaking the law (they were committing a statutory offence), but could not be compelled to do so. The C.E.G.B. were entitled to use self-help to remove the protestors and it was up to the police to cooperate with them in the use of their respective powers. It was also noted that self-help made a breach of the peace likely such that the police had a right to be present. However, self-help relies on a right in the landowner to expel or remove persons on their land. In the present case, as I have stated, there was no basis for the L.E.B. to remove Ms. Porter until the end of the day. Thus, the possibility of self-help on the part of L.E.B. staff, which might then have given rise to a breach of the peace, simply was not an issue. Conclusion The Court of Appeal’s decision relied on the characterisation of Ms. Porter as a trespasser, upon the authority of C.I.N. Properties Ltd. v. Rawlins [1995] 2 E.G.L.R. 130. That case should no longer be regarded as sound authority. Rather, there is, in English law, a right of reasonable access to quasi-public space, moderating the traditional exclusory power of the private landowner. In the exercise of this right, Ms. Porter should have been allowed to stay in the showroom until the showroom closed, or until such time as her behaviour became unreasonable before closing time. As to Ms. Porter’s arrest for a breach of the peace, the evidence suggests that her behaviour did not even approach unreasonableness or indicate a likely or impending breach of the peace at any point until the moment when the police laid hands on her and she physically resisted the police officers’ attempt to remove her from the showroom. If room for doubt remains on this matter, it should have been left to the jury to decide as a question of fact, and if a jury were to conclude that the police had no lawful grounds upon which to remove Ms. Porter for an anticipated or actual breach of the peace, then it follows that their attempt to do so amounted to assault and battery. However, to my mind there is certainly sufficient room for doubt concerning the nature of Ms. Porter’s resistance to her removal by the police to suggest that the judge at first instance should have left to the jury the question of whether or not, as a matter of fact, her resistance and the mode of its execution amounted to a breach of the peace in all the circumstances, and whether, at that point, she could rightfully have been arrested. Accordingly, I would allow this appeal.

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11 Commentary on Baird Textile Holdings v Marks & Spencer Plc JOHN WIGHTMAN

Introduction Baird Textile Holdings v Marks & Spencer Plc 1 was an action by a clothing supplier against Marks & Spencer (M&S) concerning the termination of a supply contract. It may seem unpromising material for a feminist judgment: it is a commercial action between two firms, interests of women are not directly at stake, and the case did not break new ground, acquiring a low profile in traditional texts as a reinforcement of orthodoxy. Despite this, the case is an excellent candidate for a feminist judgment. It raises foundational questions about the nature of contractual obligations, in particular the way the law construes long-term, dense relationships which are not explicitly contractual. Drawing on affinities between relational contract theory and feminist theory, Linda Mulcahy and Cathy Andrews in their feminist judgment have crafted an opinion which, with the use of plausible interpretations of existing case law, shows how the court not only could, but should have decided differently.

The Facts of the Case Baird supplied clothing to M&S for 30 years, until, in October 1999, the relationship was terminated. In common with other M&S suppliers, Baird had adapted their business to meet M&S’s very detailed production requirements, including substantial investment in new factories. Despite the large investment which suppliers were required to make, no longterm express contract was drawn up—there was just a succession of supply contracts, each with a duration of around six months. Nevertheless, M&S’s long-term practice had been to build up a close relationship with a few trusted suppliers, working with them where any problems arose. When M&S announced that Baird would receive no further contracts after the completion of the one underway, Baird were faced with the loss of 30 to 40 per cent of their production, and had no opportunity to adjust to such a large shock to their business. The severing of the long-term relationship with Baird came at a significant juncture. The M&S model of close integration between supplier and retailer, celebrated as an instrument

1

Baird Textile Holdings v Marks & Spencer Plc [2001] EWCA Civ 274, [2002] 1 All ER (Comm) 737.

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Baird Textile Holdings v Marks & Spencer Plc—Commentary 185 of commercial success,2 was put under increasing pressure by competition from lower cost producers from overseas. A sharp fall in profitability led M&S to review their supply arrangements, resulting in a shift of much of the production from established suppliers to overseas ones. Baird sued, claiming that they were entitled to three years notice of the termination of the relationship, based on breach of contract and estoppel. M&S applied for summary judgment, claiming the actions had no prospect of success. Although the High Court would have allowed the estoppel issue to proceed to trial, the Court of Appeal held that neither argument had any prospect of success.

The Legal Issues The gist of estoppel is that someone who represents to another that something is the case may be prevented from denying it in subsequent litigation. Baird’s estoppel argument was that M&S’s conduct prevented them from denying that there was a long-term contractual understanding. The problem with this was that, in the context of contractual obligations, estoppel has been confined—at least in English law—to cases where it is used defensively, that is, to prevent someone enforcing a right. Here, Baird were not using the estoppel argument defensively, but to ground a new right to damages for failure to give three years notice. Other common law jurisdictions have already taken this step,3 and it was argued that there was a possibility that the House of Lords could decide to overrule the existing English authorities. The Court of Appeal, however, considered that this was not a sufficient reason for the case to proceed to a full trial.4 For reasons of space, Mulcahy and Andrews have opted to focus on the breach of contract point, which raises the important but neglected issue of when the conduct of the parties will amount to an implied contract. Their judgment is written on the basis that there was an appeal to the House of Lords on this point (leave was in fact refused by the House). Although some modern cases continue to refer to it, implied contract struggles for recognition in standard texts on the law of contract. The development of scholarship on restitution and unjust enrichment since the 1960s has dealt with many of the situations in which implied contracts might have been argued, and hence seems to have drained implied contract of significance.5 Mulcahy and Andrews’ opinion, however, sees implied contract as having the capacity to register important dimensions of consensual obligation, which stem from less formal, but nonetheless serious, expectations generated by the parties’ relationship. Baird contended that the implied contract provided a contractual umbrella which regulated the individual supply contracts; the feminist judgment examines this contention in more depth than the Court of Appeal, providing a valuable analysis of an issue which,

2 See, eg, JB Lewis, The Connected Corporation: How Leading Companies Manage Customer-Supplier Alliances (New York, The Free Press, 1995). 3 See the Australian case Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 (HCA). 4 Above n 1 at [39] (Morritt VC). 5 For a bracing critique of the restitution theorists’ view of implied contract, see S Hedley, Restitution: Its Division and Ordering (London, Sweet & Maxwell, 2001), especially ch 3.

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186 John Wightman although it has received limited attention in the courts, has attracted interest from academic commentators.6 In the Court of Appeal’s view, the test for the existence of an implied contract was necessity, which was construed to mean necessary to give business reality to the relationship. The decision then turned on the question of whether an implied contract was necessary on these facts, which was itself closely related to two other issues. These were, first, whether the terms of any implied contract could be specified with sufficient certainty, and, secondly, whether there was an intention to create legal relations. The questions of whether an implied contract was necessary and whether there was an intention to create legal relations were seen by Mance LJ as different ways of expressing essentially the same issue.7 A key factor against Baird seemed to be a point in their own pleadings— that M&S had chosen this form of relationship in order to retain flexibility. While Baird saw this as explaining why there was no express contract governing their relationship, the Court of Appeal regarded this as tending to negative any contract at all: given the parties had opted to enter individual supply contracts, the absence of an express contract covering their overall relationship was evidence of their intent that there should be no contract. The Court of Appeal’s view that a desire for flexibility pointed away from an implied contract was also detectable in their approach to the issue of certainty. The claim that Baird were entitled to reasonable notice seemed to entail that they were entitled to receive orders during the notice period; the difficulty was that the quantity, price, and design were varied by M&S at short notice, with the result that it was not clear what orders Baird would or should have had over a three year period. Mulcahy and Andrews argue that the parties’ wish for flexibility should mean that the focus in an umbrella contract should lie in the principles of how the relationship is to be run, rather than in the detail of what is to be exchanged in individual supply contracts. Even though it was understood that orders would vary from year to year, it was also clear that, over time, the suppliers would receive substantial orders. A full trial should thus assess whether the history of dealings between the parties would enable a court to clothe this clear expectation in sufficient certainty.

Feminism and Relational Contract Theory Overall, the plausibility of the Court of Appeal’s view on how to construe the desire for flexibility arguably depends on assumptions about the behaviour of contracting parties in general, and how this behaviour should be construed by the law. These assumptions have been contested by writers about contract law and contracting practice. A feminist perspective, informed by the relational contract theory developed by Ian Macneil,8 brings these assumptions, and their critique, into clearer focus. 6 See S Mouzas and M Furmston,‘From Contract to Umbrella Agreement’ (2008) 67 Cambridge Law Journal 37, although this adopts a somewhat narrower view of the potential scope of an umbrella contract than Mulcahy and Andrews. See also S Mouzas and D Ford, ‘Managing Relationships in Showery Weather: The Role of Umbrella Agreements’ (2006) 59 Journal of Business Research 1248. 7 Above n 1 at [61]. 8 Macneil’s work is very extensive. For one of his later statements, see ‘Relational Contract Theory: Challenges and Queries’ (1999) 94 Northwestern University Law Review 877. The key articles are extracted in D Campbell (ed), The Relational Theory of Contract—Selected Works of Ian Macneil (London, Sweet & Maxwell, 2001), which contains valuable critical evaluations of his work. Also useful is J Feinman, ‘Relational Contract Theory in Context’ (1999) 94 Northwestern University Law Review 737.

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Baird Textile Holdings v Marks & Spencer Plc—Commentary 187 Feminist theorists have identified clear affinities between Macneil’s relational theory and some of the central claims of feminism.9 These affinities stem from the feminist critique of contract law as gendered. This critique posits two clusters of assumptions and values. On the one hand are those regarded as stereotypically masculine—disconnection between individuals, opposition of interests implied by the assumption of arm’s length dealing, the absence of obligation not voluntarily assumed, and strategic behaviour where possible. On the other are those seen as feminine—an ethic of care which emphasises connection and responsibility for others, obligation which emerges from relationships, and the primacy of cooperation.10 The claim that contract law is gendered asserts that the law tends to confer meaning on the parties’ behaviour by understanding it in terms of the masculine cluster, and that the law as a result embodies values characterised as masculine. Importantly, the gendered critique does not claim that the law expresses masculine assumptions and values exclusively, but rather that it privileges them, rendering other voices marginal. Although the critique of law as gendered has been applied to different areas of law, Macneil’s work on relational contract, despite starting from a very different theoretical position, offered a powerful critique of orthodox contract law in terms that were in some respects similar to the gendered critique. A key element of the relational critique is the recognition that cooperation is as important in the process of exchange as the seemingly untrammelled pursuit of self-interest. This is not derived from some moral view about how people ought to treat each other, but is based on the actual practice of exchange. Exchange relations—especially where these involve long-term relationships—depend upon the parties’ ability to work together, adjusting and making allowances, for example, where a project hits unexpected snags. The need for cooperation is a factor which can foster a deepening of a relationship between the parties, and, although there is no conflict with longer-term self-interest, this relational view of the process of contracting does conflict with some orthodox legal conceptions of how contracts come into existence. In particular, the view that contracts are necessarily the product of a bargaining process which results, at an identifiable moment, in a fully binding contract is by no means universal: incurring commitment to the project may be a more gradual process, and there may be no serious attempt to achieve ‘presentiation’—Macneil’s term for the act of providing for all eventualities from the outset. Relational theory thus emphasises the social origins of contract, stemming from the parties’ ongoing relations within their market context, contrasting with the classical law which treats the conscious agreement of the parties, objectively determined at the moment of formation, as the foundation of contractual obligation. Relational theory derives from the practice of exchange, and shares its rejection of the classical image of the process of contracting with well-known empirical studies of contractual behaviour.11 However, it goes further and regards (for example) cooperation not just as 9 See especially L Mulcahy, ‘The Limitations of Love and Altruism: Feminist Perspectives on Contract Law’ in L Mulcahy and S Wheeler (eds), Feminist Perspectives on Contract Law (London, Cavendish, 2005) for an overview and analysis; also C Dalton, ‘An Essay in the Deconstruction of Contract Doctrine’ (1985) 94 Yale Law Journal 997; E Mertz, ‘An Afterword: Tapping the Promise of Relational Contract Theory—“Real” Legal Language and a New Legal Realism’ (2000) 94 Northwestern University Law Review 909; DL Threedy, ‘Feminists and Contract Doctrine’ (1999) 32 Indiana Law Review 1247. Most discussion of feminism and relational theory does not focus on the context of commercial contracts between firms. 10 Although there has been debate about whether these values are feminine in some essentialist sense, or are socially constructed as feminine, this does not necessarily affect the critique of law as gendered: see Mulcahy, ibid. 11 Macaulay’s work is best known: S Macaulay, ‘Non-contractual Relations in Business’ (1963) 28 American Sociological Review 55; S Macaulay, ‘Elegant Models, Empirical Pictures, and the Complexities of Contract’ (1977) 11 Law and Society Review 507; S Macaulay, ‘An Empirical View of Contract’ [1985] Wisconsin Law Review 561. In

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188 John Wightman a feature of contracting practice, but also, by virtue of the expectations generated by practice, as a norm of contractual behaviour, which shapes the parties’ perceptions of how they ought to behave. Thus, when Macneil identifies a contractual norm such as solidarity— defined as requiring fidelity to the project of the contract—he claims this does not amount to imposing inappropriate values on contractors, but rather reflecting back to them the norms which are operational in their own contracting context.

Conclusion If we return to the Court of Appeal’s view that M&S’s desire for flexibility told against rather than in favour of an implied contract, the insight offered by both feminist and relational theory is that this conclusion may be shaped by assumptions about the typical behaviour of contracting parties, and how those behaviours should be interpreted by the law. This does not mean that those assumptions should simply be replaced by feminist or relational ones; rather, it suggests that, when interpreting the law and applying it to the facts, judges need to be open to the possibility that, although the parties have not chosen to construct an express contract governing their long-term relationship, treating their dealings as giving rise to an implied contract may be the best way of reflecting the understandings which emerged between them. This approach is, above all, a contextual one, and, drawing on the detailed pleadings reported at first instance, Mulcahy and Andrews start by providing a fuller contextual background to the case. This reveals a commercial relationship which is exceptionally intertwined: it seems much nearer the relational end of Macneil’s discrete/relational continuum than the vast majority of commercial contracts in the law reports. Tantalisingly, there is a reference in the Court of Appeal to the fact that counsel referred the court to ‘academic discussion’ of relational contracts, although no indication is given of what those references were.12 Morritt VC simply concluded that they did not suggest that the normal rules of contract formation did not apply.13 Mulcahy and Andrews’ judgment shows that, even applying the normal rules, a sensitivity to the specific context, informed by feminist and relational insights, produces a strong argument for saying—at the very least—that Baird’s case should have received a full trial.

the UK, the leading study is H Beale and T Dugdale, ‘Contracts Between Businessmen: Planning and the Use of Contractual Remedies’ (1975) 2 British Journal of Law and Society 45; see also D Campbell and P Vincent Jones (eds), Contract and Economic Organisation (Aldershot, Dartmouth, 1996); S Deakin and J Mitchie (eds), Contracts, Co-operation, and Competition (Oxford, Oxford University Press, 1997). 12 Above n 1 at [16]. 13 Although the confirmation of legal orthodoxy in the Baird case meant that it did not create legal waves, it seems that it did register in the work of those writing about management theory and inter-organisational relationships. See, eg, K Blois, ‘Is It Commercially Irresponsible to Trust?’ (2003) 45 Journal of Business Ethics 183; S Mouzas, S Henneberg and P Naude, ‘Trust and Reliance in Business Relationships’ (2007) 41 European Journal of Marketing 1016.

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House of Lords

Baird Textile Holdings v Marks & Spencer plc [2003] BARONESS MULANDREW The context 1 My Lords, Marks & Spencer plc (“M&S”) and Baird Textile Holdings Ltd (“Baird”) had a successful business relationship which lasted for 30 years. Baird manufactured and supplied clothing to M&S. Their business arrangements were close but not exclusive. Over the years M&S used other suppliers for their clothing lines but by the late 1990s had narrowed this pool to just four major companies. Baird sold half their total production to M&S but also produced clothes for their own brands which included Dannimac and Windsmoor. The relationship between the parties reflected an extremely successful business model developed by M&S in the 1920s when the company first started selling clothes. By the time that Baird entered into a commercial relationship with M&S in the 1960s it was also a mature model which was well known in the sector. 2 The M&S business model used with clothing suppliers from the 1920s to 1999 was one which has been characterised as being more akin to a partnership or subsidiary arrangement than a mere supply relationship. M&S sought to develop a symbiotic relationship with their suppliers which imposed exacting standards but benefited both parties. In Baird’s case detailed planning and analysis of the market by both parties resulted in a series of approximately 60 seasonal, six-monthly contracts for particular lines of clothing. But the parties’ obligations to each other went way beyond these transactions. M&S also sought to help smaller UK manufacturers expand their business so that they would be more efficient suppliers. In pursuit of this, they provided their suppliers with direct financial investment and expertise in the form of seconded staff. They also worked closely with suppliers in designing garments and developing the technology to make them. 3 In return, M&S had high expectations of their suppliers. Although the relationship was collaborative, M&S took the lead in establishing protocols around such issues as design, production, technology, hygiene, and delivery. Today this is not an uncommon arrangement, but what has marked M&S’s business model out is the level of direct management support they were prepared to give suppliers in meeting these standards. Manufacturers who performed to the expected leve benefited by receiving regular and substantial orders. Once a relationship of trust was established, the commercial relationship tended to endure for many decades. In short, M&S enjoyed the benefits of having subsidiaries without the full costs, and suppliers had the security of expecting that a high number of orders were secured for the future and that they could draw on the ongoing business support of a much larger and successful enterprise. It was often said that M&S was Britain’s biggest manufacturer without owning any factories and that their suppliers were retailers with no shops.

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190 Linda Mulcahy and Cathy Andrews

The issues 4 Baird have instigated proceedings against M&S for breach of implied contract and estoppel by convention. Their action was prompted by the fact that in October 1999 M&S notified Baird that as from the end of that production run, that is in less than six months, it would place no further business with them. Baird claim that this sudden and unexpected cessation of their business has caused them losses in the region of £50 million. 5 Baird claim that in addition to the seasonal contracts, there was an implied or “umbrella” contract which governed the parties’ relationship and required M&S to place orders unless and until proper notice of three years had expired. In the regular business planning meetings which took place between Baird and M&S, projections were always organised around three year forecasts and business plans. As a result, three years was the length of time Baird considered it would take them to disentangle their business affairs from those of M&S. 6 The core of the case for the implication of an umbrella contract was set out in paragraph 9 of Baird’s particulars of claim. Baird argue that: “9. In the course of establishing, maintaining and conducting its relationship with BTH, Marks & Spencer induced BTH to believe and implicitly promised that, in exchange for BTH agreeing (a) to supply Marks & Spencer with garments year by year on a seasonal basis; (b) to allow Marks & Spencer to be closely involved in the design and manufacture of the garments to be supplied; (c) to establish and maintain a workforce and manufacturing capacity sufficient to meet and be highly responsive to Marks & Spencer’s continuing requirements; (d) to deal with Marks & Spencer in good faith and reasonably having regard to the objective of the relationship, the relationship would continue long term and would be terminable only upon the giving of reasonable notice; and that during the subsistence of the relationship Marks & Spencer would acquire garments from BTH in quantities and at prices which in all the circumstances were reasonable and would deal with BTH in good faith and reasonably having regard to the objective of the relationship.” 7 M&S argue that an obligation framed in this way is too vague to give rise to a contract. 8 There has not yet been a full trial of Baird’s claim for breach of contract. There has been no discovery or exchange of documents. This is because M&S have applied for summary judgment in an attempt to bring these proceedings to an end. They have done this by way of what is called a reverse order 14 which allows for the dismissal of claims which have no real prospect of success were they to go to full trial. The issue before us in this case is whether to allow this action to go forward to full trial. Our decision is governed by rule 24.2 of the Civil Procedure Rules which says: “The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if it considers that that claimant has no real prospect of succeeding on the claim . . . and there is no other compelling reason why the case . . . should be disposed of at trial.”

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Baird Textile Holdings v Marks & Spencer Plc—Judgment 191 9 On 29 June 2000, Morison J dismissed Baird’s claim in so far as it was based on contract but directed that it proceed to trial in so far as it was based on estoppel. Each party appealed, with the permission of Morison J, from that part of the order which was against it, to the Court of Appeal where the contention that either the implied contract argument or the estoppel point had a prospect of success at trial was rejected. Consequently, the only option open to Baird was to apply for leave to appeal to the House of Lords. This was refused by the Court of Appeal but was granted by the Appeal Committee of this House in November 2001. Baird have limited their appeal to the issue of whether a contract can be implied. Prospects of succeeding at full trial 10 There is no question that existed a series of six-monthly seasonal contracts between Baird and M&S over a 30-year period. Thus, there may well have been upwards of 60 contracts. The issue at stake is whether what has become known as an “umbrella contract” existed between the parties to frame general expectations between them over time. An umbrella contract is best understood as a type of constitution which determines the principles according to which the parties in a longterm commercial relationship deal with each other. 11 A key issue for determination in this case is what the minimal requirements for the creation of umbrella contracts are. It seems to me that if there is sufficient evidence to suggest that an umbrella contract has been formed in this case then there is a reasonable prospect of success at trial. The significance of the case is that if Baird are allowed a trial and win they will be entitled to damages for breach of the long-term umbrella contract rather than a short-term seasonal one. Clearly, damages for the former would be much more substantial. It is to the three formation doctrines discussed by the Court of Appeal that I now turn in order to consider whether there is sufficient evidence to suggest an implied umbrella contract existed. Implication of contracts 12 It is accepted by the parties that if an umbrella contract exists it is by implication. In my opinion, Mance LJ in the Court of Appeal correctly summarised the test for an implied contract when he stated that it must be necessary to imply the contract in order to make sense of the commercial relationship and give effect to the reasonable expectations of the parties. It was argued by Baird in the Court of Appeal that necessity is not the appropriate test for implication of a contract in cases such as the one before us which involve the interpretation of the parties’ conduct. The Court of Appeal rejected this argument and after reviewing the leading cases cited in the judgments in that court, I agree with their interpretation. It is of value to reproduce May LJ’s compelling statement in Ilyssia Compania Naviera SA v Bamaodah (The Elli 2) [1985] 1 Lloyd’s Rep 107, 115 that: “no such contract should be implied on the facts of any given case unless it is necessary to do so: necessary, that it to say, to give business reality to a transaction and to create enforceable obligations between the parties who are dealing with one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.”

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192 Linda Mulcahy and Cathy Andrews 13 Nonetheless, I consider it possible to imply an umbrella contract in this case by using this test. In addition to looking at whether it is necessary to imply a contract in order to give business reality to a long-term commercial relationship, I have found it useful to refer to Bingham LJ’s judgment in The Aramis [1989] 1 Lloyd’s Rep 213, in which he stated that the court must determine whether the circumstances are such that one would expect enforceable obligations to exist. An analysis of his judgment suggests that it is fatal to the case for an implied contract if the parties would have acted in the same way without an implied contract. 14 Is it necessary in the instant case to imply an umbrella contract in order to give business reality to the transactions of the parties? Is the understanding between the two parties such that one would expect enforceable obligations to exist? It is crucial to look at whether there is anything in the commercial relationship between the parties which suggests that they had obligations to each other which went beyond the seasonal transactions. In my view, M&S were much more intricately involved in Baird’s business than might be expected of a relationship consisting of a serious of seasonal contracts between two arms-length parties. In particular they took part in decisions about investment, acquisition, design and manufacturing and required Baird to supply a level of confidential information to them which would have been inconceivable without an overarching understanding of duties owed to each other. In support of an umbrella contract there is also a suggestion that there was substantial planning beyond individual seasonal contracts. Paragraph 9.2 and 9.2A of the statement of claim state: “9.2 Frequent top level meetings were held where ongoing strategy relating to the next three years was discussed, including formal six monthly meetings between the Chairmen and Chief Executive of William Baird and Marks & Spencer where strategy for the next twelve months was considered. Daily communications took place between senior and middle management of William Baird and Baird on the one hand and Marks & Spencer on the other involving sales, design, technology, quality and logistics. “A. Marks & Spencer nominated managers at executive level and divisional director level to monitor the relationship with Baird and report on strategic progress. Prior to top level meetings between the Chairman and Chief Executive . . . nominated managers would prepare a detailed note on current performance and projected growth. For its part, Baird would submit turnover projections, typically for the ensuing three years, together with manufacturing plans, reports on management changes, operational strengths and weaknesses, all of which would be incorporated in the said detailed note.” 15 It is suggested in the statement of claim that M&S exerted much more control over Baird’s business than would be expected in a seasonal transaction or even a series of transactions. So, for instance, they encouraged Baird to desist from any activity which they considered to be contrary to their interests including an expectation that Baird should not get too close to other retailers. Indeed, Baird argued that M&S’s displeasure at their company getting too close to British Home Stores was a key factor in their decision to cease to supply own-brand clothing to companies other than M&S.

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Baird Textile Holdings v Marks & Spencer Plc—Judgment 193 16 The mutual obligations of the parties did not cease on delivery of garments and payment of account as you would expect in a “spot” contract. Despite the fact that the price and number of garments was agreed at the outset of production, Baird allowed for variation of the seasonal contract if a line of clothing proved unpopular. Baird contend that if a style of garment did not sell well in a particular season, manufacturing would be reduced with compensation from M&S for fabric only. Alternatively, if the garments were already made, Baird was often required to keep the stock in storage at its own expense until M&S wanted it back. If the retail price of a range had to be reduced, Baird was often required by M&S to reduce its own price for such goods. These undertakings only make commercial sense if the losses to Baird are seen as being offset against the prospect of increased margins or profitability from future orders. These are commercial risks which Baird would have been unlikely to have taken on had a broader set of obligations in the form of an umbrella contract not been in existence. 17 M&S also played a key role in the investment strategy adopted by Baird. For many years M&S required that Baird manufacture all their garments in the UK but in the 1990s, M&S encouraged Baird to manufacture overseas. Whether domestic or foreign, M&S insisted on being satisfied as to which factories were to be acquired for this purpose. Baird contend that in 1996 M&S suggested they invest in a new factory, at a cost of £2.6 million, and bespoke information technology systems. Baird claim that M&S induced them to enter into a lease of a factory at a rent of £28,000 per annum. Lack of orders from M&S in 1998 led to closure of the factory and redundancy costs of £148,000. 18 My Lords, it seems very implausible to suppose that Baird would have invested in such additional production capacity if they had thought that M&S had the right to summarily withdraw from all commercial obligations. It is difficult to give any other commercial meaning to this behaviour than to see Baird’s decisions in the context of a broader umbrella contract. If asked before they set up this new factory, “do you think it possible that M&S will not place sufficient orders to make your expansion financially viable?” it seems highly likely that Baird would have replied, “of course not!”. This response would no doubt be based on their understanding of the joint obligations that bound them together in the long term and their observation of how other suppliers operating with the same business model had been treated in the past. M&S argue that their suppliers were expected at their instigation to make substantial investments without any expectation of gain or legal recourse if orders were not forthcoming. I consider it unlikely that Baird, who like M&S were motivated by profit, would countenance such levels of investment unless they were confident of a healthy order book. This understanding of the relationship is confirmed by a former chair and Chief Executive of M&S, Sir Richard Greenbury, who deposed in his witness statement provided to Baird that: “The special partner relationship which M & S developed with all its suppliers of goods and services was, from its inception some 70 years ago, a cornerstone principle of the company. Furthermore, it was at the very heart of the way we did business with our suppliers and a fundamental part of that philosophy was that M & S was going to carry on doing business with the manufacturer season after season, year after year. Continuity of production into the foreseeable

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194 Linda Mulcahy and Cathy Andrews future was the basis of all discussions and negotiations. Indeed it was clearly understood that once a major supplier to M & S, always a supplier—unless the manufacturer’s performance was considered to be poor in which case high level meetings would be arranged to discuss the situation.” 19 It is, for these reasons, necessary to imply an umbrella contract in order to make sense of the commercial relationship. Intention to create legal relations 20 The doctrine of intention to create legal relations has long troubled students of contract law but the reality is that few cases which hinge on this point reach the courts because intention is presumed in commercial dealings and it is a heavy presumption to rebut. The intention point was not discussed in detail by the courts below and for good reason. Mance LJ correctly drew attention to Chitty on Contracts (28th edn) vol 1, para 2-146 on this point and to the expectation that where it is necessary to imply a contract to give meaning to a commercial relationship then intention will automatically be found. 21 M&S claim that they did not intend to enter into an umbrella contract. Indeed Baird’s statement of claim confirmed that M&S abstained from entering into an express contract to regulate the parties’ ongoing relationship. This does not mean that there was not a contract. Where there is a dispute, this is an issue for the court to determine. If the situation were otherwise it would allow any unscrupulous commercial party to circumvent the intention doctrine by denying that they wanted to enter a contract. Baird contend that the intention can be implied from conduct and it is for a trial judge to determine whether the conduct of M&S allows intention to be implied. 22 Therefore I am in agreement with the court below that M&S’s submission on this point was not in itself inconsistent with an intention to have a contractual umbrella to regulate the relationship. Certainty 23 I nevertheless disagree with the Court of Appeal that the necessary certainty to cement an implied contract can not be found. Counsel for M&S have argued that even if a contract can be implied it is insufficiently certain to be enforceable. I consider this to be the crux of the case before this House. Cases involving issues of uncertainty rarely come before the courts and it has been drawn to our attention in this case that the law is unsettled. Despite this, Morison J in the High Court was correct to say that the courts do not incline to adopt a “nit picking” attitude to the matter and will endeavour, where possible, to construe obligations in a way which gives effect to the parties’ bargain and intention. These are tests which can easily be equated with the idea of reasonable expectations. 24 I start, as the Court of Appeal also did, with the leading case of Hillas & Co Ltd v Arcos Ltd (1932) 43 Ll L Rep 359. In that case this House found the necessary certainty by referring to a previous contract between the parties, and to accepted practice in the industry. In coming to their decision their Lordships used the well-

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Baird Textile Holdings v Marks & Spencer Plc—Judgment 195 established test of what was reasonable. Lord Thankerton summed up the appropriate test at p 366 when he opined that when interpreting the agreement, the court should consider : “do they provide a standard by which the court is enabled to ascertain the subject-matter of the contract, or do they involve an adjustment between the conflicting interests of the parties, which the parties have left unsettled and on which the Court is not entitled to adjudicate?” 25 The same test was later used in Australian Blue Metal Ltd v Hughes [1963] AC 74. In that case the Privy Council could not find sufficiently certain criteria to determine what would be a reasonable quantity of metal to mine, in part because the agreement was non-exclusive and did not contain any obligation to mine. With respect to the learned Vice-Chancellor in the court below, it was clear in that case that the parties did not have the type of close, collaborative, long-term commercial relationship regulating a series of regular supply contracts as is being considered in the instant case. There was just a bare licence granting permission to one party to remove metals from land leased by the other. Moreover, there was no investment or involvement by the licensor in the licensee’s business, nor was there any significant investment by the licensee in their own business in order to meet the licensor’s requirements. In Australian Blue Metal and the case before us the relationship was not exclusive. However, Baird was a one of a small number of long-term seasonal garment suppliers to M&S rather than one of potentially many ad hoc licensees. 26 It is a longstanding principle in English law that it is not the job of the court to write a contract for the parties, but rather to give effect to the parties’ reasonable expectations as objectively determined. In G Scammell & Nephew Ltd v HC & JG Ouston [1941] AC 251, Viscount Maugham made the point at p 255 that: “In commercial documents connected with dealings in a trade with which the parties are perfectly familiar, the court is very willing, if satisfied that the parties thought that they made a binding contract, to imply terms, and, in particular, terms as to the method of carrying out the contract, which it would be impossible to supply in other kinds of contract: see Hillas & Co v Arcos Ltd, 147 LT 503, 511, 512, 514.” 27 Professor Atiyah’s Law of Contract (1995) uses Hillas & Co Ltd v Arcos Ltd (1932) 43 Ll L Rep 359 and G Scammell & Nephew Ltd v HC and JG Ouston [1941] AC 251 to demonstrate the judicial trend to determine such enforceable obligations broadly, especially where the contract is wholly performed or gaps relate to distant future obligations. He argues that the willingness to fill gaps has extended into what might be thought relatively important matters, such as the price, date of delivery of goods, date of payment and so forth. This is especially true in commercial contracts negotiated between experienced parties because in such cases the courts usually have a good idea, based on past dealings, commercial custom, and usage, about how the gaps should be filled in. 28 In order to find and give effect to these reasonable expectations there is an acceptance in English law that certain contracts can only be understood in their broader commercial context. Lord Hoffmann’s restatement of the principles

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196 Linda Mulcahy and Cathy Andrews of contractual interpretation in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 encapsulates the approach that in order to understand the parties’ utterances we must examine them in the context of the commercial relationship; what Lord Hoffman, at p 912, called the “matrix of fact”. Business common sense must prevail over “legal” interpretation that flouts it. 29 A contextual approach has been used in cases which turn on the issue of certainty as well as those involving the incorporation of express and implied terms. In some of these cases such as British Crane Hire Corp Ltd v Ipswich Plant Hire Ltd [1975] QB 303, the parties have operated in the same industry or trade and the court has been able to look to what is established custom and practice. In others, such as Hillas & Co Ltd v Arcos Ltd (1932) 43 Ll L Rep 359, a previous course of dealings between the parties has been used to interpret the nature of the obligations. In both instances, context has provided the justification for the court to allow past understandings to be incorporated in subsequent deals. The courts do not require a longstanding or ongoing relationship in order to adopt this approach. In Hillas v Arcos there were just two contracts to provide context. 30 In the present case, the parties conducted their 30-year relationship on the basis of a well known commercial model which framed expectations. M&S argued in the Court of Appeal that there were no objective criteria according to which to assess quantity and price in the umbrella contract which Baird claimed existed. The Court of Appeal agreed with them. In the appeal before this House, counsel for Baird argued that such criteria do exist if one looks to the commercial context of each of the 60 seasonal contracts performed to completion. While the parties did not consider it commercially viable to fix prices or quantities in advance, Baird argue that they did reach the relevant legal standard by agreeing a mechanism to determine price and quantity over time. Again, it is useful to reproduce sections from the statement of claim in support of this argument, which suggests that these transactions can only be understood by reference to broader understandings of the parties’ respective obligations: “9.6 Marks & Spencer placed with Baird individual orders for individual garments in respect of individual seasons. Such orders were made on the basis of terms and conditions entitled “General Merchandise Terms of Business”, which were amended from time to time. These terms and conditions contained a large number of provisions not usually found in an arms-length business contract, including: (a) Marks & Spencer having the right to vary and alter the cost prices, quantities and completion dates of the original orders. (b) Marks & Spencer having the right to cancel an order, with only 70% of the cost of the raw materials being reimbursed (rising to 100% in the case of lingerie). (c) Marks & Spencer having the right unilaterally to deem merchandise as ‘faulty’ and return the same to Baird. (d) Marks & Spencer having the right to impose a discount on Baird’s prices, currently at 3.75%.” “9.21 If a style of garment did not sell well in one particular season, manufacturing programmes would be reduced with compensation for fabric only. Alternatively, if the garments were already made Baird was often required to keep the manufactured stock in storage, at its expense, pending renewed supply to Marks & Spencer in subsequent years.”

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Baird Textile Holdings v Marks & Spencer Plc—Judgment 197 31 Baird argue that price variation clauses were also in place which reflected the fact that the parties needed to respond rapidly to poor sales in a fast-changing, trend-driven market. So, for example, in section 9.20 of their statement of claim Baird contend: “If a style of garment did not sell well so that its retail price had to be reduced, Baird was often required by Marks & Spencer to reduce its price for such goods against the prospect of compensation from trading in subsequent years.” 32 It is clear from the submissions to this House that the parties undertook regular and mutual reviews of market conditions, likely sales, analysis of the customer base and fashion trends. At the heart of these arrangements was an understanding that in order for their commercial relationship to be viable and profitable, the parties needed to be flexible and to co-operate. Within this framework they would work out the more precise details of their twice-yearly seasonal contracts. To have done otherwise would have made the contract unviable to the appellants and may well have led to commercial suicide. 33 If the courts are to recognise umbrella contracts there needs to be some recognition that these types of commercial agreements are different from “spot” contracts. The function of the umbrella contract is to provide a constitution for a long-term contractual relationship. Its purpose is to make clear the principles according to which a succession of transactions will be governed. It is clear that, viewed through the lens of existing doctrine, an umbrella contract sitting over a series of supply contracts, is inevitably going to pose issues about the specifics. This is because the umbrella contract is not intended to spell out the level of detail which has traditionally been required in formation doctrines. This is left to the supply contracts made under the shadow of the umbrella. Indeed, if we begin to expect too much detail to be spelt out there is a danger that the umbrella contract is rendered commercially defunct and even counter-productive. When looking for certainty in an umbrella contract, the emphasis should be on ensuring that it makes certain how things are to be done and the principles according to which the relationship is to be run rather than what is to be exchanged at a particular time in a long-term relationship. In the case before us, quantity and price varied from season to season, and sometimes within a season after a particular price or quantity had been agreed. Overall, the reward for Baird’s flexibility was that they would achieve a certain level of profit over time which made the venture worthwhile in the medium and long term. This, in my view, is the reason why, at certain times, they were prepared to reduce the price of stock and take garments back. 34 Turning to whether there would be sufficient certainty to determine remedies for breach of the umbrella contract, I refer your Lordships specifically to regular meetings between the parties to discuss strategy at which Baird would provide their business plan for the next three years. The level of control Baird allowed M&S to exert over its business, the nature of Baird’s investment in production facilities and employees, and Baird’s decision to refrain from own-brand manufacturing for other retailers or widening its customer base made clear that their contractual relationship could not be conceived of as short term.

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198 Linda Mulcahy and Cathy Andrews 35 I believe these facts are sufficiently compelling to be given the opportunity of being investigated in detail in a full trial and that there is a real prospect of success at trial on such a contract claim. The test which Lord Tomlin offered in Hillas & Co Ltd v Arcos Ltd (1932) 43 Ll L Rep 359, 364 was that the terms should either be precise or capable of being rendered precise by the parties. If the terms are incapable of being rendered precise in the context of an umbrella contract, it is difficult to understand how the parties could have carried out a successful commercial relationship, involving ongoing change, for 30 years. Other compelling reasons 36 For the sake of completeness, I now turn to the second part of rule 24.2 of the Civil Procedure Rules governing this case and to look at whether there are any other compelling reasons why this case should go to trial. The arguments made by Baird raise some important issues about the function of the modern law of contract. It is important, therefore, that this House makes the most of this rare opportunity to address these points if the doctrines we apply and develop are to have credibility in the commercial sector. 37 In my opinion, it is impossible to look at the relationship between Baird and M&S without concluding that theirs was a close, long-term commercial relationship in which they relied heavily on each other for the success of a joint business endeavour. If, as has been argued before us, English law is unable to recognise anything more than a series of 60 transactions between these parties, it may be time to consider whether English contract law has fallen out of step with commercial practice. 38 The role of contract law has changed significantly since its architects first began to develop principles and doctrine. We have moved from a free market to a mixed economy in which freedom of contract no longer plays the role it once did in governing what is acceptable in contractual relationships. Despite these changes and the many legislative and judicial interferences in what a contract should contain, a key function of the modern law remains the facilitation of wealth maximisation. In particular, it is clear that the driving ambition behind the development of doctrine continues to be that contract law should serve transactions in the commercial sphere rather than hinder them. The umbrella contract is an increasingly popular device which can be used to give recognition to long-term relationships in which a series of orders for goods and services are placed over time. In this context, it should be a matter for concern that a mechanism devised by the marketplace to facilitate efficiency is not fully recognised by our courts. 39 There is now a rich body of academic research detailing what motivates the maintenance of a successful commercial relationship on a day-to-day basis and over time. Counsel for Baird have referred us in particular to the excellent empirical studies of the lived world of contract undertaken by Hugh Beale, Tony Dugdale and Richard Lewis in the United Kingdom (Beale and Dugdale, “Contracts Between Businessmen: Planning and the Use of Contractual Remedies” (1975) 2 British Journal of Law and Society 45; Lewis, “Contracts Between Businessmen: Reform of the Law of Firm Offers and an Empirical Study of Tendering Practices in the Building Industry” (1982) 9 Journal of Law and Society 153), and to Stuart Macaulay and Lisa Bernstein’s work in the United States (Bernstein, “Opting Out

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Baird Textile Holdings v Marks & Spencer Plc—Judgment 199 of the Legal System: Extralegal Contractual Relations in the Diamond Industry” (1992) 21 Journal of Legal Studies 115; Macaulay, “Non-Contractual Relations in Business—A Preliminary Study” (1963) 28 American Sociological Review 55). Reading their research I have been struck by how familiar their findings would sound to lawyers such as myself who spent their formative years at the commercial bar. Professor David Campbell in “Ian Macneil and the Relational Theory of Contract” (in Campbell (ed), The Relational Theory of Contract: Selected Works of Ian Macneil (1991)) has aptly observed that we now have so many descriptions of how successful long-term contracts operate in the business world that the real challenge is to determine the extent to which the law of contract is in tune with the standards and expectations of commercial parties. The facts of this case appear to reflect the findings of empirical studies about what binds commercial parties together in successful relationships so well that I would consider it inappropriate not to say something about the enhanced understandings of the commercial sectors which have emerged from academic debate and to reflect on how well the modern law of contract serves the business community. 40 The findings of these academic studies place emphasis on the importance of the very commercial factors which Baird claim underpinned the success of their 30year relationship with M&S. Significantly, it is the law’s perceived inability to respond to the needs of the marketplace that led M&S to avoid an express contract in this case. They abstained from doing so because the law of contract was viewed as frustrating the commercial success of their joint venture rather than facilitating it. In view of this, a central issue raised by this case is whether the modern law of contract fails the expectations of the commercial sector by overemphasising the importance of certainty and pre-commencement planning. In my view, M&S would be better served by this House in their future dealings if we were to accept a greater degree of flexibility in finding umbrella contracts than has been the norm in discrete or one-off contracts. The value of flexibility 41 Unfortunately, not all of what has been discovered by researchers will be very palatable to lawyers used to dealing with broken relationships. The studies by Beale and Dugdale, and Lewis have revealed that many long-term commercial relationships are not planned in the ways anticipated by contract specialists. They suggest that most if not all agreements are formally “incomplete” to some degree and that it is common practice for some aspects of commercial agreements to be deliberately left vague so that the parties can retain flexibility. Indeed, it has been argued by Lewis that the majority involve so little planning that they would be unenforceable for uncertainty if they did get to court. Other research by Macaulay has found that rather than obligations being quantifiable from the outset, many commercial expectations evolve over time and in the course of performance. This has led some to argue that the long-term commercial contract comes into existence like a dimmer switch brings light. This can be compared with the on-off approach of much case law relating to the formation of contracts. 42 Whilst planning for certainty remains important, it would seem that planning for flexibility is valued more in the commercial sector. Because of the high

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200 Linda Mulcahy and Cathy Andrews costs involved in planning in low risk industries and the general lack of information about future markets, it has been argued by Macaulay, Macneil and others that contracts have to be understood as dynamic relationships in which negotiations about performance are ongoing: see Macneil, “Exchange and Co-operation”, in Campbell (ed), The Relational Theory of Contract: Selected Works of Ian Macneil (1991); and Macaulay, “The Real and the Paper Deal”, in Campbell, Collins and Wightman (eds), Implicit Dimensions of Contract (2003). These researchers argue that planning is not limited to pre-contractual negotiations; it continues after formation of the contract and is accepted as being subject to change. This is an approach which has received some support in English law, for example in the case of Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1, in which it was accepted that as conditions change, the parties must be able to re-negotiate the details of performance without having to offer completely fresh consideration. 43 Viewed in this way, it can be seen that the umbrella contract performs an extremely useful function in long-term business relations. It provides a framework of clauses or “constitution” which sets out the arrangements and norms which will govern the parties’ commercial relationship. It provides certainty regarding the conditions under which particular exchanges may take place and a platform for ongoing negotiations. The umbrella contract articulates what have been called a high order of shared conventions which comprise customary, expected, legal and non-legal rules and principles. Some of these expectations may be recorded in written documents but it seems much more likely that others will have to be implied from conduct. 44 The umbrella contract comes into being in the same way that a number of other contracts have been found to have come into being by this House, that is, when both parties are clear about material points of their agreement. In the case of the umbrella contract, this will include understandings about how they will respond to changes in the marketplace. These negotiations should not require a formal variation of contract with fresh consideration in order to be implemented because the constitution of the relationship, or umbrella contract, already makes allowances for such variations. 45 It is important to stress that the volume of information which supports such arguments is now extensive and ranges across time and industries. It is also clear that academic research does not purport to tell us how commercial agreements should be in an ideal world. Rather, this empirical work informs us about what is already happening in commercial spheres. We ignore such research at our peril. 46 What is at stake in the case at hand is how the modern law of contract construes the parties’ desire for flexibility. The empirical studies to which we have been referred place particular stress on the importance of co-operation and flexibility in binding commercial parties together in successful business relationships over time. It is not contended that in accepting these ideals, the parties abandon their own interests. It has been argued that it is intelligent trust rather than blind trust which is most effective in this context. In co-operating with each other by not claiming breach of contract for every act of non-compliance or by sharing the burden of a hostile or unpredictable market, the parties are not being altruistic. Quite the contrary, it makes extremely good business sense to co-operate in this way. In the words of classical economics, co-operation and flexibility promote utility maximisation rather than undermine it.

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Baird Textile Holdings v Marks & Spencer Plc—Judgment 201 47 Such descriptions of behaviour in commercial relationships provide us with a number of challenges. Rather than seeing a healthy market as synonymous with a highly competitive one, these accounts encourage us to see competition as being compatible with co-operation. It is argued that co-operating in the course of a longterm commercial relationship is more likely to lead to mutual wealth maximisation. Co-operation, flexibility and trust are good for business. They enable more cost-effective relationships and can actually reduce transaction costs. The relational umbrella contract 48 The Court of Appeal referred to the somewhat complex literature on relational contract theory which draws on the empirical studies mentioned above. They deemed what they read to be irrelevant in the current case. They did this on the basis that whether one uses a relational approach or not, key characteristics still need to be found before a commercial agreement can be enforced as a contract. These include, most notably, offer, acceptance and essential terms. In my view this was the wrong approach. Whilst relational contract theorists do not deny that an agreement as to the future business relationship must have been reached, their method of identifying agreement is somewhat different from that used in the court below. In a manner reminiscent of Lord Denning’s approach to contract formation in Storer v Manchester City Council [1974] 1 WLR 1403 and Gibson v Manchester City Council [1978] 1 WLR 520, the relational approach starts by inquiring into the context in which the commercial agreement operates. This has particular resonance when looking at what has motivated the evolution of the umbrella contract and is deserving of more attention than it has received to date. 49 The umbrella contract is a device through which the interests of one party become the interests of both. It reflects the need for co-operation in the joint production or acquisition of wealth in which long-term contracts are seen as being geared towards mutual futures. The umbrella contract is capable of reflecting the essence of the agreement and the ties that bind commercial parties much more effectively than a string of spot contracts. It can be used to reflect the expectations of co-operation, trust and interdependence which are common in the commercial sector and critical to the pursuit of shared goals. 50 The classical model of contract only requires the parties to do what they have formally undertaken to do in the contract, but the relational umbrella reflects the reality of the market by requiring a consistently flexible approach to obligations over time. Relational planning continues after formation and is subject to whatever degree of change protects the parties’ mutual goals in an ever-changing marketplace. Recognition of these overarching agreements allows the law to support contractual arrangements in which the parties determine how they will go about their business. They complement and supplement the raft of short-term supply contracts which express the detail of exchanges but do not reflect core understandings. These practices are of particular importance in the case before us and suggest that the norms of the marketplace may be more exacting than those imposed by the law of contract. 51 My Lords, it is important to stress that the issues raised by this case are fundamental to the ongoing evolution of contract law. The English jurisdiction has

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202 Linda Mulcahy and Cathy Andrews long been the jurisdiction of choice for international commercial transactions. In part this is because of the capacity of the English law to adapt in response to changing commercial conditions and to give effect to the reasonable expectations of the parties. The ideas of flexibility, trust and co-operation discussed in this judgment are not new to English law. Mance LJ recognised this in the present case when he quoted Bowen LJ in Sanders Bros v Maclean & Co (1882–83) LR 11 QBD 327, 343 as saying that: “Credit, not distrust, is the basis of commercial dealings; mercantile genius consists principally in knowing whom to trust and with whom to deal, and commercial intercourse and communications is no more based on the supposition of fraud than it is on the supposition of forgery.” 52 Far from being revolutionary, the ideas being presented by modern day relational contract theorists and other researchers fit very well with such understandings of what makes long-term commercial relationships work. But it would seem that in their quest for certainty, the courts have begun to forget the equally important demand for flexibility in long-term relationships of the kind before us. Recognition of umbrella contracts provides us with an opportunity to rectify that position and to make clear that umbrella contracts must be distinguished from other forms of contract. For these reasons I would allow the appeal and order that the matter proceed to a full trial.

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Part IV Criminal Law and Evidence

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12 Commentary on R v A (No 2) LOUISE ELLISON

Introduction Feminist activists have long criticised the failure of trial judges to restrict the use of irrelevant and prejudicial sexual history evidence in sexual offence cases. Following decades of feminist research studies and advocacy, ‘rape shield’ legislation—aimed at limiting judicial discretion to admit sexual history evidence and transforming outmoded notions of relevance—has been enacted in a number of common law jurisdictions, including Canada, the USA, Scotland and England and Wales. These hard-fought political victories have proved to be short-lived, however, as legislative attempts to protect sexual offence complainants from improper and intrusive questioning have shown themselves vulnerable to ‘judicial override’.1 Confronted with legislative intervention, trial judges have moved swiftly to declare rape shield provisions incompatible with the fair trial rights of defendants, in the process confirming feminist scepticism about the value of rights discourse for women.2

Background to R v A (No 2) R v A (No 2),3 decided by the House of Lords in 2001, concerned a challenge under the Human Rights Act 1998 (HRA) to the rape shield enacted in section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA), and the case became a feminist cause célèbre. In England and Wales, the admissibility of sexual history evidence had previously been governed by section 2 of the Sexual Offences (Amendment) Act 1976, a statutory scheme that invested considerable discretion in trial judges in making determinations of relevance. Recognition of the abject failure of section 2 to prevent improper questioning—alongside legitimate concern regarding the impact of invasive cross-examination on complainants, the reporting of rape, pre-trial decision-making by police and prosecutors and, ultimately, conviction rates—prompted the break from a highly discretionary regime toward a more structured or ‘categories’ approach. In essence, section 41 prohibits the introduction of 1

A McColgan, Women under the Law: The False Promise of Human Rights (Essex, Longman, 2000) 250. See, eg, ibid; E Kingdom, What’s Wrong With Rights? Problems for Feminist Politics of Law (Edinburgh, Edinburgh University Press, 1991); S Palmer, ‘Critical Perspectives on Women’s Rights: The European Convention on Human Rights and Fundamental Freedoms’ in A Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (London, Cavendish, 1996). 3 R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45. 2

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206 Louise Ellison evidence or questioning about a complainant’s ‘sexual behaviour’ by or on behalf of an accused charged with any sexual offence (other than behaviour during the events that are the subject matter of the charge), save with the leave of the court. Leave may be granted where evidence or questioning falls within one of four exceptions: (1) the evidence relates to a relevant issue at trial and that issue is not one of consent (section 41(3)(a)) (for example, it may relate to the defendant’s claimed belief in the complainant’s consent 4 or the issue of identity); or (2) the evidence relates to the issue of consent, and the behaviour is alleged to have taken place at or about the same time as the event which forms the subject matter of the charge (section 41(3)(b)); or (3) the evidence relates to the issue of consent, and the behaviour is so similar to the alleged behaviour of the complainant at the time of the event, that the similarity cannot reasonably be explained as coincidence (section 41(3)(c)); or (4) the evidence is required to rebut evidence adduced by the prosecution (section 41(5)). Evidence which passes through one of these gateways will not necessarily be received: the court must additionally be satisfied that refusal of leave might have the result of rendering unsafe a conclusion of the jury or the court on any relevant issue in the case (section 41(2)(b)). As well as curtailing judicial discretion to admit sexual history evidence to defined ‘gateways’, section 41 differs from its predecessor in the important respect that it extends the complainant’s rape shield to previous sexual behaviour involving the defendant himself, not merely to her behaviour with third parties. This aspect of the legislation proved immediately contentious and within a few months of section 41 appearing on the statute book the House of Lords was called upon to consider whether the extension went too far and placed excessive constraints on the admission of evidence that might be critical to a defendant’s case, thus contravening the right to a fair trial enshrined in article 6 of the European Convention on Human Rights. This raised the spectre of the possible need for a declaration under section 4 of the HRA that section 41 of the YJCEA was incompatible with a right guaranteed in the Convention. Decided before the appointment of the first female Law Lord, R v A (No 2) prompted controversy before the court convened, with the Fawcett Society branding its all male composition ‘internationally embarrassing and unacceptable in a modern, democratic society’.5 Without the benefit of a female perspective, members of the public would have legitimate concern, the campaigning body argued, about the impartiality of a court called upon to consider an issue on which men and women had long expressed divergent views. Their intervention chimes with longstanding feminist critiques of judicial decision-making on the relevance of disputed evidence. Though often presented as a neutral standard to be objectively applied, decisions about relevance are, as Madame Justice L’Heureux-Dubé notably observed in the Canadian case of R v Seaboyer, ‘particularly vulnerable to the application of private beliefs’6 as trial judges draw upon their own personal experience,‘common sense’, and understanding about human conduct and motivation to decide whether one fact is logically connected or pertinent to another. For many feminists, then, leaving relevance determinations to male judges, ‘necessarily solidifies a . . . male perspective to questions of 4 In the crime of rape, the prosecution must prove both that the complainant did not in fact consent to the sexual penetration (the actus reus), and that the defendant knew (or did not care) that she was not consenting (the mens rea or mental element). Thus a defendant could argue that the complainant did consent, and/or that he (at the time of R v A (No 2)) honestly believed that she was consenting. 5 M Stephenson, ‘Bad Judgment’ The Guardian (London 27 March 2001). 6 R v Seaboyer [1991] 2 SCR 577.

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R v A (No 2)—Commentary 207 relevance’7 and, at best, risks the undervaluing of women’s experience and interests. In the instant case, a request by the Fawcett Society to intervene and present academic research and argument along these lines was refused by an appeal committee of three Law Lords without the opportunity of an oral hearing. Their Lordships did, however, agree to receive a written intervention from women’s groups led by the Rape Crisis Federation and penned by Vera Baird QC, defending section 41.

The Facts and Decision in the Case The defendant was charged with rape and claimed in his defence that sexual intercourse had taken place with the complainant’s consent; alternatively, that he had honestly believed that she had consented. At a preparatory hearing, the defendant sought leave pursuant to section 41 to adduce evidence that he had engaged in consensual sexual activity with the complainant over a three-week period. He claimed that the most recent act of sexual intercourse had occurred about a week before the alleged assault. The trial judge’s preliminary ruling that such questioning was impermissible under the terms of section 41 was reversed by the Court of Appeal on the ground that such evidence—while inadmissible on the issue of consent—might be admitted under section 41(3)(a) to show belief in consent. On appeal to the House of Lords, the defendant argued that the law, in restricting the use of evidence on the issue of consent, breached his right to a fair trial. The House of Lords agreed that on a straightforward application of section 41, the evidence would be inadmissible and that inadmissibility might endanger a fair trial for the accused. While the aims of the statute in seeking to protect rape complainants from unwarranted intrusions into their private lives were endorsed as desirable, the methods adopted to achieve that aim, Lord Steyn declared, amounted to ‘legislative overkill’.8 However, the Law Lords declined to issue a declaration of incompatibility under section 4 of the HRA opting, rather, to invoke the obligation under section 3 of the HRA to read and give effect to legislation, so far as it is possible to do so, in a way which is compatible with Convention rights. Adopting this approach, the Law Lords opted for a strained interpretation of the ‘similar fact’ gateway under section 41(3)(c), agreeing the following test of admissibility: [D]ue regard always being paid to the importance of seeking to protect the complainant from indignity and humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention.9

On this basis, the case was remitted to the trial judge to consider whether section 41(3)(c) might be applicable on the facts.

7 8 9

K Kinports, ‘Evidence Engendered’ (1991) 2 University of Illinois Law Review 413, 431. Above n 3 at [43]. ibid [46].

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208 Louise Ellison

Responses to the Case The decision in R v A (No2) has provoked diverse reactions. In some quarters, the reading down of the YJCEA has been hailed as a valiant, politically astute move to render an ‘unworkable’, ‘theoretically flawed’ legislative provision compliant with the Convention.10 Many public lawyers, on the other hand, have been highly critical of the interpretative method adopted by the House of Lords, suggesting that the approach amounted to ‘judicial overkill’ where the judges effectively took it upon themselves to ‘re-write’ section 41.11 The response of feminist commentators, meanwhile, has predominantly been one of dismay; a reaction that owes much to the lack of clear, well-founded reasoning within the judgment on the issue of the relevance of sexual history evidence to consent. All the Law Lords (with the apparent exception of Lord Hope) ultimately accepted the defence’s proposition that— while by no means determinative of consent—a previous consensual relationship with the defendant increases the prospect that subsequent sexual conduct may have been consensual, unless remote in time or circumstance. The reasoning that underpins this generalised—and for many feminists, flawed and discriminatory—assumption remains unsatisfactorily obscure. For Lord Steyn, this was a ‘common sense’ position; evidence of previous sexual behaviour with the defendant was, he opined, ‘a species of prospectant evidence which may throw light on the complainant’s state of mind’.12 Lords Slynn and Clyde appeared to follow the same line. Only Lord Hutton offered further elaboration. Where there has been a recent and close affectionate relationship between the complainant and defendant, the evidence may be relevant, not to advance the bare assertion that because she consented in the past she consented on the occasion in question, Lord Hutton explained, but to show ‘the complainant’s specific mindset towards the defendant, namely her affection for him’.13 Without the background of an affectionate relationship, Lord Hutton advanced the view that such evidence was unlikely to be relevant. Lord Hope, meanwhile, refused to concede relevance on the issue of consent to the ‘mere fact’ of consensual intercourse a week before the alleged rape. Many feminists would, of course, challenge the majority line of reasoning on the issue of consent on the basic ground that consent to sexual relations is a decision, not an emotion or a ‘mind-set’.14 The choice to engage in sexual activity is, moreover, always made afresh within the specific circumstances existing at the time. To the extent that relevance determinations rely on an assumed generalised propensity to consent to sex with a particular person, they diminish the sexual autonomy of the complainant as an individual capable of making different decisions freely at different times and reinforce ‘discriminatory stereotypes which depict women as sexually accessible’.15 From a feminist perspective, then, a legitimate 10 See judges’ comments in N Kibble, ‘Section 41 Youth Justice and Criminal Evidence Act 1999: Fundamentally Flawed or Fair and Balanced?’ (2004) 8 Archbold News 6; A Choo, Evidence (Oxford, Oxford University Press, 2009) 384. 11 D Nicols, ‘Statutory Interpretation and Human Rights after Anderson’ [2004] Public Law 274, 276; F Klug, ‘Judicial Deference under the Human Rights Act’ (2003) 2 European Human Rights Review 125. 12 Above n 3 at [31]. 13 Above n 3 at [152]. 14 C Boyle and M MacCrimmon, ‘The Constitutionality of Bill C-49: Analyzing Sexual Assault As If Equality Really Mattered’ (1998) 41 Criminal Law Quarterly 198, 230. 15 ibid 223. See also H Schwartz, ‘Sex with the Accused on Other Occasions: The Evisceration of Rape Shield Protection’ (1994) 31 Criminal Reports (4th) 232.

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R v A (No 2)—Commentary 209 aim of rape shield legislation is to prohibit reliance upon a disposition to consent inferred from past sexual behaviour. More generally, R v A (No 2) has been criticised for engendering legal uncertainty and undermining the purpose of the legislation by effectively restoring to trial judges the very discretion that the YJCEA aimed to check, notwithstanding the fact that a strict interpretation renders the admissibility test tacked on to section 41(3)(c) applicable only to evidence of previous sexual behaviour with the accused. Home Office commissioned research published in 2006 offers no reassurance on this front, reporting that the trial judges surveyed typically interpreted R v A (No 2) to mean that they now had a very broad residual discretion to admit sexual history evidence in order to ensure a fair trial under article 6.16 Added to this, the same research found that basic procedural rules—such as the requirement to make applications in writing in advance of trial—were being routinely ignored by defence counsel, with cross-examination also taking place without any reference to the YJCEA, indicating entrenched resistance amongst both lawyers and judges to the new statutory regime. Subsequent decisions of the Court of Appeal have also given cause for concern. In R v Mukadi 17 the Court of Appeal held that evidence that the complainant had entered a stranger’s car and exchanged telephone numbers shortly before her alleged rape by another man in an entirely unconnected incident was wrongly excluded. The evidence was relevant to the issue of consent, the court ruled, as it showed (or could lead a jury to conclude) that the complainant was—in contradiction of her evidence—prepared to engage in sexual activity when she returned to the defendant’s flat, thus employing precisely the type of dangerous reasoning section 41 was designed to prevent.

The Feminist Judgment In her feminist judgment in R v A (No 2), Clare McGlynn grapples directly with the relevance question at the heart of the case and rejects, as flawed, the ‘common sense’ assumption that a woman who has engaged in sexual activity with a particular man is—simply by virtue of that fact—more likely to do so at another time with that same man. In so doing, McGlynn draws support from Canadian legislation (section 276 of the Canadian Criminal Code) which specifically precludes the admission of evidence of sexual history (with the accused or third parties) solely to support an inference that the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge. Rejecting propensity reasoning as a basis for finding previous sexual behaviour with the accused relevant in the instant case, McGlynn then goes further and offers the view that all substantially relevant sexual history evidence is capable of being accommodated within section 41’s four gateways. On this basis, she dissents from the majority’s decision and concludes that the article 6 right to a fair trial is not engaged. The third party intervention in the case, written by Vera Baird QC, notably took a different line. The submission argued against admission of evidence of prior sexual behaviour with the defendant on the issue of consent, but conceded that it may be necessary for the 16 L Kelly, J Temkin and S Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials (London, Home Office, 2006). 17 R v Mukadi [2003] EWCA Crim 3765, [2004] Crim LR 373.

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210 Louise Ellison courts to admit such information in certain circumstances as background evidence to ‘contextualise the facts of the case’ where exclusion may ‘distort the trial process’ and prevent jurors from being in a position to fairly judge the defence case.18 According to this analysis, a defendant may be disadvantaged, for instance, where he contends that he and the complainant had consensual sexual intercourse without any of the ‘preliminaries’ that jurors may associate with a ‘first time’ sexual encounter and the jury is unaware of their prior sexual relationship.19 The test for admissibility of background evidence would be whether the jury, denied knowledge of prior sexual intimacy between the parties, would be seriously misled or unable to make sense of the case presented in court. Recognising that sexual history evidence introduced as background evidence could be misapplied by jurors, Vera Baird QC went on to propose that trial judges should specifically direct the jury that admitted background evidence is not to be used ‘to support an assumption of consent’. The House of Lords significantly failed to consider the use of background evidence in R v A (No 2), and it remains unclear whether evidence of previous sexual behaviour with the accused proffered by the defence for its ‘explanatory’ (as opposed to ‘probative’) value could be admitted under the terms of the current rape shield.20 Feminists who perceive merit in the case for background evidence (and I include myself here) may accordingly resile from giving section 41 a clean bill of health while this issue remains unresolved. Turning to the application of section 3 of the HRA in R v A (No 2), McGlynn joins other commentators in criticising the artificial extension of section 41(3)(c) and concludes that the proper step would be for the House of Lords to issue a declaration of incompatibility in accordance with section 4 of the HRA. The obvious benefit of this approach would have been to give Parliament an opportunity to restate the scope of restrictions, demarcating permissible and impermissible inferences to be drawn from sexual history evidence and giving a clear steer on the balance of interests to be considered. In following its adopted course, the House of Lords in R v A (No 2) has, in the opinion of many, simply served to muddy the waters in respect of these central issues, to the detriment of complainants and the fair administration of justice in sexual offence cases.

18 Intervention of the Rape Crisis Federation of England and Wales, The Campaign to End Rape, The Child and Woman Abuse Studies Unit and Justice for Women in Regina v Mohammed Nasir Anwar in the House of Lords (2001). 19 See, generally, L Ellison and V Munro, ‘Of “Normal Sex” and “Real Rape”: Exploring the Use of Socio-Sexual Scripts in (Mock) Jury Deliberations’ (2009) 18 Social and Legal Studies 1. 20 Vera Baird QC maintains that background evidence falls outside the scope of s 41 while Di Birch doubts that such evidence can be accommodated within the section’s existing gateways: D Birch, ‘Rethinking Sexual History Evidence for Fairer Trials’ (2002) 7 Criminal Law Review 531.

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House of Lords

Regina v A (No 2) [2001] UKHL 25

BARONESS McGLYNN* 1 My Lords, it was Lord Chief Justice Sir Matthew Hale who centuries ago proclaimed that rape “is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent”. This erroneous and unjustified assumption has pervaded the practise of rape law ever since. It led to the distrust of rape complainants, with the corroboration warning against convicting solely on the word of the complainant continuing until 1994. This distrust, in turn, was fuelled by myths about women’s lack of credibility as witnesses, especially that of so-called “promiscuous” or “unchaste” women; hence the invasive questioning about women’s lifestyles, behaviour and sexual activity with which this appeal is concerned. 2 While Hale was writing several hundred years ago, the assumptions underpinning his arguments have continued to be expressed in more recent times. Your Lordships and I were educated and trained during the time of the renowned criminal jurist, Professor Glanville Williams. His contribution to the development of the criminal law is undoubted. However, it was also he who opined in his Textbook on Criminal Law, 2nd edn (1983), at p 238, that women welcome a “masterly advance” and may “present a token of resistance”. Hale’s corroboration warning was necessary, he concluded in The Proof of Guilt (1963), pp 238 and 159, due to the fact that: “these cases are particularly subject to the danger of deliberately false charges, resulting from sexual neurosis, phantasy, jealousy, spite or simply a girl’s refusal to admit that she consented to an act of which she is now ashamed.” Of a similar mind, Professor Elliot opined in “Rape Complainant’s Sexual Experience with Third Parties” (1984) 4 Crim LR 13 that “there must be more chance of objectively false evidence in rape trials than in others”. 3 Professors Williams and Elliot were not alone. Professor Wigmore, author of one of the most influential treatises on evidence in the United States and whose work continues to have a discernable impact on both US and English law, stated in Evidence of Trials at Common Law (1904, rev edn 1970) that the “mental make-up” of a complainant must be tested by a qualified physician before giving evidence, due to the high risk of women fantasising about rape. Amongst other matters, these sorts of assumptions led to the introduction of special rules in sexual offence cases, for * In drafting this judgment, I have drawn on the work of many eminent scholars, particularly that of Jennifer Temkin. I also benefitted greatly from the scholarship and expertise of Louise Ellison, Baroness Hale, Liz Kelly and Aileen McColgan. Thanks must also go to the many colleagues who have taken time to discuss the ideas expressed in this judgment, particularly Neil Cobb, Roger Masterman, Vanessa Munro and Erika Rackley.

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212 Clare McGlynn example permitting evidence showing that a woman was “of notoriously bad character for want of chastity or common decency”: R v Greatbanks [1959] Crim LR 450. It is the continuing legacy of such case law with which this House is now concerned. 4 Myths. Assumptions. Stereotypes. They all continue to contaminate our criminal justice system and adversely impact on the processing and trial of rape complaints. Let us instead deal with some facts. In 1977 one in three women who reported rape to the police saw her attacker convicted. Twenty years later, in 1997, less than one in ten women reporting rape saw a conviction: see Kelly and Regan, “Rape: The Forgotten Issue?” (2001), at p 3. In these 20 years, reports of rape to the police increased by over 500 per cent. Responsibility for this low conviction rate lies with every part of the criminal justice system. There is a culture of disbelief of complainants among the police and a distinct lack of determination to seriously investigate sexual offences, while the Crown Prosecution Service evidences timidity in pursuing charges: see Chambers and Millar, “Prosecuting Sexual Assault” (1983) (Scottish Executive); Gregory and Lees, “Attrition in Rape and Sexual Assault Cases” (1996) 36 British Journal of Criminology 1. Nor is the judiciary immune from criticism. Your Lordships will recall the notorious judicial comments and summations in rape cases in which judges demonstrated their own hold on the myths and assumptions to which I have referred. 5 Indeed, it is the practice of the courts which is the focus of this case, specifically, the admission of sexual history evidence in rape trials. This case is important, however, not just for the conduct of rape trials. The treatment of witnesses in court adversely impacts on decisions to report rape to the police. Who would want to put themselves before a voyeuristic court to have their sexual history trawled through and criticised, and often with little direct relevance to the issues at trial? The police and prosecutors often warn witnesses of the harrowing nature of giving evidence at trial, sometimes from the best of motives, with the result that many withdraw their complaints. Accordingly, while this case is about the admission of evidence at trial, its impact will reverberate throughout the criminal justice system in its dealings with rape. The facts and appeal 6 Turning to the specific case before this House, we know very little about the factual basis for this appeal. What we do know is that at the end of May 2000, the complainant met two men who shared a flat, one of whom became her boyfriend, the second being A, the defendant. A few weeks after first meeting the two men, on 13 June 2000, the complainant and her boyfriend had sexual intercourse at the boyfriend’s flat when A was not there. Later, when A returned, all three of them went to the riverbank of the Thames for a picnic and all three were drinking alcohol. When they all returned to the men’s flat, the boyfriend collapsed and an ambulance was called, taking him to hospital. This was now the early hours of the morning of 14 June 2000. The complainant and A walked along the riverbank to the hospital. The complainant claims that A chose the route and at one stage, he fell down. The complainant extended her arm to help him up, at which point A pulled her down and raped her. Later that day, the complainant made a complaint of rape to the police.

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R v A (No 2)—Judgment 213 7 A’s case is that on the riverbank, the complainant initiated sexual intercourse and that this was part of a sexual relationship with A which had been on-going for a few weeks. The most recent incident of sexual intercourse had been approximately one week before 14 June 2000. A’s defence was consent or, alternatively, belief in consent. 8 The process leading to this appeal began on 8 December 2000 when, shortly before the defendant was due to stand trial on a charge of rape, a preparatory hearing took place at which counsel for the defendant applied for leave to crossexamine the complainant about the alleged sexual activity with A. The trial judge (who cannot be named due to the Court of Appeal Order not to disclose the names of the parties, the trial judge or the place of trial) ruled that section 41 of the Youth Justice and Criminal Evidence Act 1999 precluded such a line of questioning. 9 The Court of Appeal held that the effect of the 1999 Act is that the alleged previous sexual relationship is inadmissible on the issue of consent, though it is admissible regarding belief in consent, and on this latter point the Court allowed the appeal [2001] Crim LR 389. Nonetheless, the Court was of the view that such a ruling may raise a question of compatibility with the right to a fair trial and therefore certified the following question for this House: “May a sexual relationship between a defendant and complainant be relevant to the issue of consent so as to render its exclusion under section 41 of the Youth Justice and Criminal Evidence Act 1999 a contravention of the defendant’s right to a fair trial?” 10 This case has been fast-tracked through the courts, as we understand from the Director of Public Prosecutions that there are 13 other cases stayed, pending the outcome of this appeal. Why restrict the use of sexual history evidence? 11 In order to answer the certified question, it is necessary to review the background to the adoption of the 1999 Act and, in particular, the reasons for restricting the use of sexual history evidence. First of all, there is a considerable reluctance on the part of victims to report sexual offences to the police and, once reported, many complaints are withdrawn. One of the many reasons for this is the fear of the courtroom experience. Victim Support reported in 1996 in “Women, Rape and the Criminal Justice System” that over 40 per cent of the rape complainants questioned felt angry, horrified and re-victimised by the experience of their cross-examination. Victims interviewed by Lees reported that many of them felt that it was they, rather than the defendant, who had been on trial: see Lees, Carnal Knowledge: Rape on Trial (1996). It is from such studies that descriptions of a complainant’s crossexamination as a “second rape” or “judicial rape” have passed into common parlance. 12 In relation to complaint withdrawal, a Home Office report found that one of the reasons for withdrawal is that “complainants feel that giving evidence in court would be a harrowing ordeal”: see Harris and Grace, “A Question of Evidence? Investigating and Prosecuting Rape in the 1990s” (1999) (Home Office Study 196), at p 48. Further, evidence presented by Rape Crisis and Northumbria Police to the Home Office revealed that the expectation of being questioned, in public,

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214 Clare McGlynn regarding their previous sexual history is the biggest single factor in prompting women to withdraw their complaints: see Home Office, “Speaking Up for Justice” (1998), paras 9.57–9.58. Accordingly, restrictions on the use of sexual history evidence have been introduced to encourage greater reporting of rapes and in the hope of deterring withdrawals. 13 A second reason for restrictions on sexual history evidence is the promotion of accuracy in fact-finding and rectitude in decision-making, which are fundamental aims of evidence law. As the 1975 Heilbron Report into the use of sexual history evidence (Cmnd 6325) acknowledged at para 133, the “exclusion of irrelevant evidence at the trial will make it easier for juries to arrive at a true verdict”. The integrity of the trial, therefore, means that irrelevant evidence, especially evidence which may mislead the jury, or distract it from the task at hand, must be excluded from the trial, thereby preventing it exercising an undue influence. 14 The protection of the rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms provides a third justification. Article 8 of the Convention protects the right to respect for private life, subject to those restrictions which are proportionate and necessary in a democratic society. While it will sometimes be necessary to introduce evidence about a complainant’s sexual history, thereby constituting a necessary and justified interference with privacy rights, this is not invariably the case. In particular, it has been demonstrated that many unnecessarily intrusive questions have been asked of complainants, often as a matter of routine; potentially, therefore, in breach of the complainant’s article 8 rights. 15 A fourth justification can also be found in Convention rights. Although not argued before us, it seems to me that restrictions on the admission of sexual history evidence may be necessary to ensure compliance with a state’s positive obligations, inherent in article 3 of the Convention, to bring perpetrators of rape to justice. Article 3 protects the right not to be subject to inhuman or degrading treatment and all state parties are obliged to take appropriate steps to ensure compliance with such rights. Therefore, to the extent that the admission of sexual history evidence impedes proper investigation, prosecution and conviction of perpetrators, restrictions may be justified to ensure compliance with article 3 positive obligations. 16 Indeed, where evidence or questioning is not necessary and reaches the requisite threshold of harm, for example by inducing significant psychological injury, article 3 may be directly engaged. Article 3 is a non-derogable right, meaning that if it is breached, other Convention rights such as the article 6 right to a fair trial do not take precedence. 17 Sexual history evidence is often of no or little relevance, yet research demonstrates its propensity to adversely impact on complainant credibility, leading to lower conviction rates. For instance, studies from Scotland (Brown et al., “Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials” (1992) (Scottish Office Central Research Unit)) and New South Wales (Department for Women, “Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (1996)) have found that the introduction of sexual history evidence makes acquittals more likely. In this country, Adler found in Rape on Trial (1987) a correlation between acquittals and those cases where the sexual reputation of complainants had been discredited.

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R v A (No 2)—Judgment 215 18 We unfortunately know little about how juries actually reach their decisions as the Contempt of Court Act 1981 proscribes jury research. I have been fortunate, however, to be privy to the results of a study into mock jurors’ use of sexual history evidence in sexual assault trials. The research by Regina Schuller and Patricia Hastings, due to be published in the Psychology of Women Quarterly, finds that evidence of previous sexual history with the accused was deployed by mock jurors in a “biased and prejudicial” manner, making the mock jurors more negative in their evaluations of complainant credibility. These findings confirm previous US and Canadian studies which are discussed in detail in the judgment of L’HeureuxDubé J in R v Seaboyer [1991] 2 SCR 577, 661–665. Legislative history of restrictions on sexual history evidence 19 For these reasons, in recent years and across many jurisdictions, restrictions on the use of sexual history evidence have been introduced. In England and Wales, there were some limitations on such evidence at common law. A complainant’s sexual history was considered relevant both to consent and credit. In relation to the latter, evidence or questioning was permitted as an “unchaste” woman was thought not to be a trustworthy witness: R v Greatbanks [1959] Crim LR 450. On consent, evidence was permitted in relation to sexual activity with the accused, on the basis that this was relevant to consent. However, in relation to third parties, evidence or questioning was only permitted if it went to show that the complainant was a prostitute or a woman of “notoriously immoral character”: R v Bashir [1969] 1 WLR 1303. Nonetheless, the common law exclusion of sexual history evidence with third parties was blunted, in effect, by its inclusion in relation to credit, as noted by Professor McColgan in ”Common Law and the Relevance of Sexual History Evidence” (1996) 16 Oxford Journal of Legal Studies 275. 20 The position at common law was altered by legislation adopted following the report of the Advisory Group on the Law of Rape, chaired by Mrs Justice Heilbron. The Heilbron Report made a number of very specific and detailed recommendations regarding sexual history evidence and the conduct of rape trials. It found that in rape trials, while it is the accused who is on trial, there is a risk that the case may “become, in effect, a trial of the alleged victim”: para 12. Having heard evidence relating to court practices, the Report concluded at para 89: “It appears that procedures have developed in regard to cross-examination and to a much lesser degree the admission of evidence generally which may now be regarded as not only inimical to the fair trial of the essential issues but which may also result in the complainant suffering humiliation and distress.” 21 The Report took the view that while “all relevant and proper” crossexamination must be permitted to ensure a fair trial, unless there were some restrictions on the admission of evidence, questioning will continue to take place “which does not advance the cause of justice but in effect puts the woman on trial”: para 91. Further, the “exclusion of irrelevant evidence at the trial will make it easier for juries to arrive at a true verdict”: para 133. 22 The Heilbron Report, like the common law, made a distinction between questioning and evidence relating to sexual history with the accused and that with third

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216 Clare McGlynn parties. This is a distinction which is central to many of the debates regarding the admission of sexual history evidence, though often, I think, the distinction is overplayed. The Report concluded at para 134 that evidence and questioning regarding sexual activity with the accused “will, in general, be regarded as relevant to the issues involved in a trial for rape”. However, it recommended restrictions in relation to evidence and questioning involving third parties. It proposed that such evidence or questioning should only be permitted with the leave of the judge and only then if she or he was satisfied that the evidence or questioning related to behaviour which was strikingly similar to events immediately preceding, or following, the alleged offence, and the degree of relevance to issues arising at trial was such that it would be unfair to the accused to exclude it. Provision was also made to allow evidence to rebut prosecution claims: see paras 137 and 138. In other words, the Heilbron Report recommended that leave only be granted where the behaviour was strikingly similar to that at issue in trial, or was rebuttal evidence; thus there should be no general discretion to admit evidence of the complainant’s sexual history with third parties. 23 The resulting legislation departed from the Heilbron Report in important respects. The Sexual Offences (Amendment) Act 1976, provided in section 2(1) that: “If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than the defendant.” 24 The Act continued, in section 2(2), that the judge should give leave “if and only if [she or] he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked”. The 1976 Act did not require leave regarding evidence of sexual history with the accused, which was permitted on the basis of the existing common law. 25 Three points are important here. First, the 1976 Act only regulated sexual history evidence with third parties. There remained a general assumption that evidence relating to sexual activity with the accused was relevant. Secondly, there was no real distinction drawn between evidence going to credit and evidence relating to consent. In this way, while the Heilbron Report stated at para 131 that “the previous sexual history of the alleged victim with third parties is of no significance as far as credibility is concerned”, the 1976 Act did not adopt this position. 26 Finally, the most significant aspect of the 1976 Act, for present purposes, was that it granted judges a general discretion to admit what they deemed to be relevant evidence, so long as they considered that to do otherwise would be unfair to the defendant. 27 It did not take long for evidence to emerge that the 1976 Act was doing little to restrict the use of sexual history evidence. Adler’s study of rape trials at the Old Bailey in London found that applications under section 2 were made on behalf of 40 per cent of defendants and that these applications were successful three quarters of the time: see ”Rape—The Intention of Parliament and the Practice of the Courts” (1982) 45 MLR 664. Moreover, she found that sexual history evidence was

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R v A (No 2)—Judgment 217 regularly introduced without seeking leave of the judge and, apparently, with little or no objection from either the judge or the prosecution. The study also revealed quite unjustified instances of the harassment and humiliation of complainants. Lees, Carnal Knowledge: Rape on Trial (1996) confirmed that sexual history evidence was routinely used and was often irrelevant to the issues at trial. 28 The most extensive UK research has been conducted in Scotland by Brown et al., “Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials” (1992) (Scottish Office Central Research Unit), who found that applications to introduce sexual history evidence were made less frequently than was found in Adler’s study, but that there was a higher success rate. They also found that sexual history evidence was introduced in many cases without a formal application, with the effect that sexual history evidence was an issue in almost half of the cases examined. 29 Professor Temkin’s careful dissection of the case law found that, ironically, following the 1976 Act a broader construction of what constituted relevant sexual history evidence was being taken than had hitherto been the case: see ”Regulating Sexual History Evidence—The Limits of Discretionary Legislation” (1984) 33 ICLQ 942; and “Sexual History Evidence—The Ravishment of Section 2” (1993) Crim LR 3. Professor Temkin’s study also demonstrated that far from sexual history evidence only being admitted where probative of issues in the case, such as consent, it was admitted and used in general ways to discredit complainants. 30 The broad approach to the interpretation of the 1976 Act was endorsed by the Court of Appeal in R v Viola [1982] 1 WLR 1138, 1143, where it was stated that: “if the questions are relevant to an issue in the trial in the light of the way the case is being run, for instance relevant to the issue of consent as opposed merely to credit, they are likely to be admitted.” Viola also endorsed the ruling in R v Lawrence [1977] Crim LR 492, 493 in which May J stated that questions regarding the complainant’s sexual relationships with third parties would be permitted if they “might reasonably lead the jury, properly directed in the summing up, to take a different view of the complainant’s evidence from that which they might take if the question or series of questions was or were not allowed.” As Professor Temkin succinctly pointed out in “Sexual History Evidence—The Ravishment of Section 2” (1993) Crim LR 3, 4, this is, of course, the whole nub of the problem: it is precisely because juries take a different view of the evidence of a complainant, once they have been told of sexual activity with other men, that steps are needed to limit such questions and evidence. 31 As well as the research investigating trial practices, studies have discovered the distinctly prejudicial assumptions under which some barristers in rape trials operate. Professor Temkin’s recent study found many stereotypical and denigratory comments about complainants from barristers who prosecute and defend in rape cases, with one barrister stating that juries will be less likely to convict “when somebody can be depicted as a slut”: see ”Prosecuting and Defending Rape: Perspectives from the Bar” (2000) 27 Journal of Law and Society 219, 225. Regarding assumptions about alleged rapes by a partner or former partner,

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218 Clare McGlynn another barrister opined (at p 226) that: “If somebody has been having a sexual relationship with somebody before, whether it’s because juries feel the same way as I do, that it’s really not a terrible offence”. Yet another was strongly critical of cases being brought against ex-partners unless there is “extreme violence” because (at p 226): “I have had to prosecute an awful lot of cases where people have still been sort of seeing each other after having a relationship, where he wants it and she doesn’t and it happens. Well she says it was a rape and, probably, yes, it really was. But frankly does it matter?” The Youth Justice and Criminal Evidence Act 1999 32 This wealth of research evidence clearly demonstrated that the 1976 Act was doing little to restrict the improper use of sexual history evidence. Moreover, the absence of any regulation of evidence relating to sexual history with the accused was often leading to unnecessary, and sometimes humiliating and distressing, questioning of the complainant. 33 In 1997 the newly-elected government moved to implement one of its manifesto pledges, namely that “greater protection will be provided for victims in rape and sexual assault trials”. The following year it issued a consultation document “Speaking Up for Justice” (1998) (Home Office) in which it concluded at para 9.64 that there was “overwhelming evidence that the present practice in the courts is unsatisfactory and that the existing law is not achieving its purpose”. 34 The result was the 1999 Act. The legislature’s intention was to establish a more structured approach to decision-making by judges and to ensure that defending counsel gave greater thought to the necessity, extent and potential justifications for questioning. It is without doubt that Parliament was entering onto difficult territory by legislating in the field of evidence and its admissibility. Many judges countenance legislative interference with judicial discretion as being of the utmost impertinence. But this was the legitimate choice of a government responding to the history I have set out. While the Human Rights Act 1998 makes it clear that rights protection is a matter for both the courts and Parliament, I agree with my noble and learned friend Lord Hope of Craighead that this is an instance in which it is appropriate for the judiciary to defer, on democratic grounds, to the considered opinion of the elected body. See also R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, per Lord Hope at p 380–381E. Section 41 of the Youth Justice and Criminal Evidence Act 1999 35 Turning to the legislation at issue, sections 41–43 of the 1999 Act are lengthy and complicated. The provisions are set out in full in the speech of my noble and learned friend Lord Steyn and therefore I only provide an outline here. The first thing to note about section 41 is that it prima facie excludes any evidence or crossexamination, by or on behalf of the accused, about any “sexual behaviour” of the complainant. This blanket ban applies only to the defence, with no similar restrictions on the prosecution, an issue to which I will return below. 36 The section goes on to detail the exceptions to this general rule. For evidence to be admitted, leave of the court must be obtained and the judge may only grant

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R v A (No 2)—Judgment 219 leave if she or he is satisfied that, in the words of section 41(2)(b), a “refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case”. Further, section 41(6) specifies that the evidence or questioning must relate to specific instances of sexual behaviour. Finally, under section 41(4), no evidence or question will be regarded as relevant “if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.” 37 If the evidence or questioning satisfies these conditions, it may be admitted, but only if it falls within one of the four specified “gateways” of permissible evidence. The first gateway, in section 41(3)(a), provides for the admission of evidence which does not relate to consent. This is potentially very broad, as there are no specific limitations in terms of time or connection with the events at issue. This gateway will permit evidence such as that pertaining to the defendant’s belief in consent. 38 The second gateway in section 41(3)(b) provides for evidence which does relate to consent and to behaviour alleged to have taken place “at or about the same time as the event which is the subject matter of the charge against the accused”. Parliament intended to restrict evidence to a 24-hour time frame and I agree with my noble and learned friend Lord Steyn that this provision cannot be extended to days, weeks or months. Nonetheless, this gateway is also potentially wide in that it does not demand a connection with the actual events of the charge; that is, the sexual behaviour only has to have occurred around the same time, albeit subject to the other requirements of the section. 39 The third gateway in section 41(3)(c) relates to evidence of sexual behaviour which is so similar, either to behaviour which is part of the event in question, or to any other sexual behaviour which took place at or about the same time, that the similarity cannot reasonably be explained as a coincidence. Parliament intended this provision to be a narrow exception and quite rightly. While this provision draws inspiration from the law on similar fact evidence relating to the defendant’s conduct, such principles cannot be extrapolated to situations of sexual activity and consent, where consent is given afresh to each person and on each occasion. 40 The final gateway in section 41(5) provides for evidence or questioning to be admitted to rebut prosecution evidence. 41 In enacting section 41, I agree with my noble and learned friend Lord Steyn that there was a serious mischief to be corrected, namely an inclusionary discretion on the part of judges which was too broad and over which there was little regulation. I would also add, here, that Parliament had the choice to grant a general discretionary power to admit evidence that judges deemed relevant and necessary, because such an amendment was placed before it. However, Parliament specifically chose not to adopt such a provision and opted instead for the detailed statutory regime outlined above. 42 It is clear, therefore, that the intention of section 41 is to restrict the use of sexual history evidence and, in doing so, to provide a structured approach to determining the situations in which it may be permitted. In order to consider whether the legislation contravenes the defendant’s right to a fair trial under

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220 Clare McGlynn article 6 of the Convention, it is necessary first to consider the relevance of sexual history evidence to the salient issues in sexual offence trials. Relevance of evidence of sexual history with third parties 43 The general assumption among criminal and evidence law jurists has been that evidence of the complainant’s sexual history with third parties is relevant. Professor Elliot trenchantly observed in “Rape Complainant’s Sexual Experience with Third Parties” (1984) Crim LR 4, 7, when responding to the Heilbron Report, that “It is impossible to deny that prior sexual activity with third parties has a strong relevance to the issues in rape trials”. Likewise, Professor Smith in (1992) Crim LR 301 defended a broad judicial discretion to admit evidence which the judge deemed relevant, even general material about the alleged “promiscuity” of the complainant. 44 Contrary to the views expressed by some of your Lordships, these assumptions continue today. My noble and learned friend Lord Bingham of Cornhill, speaking in an extra-judicial capacity in the House of Lords during the legislative passage of the 1999 Act, spoke in favour of a general judicial discretion to admit sexual history evidence with third parties. He suggested that where counsel wished to ask a complainant whether she had voluntarily had sexual intercourse with men other than the accused on the days before and after an alleged rape, “no rational person would think that those questions are irrelevant”. He continued that this evidence or questioning was relevant both to the “truth of the complaint made” and to the defence of consent, and that this was only “good sense”: Hansard (HL Debates), 8 February 1999, col 55. 45 It seems that I must conclude from this that I am not a rational person. I see no reason why evidence relating to a complainant’s sexual activity with persons other than the accused, in Lord Bingham’s example, is relevant. It should scarcely need stating, but consent is to a person, not to a set of circumstances, and consent must be given afresh on each occasion of sexual activity. This is not to say that there are no circumstances in which sexual history evidence with third parties will be relevant, though they will be few and far between and section 41 makes provision for these situations. Nonetheless, even where evidence falls within one of the section 41 gateways, assiduous scrutiny will need to be given as to whether the other tests in section 41 have been satisfied. Relevance of sexual history evidence with the accused 46 Sexual history evidence with the accused has generally been assumed to be relevant to the specific issue of demonstrating consent; in effect by suggesting a propensity to consent. This much was established in 1887 when Coleridge CJ stated in R v Riley (1887) 18 QBD 481, 484 that as a matter of “good sense”, evidence of intercourse with the accused is relevant “because such evidence is in point as making it so much more likely that she consented on the occasion charged in the indictment”. This judgment was handed down, of course, at a time before women were granted real autonomy over their lives and where in sexual matters, in particular, marriage granted irrevocable consent to sexual activity. 47 Indeed, it was not until 1991 that this House took the long overdue decision to remove the husband’s immunity from prosecution for rape in R v R [1992] 1 AC

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R v A (No 2)—Judgment 221 599. However, while there have been considerable advances in the status of women since the times of both R v Riley and R v R, understandings regarding the relevance of sexual history evidence appear to have changed little. 48 The Court of Appeal held in this case that questioning relating to sexual activity with the accused was relevant to an issue at trial, with Rose LJ stating so at [2001] Crim LR 389, para 31, in the following terms: “[It is] common sense that a person, whether male or female, who has previously had consensual intercourse with another, particularly in recent weeks or months may, on the occasion in dispute have been more likely to consent to intercourse with that other than if that other were a stranger or one with whom no previous sexual familiarity had occurred.” 49 My noble and learned friends Lord Steyn and Lord Slynn of Hadley are of a similar view that the relevance of such evidence is a matter of “common sense”. The implication is that this evidence shows a disposition to consent to sexual activity with the accused, hence the related assumption that the evidence is relevant to whether or not the complainant consented. In support of this contention, my noble and learned friend Lord Hutton approvingly quotes Professor Wigmore who claimed that evidence of sexual history was relevant as demonstrating “an emotion towards the particular defendant tending to allow him to repeat the liberty”. 50 I am afraid that I must disagree with your Lordships on this point. One does not consent to sex in general or even to one person in general. One consents to a particular act of sex, with a particular person, at a particular time and place. Autonomy entails the freedom and capacity to make a choice whether or not to consent on each and every occasion. If legal authority for this proposition is required, it can be found in article 8 of the Convention. Accordingly, questions or evidence about whether the complainant consented to sexual activity with the accused in the past do not assist in determining whether she consented on the occasion in issue. Furthermore, we should be especially careful about such claims regarding previous sexual activity with the complainant when this is disputed. This is but one reason why the procedural requirements regarding the introduction of sexual history evidence must be followed. 51 Indeed, while the assumption is made that once a complainant has agreed to sexual activity with the accused on one occasion, she is more likely to agree on subsequent occasions, the contrary could also be the case. We know that a large proportion of rapes are perpetrated by partners or former partners and not by strangers as is often assumed. In this light, we can see that the problem with this assumption is that it assumes that women are less likely to be raped by their partners or ex-partners which demonstrably is not the case. This erroneous approach risks enshrining in law the assumption that once a woman has consented to sexual activity with one man she is more likely to agree to sexual activity with him in the future, the impact of which will be to seriously limit the circumstances in which women are able to say no to sexual activity with their partners or expartners. 52 On this point, I am in agreement with Professor Tapper (Cross and Tapper on Evidence, 8th ed (1995)), helpfully quoted in the written intervention prepared for this House by Rape Crisis and others, who states that:

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222 Clare McGlynn “Acceptance of the common law in relation to activities with the accused himself was recommended by the [Heilbron] advisory group, apparently on the basis that it was relevant to consent. The rationale for this wholesale exemption is quite unclear. It seems to suggest that once a woman has consented to have intercourse with a man she will never again refuse. This is hardly a self-evident proposition and it looks very odd beside the rule that no special defence is available to husbands. It is hard to see why special rules should apply to this situation, different from those that apply to third parties. In both the critical consideration should be the precise contribution which admission of the evidence will make to the just resolution of the issues between the parties in the circumstances of the case.” 53 It may be instructive, at this point, to turn to the Canadian experience. My noble and learned friend Lord Steyn finds himself in agreement with the majority of the Supreme Court of Canada in R v Seaboyer [1991] 2 SCR 577, which rendered unconstitutional a provision which closely circumscribed the situations in which sexual history evidence with third parties was to be admitted in sexual assault trials. In the view of my noble and learned friend, Seaboyer demonstrates the problems with non-discretionary regimes regarding sexual history evidence, such as section 41 of the 1999 Act. 54 Seaboyer, however, bears closer reading on this point regarding the use of sexual history evidence with the accused. McLachlin J, giving judgment for the majority, stated at [1991] 2 SCR 577, 604, that: “Evidence that the complainant had relations with the accused and others was routinely presented (and accepted by judges and juries) as tending to make it more likely that the complainant had consented to the alleged assault and as undermining her credibility generally. These inferences were not based on facts, but on the myths that unchaste women were more likely to consent to intercourse and in any event were less worthy of belief. These twin myths are now discredited.” 55 McLachlin J continued at p 635 that evidence of “consensual sexual conduct on the part of the complainant may be admissible for purposes other than an inference relating to the consent or credibility of the complainant” (my emphasis). Further (at p 636), where such evidence is introduced, the judge should specifically warn the jury against inferring from the evidence of the conduct itself that the complainant may have consented to the act alleged. 56 Thus, while the majority in R v Seaboyer struck down the restrictive scheme, they also made it very clear that evidence of a complainant’s sexual history with either third parties or the accused was not to be permitted to support an inference of consent. This approach was enshrined in the legislation which followed Seaboyer, which was upheld as constitutional in R v Darrach (2000) 191 DLR (4th) 539. The preamble to the relevant provisions in Canadian law, post-Seaboyer, states that: “The Parliament of Canada believes that at trials of sexual offences, evidence of the complainant’s sexual history is rarely relevant and that its admission should be subject to particular scrutiny, bearing in mind the inherently prejudicial character of such evidence.”

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R v A (No 2)—Judgment 223 In particular, the section 276(1) of the legislation specifically precludes the admission of sexual history evidence (with the accused or third parties) to support any inference that the complainant “is more likely to have consented to the sexual activity that forms the subject-matter of the charge” or that the complainant is “less worthy of belief”. 57 Finally on this point, I find that I am in complete agreement with L’HeureuxDubé J who, in R v Seaboyer [1991] 2 SCR 577, 678–79, noted that the “concept of relevance has been imbued with stereotypical notions of female complainants and sexual assault”. She continued at p 679 that whatever the test for relevancy: “be it one of experience, common sense or logic, it is a decision particularly vulnerable to the application of private beliefs. Regardless of the definition used, the content of any relevancy decision will be filled by the particular judge’s experience, common sense and/or logic.” Her justifiable conclusion at pp 681–82 was that “once the mythical bases of relevancy determinations in this area of law are revealed . . . the irrelevance of most evidence of prior sexual history is clear”. Section 41 and the certified question 58 Counsel for the accused wishes to bring forth evidence of alleged previous sexual activity between the accused and the complainant, the most recent being approximately one week before the alleged rape. The factual basis of this case is so exiguous that it is extremely difficult to rule on the specific applicability of section 41. With this caveat in mind, section 41 applies as follows. 59 In relation to the issue of consent, the evidence will not be admissible through the second, third or fourth gateways: it is not “at or about the same time” as the alleged rape; nor is the behaviour so similar to that in question that it can be admitted; nor is it rebuttal evidence. This is fully in accordance with the principles of relevance which I have set out above. Thus, the preclusion of this evidence is justified and section 41 rightly excludes it. In this respect, I am in agreement with my noble and learned friend Lord Hope who states that the appellant’s desire to introduce this evidence appears to be based on an evil that section 41 aims to remove from the law, namely the myth that because the complainant consented to intercourse in the past, she was more likely to have consented on this occasion. 60 The evidence or questioning will, however, be admissible under section 41(3)(a) regarding the defendant’s alleged belief in consent. I must say that while Rose LJ in the Court of Appeal found the admissibility of this evidence in relation to belief, but not in relation to actual consent, to be within the realms of Alice in Wonderland, I find it perverse for a different reason. I have stated above that evidence of previous sexual activity between the complainant and the accused is not relevant to demonstrating consent, as consent is given afresh on each occasion. However, the law continues to permit such an assumption to be made by the defendant in substantiating his belief in consent. 61 Accordingly, therefore, the evidence or questioning sought to be introduced is admissible under section 41(3)(a) relating to belief in consent, but not in relation to the question of whether the complainant in fact consented. Section 41 rightly, in

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224 Clare McGlynn my view, precludes the admission of such evidence as not being relevant. There is, therefore, no contravention of the defendant’s right to a fair trial under article 6 of the Convention. The defendant’s right to a fair trial 62 However, your Lordships have reached a different conclusion on this point and I therefore turn to consider submissions that section 41 contravenes the defendant’s right to a fair trial. Let me begin by stating that the protection of the right to a fair trial is of importance to society as a whole. We all have an interest in ensuring that trials are conducted fairly, that the innocent are set free and that the guilty are convicted. Similarly, all members of society have an interest in reducing the prevalence of sexual crimes which continue to blight the lives of many people, mostly women. Contrary, therefore, to the opinion of my noble and learned friend Lord Slynn, I do not see this case as one of an “obvious conflict” between the interests of protecting women and the right to a fair trial. Women and men equally have an interest in a fair trial, as does the whole of society. Neither should the right to a fair trial be seen as solely a conflict between the interests of the state and those of the accused. While this right was developed to protect the accused from an overbearing and authoritarian state, this context no longer defines the right. 63 In recent years, greater emphasis has been given to the role and interests of victims in criminal trials. The international criminal tribunals, most recently the Rome Statute of the International Criminal Court, have been particularly influential in developing better mechanisms by which to ensure victim participation, from special measures to encourage giving evidence, to victim-sensitive rules of evidence, to assistance such as victim representation. 64 Accordingly, when determining the scope of the right to a fair trial, the interests of the accused are part of a balance to be struck between his interests, those of the state, victims, witnesses and society as whole. It is this interplay of factors which led the European Court of Human Rights in Doorson v the Netherlands (1996) 22 EHRR 330, para 70, to hold that: “It is true that article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.” 65 It is therefore important that account be taken of the right to respect for the private life of the complainant. Furthermore, article 6 does not require that any particular rules of evidence are followed. The European Court stated in Schenk v Switzerland (1988) EHRR 242, para 46, that article 6 “does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law”. Thus, the article 6(3)D right to call and cross-

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R v A (No 2)—Judgment 225 examine witnesses is not absolute. While the European Commission case of Baegen v The Netherlands (App no 16696/90, 27 October 1995) has not been argued before us, it shows that the Commission, though not yet the court, has taken the approach that regard must be had to a wide range of factors when considering this issue. In that case, the Commission considered at para 77: “special features of criminal proceedings concerning rape and other sexual offences. Such proceedings are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. In the assessment of the question whether or not in such proceedings an accused received a fair trial account must be taken of the right to respect for the victim’s private life. Therefore, the Commission accepts that in criminal proceedings concerning sexual abuse certain measures may be taken for the purpose of protecting the victim, provided that such measures can be reconciled with an adequate and effective exercise of the rights of the defence.” 66 Again, it may be instructive to return to the Canadian experience. The Supreme Court in R v Darrach (2000) 191 DLR (4th) 539 made clear that fundamental principles of justice do not permit the accused to have procedures crafted which take only his interests into account; still less is he entitled to procedures that would “distort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial”, per Gonthier J at para 24. The Supreme Court also ruled in R v Mills [1999] 3 SCR 668, paras 62–66, 94, a sexual assault case regarding the admission of third party records (such as therapeutic records), that the “scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses”. Thus, the defendant’s rights did not extend to a right to call all relevant evidence. 67 Accordingly, therefore, the right to a fair trial engages the interests of the whole of society and recognises legitimate restrictions on the admission of evidence, especially in sexual assault trials. A defendant’s rights do not extend to permitting the admission of any, or even all relevant, evidence. A balance must always be struck between the various interests at play. In the context of sexual history evidence, there is a strong risk of prejudice to the truth-seeking function of the trial in admitting sexual history evidence, as well as a risk of interfering with the complainant’s right to private life. In my view, the bare facts presented to us in this appeal do not provide any grounds for holding that section 41 contravenes the defendant’s right to a fair trial. The evidence is either irrelevant (as I would hold) or, if deemed relevant, is of such little probative value, outweighed by the significant risk of prejudice, that its admission is rightly circumscribed. For these reasons, the test of proportionality, as detailed by my noble and learned friend Lord Clyde in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 has been met: the legislative objective is sufficiently important to justify limiting a fundamental right, the measures designed to meet that objective are rationally connected to it and the means used are no more than is necessary. 68 There is always the possibility that once the trial has been completed, an appeal determines that, taken as a whole, the defendant has not received a fair trial. While I think such an outcome extremely unlikely, that would be the most

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226 Clare McGlynn appropriate time to determine the fair trial rights of the accused, rather than on an interlocutory appeal such as this. Application of sections 3 and 4 of the Human Rights Act 1998 69 As I have already stated, in my view, section 41 does not contravene the defendant’s right to a fair trial under article 6 of the Convention. If, however, I am wrong on this point, I turn now to consider the applicability of sections 3 and 4 of the Human Rights Act 1998. The approach to be followed under the 1998 Act is, first, to consider whether the legislation under review is compatible with Convention rights. If it is not, the next stage is to consider, under section 3, whether it is possible, despite appearances, to read and give effect to the legislation in a way which is nonetheless compatible with the Convention. Only if such a re-reading is not possible, may the House issue a declaration of incompatibility under section 4 of the 1998 Act. 70 The majority of your Lordships consider that section 41 Youth Justice and Criminal Evidence Act 1999 does contravene article 6 and have determined that section 41(3)(c) is the vehicle through which Convention rights can be assured by reading into that section an “implied provision” to permit a judge to admit evidence which is “so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention”. 71 To me, this use of section 3 goes too far and extends the meaning of the words of section 41 beyond what could ever have been intended by the legislature in enacting either section 41 or section 3 of the 1998 Act. Section 41(3)(c) permits the admission of evidence which is of a similar nature to either the event in question or to activity at or about the same time as the alleged offence. To read into this provision a more general discretion for judges distorts the wording of the section to such an extent that it veers towards judicial vandalism. A fundamental feature of the 1999 Act was the restriction of judicial discretion. I fear that your Lordships’ formulation may have the effect of seriously undermining that cardinal aim. 72 Accordingly, I am of the opinion that if it is the case that section 41 does contravene the defendant’s right to a fair trial, the only step open to this House is to issue a declaration of incompatibility, in accordance with section 4 of the Human Rights Act 1998. This would be the preferable course of action, giving the legislature the chance to reconsider the issue and adopt new legislation which clearly sets out the justifications for restrictions, the scope of admissibility and the balance of interests to be considered. 73 In this regard, I would commend to the legislature the approach taken in Canada. The legislation in Canada does provide for a general discretion to be exercised by judges in relation to the admission of sexual history evidence. However, there are very specific safeguards included in their legislative regime which I highlight here, as they have not yet been considered in this case. 74 I have already noted that the preamble to the Canadian provisions sets out clearly that sexual history evidence is only ever likely to be relevant in exceptional cases and that it cannot be introduced to support an inference of consent. Furthermore, in seeking to bring forward evidence or questions, the defence must refer only to specific instances of sexual activity which are relevant to an issue at

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R v A (No 2)—Judgment 227 trial and which have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”: section 276(2). The demand for “significant probative value” contrasts sharply with section 41’s requirement for evidence to be admitted where it “might” render unsafe a conclusion of judge or jury. 75 The Canadian legislation also provides a detailed list of criteria which must be taken into account and the judge’s reasons for granting or refusing the application must refer to these criteria. The criteria are worth setting out in full, as they demonstrate the many different interests at stake in these cases: (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society’s interest in encouraging the reporting of sexual assault offences; (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f) the potential prejudice to the complainant’s personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant. This structured approach would greatly assist any judge in making a determination as to the relevance or otherwise of sexual history evidence. Conclusion 76 I therefore answer the certified question in the negative. If I am wrong on this, and the evidence is relevant to an issue of consent and therefore is in contravention of the right to a fair trial, I consider that the only appropriate action is to issue a declaration of incompatibility under section 4 of the Human Rights Act 1998 and to invite Parliament to re-enact legislation along the lines suggested above.

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13 Commentary on R v Stone and Dobinson NEIL COBB

Introduction For students who study the criminal law of England and Wales, the 1976 Court of Appeal decision in R v Stone and Dobinson 1 will likely prove, for several reasons, one of the more memorable staples of their legal education. The judgment of the Court remains an important precedent governing what are known as the general principles of criminal liability; specifically, it has helped shape the rules relating to omissions, or failures to act. The tragic facts of the case are also easily recollected. For many students, one must assume, the tale in Stone provides a momentary glimpse of another world that is difficult to comprehend: a world of exclusion, isolation and ill-health. Often the case will be remembered, finally, as an illustration of the egregious injustice that can be meted out by the criminal justice system. Legal textbooks routinely round on the judgment of the Court as an example of a wholly inappropriate criminal conviction.2 As such, it also tends to be implicitly historicised. In Stone one seems to stumble across a criminal justice system of the past, operating against the backdrop of another era. The world has moved on, they seem to suggest, and the same facts would be judged perhaps quite differently today.

The Facts of the Case According to the headline on page 2 of The Times, 19 June 1976, Fanny Stone died in her bed ‘looking like a Belsen victim’. She weighed just 5st 5lb, was covered in bed sores and surrounded by her own excrement. Fanny’s death would prompt the arrest, charge and prosecution, before Sheffield Crown Court, of her brother, John Stone, and the woman with whom he lived, Gwendoline Dobinson, for the common law offence of manslaughter by neglect. John, aged 67 at the time of trial, was partially blind and deaf and had serious learning difficulties; Gwendoline, aged 43 at the time of trial, was described by the trial court as ‘ineffectual and somewhat inadequate’.3 Fanny, the court heard, had come to lodge with the couple at their home in the village of Bolton-on-Dearne, near Rotherham, South Yorkshire, in 1972. She suffered from anorexia nervosa and over the course of the following months, 1

R v Stone and Dobinson [1977] QB 354 (CA). See, eg, reference to the case as ‘highly controversial’ in J Herring, Criminal Law: Text, Cases and Materials, 3rd edn (Oxford, Oxford University Press, 2008) 83. 3 Above n 1 at 357. 2

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R v Stone and Dobinson—Commentary 229 during which time the police returned her to the property after finding her wandering the streets in a state of confusion, she refused to leave her bed or eat proper meals. Her situation slowly deteriorated. The couple made attempts to secure help for Fanny, including a journey to a nearby village to try to find a doctor. However, their efforts were unsuccessful. They took no further steps to assist her in the last weeks of her life and in August 1975 police discovered her dead. Both Gwendoline and John denied manslaughter, but they were convicted by the trial court and sentenced to an 18-month suspended sentence and supervision order and three years’ imprisonment respectively. The decision was appealed by the couple (John challenging both his conviction and sentence, and Gwendoline her conviction alone) and, in December 1976, the Court of Appeal handed down its unanimous decision, which confirmed both convictions (though it did reduce John’s sentence to 12 months’ imprisonment as an act of ‘mercy’).4 In doing so, the decision clarified two historically contentious points of criminal law. First, the Court of Appeal firmly rejected the assertion by defence counsel that manslaughter by neglect should only be found when there was proof of actual, subjective ‘apprehension by the defendant of the risk of death or serious injury’.5 Instead, the test was confirmed as requiring ‘reckless disregard of danger to the health or welfare’ of the victim, where the defendant could be proven to have been ‘indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it’.6 This would remain the law’s (objective) approach to the mens rea of manslaughter by neglect until R v Adomako,7 when it settled on the current standard of ‘gross negligence’.8 Secondly, and perhaps more significantly, the case established a new basis for omissions liability. Traditionally, the common law has been reluctant to impose liability upon individuals for their omissions, doing so only in circumstances that it deems impose an overwhelming moral duty to act. Prior to the Stone ruling, duties had been found to arise in particular from specific professional and familial statuses, often based upon explicit or implied agreements between parties. In the 1980s, several years after Stone, the House of Lords in R v Miller held that where an individual creates a dangerous situation he or she is then under a duty to rectify it.9 The court in Stone held that omissions liability can be established where it is proven that the defendant has ‘undertaken a duty of caring for the health and welfare of an infirm person’ and has breached that duty.10 This is now authority for the principle that voluntary undertaking of responsibility for another will attract a duty to act, and breach of that duty may constitute manslaughter by gross negligence if it constitutes a legally recognised cause of the victim’s death.

4

ibid 364. ibid 363. 6 ibid, applying dicta of Lord Atkins in Andrews v DPP [1937] AC 576 (HL). 7 R v Adomako [1995] 1 AC 171 (HL). 8 Criminal lawyers have speculated as to exactly how the concept of ‘indifference’ in Stone relates to the concept of ‘inadvertent’ or ‘objective’ recklessness adopted in R v Caldwell [1982] AC 341 (HL). For an analysis arguing that the test of indifference ‘appeared to exist somewhere between the orthodox subjective and the objective tests’ of recklessness, see A Norrie, Crime, Reason and History (Cambridge, Cambridge University Press, 2001) 69–70. 9 R v Miller [1983] 2 AC 161 (HL). 10 Above n 1 at 363. 5

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230 Neil Cobb

Feminist Approaches to the Case The rules governing omissions liability can be seen as relevant for feminist scholars because they are shaped invariably by underlying assumptions about dependency and care. These assumptions dictate which care-giving relationships are appropriately recognised by the criminal law, shape the terms of the duties imposed by those relationships, and justify sanctions for those who fail to meet those standards (what I have termed elsewhere ‘compulsory care-giving’).11 Arguably, these assumptions can be meaningfully understood only when considered against the backdrop of continuing liberal anxieties around connection, as reflected in the principle of the maximisation of autonomy, and illustrated by the classic paradigm of the ‘drowning stranger’ to whom no duty to act is owed (indeed, analogy to the drowning stranger formed the key rhetorical argument deployed by counsel for the appellants in Stone, though the analogy was refuted by the Court of Appeal).12 This liberal backdrop is also important when one begins to explore the limited situations (including Stone) in which the general rule has been abrogated by the courts, for these ‘exceptions’ shed further light upon other anxieties directed toward those care-giving responsibilities deemed integral to the wider socio-economic structures of liberal society. The criminal law has focused its attention predominantly upon shoring up care-giving responsibilities within the domestic sphere; the majority of the decisions reached by the courts concern duties arising from interdependent communal living. Obligations owed in this context to others (most often those connected by blood or conjugality) are usually treated as unquestionably legitimate grounds for intervention by the criminal law. However, for critical legal scholars, notably Alan Norrie,13 while this private domain of care-giving is asserted to be ethically apolitical, it inevitably masks the operation of hegemonic relations of power. For instance, law’s refusal to impose duties between strangers seems to reflect its rejection of the redistributive consequences of compulsory care-giving. Similarly, duties that shore up care-giving relationships within the nuclear family unit,14 and those the law derives from contracts of employment,15 arguably accord with the demands of industrial capitalism. Concern with the nature of the power relations that shape the law’s approach to dependency and care extends to gendered inequalities within the home. For example, there can be little doubt that responsibilities for care within this constructed private domain fall disproportionately upon women; that their freedom to negotiate these responsibilities is often questionable; and that they are judged particularly severely when they fail to satisfy gendered expectations around care-giving, especially those that relate to motherhood. The application of the concept of voluntary undertaking in Stone has received mostly hostile reaction from scholars for just such structural reasons. As Norrie argues, closer consideration of the case suggests that it is founded upon questionable reasoning: The argument rests on a play on the concept of an undertaking. Gwendoline had, as a matter of fact, ‘undertaken’ certain actions on the deceased’s behalf, but there was no evidence that she had 11 N Cobb, ‘Compulsory Care-giving: Some Thoughts on Relational Feminism, the Ethics of Care and Omissions Liability’ (2008) 39 Cambrian Law Review 11. 12 Above n 1 at 361. 13 Norrie, above n 8 at 120–33. 14 eg R v Gibbons and Proctor (1918) 13 Cr App Rep 134 (CCA). 15 eg R v Pittwood (1902) 19 TLR 37 (Assizes).

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R v Stone and Dobinson—Commentary 231 made an undertaking to perform such tasks as she performed. There is a slide in the judgment between ‘undertaking’ in a practical and in a ‘contractual’ sense.16

The problem with the law’s derivation of voluntary undertaking from de facto care-giving is that it ensures that questions of consent and capacity for care-giving are left unscrutinised. In Stone, the Court’s emphasis upon evidence of practical efforts by the couple to take responsibility for Fanny’s welfare obscured the disabilities and disadvantages that appear to have limited their consent to, and capacity for, the care-giving required. Gender also looms large in this structural critique.17 Consider, for instance, snippets of conversation taken from the police interview with Gwendoline Dobinson. Implicit in the police evidence submitted to the court are the familiar signs of unequal, gendered relations of power within the household. According to the report, when Gwendoline was asked by the police why she did not take greater steps to help Fanny, she replied: ‘I daren’t. He is boss down there. I daren’t do anything unless he tells me’.18 The standard of care-giving expected of her was also gendered; the police interviewer explicitly alluded to her sex when criticising her for not recognising the seriousness of the situation: ‘You are a woman and you go into her bedroom. Your own commonsense would tell you that she needed attention?’19 Norrie argues persuasively that the concept of undertaking was deliberately ‘manipulated into action’ by the judges,20 who appreciated ‘they had no real basis in law for establishing a duty to act’,21 in order to ensure a conviction in the face of the harrowing death of Fanny Stone. The Court imposed a sentence of imprisonment on John Stone on the ground that it was needed to ‘mark the public disapproval’ attaching to his conduct.22 The most important objective was for the state to be seen to take symbolic action that would show something had been done to respond to the event. Although there was recognition of the vulnerabilities of the couple, there was a more powerful need for the state to apportion blame. In short, close examination of moral responsibility took second place to the urgent requirement to address a clear and terrible harm. The consequence of law’s symbolic intervention, of course, was the discursive allocation of moral responsibility for Fanny’s welfare to John and Gwendoline alone. Yet what remains especially troubling about the original judgment is its failure to consider the couple’s responsibility for Fanny’s care in light of the broader network of care-giving within which they both existed. Much is made in the decision of Gwendoline Dobinson’s failure to act upon the advice of a neighbour, Mrs Wilson, and the local publican, Emily West, that she should contact social services or a doctor about Fanny’s situation. Some effort was made by the couple to seek out a doctor, but each attempt ended in failure and, as the Court of Appeal starkly noted, ‘Nothing more was done to enlist outside professional aid’.23 It is therefore perhaps surprising that the case suggests, at the same time, an apparent lack of judicial concern with the wider legal care-giving duties of the welfare state. In police interviews, both appellants confirmed that John Stone had asked a doctor to visit the house but he had refused because Fanny was not one of his patients. No questions were raised by the Court about why this initial contact with the NHS ended without further investigation. 16 17 18 19 20 21 22 23

Norrie, above n 8 at 127. Cobb, above n 11. Above n 1 at 360. ibid. Norrie, above n 8 at 127. ibid. Above n 1 at 364. ibid 358.

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232 Neil Cobb Thus, what is most problematic about Stone for me is the ease with which moral responsibility for care-giving was unquestioningly privatised, ensuring that moral blame for Fanny’s death was diverted successfully away from the state. Notable too, though, is the lack of proper consideration of the responsibilities one might appropriately apportion to the range of other actors who formed the limited network of connections to which Gwendoline and John had access. As mentioned earlier, some local residents advised Gwendoline to seek out professional assistance for Fanny; Mrs Wilson also ‘gallantly’ helped Gwendoline to clean and wash her;24 another, who remains nameless, tried unsuccessfully to ring a doctor because the couple were unable to operate a telephone. However, none of these Good Samaritans appears to have recognised the extent to which the couple required further support or took steps to secure outside help, nor was the consequence of their failure to do so investigated in the judgment. For instance, the Court noted that Mrs Wilson’s daughter was a nurse, yet never asked why she was not consulted about Fanny’s situation.

The Feminist Judgment In her dissenting judgment in the Court of Appeal, Lois Bibbings is influenced by a nonessentialist approach to feminist care ethics along with linked ideas from virtue and narrative ethics,25 and critical criminology.26 In technical terms, the judgment takes full advantage of the lack of precedent supporting the assumption in Stone that John and Gwendoline owed Fanny a duty of care, in order to pare back the ambit of manslaughter by neglect. However, much of the work of the judgment is achieved more subtly by its re-imagined narrative and construction of the facts.27 For example, Bibbings’s feminist re-reading carefully addresses the majority’s failure to appropriately interrogate possible wider responsibilities for Fanny’s care (including those of the state), and also the particular difficulties faced by carers when their help is refused. One other notable decision in this regard is Bibbings’s deliberate use of the first names of the appellants. This approach contrasts with the majority’s references to both appellants by their surnames, while conversely only ever identifying the victim as ‘Fanny’. Interesting questions might be asked about the effect of Bibbings’s decision, especially in terms of the power of her reconstructed narrative. Is it patronising? Or does it work cleverly to humanise the appellants, in the same way the tragedy of Fanny’s death takes centre stage in the majority decision by the use of her first name? 24

ibid. See, eg, R Tong ‘The Ethics of Care: A Feminist Virtue Ethics of Care for Healthcare Practitioners’ (1998) 23 Journal of Medicine and Philosophy 131; P Benner, ‘A Dialogue Between Virtue Ethics and Care Ethics’ (1997) 18 Theoretical Medicine and Bioethics 47; R Charon and M Montello (eds), Stories Matter: the Role of Narrative in Medical Ethics (London, Routledge, 2002); A Hudson Jones, ‘Narrative Based Medicine: Narrative in Medical Ethics’ (1999) 318 British Medical Journal 253. 26 See, eg, R Coleman, J Sim, S Tombs and D Whyte (eds), State, Power, Crime (London, Sage, 2009). 27 Bibbings’s perspective on the importance of story and narrative theory has been developed elsewhere: see L Bibbings, Telling Tales About Men: Conceptions of Conscientious Objectors to Military Service During the First World War (Manchester, Manchester University Press, 2009), and she draws in particular upon the work of Donald Nicolson and Josephine Winter: D Nicolson, ‘Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse’ (1994) 57 Modern Law Review 726, 737–39; D Nicolson, ‘Telling Tales: Gender Discrimination, Gender Construction and Battered Women Who Kill’ (1995) 3 Feminist Legal Studies 185; J Winter, ‘The Truth Will Out? The Role of Judicial Advocacy and Gender in Verdict Construction’ (2002) 11 Social and Legal Studies 343. 25

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R v Stone and Dobinson—Commentary 233

Conclusion Despite occasional questions about its status,28 Stone and Dobinson remains good authority in England and Wales. It is perhaps worth considering, however, the changing approach to compulsory care-giving in English criminal law; in particular, the assertion that the case would be decided differently if heard today. Section 5 of the Domestic Violence, Crime and Victims Act 2004 has since created a new offence of causing the death of a child or a vulnerable adult by failing to take reasonable steps to prevent harm caused by another member of the same household. The provision was introduced to ensure that those who fail to intervene can be found guilty of an offence without needing to establish a common law duty. It was also designed to overcome the evidential difficulties involved in identifying who within the household was the actual cause of the non-accidental death. The law was changed following concerns about the non-accidental deaths of children in their homes after the death of Victoria Climbié in 2000. Section 5 helps to perpetuate concerns raised by Stone regarding the role of consent and capacity in the law’s imposition of compulsory care-giving. The Court of Appeal has recently concluded that the provision extends beyond the deliberate infliction of harm to include the ‘doomed pathetic individual so dominated by the other defendant, that notwithstanding his awareness of the risk that really serious bodily harm might be inflicted on the victim, lacked a will of his own’.29 Liability is therefore apparently imposed even when an individual’s moral responsibility is open to serious question. Invariably this extension of omissions liability is also gendered. As Herring persuasively argues, section 5 helps mask the reality that women charged under the provision are often disempowered themselves by domestic abuse at the hands of the men primarily responsible for the deaths of young children; in many cases, these women should be understood as victims too.30 Perhaps more positively, scrutiny of the public care-giving responsibilities of the welfare state also seems to have changed drastically since Stone. While the Climbié affair and the recent case of Baby Peter led to individual prosecutions under section 5, they also attracted strident criticism of the social care provided to each household.31 In 2003, Victoria Climbié’s death was the subject of an official inquiry into safeguarding children services by Lord Laming,32 who would release a further scathing review in 2009 following Peter Connelly’s death.33 Given the obfuscation in Stone of the wider network of care-giving responsibilities beyond the household which might have helped to prevent Fanny’s death, this ‘re-moralisation’ of the institutions and actors of the welfare state is, to my mind, a welcome departure from the assumptions underpinning the original judgment.34 What’s more, Bibbings’s re-reading provides a timely opportunity to consider further this broader context of connection and care implemented by the agencies and individuals of the welfare state, which may have failed not only Victoria and Peter, but John, Gwendoline and Fanny too. 28 See R v Bland [1993] AC 789 (HL) 893 (Lord Mustill’s description of it as a ‘troubling case’); R v Sinclair [1998] EWCA Crim 2590, (1998) 148 NLJ 1353 (Court of Appeal’s attempt to distinguish it by drawing a conceptual line between ‘a voluntary assumption of a legal duty of care’ and ‘a desultory attempt to be of assistance’). 29 R v Ikram [2008] EWCA Crim 586, [2009] 1 WLR 1419 [67]. 30 J Herring, ‘Familial Homicide, Failure To Protect And Domestic Violence: Who’s The Victim?’ [2007] Criminal Law Review 923. 31 S Jones,‘Sixty missed chances to save baby “used as a punchbag”’ The Guardian (London 12 November 2008). 32 W Laming, Report of the Inquiry into the Death of Victoria Climbié (London, TSO, 2003). 33 W Laming, The Protection of Children in England: A Progress Report (London, TSO, 2009). 34 For a similar recent development within European human rights jurisprudence, see Z and Others v United Kingdom (2001) 34 EHRR 3.

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[COURT OF APPEAL] REGINA v. STONE REGINA v. DOBINSON 1976 Dec. 21 Bibbings L.J. Having had the opportunity to read the judgment of my brethren in draft, I regret that I can neither construe the facts in accordance with their views, nor can I follow their rationale as to the outcome of the case before us. In short, I am unable to find that either of the appellants should be held to account for their supposed failures to act in this case—let alone that their convictions for the manslaughter of Fanny Stone should be upheld. In my view, Gwendoline Dobinson and John Edward Stone did their best to look out for the deceased. That they have not only been made to bear the blame for Fanny Stone’s death but have also been convicted as her killers and sentenced accordingly is, to say the least, grossly unjust. At the outset though, it is important to acknowledge both the dire sufferings of Fanny Stone and the sad circumstances in which she died. Although we know little about Fanny and she figured but infrequently in the arguments that have been put before us, she is very much at the centre of this case. At the very least, we can only feel distress and alarm at her plight. Such rightful feelings, along with the public outrage which this case has occasioned, should not, however, distract us from the business at hand. In particular, they must not be used as a justification for extending the frontiers of criminal liability in order to penalise two individuals who certainly do not deserve the censure of the law, let alone the ordeal which their prosecution, trial and this appeal must have been. As I see the facts very differently from the majority of the court, it is necessary to devote some time to laying out the subject of this appeal. In putting forward my own construction of events I have opted (where possible) to call the participants in this case by their first names. This course serves, I hope, to humanise all those involved, thereby treating them with a degree of even-handedness. My approach here contrasts with that of my brethren, who have chosen to refer to the deceased by her first name but the appellants by their surnames. For present purposes the story starts in 1972, when the appellants, together with John’s adult son, Cyril (who has been described to us as “mentally subnormal” but is not implicated in these proceedings), lived at 75 Broadwater, Bolton-on-Dearne, a village in Yorkshire. Gwendoline, who is now 43, had been cohabiting with John for eight years, performing housework, and they had been living as if they were married. She has been described to us as “ineffectual” and somewhat “inadequate”. John, who is now 67 years of age, is a retired miner and a widower who has a number of disabilities. He is partially deaf, almost blind, has no appreciable sense of smell and is depicted as being of low average intelligence. At some point in that year John’s sister, Fanny, aged 61 at her death, came to live at number 75. She had previously been living in a nearby village with another sibling, Rosy, but it seems that they fell out, possibly because the sister found Fanny difficult

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R v Stone and Dobinson—Judgment 235 to live with, and Fanny had consequently decided to leave. Fanny occupied a small front room in the Broadwater property and for this she paid £1.50 a week towards the rent (her pension being £11.60 per week). Thus, whilst she was related to John, she was in the house as a lodger. Fanny seems to have been suffering from what is sometimes known as an eating disorder. This got progressively worse during her time at number 75. She was extremely wary of food and seemed to avoid eating. When she ate she apparently subsisted upon a diet of biscuits and pop, fearing that anything else would make her fat. Fanny also led a fairly hermit-like existence within the house, often not leaving her room for days at a time. On the occasions when she did leave the confines of her room she would wait until her brother and Gwendoline had left to spend the evening in the public house, then would cautiously emerge and get herself some food. It seems that, unsurprisingly given her concerns about food, Fanny got her own meals, but if she wanted anything to be bought she told Gwendoline. Gwendoline in turn informed their next door neighbour, Mrs. Wilson, who did the shopping for the occupants of number 75. Indeed, Mrs. Wilson seems to have been kind enough to support the Dobinson–Stone family in various ways. Generally, however, when offered help, it seems that Fanny would refuse it. For example, John described her as being “very stubborn”, emphasising that she “would not let anyone do for her”, and Gwendoline made repeated references to Fanny’s failure to ask for help or to complain. More particularly, Fanny resisted seeing a doctor. Despite these difficult circumstances (in terms of Fanny’s refusals of help and solitary existence as well as the appellants’ limited physical and intellectual abilities), Gwendoline and John clearly recognised that, as her condition worsened, she was in need of assistance and made numerous attempts to help Fanny. That these efforts were ineffectual should not be judged too harshly, as these were a couple who themselves seemed to have required support in their day-to-day living. Things came to a head during the course of 1975. In the spring of that year Fanny was found wandering around the streets, apparently lost and confused. She was brought back to the house by the police. As a result of this, the appellants resolved to seek outside help for their lodger. They tried to find out the name of her doctor but she refused to tell them, fearing that she would be “put away”. Despite this vehement determination not to see a health professional, Gwendoline and John pursued the matter. They tried to find out the doctor’s name from John’s other sister, Rosy, and walked a considerable distance in search of the surgery—but, unfortunately, as they went to the wrong village, their quest was unsuccessful. Fanny’s mental and physical condition seemed to decline rapidly over the next few months. By July 1975 she was unwilling and ultimately probably unable to get out of her bed. On July 19 the neighbour, Mrs. Wilson, came to help Gwendoline give Fanny a wash. Referring to Gwendoline as Mrs. Dobinson, she described the events as follows: “On July 19 Mrs. Dobinson and I went to Fanny’s room in order to clean her up. When I went into the room there was not a strong smell until I moved her. Her nightdress was wet and messed with her own excreta and the dress had to be cut off. I saw her back was sore, I hadn’t seen anything like that before. I took the bedclothes off the bed. They were all wet through and messed and so was the mattress. I was there for about two hours and Mrs. Dobinson helped. She was raw, her back, shoulders,

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236 Lois Bibbings bottom and down below between her legs. Mrs. Dobinson appeared to me to be upset because Fanny had never let her attend to her before. I advised Mrs. Dobinson to go to the social services.” The neighbour, Mrs. Wilson, made a great effort to give both time-consuming practical assistance and advice. Moreover, it should not go without note that the circumstances under which she intervened were such as to be particularly troubling and upsetting. Her account also demonstrates Gwendoline’s obvious concern for Fanny, as Mrs. Wilson mentioned that she thought Gwendoline was upset. Another witness, Emily West, the landlady of Gwendoline and John’s local public house, told how the appellants visited the Crossed Daggers every night at around 7 p.m. after July 19. They chatted about Fanny, with Gwendoline telling Emily about her concerns that Fanny would not wash, get up to go to the toilet or eat and drink. Emily was kind enough to suggest that Gwendoline seek help from a doctor. When told that Fanny’s doctor lived in Doncaster, Emily suggested getting a local one. Following this the appellants made further efforts to help their lodger. They tried to contact a doctor but were hindered by their inability to use a telephone and, unfortunately, the neighbour who volunteered to do the telephoning for them was, for some reason, unsuccessful in enlisting nearby medical help. Probably around the same time, at Gwendoline’s behest, John also seems to have tried to get his doctor to see his sister but this too was unsuccessful. Gwendoline reported this in a police interview. When asked why she had not obtained assistance for Fanny, Gwendoline answered that she had asked John to get a doctor and that he had tried to “but because the deceased was not on his panel the doctor wouldn’t come”. John’s version of events is the same. In interview he recalled that Gwendoline had told him Fanny was “in a bad way” and explained that “I tried to get our doctor to come but he would not.” What these accounts reveal is that both appellants were concerned about Fanny’s condition and sought advice and assistance from various quarters. Indeed, despite their circumstances and Fanny’s resistance, they tried to obtain a doctor’s help on several occasions. The sad culmination of these events was that Gwendoline found Fanny dead in her bed on August 2, 1975. The police were called and found the dire circumstances under which the deceased had been existing and ultimately expired. The small room which Fanny had occupied had no ventilation as the window was sealed shut. It was sparsely furnished and offered no washing or toilet facilities. In addition, no food or water was found. On two chairs by the bed were an empty water bottle and a cup. Under the bed was an empty plastic bucket—possibly intended as a chamber pot. It was clear that the room had itself been used as a toilet as there was excrement on both the bed and the floor, some of which was wrapped in newspaper, and some of the bed-clothes were soaked in urine. As to the state in which Fanny’s body was found, the pathologist, Dr. Usher, gave evidence that she had worn no clothes, was emaciated and that she was both ingrained in dirt and lying in a pool of excrement. There were pressure sores and her body was in places ulcerated to the bone. He estimated that the wounds would have taken at least two or three weeks to get into this state. He found that she had not eaten recently and that she had been suffering from anorexia nervosa, concluding that she had been requiring urgent medical attention for days or weeks.

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R v Stone and Dobinson—Judgment 237 On Fanny’s chances of survival had she gone into hospital, Dr. Usher felt that if she had been transferred two weeks previously she might have survived, if three weeks her chances would have been good—provided that Mrs. Wilson’s description of her condition on July 19 was accurate. It is perhaps worth noting here that this view does not seem to have taken into account Fanny’s resistance and, in all probability, her categorical refusal to see a doctor. I think it unlikely that Fanny would willingly have seen a doctor, let alone accepted any treatment and that, if she had been forcibly treated due to a judgment as to her lack of capacity for such a refusal (anorexia being, as Dr. Usher noted, a condition of the mind or brain), I find it difficult to accept that her recovery would have been so easily achieved. I leave these ponderings to one side, however, as they do not have a bearing upon the reasoning by which I will reach my decision as to the outcome of the present case. Concluding my consideration of Dr. Usher’s evidence, it seems that he found Fanny’s passing to be caused by two factors. First, by toxemia which spread from the infected pressure sores (and that this could have been alleviated by keeping her clean). Secondly, by her prolonged immobilisation. The lack of food and the immobilisation (for which there was no physical cause—at least initially) had produced the pressure sores. Further, he speculated that depression might have caused the lack of mobility and that lack of ventilation would have aggravated the other matters. I now turn to consider how this case came to be before us and thence to an examination of the relevant legal arguments. The appellants were both charged with manslaughter and were tried at Sheffield Crown Court in June 1976. The case for the Crown was that both Gwendoline and John had a duty to care for Fanny; that they had failed to perform that duty to such a degree that their inactions amounted to gross negligence; and that their omissions caused her death. The learned judge, Boreham J., directed the jury that for gross negligence to be established there needed to be reckless disregard by the couple of their duty of care. He amplified this, suggesting that thinking about the latter might entail considering what the appellants thought would be the result of their recklessness, adding however, that recklessness as to whether Fanny died or not did not need to be proved in order for a finding of guilt to be made. The jury convicted both of the defendants. It seems that the judge attributed more blame to the former miner than to his cohabitant, as John was sentenced to three years’ imprisonment, whilst Gwendoline received an 18 months suspended sentence and was made the subject of a supervision order. Both parties are now appealing against the conviction and John has also asked this court to reconsider his sentence. In terms of their appeals against conviction the appellants contend that: (1) they were under no legal duty to care for the victim or obtain medical assistance for her; (2) there was no or insufficient evidence that they had assumed such a duty; (3) the trial judge failed to direct the jury adequately or at all as to the circumstances in which such a duty arose in law; (4) the trial judge was wrong in law in directing the jury that a legal duty arose whenever any grown-up person chose to undertake the charge of another human being who, by reason of infirmity, mental or physical illness, or old age was incapable of looking after herself; (5) the trial judge failed to direct the jury at what moment and in what circumstances a person assumed such a duty in respect of another when that other had been and continued to be resident in a household and to whom the householder had owed no legal duty; such a direction was essential having regard to the evidence and to the circumstances which led to the death of the victim;

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238 Lois Bibbings (6) alternatively, there was no or insufficient evidence that the appellants were in breach of such a duty; and (7) the trial judge misdirected the jury in stating that, in the circumstances where such a duty existed, the test as to whether or not the appellants were in breach of it was whether or not they had behaved with reckless disregard for the welfare of the victim but that the Crown did not have to prove that the appellants were reckless as to whether the victim lived or died. It is submitted by the appellants that, in consequence of the direction given, the jury were not directed as to the degree of neglect which the Crown was required to establish. My decision rests solely on the first of these contentions. I can see no legal basis for finding that a duty to care for Fanny existed in relation to either Gwendoline or John. Indeed, it seems to me that, in deciding that both the appellants were bound to help Fanny, my brethren have unjustifiably conjured duties out of the juridical ether. It falls, then, to address the thinking of the majority regarding the presence of duties to act in the present appeal. My brother judges have concluded that the jury were entitled to find that duties to act had come into existence at least from the middle of July 1975, when Fanny became helpless and immobile. They maintain that these duties were based upon a number of factors. In John’s case these were: (1) that Fanny was a blood relative; (2) that Fanny was occupying a room in his house; (3) that it was taken to be established that he was aware of Fanny’s distressing condition by mid-July. In Gwendoline’s case: (1) that she had tried to wash Fanny (or in their words that she had “undertaken” this “duty”); (2) that she was aware of Fanny’s condition by mid-July. In addition, my brethren have stressed that both John and Gwendoline were urged to seek state help but did not do so. However, in listing these factors, my brother judges cite no authority for their relevance to the question at hand; indeed, I can find no authority for their finding of duties to act. It is clear that Gwendoline and John’s case does not fall within the established categories where there may be criminal liability for omissions. Fanny is not, for example, a minor and the child of Gwendoline or John. No statutory duty to act is applicable to the circumstances and there is no formal contractual relationship creating such an obligation between the parties. Furthermore, Fanny is not their patient. However, this is not to say that there are no authorities that warrant consideration in the present appeal—but rather that all previous cases point to a finding that there was no duty to act in the circumstances placed before us. In Reg. v. Smith (1837) 8 C. & P. 173, a Gloucester Assizes case, the defendants, William, Thomas and Sarah, were the brothers and sister of George. The latter, a man of over 40 years of age, was described as having “always been an idiot”, had been bedridden for a number of years and lived with his siblings in William’s house. George was found to be living in an unheated and windowless room, in filthy conditions, and it was alleged that he had not been provided with adequate nourishment. Charges were brought essentially alleging assault by neglect but the view was taken that, without some specific legal obligation to act, adult siblings had no duty to care for each other— even (as here) if one were a “helpless” “idiot” living in his brother’s house. If we apply this ruling to the present case it is clear that neither Gwendoline nor John bore a legal duty to care for Fanny, as some specific undertaking would be required in order to create such a responsibility. The same conclusion is indicated by cases in which a duty to assist an adult has been held to exist. In Reg. v. Marriott (1838) 8 C. & P. 425, an Assizes case, one Simon

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R v Stone and Dobinson—Judgment 239 Marriott was convicted of manslaughter by means of negligence. He had taken Mary Warner, “an infirm woman of great age”, to live in his house, promising to make her “happy and comfortable”. Instead, he confined her against her will and failed to provide adequate shelter, heat, nourishment and medicine for her. The case is very different from that of Gwendoline and John as Simon had specifically and in the presence of witnesses stated that he would look after Mary when he invited her to live with him. Similarly in Reg. v. Nicholls (1874) 13 Cox C.C. 75, another Assizes case (although this time involving child neglect), it was found that for a duty to be held to exist there must be a choice “to undertake the charge of a human creature, helpless either from . . . lunacy or other infirmity.” From these authorities it seems that some form of promise or agreement to take on the care of an individual must exist before a duty to act can be found to exist. As there is no evidence of such an undertaking between Fanny and Gwendoline and John, no duty can be said to exist between the deceased and the appellants. Reg. v. Instan [1893] 1 Q.B. 450 concerned a conviction for manslaughter arising from the breach of a duty to act. The prisoner, Kate Instan, lived with her aunt, Ann Hunt (the deceased). Whilst Kate was a 30-something-year-old woman with no means, her 73-yearold relative had a small life income and maintained her niece. No one else lived with or attended to them. Kate was, therefore, by way of being a companion—a common role for a poorer female relation in the nineteenth century. When her aunt fell ill and became unable to help herself, Kate Instan did not seek assistance and apparently failed to provide sustenance for her relative. However, she remained in the house, continuing to receive and consume provisions paid for by her aunt until the latter’s demise was detected. When Ann Hunt’s body was discovered it was decomposing, partially clothed and was resting partly on the bed and partly on the floor. It was estimated that she had died between three and six days before the discovery of her remains and the cause of death was given as exhaustion caused by gangrene—accelerated by Kate’s inaction. At the Worcester Assizes, the judge directed the jury that Kate could only be held to be liable if she was found to have (by implication because of the nature of the relationship) undertaken to look to her aunt’s care. Subsequently, the Court for Consideration of Crown Cases Reserved found that there was a common law duty to act arising from a moral duty (largely) because Kate was maintained by Ann (and because Ann was incapable of looking after herself). Kate should, therefore, have provided her aunt with some of the food which the latter had paid for. In so deciding, the court recognised that they were extending the law as there was no case in point. Applying Instan to the present case, we can see that the relationship between Fanny and the two appellants is a very different one from that of Kate and Ann. Whilst the latter were blood relatives, this was not a factor which contributed to the finding of a duty in the 1890s case. Rather, it was the fact that Kate was maintained by her aunt as a companion that was key. There was no such relationship in Fanny’s case (in fact, she was a lodger in the house), so no duty could be said to have arisen. A long list of authorities (only a few of which were raised before us) confirm these findings. Moreover, no previous case has held that attempting to help someone gives rise to a duty to care such as has been imposed upon Gwendoline. There is also no basis for finding that Fanny’s eventual inability to care for herself is a relevant factor as regards the establishment of a duty to care (whether this was something the appellants were aware of or not). Therefore, nether of the appellants were under a duty to act and their convictions must be quashed.

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240 Lois Bibbings It follows that, in upholding the convictions in this case, my brethren have extended the boundaries of criminal liability for omissions. That they have done so is to be regretted. One of the fundamental ideas underlying the criminal law is that of individual autonomy; indeed, guilt and blame are generally said to be pinned upon the fact that a defendant acted of their free will. As a consequence, the imposition of a compulsion to act on pain of criminal conviction is unusual and warrants the kind of careful and deliberate consideration that only Parliament can provide. I feel compelled to add that I have found this case and its outcome to be greatly troubling. Whilst I am saddened by what happened to Fanny, I am also disturbed by the effects of the state’s intervention through the police investigation, the prosecution and the punishment meted out to the two appellants. I cannot help but feel that more harm than good has been done by this prosecution and that more still may be done in the future by the extension of liability made by the majority of this court. In the light of these concerns I can only regret that leave to appeal to the House of Lords has been refused today. However, this is not, to my mind, the end of the matter, as more needs to be said beyond the strictly legal about the imposition of liability in this case and the actions of those involved. I hope that in my construction of the facts I have shown that John and Gwendoline tried their best to help Fanny. Indeed, their efforts were made despite difficulties both in managing their own lives and in coping with the modern world of technology. Most significantly, they offered Fanny a home, allowing her to lodge with them when it seemed that Rosy had tired of her sister’s eccentricities. Gwendoline arranged for food to be bought for her, signed Fanny’s pension book so her money could be collected (as the latter could not or did not want to be bothered to do this herself), helped to wash her and sought advice and help concerning her well-being. Both Gwendoline and John tried to obtain medical help for Fanny. And, it should be remembered, this they did despite Fanny’s resistance. How then could they be considered guilty of manslaughter? Moreover, in Gwendoline’s case, she is criminalised in part because she tried to look after Fanny (it seems that she has a duty to care because she cared); this paradoxical imposition of liability cannot be right. It is also a matter of concern that there were various professionals who could have offered more by way of care and support to Fanny. The doctor who apparently refused to see her because she was not one of his patients must figure prominently here. Perhaps also the police who brought a wandering Fanny home could have inquired more as to the household’s circumstances and arranged for appropriate assistance to be offered. There was also the social worker who visited Cyril, John’s son, but it seems did not notice (or did not follow up on) any issues relating to the others living with him. This is not to say that any liability, blame or responsibility for Fanny’s death should be imposed upon these individuals but rather to suggest the importance of the professions involved learning lessons from this case. More significantly though, what this demonstrates is that the state had a role in supporting the Stone–Dobinson household. However, it seems to have failed to notice that Gwendoline and John, let alone Fanny, could have benefited from the offer of further assistance. I am extremely uneasy about this; one would have hoped that, in the latter half of the twentieth century, when we are reputedly blessed with the best welfare and health systems in the world, more could have been done to offer help to the inhabitants of number 75.

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14 Commentary on R v Brown MATTHEW WEAIT AND ROSEMARY HUNTER

Introduction In R v Brown,1 the appellants were a group of homosexual men who had, over a number of years, been involved in consensual sado-masochistic sex. During the course of these activities, physical injuries had been sustained by some of the participants. No complaint had ever been made to law enforcement authorities by those injured, and evidence of the injuries, and the activities which gave rise to them, only came to light when a video recording was seized during an unrelated police investigation. Charges of actual and grievous bodily harm under the Offences against the Person Act 1861 (OAPA) were brought against the men. Whether their defence of consent made the activities lawful was appealed all the way to the House of Lords, which held, by a majority of 3 to 2, that as a general rule, consent is not a valid defence where a person deliberately inflicts actual or serious bodily harm on another, even where that consent is freely given. The only circumstances in which the causing of such harm will not result in criminal liability are those where the activity in question falls within a category that has previously been held to be lawful (these include surgery, ritual male circumcision, tattooing, ear piercing and violent contact sports, such as boxing). Lord Templeman was categoric in his reasons for denying the defence on the facts before him: The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences under sections 47 and 20 of the [OAPA].2

The decision in Brown was the culmination of a series of cases in which the Court of Appeal had to address the question of consent in cases where injury was caused either in the context of sexual gratification, or where the activity concerned lacked social value or utility. In R v Donovan3 it was decided that consent was no defence to the caning of a 17-year-old girl, while in Attorney-General’s Reference (No 6 of 1980) 4 it was held that the same was true in the context of fist-fighting which caused actual bodily harm. An attempt by some of the appellants in Brown to argue that their convictions had breached their right to respect for private life under article 8 of the European Convention on Human Rights was unsuccessful, 1 2 3 4

R v Brown [1992] UKHL 7, [1994] 1 AC 212. [1994] 1 AC 212, 236. R v Donovan [1934] 2 KB 498 (CA). Attorney-General’s Reference (No. 6 of 1980) [1981] QB 715 (CA).

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242 Matthew Weait and Rosemary Hunter with the European Court of Human Rights holding that while there had been an interference by the state with that right, it was justified on the basis of the public health exception in article 8(2) of the Convention.5

The House of Lords’ Judgments As noted above, the House of Lords split 3 to 2 in favour of dismissing the appeals against conviction. There was a clear difference in the majority and dissenting opinions as to the approach which should be adopted as regards the question of consent. According to the majority, actual or grievous bodily harm and wounding are to be treated as unlawful unless there is a sufficiently ‘good reason’ to make an exception. Drawing on obiter dicta in the earlier case of R v Donovan, their reasons for dismissing the appeal are grounded largely in policy considerations rather than law. They focus, for example, on the potential dangers to health and morals that might arise if such activities were judicially sanctioned. For Lord Lowry, an assault can be lawful in principle (because of the consent), but in this case there is a justification for criminalising it (because of the degree of harm) and there is no good reason for decriminalising it (because it does not fall within one of the public policy exceptions). The fact that consent existed as a matter of fact in this case was essentially irrelevant because the majority were concerned to limit, on policy grounds, its availability in law. In contrast, the dissenting opinion of Lord Mustill treats the existence of consent as critical, and he spends much of his opinion exploring its complexity. In his view, there is no justification for denying the defence on public policy grounds per se, and it is more appropriate to consider each case of ‘consensual violence’ on its own merits. Also dissenting, Lord Slynn opines that there are grounds for treating actual bodily harm and grievous (or serious) bodily harm differently, with consent available as a defence to the infliction of the former, but not the latter.

The Feminist Judgment In her feminist judgment, Robin Mackenzie joins the dissenting opinions and argues that the defence of consent should be available in cases of consensual sado-masochistic practices. She agrees with the reasoning of Lord Mustill, that in the absence of previous authority, the question of whether consensual sado-masochistic practices should be liable to prosecution under the OAPA must be determined as a matter of public policy. She differs from his reasons, however, in viewing consensual sado-masochistic activity not as a distasteful practice in which it is nevertheless no business of the law to intervene, but rather as having some positive value as a legitimate sexual preference of some proportion of the population, and, particularly as engaged in by BDSM (bondage and discipline, dominance and submission, sadism, masochism) communities such as those of the appellants, in helping to educate the curious about safe sado-masochistic sexual practices, and therefore promoting 5

Laskey v United Kingdom (1997) 24 EHRR 39.

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R v Brown—Commentary 243 citizens’ health and well-being. She also considers public policy arguments that might contradict this position, but ultimately accepts the arguments in favour of the legality of consensual sado-masochistic sexual activity.

The Problem of Consent Consent is a problematic concept both for criminal lawyers and for feminists. It is particularly problematic for feminist theorists of criminal law. Briefly stated, the difficulty for criminal lawyers, at least those raised in a liberal legal tradition, is that consent ought in principle to negate criminal liability because it negates harm. If harm is conceived, broadly speaking, in terms of the violation of a person’s right to autonomous self-determination, then to deny the relevance of consent is to deny that right—which is anathema to the liberal project. For feminists, the difficulty (and this is the case both for those otherwise sympathetic to liberalism and for radicals, albeit for different reasons) is that consent pre-supposes equality, specifically gender equality. To adopt an approach to consent which denies the reality of unequal power relations between men and women, and which ignores the ways in which this imbalance is institutionalised in the substance, procedure and practice of criminal law, is to affirm and legitimate male domination. Mackenzie adverts to this issue in her feminist judgment, suggesting that courts should be careful in each case to ensure that ‘real’ consent is present. If we accept that relations between men and women are still marked by structural inequality, however, then there remains the possibility that ‘negotiations’ leading to ‘consent’ have been conducted in conditions that reflect that inequality. R v Wilson6 is instructive. This Court of Appeal decision concerned a man who had been convicted under section 47 of the OAPA for having branded his wife’s buttocks with his initials. Having been heard after Brown (in which branding had also been the basis of some of the charges) it was to be expected that the wife’s consent would not provide him with a defence—and this is what the trial judge concluded. However, the Court of Appeal quashed the conviction. Russell LJ criticised the prosecution and the wider implications of criminalising such behaviour. In his view, the facts of Wilson were entirely different from Brown. The wife had not merely consented to the injury, she had instigated it. He approved the husband’s statement that his wife had said she was not ‘scared of anybody knowing that I love you enough to have your name on my body’. The branding was, he thought, no different from tattooing. That would have been lawful, and so, therefore, should this be. Russell LJ concluded: ‘Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution.’7 Like Russell LJ, Mackenzie would appear to accept that Mrs Wilson was a free agent whose instigation of the wounding she endured was entirely of her own choosing. Yet while her injury was not the product of aggression, it was a symbolic one that represented the traditional subordination of wife to husband. It marked his ownership of her. We may legitimately question whether allowing ‘consent’ to govern the issue in this case serves the feminist cause.8

6 7 8

R v Wilson [1997] QB 47 (CA). ibid 50. See also R v Emmett [1999] EWCA Crim 1710.

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244 Matthew Weait and Rosemary Hunter

Context Mackenzie suggests that one of the criticisms which may be levelled against the conviction in R v Brown is that the trial judge (and consequently the Court of Appeal) was privy only to edited highlights of the activities in which the appellants were engaged. She points out that this would have made those activities, and their effects, seem more abhorrent because the negotiations which preceded them were not taken into account, and led to misinterpretation of what the men were engaged in. (For example, while the edited video showed the nailing of a foreskin, it was not made clear that this was done through a hole which already existed.) The problem with this line of reasoning is that context, while relevant to culpability and sentencing, is not—generally speaking—a relevant consideration when determining criminal liability. The starving thief is as much a thief as the greedy one. It might be argued (as Lord Templeman himself suggests) that the context of consent is what makes surgery, ritual circumcision and injury sustained during contact sports lawful, but a stronger reason for the legality of these is arguably not context as such, but the fact that these are activities which reflect and reinforce particular cultural values and expectations. We have no problem with allowing someone to consent to necessary surgery, despite it involving the infliction of wounds; and even though boxing and non-necessary cosmetic surgery are harder cases, the fact that the law permits them arguably derives from support for the masculine value of dominance in conflict, the desire of some women to achieve an ideal of femininity through breast augmentation or reduction (or of men to demonstrate their masculinity through penis enlargement or pectoral implants) and from the fact that the wounds inflicted as effects of these desires and practices do not manifest, or attempt, subversion of the (gendered) liberal democratic state. Wounds inflicted in the context of sado-masochistic activity, on the other hand, do precisely this. They articulate a subversive eroticism in which the experience of pain is sought rather than avoided, in which blood is wasted rather than conserved, in which no can mean yes. As such, sado-masochistic wounding is read by the law as conduct that challenges and undermines the very values which it is the law’s function to uphold, and thus it cannot— logically—be tolerated by the law. If we believe (and, of course, we are free to do so) that the law should permit the defence of consent to wounding in the course of sado-masochistic sex because something called ‘context’ should be determinative of its legality, we need a theory of criminal law—and a system of criminal law grounded in that theory—that not only accommodates the infinitely various, and honestly expressed, explanations and justifications which human beings might wish to give for their actions (actions which might range from assisting a suicide to eating someone because he genuinely wants to be cannibalised), but which also prioritises such explanations and justifications over the moral judgement or sentiment of others. Although it would no doubt be possible to formulate such a theory, it seems unlikely that any criminal law system derived from it would be one that we could call law (as that term is generally understood), nor serve the functions that we expect the law to perform.

Violence and Sexuality Mackenzie’s feminist judgment also explores and questions the relationship between violence and sexuality, and the law’s proper response to this. Critically, she notes (a) that it is

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R v Brown—Commentary 245 central to liberal legal thought that the state retains, and should retain, a monopoly of violence; and (b) that feminists have been divided on the legitimacy of criminalising sado-masochistic sexual activity (with some arguing that those who ‘consent’ to such activity are suffering from a socio-psycho-pathological ‘false consciousness’, and others seeking to affirm the capacity and right of women to make informed choices). Mackenzie’s conclusion is that the activities were ones which should not be treated as falling within the ambit of the OAPA, but instead within the law governing sexual relations. Mackenzie is right to raise the issue of state (and thus legal) violence. Law does violence to people, albeit in more or less occluded fashion.9 This goes a long way towards explaining why it is that the criminal law sees fit to criminalise what it conceives of as violence committed by its subjects, especially where that violence takes place in a universe of alternative rule-making that subverts the monopolistic authority of state law over our bodies. As to feminist disagreements about sado-masochism, there has been a lively debate among feminist legal theorists and activists as to whether sado-masochism is empowering or disempowering to women. For some, the transgressive opportunities that it provides mean that it enables women (whether lesbian or heterosexual) to assert their sexual agency in ways that more ‘vanilla’ forms of sex cannot, while for others, sado-masochism merely serves to reproduce the violence that marks heterosexual men’s domination of women.10 While the law cannot (nor is in any position to) resolve these debates, it can (and does) draw lines. Sado-masochism is not in itself, and this is an important point, against the law. There is no ‘law against’ being a sadist or a masochist, or against what might be thought of as the core elements of sado-masochistic relationships (domination, submission, ritualised humiliation, the eroticisation of the giving and receiving of pain). To the extent that those in such relationships observe the behavioural boundaries that the law places on all adult human beings of full mental capacity, what they do and how they do it is up to them. It is only when the expression of sado-masochism brings it into conflict with the norms of a society for which that mode of expression is exceptional that the law intervenes (and, arguably, must logically intervene).

Final Remarks Mackenzie acknowledges, but gives little weight to, the fact that sado-masochism challenges the very logic upon which law depends. In its parodic subversion of punishment, authority, power, domination and submission, its aesthetics, its playfulness and its disregard for the body which the courts see it as their duty to protect, it is in a very real sense against the law. It is against the law because it is an erotics of anarchy, of treason, and an inversion of all that the law and a liberal legal system stand for. At the same time, and somewhat paradoxically, 9 See, generally, RM Cover, ‘Violence and the Word’ (1986) 95 Yale Law Journal 1601; A Sarat, ‘Making Peace with Violence: Robert Cover on Law and Legal Theory’ in A Sarat (ed), Law, Violence and the Possibility of Justice (Princeton, NJ, Princeton University Press, 2001). 10 For discussion, see T Hoople, ‘Conflicting Visions: SM, Feminism and the Law’ (1996) 11 Canadian Journal of Law and Society 177; S Ardill and S O’Sullivan, ‘Upsetting an Applecart: Difference, Desire and Lesbian Sadomasochism’ (2005) 80 Feminist Review 98; L Chancer, ‘From Pornography to Sadomasochism: Reconciling Feminist Differences’ in RR Linden, DR Pagano, DEH Russell and SL Star (eds), Against Sadomasochism: A Radical Feminist Analysis (East Palo Alto, CA, Frog in the Well, 1982); L Chancer, Sadomasochism in Everyday Life (New Brunswick, NJ, Rutgers University Press, 1992).

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246 Matthew Weait and Rosemary Hunter sado-masochism—in its justificatory deployment of the language of liberalism (of consent, freedom, choice)—is a practice, lifestyle and identity that exists at the limit point of liberalism itself. To inflict injury in a sado-masochistic context is, in this theoretical sense at least, ‘edge-play’ of the purest form. To be a practitioner of sado-masochism is to be a resistance fighter, to assume an identity and to express that identity in a way that is, literally, incomprehensible to a moderate and moderating legal system which sees its responsibility as one of sustaining traditional heteronormative values. At the level of the individual case, the question of the legality of sado-masochistic injury may be framed in the technical language of the defence of consent or the scope of a Convention right; but conceived of more broadly, it is a question that goes to the heart of the function of law itself.

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[HOUSE OF LORDS] REGINA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT and BROWN (ANTHONY). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPELLANT REGINA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT and LUCAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPELLANT REGINA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT and JAGGARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPELLANT REGINA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT and LASKEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPELLANT REGINA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT and CARTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPELLANT [CONJOINED APPEALS] 1993 March 11 Baroness Mackenzie. My Lords, I have had the benefit of reading in draft the opinions of my noble and learned friends Lord Mustill and Lord Slynn of Hadley and I conclude that the appeals should be upheld. I agree with my noble and learned friend Lord Mustill that the prosecutions of the appellants under sections 20 and 47 of the Offences against the Person Act 1861 were inappropriate as the actions of the appellants fell to be adjudicated more properly, if at all, within the criminal law of private sexual relations rather than the criminal law of violence against the person. I wish to add my own comments to those of my noble and learned friends. I believe that there are sound public policy reasons for the law to take a positive view of sexual activities encompassing consensual sado-masochistic practices which do not involve grievous bodily harm or death. The Court of Appeal certified the following point for this House, namely: “Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 or section 47 of the Offences against the Persons Act 1861?” The central question at issue is, then, the relationship between consent and sadomasochistic practices.

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248 Robin Mackenzie My Lords, this appeal takes place in a context in which there has been longstanding criminalisation and pathologisation of sexual relations outside penetrative intercourse between a man and a woman who are married to one another. Where only this form of sexual relations is accepted as normal, other forms of sexual activities which are commonplace for many, or the only means of sexual expression for others, become stigmatised. This stigma creates and maintains attitudes of distaste, disapproval and incomprehension towards these practices. Indeed, the opinions of your Lordships reveal elements of these attitudes, both to same-sex and sado-masochistic activities. Insofar as same-sex sado-masochistic sexual pleasures taking place in group situations may appear to be at the far extreme from the supposed norm of married couples engaging in heterosexual intercourse in the privacy of their homes, this is perhaps predictable. Yet unless our view of normality is expanded to encompass variety or difference, some citizens will remain subjected to prejudice. I consider that this offends against public policy as well as the right to a private life. Historical research suggests that sadomasochistic aspects of sexual expression have been preferred over time by a proportion of the population: see, inter alia, Bullough and Bullough, Sin, Sickness and Sexuality: A History of Sexual Attitudes (1977). Social tolerance and acceptance of means of attaining sexual pleasure amongst consenting adults are needed to support the public interest in preserving the health and well-being of citizens. Reducing the stigma associated with sado-masochistic activities would encourage the curious to inform themselves before engaging in them. Reliable information for those who wish to engage in sado-masochistic techniques in the privacy of their own home, as well as for those who prefer to attend role play clubs, would save them from injury and prosecution should the unanticipated occur. In this context, so-called B.D.S.M. (Bondage and Discipline, Dominance and Submission, Sadism, Masochism) communities may be seen to fulfil a valuable educative and socialising role for those whose sexual proclivities are so inclined, but who lack the salient knowledge to enable them to take appropriate risk management procedures. Greater knowledge of safe sado-masochistic sexual practices would no doubt reduce unfortunate accidents and the deaths of those engaged in risky activities such as breath play. Sexological research into sado-masochistic practices has until recently pathologised these experiences, as in Krafft-Ebing’s Psychopathia Sexualis (1903) or the current Diagnostic and Statistical Manual of Mental Disorder (D.S.M. III-R.) (1987). These categorisations as pathological paraphilia or sexual disorder fail to distinguish sadomasochistic practices such as those described by practitioners as “safe, sane and consensual” and the cruel and violent injuries more properly described as sadistic inflicted upon others without valid, or any, consent. Indeed, how far consensual sadomasochistic activities may accurately be seen as cruel and violent is questionable, given the disparity in consensual and non-consensual circumstances. Cruelty implies the enjoyment of suffering inflicted upon an unwilling recipient. Violence between persons implies unwelcome force inflicted upon another. My Lords, it is this distinction which appears to me to be central to this case. Controlled, consensual role play based upon sexual pleasure gained from negotiated actions should not be equated with the violence and cruelty of physical abuse inflicted on another without consent. The latter is prohibited by the criminal law and would properly be prosecuted under the Act of 1861.

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R v Brown—Judgment 249 Such violence and cruelty has no place in the sado-masochistic practices engaged in by the appellants or their like. Interviews with those whose preferred means of sexual self-expression is sado-masochism, conducted in depth by researchers, reveal a variety of practices centred upon role plays involving dominance, submission, bondage and intense stimulation as well as the infliction of pain: see, inter alia, Spengler, Sadomasochisten und ihre Subkulturen (1979). Since the 1980s, these have been described by the participants as “B.D.S.M.” rather than as “sado-masochism”. However, I have chosen to use the term “sado-masochistic activities” throughout this opinion as more in keeping with the terminology established during these hearings. Evidence at the first appeal hearing described how each sado-masochistic activity is entered into only after detailed, careful negotiations over the actions involved, safety precautions including unmistakable code words to end the negotiated sequence of actions if necessary, as well as introductory training provided by experienced practitioners to novices unfamiliar with safe practices. By contrast, the uninformed but common perception of sado-masochistic acts, and indeed, that portrayed in the video of edited highlights shown in the courts, is that of a succession of sudden, violent acts. Naturally enough, this is difficult for many people to associate with sexual pleasure or consent. Yet, were the actions placed in the context of ongoing negotiations and gradually increased stimulation, a more empathetic understanding of such practices as consensually sexual might be fostered. For example, accounts from a sample of participants professionally judged to be psychologically healthy and reported by Moser and Levitt in “An Explanatory-Descriptive Study of a Sado-masochistically Oriented Sample” (1987) 23 Journal of Sex Research 322, reveal that extreme measures of physical stimulation involving pain within sadomasochistic activities are administered only after a series of similar actions gradually building up to the final level of severity. This progression elicits the experience of sexual pleasure through painful stimulation. Without these progressive increases in stimulation, pain is experienced as pain without pleasure. For instance, someone who enjoys pain as an integral part of sado-masochistic role play does not enjoy pain associated with going to the dentist. I turn now to the facts of this case, which have been set out in some detail in the opinion of my noble and learned friend Lord Templeman and by Lord Lane C.J. in the Court of Appeal [1992] Q.B. 491. Suffice it to say that the case concerned the legality of sexual acts amongst members of a group of men engaged in sado-masochistic practices in private. These involved some men dealing with the bodies of other men in ways which caused pain and a degree of harm. All present consented to the activities, all desired that they should take place and all took care to ensure that no-one required medical attention subsequently. No participant complained. Prosecutions were brought as a result of video film coming into the hands of the police in a different police operation. Sixteen men were subsequently charged and convicted under the Act of 1861 as alternative charges under the law of sexual offences were out of time. As my noble and learned friend Lord Mustill demonstrates in his opinion, the Act of 1861 represents a collection of actions regarded at that time as appropriately falling within the criminal law rather than a considered and coherent rationalisation of offences. Accordingly, the lack of fit between the Act of 1861, the Sexual Offences Acts of 1956 and 1967 and consensual sexual practices carried out by adults in private at the end of the 20th century is not surprising. For example, same-sex sexual relations

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250 Robin Mackenzie between men remain prejudicially singled out for prosecution. Indeed, my noble and learned friend Lord Slynn characterises as unacceptable the present situation, where acts engaged in by more than two men may be criminalised, yet identical acts when carried out by more than two men and a woman or more than two women are lawful. This unsatisfactory state of the current law should not justify the prosecution under the Act of 1861 of activities which fall outside the evil the Act sought to prohibit. Rather, consensual sexual acts which do not involve grievous bodily harm or death, which properly attract prosecution under the criminal law, should fall outside the Act of 1861. Criminal law as it currently stands governs consent and harm in a fashion inappropriate at the end of the 20th century. It is unwieldy, illogical and inconsistent. In the Attorney-General’s Reference (No. 6 of 1980) [1981] 2 Q.B. 715, 719 Lord Lane C.J. held that: “it is not in the public interest that people should try to cause or should cause each other bodily harm for no good reason. . . . Nothing we have said is intended to cast doubt on the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be justified as involving the exercise of a legal right, as in the case of chastisement or correction, or as needed in the public interest, as in the other cases.” This left open the category of the activities encompassed within the “etc”. As the opinion of my noble and learned friend Lord Mustill delineates with admirable clarity, the decided cases do not reveal a coherent basis enabling reasoned decisions upon when consent to bodily harm should obviate criminal liability. Rather, they appear to be a conglomerate of uncoordinated examples derived from circumstances in specific times and places with limited applicability to contemporary views or mores. For example, while it is self-evident that proper medical treatment should be able to be carried out on the basis of appropriately elicited, valid consent, the value of exceptions found in the case law concerning “manly sports” are questionable in late 20th century society where different conceptions of gendered behaviour prevail. Accordingly, I concur with my noble and learned friend Lord Mustill’s opinion that the certified point falls to be considered as a matter of public policy. My Lords, where judgements of public policy are at stake, it is my respectful view that attitudes of distaste for sado-masochistic practices are not conducive to clarity. Moreover, information concerning sado-masochistic practices presented selectively is likely to promote prejudice and stigma. Operation Spanner, the investigation which led to the cases preceding this appeal, is sufficiently well known for no detailed account to be needed here. Suffice it to say, the operation began with the seizure of video film recording acts of violence which the police took to be a “snuff ” movie depicting torture preceding murder. This possibility was properly subjected to an intensive investigation which revealed these fears to be groundless. Those interviewed who had engaged in sado-masochistic activities reported that these were consensual, preceded by detailed negotiation over what should take place and meticulous safety precautions, including the provision of safe words which would lead to the immediate cessation of the action. In the context of such a high profile, expensive operation, it was perhaps inevitable that charges would be brought. In the context of lesser charges being out

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R v Brown—Judgment 251 of time, it was perhaps inevitable the appellants would be charged under the Act of 1861. Given that 16 hours of video footage was seized, it was perhaps inevitable that Rack J. in the initial hearing was shown a shortened, three hour version of edited highlights which showed the negotiated activities but not the pleasure experienced by the participants, the negotiations themselves, the safety precautions or evidence of long term relations amongst the participants. The participants may be regarded as parties to a series of relational contracts, yet the omission of their accepted practices from the evidence presented renders assertions of consensual agreements less plausible, as does omission of the participants’ pleasure and graduated increases in stimulation. As the depiction of this gradual progression of pain was omitted, the edited highlights would more readily appear shocking and incomprehensible. Nor were additional salient actions which preceded the included material presented as evidence. Selected highlights of this nature are likely to provoke prejudicial views of the activities depicted. While considerations of time and expense mean that only selective evidence is presented to the court, in the initial trial of the appellants the omission of material relevant to judicial value judgements concerning the nature of the activities portrayed was unfortunate. Other difficulties also beset the making of public policy decisions that concern the intersection between sex, violence and consent. Consent is central to whether sexual activity should be protected as part of private life or should properly invite the protective intervention of the criminal law. Offences against the person constituting sexual offences hinge upon whether the sexual activities are consensual. Without consent, sexual activity may be seen as violent, harmful and properly subject to the criminal law, whether or not it involves sado-masochism. Yet consent to sexual activities is not necessarily straightforward, as illustrated, for example, by feminist debates on the subject. Professor Carole Pateman, for instance, argues in The Sexual Contract (1988) that gender and power may render distinguishing between valid consent and habitual acquiescence, assent, silent dissent, submission or even enforced submission problematic. Professor Catharine MacKinnon, in Feminism Unmodified (1988), asserts that consent within sexual relations between men and women is severely compromised, if not completely invalidated, by the fact that men as a group exert social, economic and psychological power over women. Other feminists, such as Professor Robin West in her article “The Difference in Women’s Hedonic Lives: A Phenomenological Account of Feminist Legal Theory” (1987) 3 Wisconsin Women’s Law Journal 1, disagree with Professor MacKinnon on the grounds that many women wish to engage in sexual relations with men and feel able to provide meaningful consent to so do. These reflections reinforce the common law presumption that justice must be found by scrutinising the facts on a case by case basis. Consent must be real, not merely apparent. Sado-masochistic practices take many forms, which may be interpreted as violent, harmful and appropriately criminalised, or as safe, sane and consensual and so properly outside the criminal law. The variety of contexts within which sadomasochistic practices may take place and the numerous actions which may be described as sado-masochistic lead me to believe that the term “sado-masochistic activities” is misleading in that it implies a unity which does not in fact prevail. Placing all so-called “sado-masochistic practices” under the protection of private sexual

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252 Robin Mackenzie activity, as urged by the defence before the Court of Appeal, may not be appropriate. Non-consensual sado-masochistic activities would constitute assaults properly subject to the Act of 1861, whereas consensual identical practices falling short of grievous bodily harm and death should be protected as private acts of sexual expression to prevent prejudice and stigma. This would fulfil the public policy obligation of preserving citizens’ health, safety and well-being. Even so, insofar as sado-masochistic practices involve the construction of consensual rules governing sex, consent and potentially harmful and violent acts, they may still provoke unease. The Crown’s prerogative to keep the peace, maintain a monopoly over violence and enforce contracts through the law could not function unless agreement, power, harm and punishment are seen as serious matters. This contrasts with sexual occasions where pain, bondage, harm and power become play and so may appear deplorably frivolous, irresponsibly risky and disrespectful. In addition, play parties may be taken to represent an attempt to establish a separate jurisdiction with its own rules and contractual agreements, an enterprise outlawed in English common law in Reg. v. Dudley and Stephens (1884–85) L.R. 14 Q.B.D. 273. Sado-masochistic activities may thus be interpreted as implying a threat to, or at least a mockery of, the rule of law. Sado-masochistic activities may also perpetuate gendered hierarchies and abuses of power. They can be seen as reinforcing rather than revolutionising existing unsatisfactory power relations in wider society: see, inter alia, Linden et al. (eds.), Against Sadomasochism: A Radical Feminist Analysis (1982). On the other hand, such activities can have a therapeutic effect for those wounded by power hierarchies, who may feel empowered as a result. Translating relations of dominance and submission into a realm of play and fantasy may disempower their effect in the outside world: see, inter alia, Califia, Coming to Power: Writings and Graphics on Lesbian S/M (1987). In my view, the potential of sado-masochistic play to pose a challenge to the rule of law or to the cause of gender equality is uncertain at best. Nor are such consequences easily subject to proof. Moreover, as the legislation on free speech, libel and defamation and parody demonstrates, play can be seen as socially valuable or as healthily ironic rather than problematic. Public policy issues relating to sado-masochistic practices and the law remain insofar as the right to freedom of sexual expression is in tension with the limits of autonomy over activities to which we might properly consent. We cannot consent to another’s killing us, nor to another’s causing us grievous bodily harm. Yet we may lawfully engage in risky activities which may lead to our death, like mountaineering or casual sex with strangers. One factor which distinguishes these cases is the Crown’s interest in keeping the peace, or protecting citizens against bodily assault and death. Mercy killings or assisted suicides are unlawful partly because of evidentiary difficulties. The dead cannot confirm their dying was voluntary. Yet those who have engaged voluntarily in sado-masochistic practices and those who have been assaulted may testify as to their consent or lack of it. Just as the fact that non-consensual sex takes place does not lead the law to prohibit sex on the grounds that non-consensual sex constitutes a harmful assault on bodily integrity, the law should not regard consensual sado-masochistic activities between adults as assault on similar grounds. A central public policy issue is how far the private sphere should be open to state oversight and potential legal intervention. Protecting choice and preventing bodily

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R v Brown—Judgment 253 harm simultaneously is extraordinarily difficult when it comes to sexual relations, which most if not all of us would consider to be quintessentially private. Thus, most agree that state intervention in this sphere is to be tolerated, if at all, only on the grounds of protection against sexual assault, or, more controversially, when certain acts are seen as being against public policy. Public policy and consensus on the moral and legal acceptability of specific sexual practices inevitably vary according to circumstances, time and place. Public policy decisions are also commonly justified in terms of concepts of choice, consent and harm. We may choose freely to engage in sexual relations with others provided there is valid consent and no-one is harmed. Thus, sex with those who cannot provide valid consent is almost universally unlawful (for example, with children), sex for money often seen as morally unacceptable and adultery may be deemed to be morally unworthy. Within English law, for example, the harm associated with sex with children has meant that this has been consistently criminalised. Agreements between cohabitants, however, once regarded as unenforceable on public policy grounds since they constituted providing sex for money, are now increasingly recognised. Ideas of harm to the social body which should be condemned on public policy grounds have altered with time and changing social circumstances, as with attitudes towards adultery, as evidenced in divorce proceedings, where fault plays a lesser part. Ideas on the kinds of sexual acts to which it is possible to give a valid consent have also changed over time Whereas earlier this century only sexual encounters between a heterosexual couple were acceptable, research into sexual expression has demonstrated that “normal” sexuality encompasses difference. Previously pathologised practices or orientations, such as homosexuality, are no longer regarded as abnormal or unlawful. Where the parties concerned have the capacity to consent and define the acts they are consenting to as sexual, they have a claim to be free from state intrusion. In rightsbased legislation, the exception to this is where there is interference with public health or morals. This exception is an imprecise criterion, allowing for appropriate discretion on the one hand, but open to prejudice and uniformed misunderstandings on the other. Nonetheless, it suggests that public policy should incorporate a risk management approach compatible with the educational objectives mooted above. Reported descriptions of the subjective experiences of participants in play parties involving role playing with bondage, dominance/submission and sado-masochistic practices include mutual sexual gratification, intimacy, trust and shared transgressive pleasures which would commonly be seen as private sexual expression, or none of the state’s business. Detailed descriptions of safety precautions taken by those engaging in such play parties, or role playing, demonstrate a concern to avoid bodily or psychological harm and to enhance safe, mutually negotiated pleasures: see, inter alia, Califia, Lesbian Sado-masochism Safety Manual (1988). The central issue then becomes which, if any, activities should properly fall outside the protection from state intervention afforded to private sexual relations. In other words, are there any circumstances in which a competent adult’s consent to a specific bodily practice may be invalidated on the grounds that the practice should be deemed unlawful on public policy grounds? In the opinions of the majority of your Lordships, homosexual sado-masochistic sexual acts should be illegal rather than being regarded as merely morally unworthy or impermissible. Public policy should protect society from a cult of violence and the evil of pleasure taken in the infliction of pain or uncivilised cruelty; such activities cannot

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254 Robin Mackenzie be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. Conversely, my noble and learned friends Lord Mustill and Lord Slynn are of the opinion that rather than being illegal, sado-masochistic activities are morally questionable. As such, they should not attract prohibition on grounds of public policy. With the very greatest respect for these views, I believe that it is possible and appropriate for the law to take a positive view of consensual sado-masochistic activities. The majority’s fears of increased non-consensual violence and non-consensual cruelty are not borne out by the research cited above establishing sado-masochism as the sexual preference of a stable proportion of the population. Most of the population are unlikely to find sado-masochistic practices appealing. An analogy might be made with the orientation of a stable proportion of the population to prefer those of the same sex as sexual partners. This justifies sado-masochism’s being accepted as attracting comparable legal status with other consensual acts between adults. In addition, such acceptance would decrease rather than promote risky practices through the encouragement of education in appropriate and safe practices. Without consent, or where sado-masochistic practices result in grievous bodily harm or death they should attract criminal prosecution, as do other non-consensual sexual acts. In conclusion, I would hold, on public policy grounds, that consensual sado-masochistic activities falling short of grievous bodily harm and death are sexual practices which do not and should not fall within the aegis of the Offences against the Person Act 1861. Accordingly, I would uphold the appeals.

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15 Commentary on R v Dhaliwal MANDY BURTON

Introduction R v Dhaliwal 1 is a 2006 decision of the Court of Appeal on the meaning of ‘bodily harm’ in the context of the Offences against the Person Act 1861 (OAPA). The case represented an opportunity to extend the criminal sanctions available to prosecute perpetrators of domestic violence through expansion of the law relating to unlawful act manslaughter. The Court of Appeal did not take that approach but the feminist judgment writers, who are writing in an imaginary appeal to the House of Lords, have seized the opportunity to do so. The facts of the case are tragic. The victim committed suicide following a long history of domestic abuse, the evidence of which was pieced together from various sources. These sources included a diary kept by the victim, medical records, statements of relatives, police records and a statement the victim had made in proceedings for a non-molestation order several years prior to her death. The abuse was mainly psychological in nature but included some physical assaults. On the evening that she committed suicide the victim had been assaulted by her husband who struck her on the forehead causing a cut with a bangle he was wearing. The Court of Appeal stated, ‘It seems likely that this assault operated as the immediate trigger which precipitated her suicide’.2 The Crown Prosecution Service (CPS) decided to prosecute Mr Dhaliwal for unlawful act manslaughter but, instead of relying on the final physical assault as the unlawful and dangerous act, they chose to base the case upon an argument that the defendant had committed the offence of grievous bodily harm contrary to section 20 OAPA, by inflicting serious psychological injury on the victim as a result of years of domestic abuse. Herein lay the difficulty; could an offence of inflicting grievous bodily harm contrary to section 20 OAPA be based on non-physical injury, and if so, could it be made out in the absence of a clinical diagnosis of a recognised psychiatric injury? The failure to establish an offence under section 20 OAPA would mean that a prosecution for unlawful act manslaughter would fail at the first hurdle; the requirement for an unlawful act. This would render redundant any discussion of additional elements of the offence, such as the requirement that the defendant’s unlawful act be a significant cause of the victim’s death. However it was clear that if the case passed the hurdle of an unlawful and dangerous act there would at least be an argument that the defendant was not responsible for the victim’s death because she broke the chain of causation by her own ‘voluntary’ act in committing suicide. The issues raised by the case therefore include both the meaning of ‘bodily harm’ and the appropriate 1 2

R v D [2006] EWCA Crim 1139, [2006] 2 Cr App R 24 (CA). ibid [6].

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256 Mandy Burton approach to causation in cases where there is conduct of the victim which might be said to have caused her own death.

Social Context of Domestic Violence The case is significant from a feminist legal perspective for a number of reasons. The circumstances of the case are not a ‘one off ’ occurrence. There is a well established link between domestic violence and suicide, evidenced through empirical research in many countries. UK statistics collated in 2004 show that more than one third of all female suicides in 2000 were committed by women who had been subjected to domestic abuse.3 Research in the US shows that suicide attempts often follow closely after hospital treatment for domestic violence injury and that women who experience domestic abuse are more likely to self harm than those without a history of abuse.4 Domestic abuse erodes confidence and self-esteem and in some cases can lead to victims living their lives in a constant state of fear and abjection, harming themselves and ultimately committing suicide. Further, as the feminist judgment writers Vanessa Munro and Sangeeta Shah observe, rates of domestic violence-related suicide are higher amongst particular ethnic communities. It may be that cultural barriers to accessing support explain a possible higher correlation between domestic abuse and suicide in these communities. However, Munro and Shah are arguably right to assert that the cultural context should not be over-emphasised. The most obvious significance of the case, therefore, lies in its potential to offer some form of ‘justice’ for victims of domestic abuse who commit suicide as a result of that abuse, whatever their ethnic background. However, the case is also important for victims of domestic abuse who do not commit suicide. The most reliable data on the extent of domestic abuse in the UK suggests that one in four women will experience ‘domestic violence’ during their lifetime.5 The definition of ‘domestic violence’ is often disputed, and there is a thriving social science literature debating the extent to which domestic violence is a gendered problem (experienced to a greater extent by women than by men).6 Nevertheless, few would seek to deny that there is a significant social problem which ought to be addressed. Feminist campaigners have worked hard to establish that domestic violence is a social problem which deserves appropriate legal interventions, including an adequate response from the criminal justice agencies. Clearly the law can never be a complete solution, but it ought not to constitute part of the problem, and should at least strive to be part of the solution. As it stands, the criminal law arguably falls far short of providing an adequate response to domestic violence. As Munro and Shah note in their feminist judgment, this could potentially place the UK in breach of its positive obligations to protect the right to life under article 2 of the European Convention on Human Rights (ECHR). The European Court of Human Rights has recently ruled that the Turkish government breached article 2 because 3

S Walby, The Cost of Domestic Violence (London, Women and Equality Unit, 2004). E Stark and A Flitcraft, ‘Killing the Beast Within: Woman Battering and Female Suicidality’ (1995) 25 International Journal of Health Sciences 43. 5 S Walby and J Allen, Domestic Violence, Sexual Assault and Stalking: Findings from the British Crime Survey, Home Office Research Study 276 (London, Home Office, 2004). 6 RP Dobash and RE Dobash,‘Women’s Violence to Men in Intimate Relationships: Working on a Puzzle’ (2004) 44 British Journal of Criminology 324. 4

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R v Dhaliwal—Commentary 257 the criminal justice agencies failed to protect the applicant and her mother from years of domestic abuse culminating in the perpetrator murdering his mother-in-law.7 However the case reiterates the test set out in Osman v UK,8 which requires the authorities to have knowledge (actual or imputed) of a ‘real and immediate risk’ to the life of an identifiable individual. In the UK this high knowledge threshold has proved a barrier to victims who have tried to argue that their human rights have been breached by the failure of the criminal justice authorities to protect them.9 It has been argued that the ECHR has had limited effect on improving the remedies for police inaction available for victims of domestic violence.10 The deficiencies of the criminal law response to domestic violence relate both to the approach of the criminal justice agencies and the scope of the criminal law itself. Both of these were found to be wanting in Dhaliwal, but the main emphasis of the feminist judgment is on the scope of the criminal law, as no details are provided as to why the police and CPS failed to take action upon the multiple allegations of abuse made to the police, other than to observe that Mrs Dhaliwal ‘declined to make formal complaints’.11 The criminal law contains no specific offence of domestic abuse, thus the interpretation of the generic offences of assault under the OAPA is crucial in terms of how receptive the criminal law is to the various forms of domestic abuse. Although ‘domestic violence’ is a contentious concept, it is now widely recognised by a range of agencies working with victims that it extends beyond physical abuse and includes psychological and emotional abuse. But despite the fact that the criminal justice agencies in England and Wales have officially adopted definitions that are broad enough to cover a range of non-physical abuse, the criminal law has been much slower to respond to the argument that non-physical abuse should be recognised as a crime. There are specific offences designed to accommodate nonphysical abuse, such as the harassment offences under sections 2 and 4 of the Protection from Harassment Act 1997, but the OAPA was enacted at a time when there was little understanding or acknowledgment of domestic violence as a significant social problem. Dhaliwal is therefore important because it shows how far old laws can, or cannot, be stretched to accommodate modern understandings of the nature of domestic abuse.

The Meaning of ‘Bodily Harm’ The case was decided by the trial judge and the Court of Appeal solely on the basis of the type of evidence required for a conclusion that the victim has suffered bodily harm in situations where the harm is non-physical in nature. The courts approved previous case law stating that only medically recognised psychiatric injury suffices.12 This is problematic in cases where victims of domestic violence have not had a diagnosis of battered women’s syndrome or post-traumatic stress disorder. Such diagnoses are likely to be especially difficult in suicide cases where the victim is not available for medical examination and the medics 7

Opuz v Turkey (2009) 27 BHRC 159. Osman v UK (1989) 29 EHRR 245. 9 Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50, [2009] 1 AC 225. 10 M Burton, ‘Failing to Protect: Victims’ Rights and Police Liability’ (2009) 72 Modern Law Review 283. 11 See above n 1 at [2]. The absence of a willing complainant is not a bar to prosecution, although there are undoubtedly evidential difficulties to be overcome. 12 R v Chan-Fook [1994] 1 WLR 689 (CA); R v Ireland; R v Burstow [1998] AC 147 (HL). 8

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258 Mandy Burton are trying, as in this case, to piece together a picture of the victim’s mental condition from limited resources. The feminist judgment discusses the limitations of a medical approach to defining bodily harm especially, but not uniquely, posthumously. Horder and McGowan’s commentary on Dhaliwal notes that the European Court of Human Rights did not object to the approach of developing criminal offences to respond to societal changes in the context of marital rape.13 Perhaps the time has come to acknowledge that it is just as harmful, maybe more so, to subject a partner to years of non-physical abuse, as it is to punch, slap or kick her. Physical wounds may heal much more quickly than mental ones. Psychological harm would not have been within the contemplation of the Victorian legislators but the OAPA should be interpreted in the context of modern understandings of the meaning of ‘harm’. In Dhaliwal, the Court of Appeal referred to the idea that the common law develops incrementally and logically. They also noted Lord Steyn’s opinion in R v Ireland; R v Burstow that the OAPA was a ‘living instrument’14 to be interpreted in the light of current scientific knowledge, but concluded that medical knowledge on the workings of the mind was still ‘less than complete’. In the Court of Appeal judgment we see the privileging of medical knowledge over a large body of social science research relating to the effects of domestic abuse. The court argued that if medical opinion were not followed then uncertainty would follow, but the medics themselves could not agree! The court is simply exchanging one uncertain approach for another. The feminist judgment acknowledges this perverse result; medicine does not provide the courts with the certainty they claim to seek. Thus Munro and Shah prefer an approach which allows for significant psychological symptoms (which attain a minimum level of severity defined by reference to ECHR standards) to amount to ‘bodily harm’ despite the lack of a medical diagnosis. This approach represents an important step in including victims of domestic violence who currently lack redress within the scope of the criminal law. Some objections to this extension will be considered in the conclusion. Having decided that non-medically recognised psychiatric injury might in some cases amount to ‘bodily harm’ the feminist judgment then goes on to consider the second potential obstacle to a conviction for manslaughter in cases where a victim of domestic abuse suffering psychological injury commits suicide: causation.

Causation The issues of causation were not directly addressed by the Court of Appeal in Dhaliwal, either in relation to the last physical assault or the section 20 charge the prosecution preferred. The prosecution felt that establishing causation would be more difficult if they relied on the last physical assault, which is why they chose the ill-fated section 20 alternative. The obiter comments of the trial judge and the Court of Appeal imply that there would have been an arguable case of manslaughter if the last assault had been relied upon, even though the assault was not the sole or main cause of death. The feminist judgment writers argue that causation should not pose any problems whether the court relies on a physical assault or psychological injury. The principles of 13 See J Horder and L McGowan, ‘Manslaughter by Causing Another’s Suicide’ (2006) Criminal Law Review 1035, discussing SW and CR v UK (1995) 21 EHHR 363. 14 R v Ireland; R v Burstow, above n 12 at 158.

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R v Dhaliwal—Commentary 259 causation and the relevant case law are reviewed in the feminist judgment. First it should be noted that the ordinary principles of causation suggest that a voluntary act of the victim will break the chain of causation; the victim is treated as an autonomous person responsible for their own decisions and the consequences. However, as Munro and Shah observe, the rules of causation vary according to context and ought to acknowledge the fact that an individual’s decisions are often influenced and constrained by their relationships with others and by social influences. They also point to the principle that the chain of causation may not be broken if the victim’s conduct was ‘reasonably foreseeable’.15 Was it reasonably foreseeable that Mrs Dhaliwal would commit suicide? It might be argued that such an outcome was ‘daft and unexpected’,16 but the victim did have a history of self harm following incidents of domestic violence and had been treated in hospital following an incident when she slit her wrists. The principle that you ‘take your victim as you find them’ refers to pre-existing physical conditions and psychological make-up, so it could be argued that Mr Dhaliwal had to take his victim as he found her, especially since her psychological vulnerability was a product of his own conduct. This is the approach which Munro and Shah take, relying in part on the decision in R v Dear,17 which held that even a deliberate act of the victim (in that case reopening wounds inflicted by the defendant) will not necessarily break the chain of causation. The original physical wound in Dhaliwal was not life-threatening but the psychological injuries were. The psychological wounds inflicted by domestic violence may last for years, and never fully heal. Stretching the principles of causation to accommodate victims in Mrs Dhaliwal’s situation might be viewed by some as problematic but it can be argued, as Munro and Shah do, that there are compelling policy reasons for treating domestic violence distinctly, particularly given the research showing how victims’ choices are influenced and constrained by the experience of abuse. Sometimes, for policy reasons, the courts seem keener to follow their notions of moral culpability than strict causation, for example in medical cases where voluntary acts of doctors do not generally break the chain of causation. Causation is a policy-ridden area. The approach taken in the feminist judgment is a welcome alternative to the traditional approach of the criminal law where by focusing on the victim’s act, the courts shift responsibility for the consequences of the abuse from the abuser to the victim.

Conclusion Munro and Shah anticipate that their judgment might be criticised for unfairly imposing constructive liability for death on a defendant who lacked intention or foresight of death or serious injury. This objection has some force where the defendant’s actions do not involve any attack on the victim but is considerably diminished in situations where the defendant has changed his normative position by intentionally or recklessly causing some harm to another. There is no unfairness in holding Mr Dhaliwal liable for unlawful act manslaughter; he is not a victim of ‘bad luck’, he made his own luck by directing his efforts towards harming his wife. 15 16 17

R v Roberts (1972) 56 Cr App R 95 (CA). ibid. R v Dear [1996] Crim LR 595 (CA).

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260 Mandy Burton Horder and McGowan argue that a more secure basis for conviction in Dhaliwal would have been a prosecution for gross negligence manslaughter (GNM).18 The requirements of GNM are perhaps easy to meet in a situation where there is an established relationship between the victim and defendant, such as the spousal relationship in the case, and a long history of domestic abuse provides good evidence of breach of a duty of care sufficient to establish the test of ‘gross’ negligence.19 However, the advantages of a GNM analysis only apply to cases where the victim dies. The key strength of the route taken by Munro and Shah is its potential application to the thousands of women who suffer non-fatal domestic abuse but whom it has been difficult to accommodate within the OAPA because of the restrictive definition of ‘bodily harm’. A more flexible, twenty-first-century interpretation of bodily harm, one which sits with social science knowledge if not medical understandings of that term, is what is needed. The criminal law has an important symbolic function in signalling conduct which society is not prepared to tolerate. This in itself is reason for criminalising conduct, even though it might not give rise to liability under the civil law. It is one step in the challenge of getting the criminal justice agencies to effectively prosecute domestic violence.

18 19

Above n 13. R v Adomako [1995] 1 AC 171 (HL).

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House of Lords

R v Dhaliwal [2007]

BARONESS MUNRO-SHAH 1 My Lords, the circumstances out of which the present case arises provide a vivid illustration of the plight of millions of women in England and Wales who have experienced, or continue to experience, domestic abuse. The following brief sketch of agreed facts cannot begin to convey the intolerable treatment that the victim, Gurjit Dhaliwal, was subjected to by her husband, Harcharan Dhaliwal, for over a decade. Victims of domestic abuse are too often silenced, metaphorically speaking, by abusers, society and the institutions of the state. The tragic suicide of Gurjit Dhaliwal also renders her voice literally absent from these, and earlier, court proceedings. Posthumous insights from her diaries, witness recollections and official records do, however, provide partial glimpses of her plight. 2 For more than a decade, Gurjit Dhaliwal was subjected to various forms of abuse (mainly psychological, but also a series of physical assaults) by her husband. Records exist of Gurjit Dhaliwal seeking medical attention in the wake of assaults in July 1994, April 1998 and March 1999. She reported the latter two incidents to the police, and made further reports of threatening or physically abusive behaviour in August 1999, May 2002 and May 2003. As is common in cases of domestic abuse, where conflicting loyalties, fear of disbelief, self-recrimination, concern over one’s ability to survive independently and fear of future violence flourish, Gurjit Dhaliwal failed to register any formal criminal justice complaints against her husband. No further action was taken. Further reports of her husband’s abusive conduct are to be found in a statement Gurjit Dhaliwal made at Brentford County Court in March 1999, during proceedings against her husband in pursuit of a non-molestation and an occupation order under the Family Law Act 1996. In addition, several of Gurjit Dhaliwal’s close relatives have made statements, which attest to her experiences of prolonged abuse at the hands of her husband. 3 By 2004, Gurjit Dhaliwal’s existence within her abusive marriage had become so intolerable that she made an unsuccessful attempt at suicide. She consumed a large quantity of alcohol and tried to slit her wrists. When admitted to hospital, she cited “family problems” as the reason for her suicide attempt. In the aftermath of this incident, the abuse that Gurjit Dhaliwal experienced did not diminish. She kept a diary, which provides a powerful and deeply personal insight into this extremely difficult period. It records two further incidents of physical assault—one involving her husband spitting at her and the other, his slapping her face. The diary entries present the profile of a woman living in constant fear of violence and abuse from her husband. On the evening of 22 February 2005, it appears that Gurjit Dhaliwal’s despair overcame her. Following an argument, during which her husband struck her on the forehead, cutting her skin at the point where

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262 Vanessa Munro and Sangeeta Shah his blow landed, she took her own life by hanging herself in an outhouse at the back of the matrimonial home. 4 Harcharan Dhaliwal was subsequently indicted with “unlawful act” manslaughter in relation to the death of his wife, and of inflicting grievous bodily harm upon her, contrary to section 20 of the Offences against the Person Act 1861. Rather than argue that the final physical assault of 22 February 2005 had caused the victim’s death, the Crown sought to establish that the grievous bodily harm suffered took the form of serious psychiatric or psychological injury, resulting from long-standing marital abuse (which was, in turn, the “overwhelming” cause of her suicide). On 7 March 2006, at the Central Criminal Court, His Honour Judge Roberts QC ruled that the case should not proceed to trial. He concluded that there was no basis on which a reasonable jury, properly directed in law, could convict Harcharan Dhaliwal of either offence. In reaching this conclusion, he drew a distinction between psychological and psychiatric harm. He found that only psychiatric harm (which was not incontrovertibly established in this case, since there had been disagreement amongst the experts commissioned) could constitute grievous bodily harm for the purposes of the Offences against the Person Act 1861. The Court of Appeal, consisting of Sir Igor Judge, Mr Justice Henriques and Mr Justice Fulford, agreed with the trial judge’s conclusions [2006] EWCA Crim 1139. Recognising the potential significance of the issues raised, however, the Court of Appeal certified the following question for this House’s consideration: “Is it appropriate to find someone guilty of ‘unlawful act’ manslaughter where that person has subjected another to psychological harm, not amounting to a recognised psychiatric illness, and the victim goes on to commit suicide?” Unlawful act manslaughter 5 Whatever the theoretical difficulties with constructively imposing liability upon a defendant who lacks the mens rea in relation to the ultimate consequences of his criminal action, the offence of unlawful act manslaughter is well-established in English law. It requires: (i) that the defendant performed an unlawful act; (ii) that the unlawful act was a crime: R v Franklin (1883) 15 Cox CC 163; R v Lamb [1967] 2 QB 981; R v Dias [2002] 2 Cr App R 5; (iii) that the unlawful act was dangerous, such that “all sober and reasonable people would inevitably recognise” that it “must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm”, per Edmund Davies J in R v Church [1966] 1 QB 59, 70; and (iv) that the defendant’s unlawful act was a significant cause of the death: R v Cato [1976] 1 WLR 110, 116–7. If conduct is criminal, this—by definition—also makes it unlawful, thereby satisfying (i) as well as (ii) in the above test. As such, it is appropriate to focus in the first instance on whether it is a criminal offence to inflict psychological harm, and, in particular, whether it is an offence to do so under the Offences against the Person Act 1861.

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R v Dhaliwal—Judgment 263 Is it a criminal offence to inflict psychological harm? 6 It is agreed by all parties that the most relevant offences are those regarding the infliction of “bodily harm”, that is sections 18, 20 and 47 of the 1861 Act which provide: “18. Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person . . . shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.” “20. Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude.” “47. Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to be kept in penal servitude.” A key ingredient of each of these offences is “bodily harm”. Following R v Chan Fook [1994] 1 WLR 689, which was affirmed by this House in R v Ireland; R v Burstow [1998] AC 147, it is now a matter of course that a recognised psychiatric injury will constitute “bodily harm”. 7 The Crown’s submission is that these authorities were not intended to, and did not, limit “bodily harm” to recognised psychiatric conditions, and that it was open to the Court of Appeal to interpret this to include psychological injury. The Court of Appeal disagreed. They held that there was no indication in the judgment of Hobhouse LJ in R v Chan Fook, or in this House’s approval of that judgment in R v Ireland; R v Burstow, that a psychological injury could constitute “bodily harm”. Thus, they concluded in the tragic case of Gurjit Dhaliwal that her suffering did not meet the requirements of the 1861 Act. 8 It is worth examining the relevant passage of Hobhouse LJ’s judgment in R v Chan Fook [1994] 1 WLR 689, 696 in some detail. He discerned that the principle to be applied was that: “the phrase ‘actual bodily harm’ is capable of including psychiatric injury. But it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition. The phrase ‘state of mind’ is not a scientific one and should be avoided in considering whether or not a psychiatric injury has been caused; its use is likely to create in the minds of the jury the impression that something which is not more than a strong emotion, such as extreme fear or panic, can amount to actual bodily harm.” Several comments can be made about this extract of the judgment. By describing emotions as “mere”, the significance of such responses is trivialised. There is little recognition that emotional suffering, where it is severe in its effects and sustained in its duration, can have serious, harmful consequences. Amongst other things, it can generate negative changes in personality and in one’s view of the world, which may significantly impair relationships and quality of life, and psychological harm

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264 Vanessa Munro and Sangeeta Shah may be suffered. In failing to recognise the possible deleterious effects of psychological injuries, Hobhouse LJ thus appears to have reduced non-physical harm to being either psychiatric or ‘merely’ emotional, with only infliction of the former meriting criminalisation. This leaves a middle-ground of human suffering without recognition or redress. 9 Furthermore, in establishing this dichotomy of psychiatry and emotion, Hobhouse LJ relies on the precision of science over the perceived vagaries of emotion. This perspective sees medical science trump visible emotional suffering. Deference is given to the medical profession over the words and feelings of the victim because of the certainty medicine purports to offer the courtroom, and particularly the jury. However, as the testimony of the three experts in Gurjit Dhaliwal’s case ably demonstrates, such faith in medicine may be misplaced. Of the distinguished medical experts who examined the evidence left behind after Gurjit Dhaliwal’s suicide, two could not find confirmation of a psychiatric injury whilst the third concluded that there was “sufficient evidence” to support a diagnosis of a psychiatric disorder. Disagreement is inherent in any assessment of mental faculties, particularly when such assessments take place posthumously, and therefore without an examination of the victim. What constitutes a psychiatric illness has changed over time. Diagnoses rely on standardised criteria agreed by experts in light of their knowledge and theories of psychiatry. Symptoms of psychiatric disorders are thus constructed on past experiences and are not responsive to new and emerging conditions. Furthermore, cases are approached through the lens of established, symptom-focussed diagnoses, which may fail to engage with the full extent and nature of the individual’s suffering. I cannot help but think that our exclusive confidence in medicine, and in particular psychiatry, for the purposes of identifying “harm” under the 1861 Act is misplaced. 10 In the context of domestic abuse—the wretched situation faced by Gurjit Dhaliwal—many abused women (and men) suffer negative psychological consequences. Not all of these will satisfy the criteria necessary for diagnosis of a psychiatric illness (such as clinical depression or post-traumatic stress disorder). The lack of a formal psychiatric label should not, however, be thought to trivialise the severity of the harm suffered. Domestic abuse generates effects that are both acute and severe, and which extend well beyond the level of “mere states of emotion”. The psychological injury inflicted is often long-term and debilitating. REFUGE, an organisation with extensive experience supporting victims of domestic abuse, in a submission to the Law Commission made in the wake of the first instance judgment in this case, “Recognising the Psychological Impacts of Abuse” (2007), para 2.6, emphasised that: “there can be persistent negative changes to thoughts, feelings and behaviours, including a lack of trust in people, social isolation, self-medication using alcohol or drugs, a distorted appraisal of the abuse and one’s reality, resulting in guilt, self-blame, cripplingly low self-esteem and hopelessness about the future.” One should not dismiss such suffering simply because it does not fall within the currently recognised, rigid constructs of psychiatry. 11 As the example of domestic abuse shows, psychological harm can often be more severe than physical harm. The law has already recognised this to some

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R v Dhaliwal—Judgment 265 extent. The Protection from Harassment Act 1997 provides that it is an offence to pursue a course of conduct which alarms the victim or causes them distress. Furthermore, it should be emphasised that the 1861 Act is a statute of the “always speaking” variety. As our understanding of human suffering has advanced, the statute has been interpreted to reflect this knowledge: see R v Ireland; R v Burstow [1998] AC 147, 158. There is no reason of principle why the conception of “harm” for the purposes of the 1861 Act should not include psychological harm. 12 Sections 18 and 20 of the 1861 Act refer to “grievous bodily harm”, whilst section 47 requires “actual bodily harm”. Common to each of these provisions is the concept of “bodily harm”. In R v Miller [1954] 2 QB 282, “harm” was described as “any hurt or injury calculated to interfere with the health of the victim”. That is all. “Bodily harm” is not restricted to the bones, skin and flesh. The law has moved beyond Descartes’ dualist theory of body and mind and embraced what the Victorian drafters of the 1861 Act could not have conceived: mental processes are intimately related to physical processes and cannot easily be separated out. The mind cannot be divorced from the body. Once one accepts that psychiatric illnesses are of the body, it follows that psychological symptoms (including depression, anxiety and panic attacks) must be similarly attributed. 13 Recognising that psychological injury may fall within the meaning of “bodily harm” for the purposes of the 1861 Act requires the criminal law to adopt a broader approach to actionable injury than that currently taken in the civil law of tort. As a matter of principle, this is not problematic. It is accepted that there is no need for exact correspondence between the criminal and civil law, since the two often serve different objectives. In R v Hinks [2001] 2 AC 241, this House concluded that acts which would give rise to no liability under civil law may nonetheless constitute a criminal offence (in that case, theft), so long as the presence of the other elements of that offence, including the requisite level of mens rea, is established. The same position can, and should, be applied in the present context. The fact that the criminal law followed the lead of the civil law in recognising psychiatric injury does not mean that it should be restricted by the pace of developments in that arena; indeed, perhaps it is time for the criminal law to take the initiative in progressively interpreting “bodily harm”. 14 For the sake of clarity, this is not to suggest—as Hobhouse LJ implies in R v Chan Fook—that any emotional suffering will be captured by the relevant provisions of the 1861 Act. Section 47 speaks of “actual bodily harm”, where “actual” means more than “merely transient or trifling”: see T v DPP [2003] Crim LR 622. Sections 18 and 20 require “grievous bodily harm”, which in DPP v Smith [1961] AC 290 this House held to mean “no less than really serious”. These thresholds of severity must also be met in the context of non-physical injury; and, as with physical injury, such assessments must be made on a case by case basis. 15 In the context of its case law on article 3 of the European Convention on Human Rights, which prohibits torture, inhuman and degrading treatment, the European Court of Human Rights has developed a strategy for determining the severity of suffering. For ill-treatment to fall within the scope of article 3, it must attain a minimum level of severity and this minimum is relative to the circumstances of the case. The Strasbourg court takes into account “the nature and context of the treatment, the manner and method of its execution, its duration, its

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266 Vanessa Munro and Sangeeta Shah physical and mental effects, and, in some cases, the sex, age and health of the victim”: see Ireland v United Kingdom (1978) 2 EHRR 25, para 162. As such, mental suffering by itself has been found sufficient to violate article 3 in cases such as Selcuk and Asker v Turkey (1996) 26 EHRR 477 and Kurt v Turkey (1998) 27 EHRR 373. The cumulative impact of the impugned ill-treatment on the victim is the main concern, allowing the Strasbourg court to take into account all forms of suffering whether they are physical, mental or emotional. Adopting a similar approach to the assessment of harm could prove helpful when determining liability under the 1861 Act. 16 In making an assessment as to whether harm is more than “merely transient and trifling” or “really serious”, attention should be paid to all possible sources of evidence. While formal records, such as medical, social service or police reports, may provide strong evidence of the existence of harm, other more informal sources should not be discounted. Particularly in cases of domestic abuse, reports to external agencies are frequently postponed or never made, despite the existence of prolonged and severe suffering. Moreover, as the case of Gurjit Dhaliwal illustrates, external agencies to whom reports are made may fail to properly appreciate the levels of suffering involved. To build a more complete picture of the harm experienced by the victim, a flexible approach is thus required. Informal sources, such as—in the present case—the diaries of the victim and statements made by friends or family members, can play an important function in enabling the court to obtain a truer representation of her suffering. 17 Although it is debateable whether Harcharan Dhaliwal inflicted psychiatric injuries on his wife, the domestic abuse that he subjected her to, over the many years of their marriage, clearly had profound negative psychological effects. Besides the physical assaults he meted out, Gurjit Dhaliwal’s husband inflicted a level of mental suffering upon her which was not only more than merely “transient and trifling” but was “really serious”. As such, it meets the threshold for consideration under sections 18 and 20 of the 1861 Act, rather than the lesser section 47 offence. Whilst it is not clear whether Harcharan Dhaliwal intended to cause such a degree of harm, as is required for the section 18 offence, it suffices for section 20 that he foresaw the risk of some criminally sanctioned harm and carried on regardless. If this is established, then the offence under section 20 of the 1861 Act is made out, and if this offence is held to be “dangerous”, then subject to satisfying the rules on causation, it is one upon which unlawful act manslaughter can be constructed. Is inflicting psychological injury a “dangerous” act? 18 There is no need to spend much time on this issue. A criminal act is dangerous if “all sober and reasonable people would inevitably recognise it as an act which must subject the other person to at least the risk of some harm resulting therefrom, albeit not serious harm”: see R v Church (1966) 1 QB 59. It is fairly intuitive that, should psychological injury reach the severity to trigger the application of sections 47, 20 or 18 of the 1861 Act, then all sober and reasonable people would recognise that the act was also a dangerous one.

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R v Dhaliwal—Judgment 267 Was the infliction of psychological injury a significant cause of the death? 19 Whether the death of a deceased was the result of the accused’s criminal act is a question of fact for the jury, but it is to be decided in accordance with legal principles. A defendant will only be criminally liable for results in relation to which he has been a significant contributory cause. Conduct by another person which is “free, deliberate and informed” will constitute a novus actus interveniens which breaks the causal chain. This was asserted by Professors Hart and Honoré in their treatise on Causation in the Law (1959) and approved by Robert Goff LJ in R v Pagett (1983) 76 Cr App R 279. In applying these principles, however, it is important to bear in mind that human beings make choices in a complex network of interpersonal relationships and against a context of myriad social influences and communal norms. The extent to which any of us are able to act in an entirely “free, deliberate and informed” manner is open to question. Recognising this human condition entails that we must interrogate intervening acts, even those which appear to be voluntary. We must ensure that they are not, in reality, the result of coercion or constraint which limits “free, deliberate and informed” choice. 20 There is a risk that, in interpreting the general principles of causation, the constraining influence of power dynamics and personal and social relations may fail to be acknowledged. The courts have, however, allowed such an abstract interpretation to be tempered by attention to context in at least three sets of circumstances: (i) the non-voluntary conduct of third parties; (ii) the conduct of doctors who become involved in an attempt to treat the victim; and (iii) the conduct of the victim. The non-voluntary conduct of third parties 21 Where a third party brings about harm while acting under duress, necessity, compulsion or duty as a result of the behaviour of the defendant, this will not break the causal chain. In R v Pagett (1983) 76 Cr App R 279, the actions of police officers who shot and killed a third party whom the defendant, having opened fire, was using as a “human shield”, did not constitute a novus actus interveniens since they reflected a “reasonable act of self-defence against the act of the accused”. This recognition that an assessment of the “free, deliberate and informed” nature of a person’s intervening act must take account of the constraints and pressures imposed by the defendant’s conduct is significant, and is clearly pertinent to assessing the issue of causation in the present case. The conduct of doctors 22 The voluntary actions of doctors, treating victims of an attack, are not necessarily seen to constitute a novus actus interveniens, even where they are negligent. In R v Smith [1959] 2 QB 35, a distinction was drawn between cases where the injury inflicted by the defendant remained a substantial and operating cause of death despite subsequent negligent medical treatment and cases where the original wound had become merely the setting in which the negligence of the doctor operated. Only the latter generates a break in the causal chain. This position that “though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused

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268 Vanessa Munro and Sangeeta Shah unless the negligence was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant” was confirmed in R v Cheshire [1991] 1 WLR 844, 852. There are compelling reasons of public policy to allow such a position. In the context of domestic abuse, reasons of public policy may likewise militate against absolving the accused of responsibility for a suicide which would not have occurred but for his deliberate, harmful conduct towards the victim. Thus, the position in R v Cheshire that the jury are not required to evaluate competing causes or to choose which is dominant, so long as they are satisfied that the actions of the accused made a significant contribution to the victim’s death, is relevant for current purposes. The conduct of the victim 23 The chain of causation will not necessarily be broken when a victim, in an effort to escape from the threat of injury by the defendant, takes evasive action as a result of which he or she dies. In R v Pitts (1842) 174 ER 509, it was held that there would be no novus actus interveniens where a person who, acting in response to a “well grounded and justified” apprehension of immediate violence, attempted escape by throwing herself into a river and subsequently drowned. In R v Roberts (1972) 56 Cr App R 95, the Court of Appeal emphasised that a victim’s reasonably foreseeable reaction to a threatening situation does not negative causation. In R v Williams [1992] 1 WLR 380, the Court of Appeal modified this test, recognising as problematic a foreseeability test which focuses on the likelihood of a response without adequately appreciating that the defendant’s conduct placed the victim in a situation with limited alternatives for avoiding danger. Stuart-Smith LJ at p 389 indicated that, in determining whether the evasive actions of the victim constituted a novus actus interveniens, “the jury should consider . . . whether the deceased’s reaction . . . was within the range of responses which might be expected from a victim placed in the situation” and emphasised that, in making this assessment, the jury should “bear in mind any particular characteristics of the victim and the fact that in the agony of the moment he may act without thought and deliberation”. 24 While these so-called “fright and flight” cases have involved conduct by victims that is aimed at self-preservation, this should not be thought to preclude their application to cases in which the response of the victim is to commit suicide. After all, there may be situations in which, for the individual involved, the end of life and its attendant sufferings may be seen as a form of psychological selfpreservation. This may be particularly so where other means of escape appear impossible. 25 When assessing causation, therefore, one should contextualise the victim’s response and interrogate its voluntariness in light of her particular circumstances and characteristics. Furthermore, it is well-established that defendants must “take their victim as they find them”. In R v Blaue [1975] 1 WLR 1411, it was emphasised that this “means the whole man, not just the physical man.” Thus, the victim’s refusal, on religious grounds, to accept potentially life-saving medical treatment after being stabbed by the defendant did not constitute a novus actus interveniens. In R v Dear [1996] Crim LR 595, it was emphasised that there would be no break in the causal chain even where the victim’s contribution took the form, not of an

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R v Dhaliwal—Judgment 269 omission or refusal of treatment, but a positive act. Here, the Court of Appeal insisted that the jury were entitled to find that death was caused by bleeding from the artery severed by the defendant, even though the wound may have been deliberately re-opened by the victim. 26 By contrast, however, this House has recently concluded, in R v Kennedy (No 2) [2008] 1 AC 269, that a victim’s self-destructive conduct does constitute a novus actus interveniens where he or she dies after voluntarily injecting a class A controlled drug supplied by the defendant. The confidence with which this House asserted that those suffering in the grips of a consuming addiction to heroin act “freely” and “voluntarily” may warrant further scrutiny—but that is for another day. For current purposes, it suffices to note that this decision does not preclude the possibility of an ongoing causal chain in the sort of circumstances that give rise to the certified question before us. This House emphasised, quite rightly, at para 15, that “causation is not a single, unvarying concept to be mechanically applied without regard to the context in which the question arises”, and acknowledged that the vulnerability of the victim is one factor, amongst others, that may need to be taken into account. 27 The abusive marriage endured by Gurjit Dhaliwal provides a sadly all too frequent illustration of a circumstance in which, in my view, it is possible that the chain of causation will not be broken. To understand the reasons why this is so, it is necessary to provide a broader account of the dynamics of domestic abuse and an evaluation of the avenues for redress available. “Domestic abuse” covers a wide range of unacceptable behaviour within the family, as well as between individuals who are, or have been, in an intimate relationship. It can take the form of emotional or psychological abuse, including verbal abuse and denigration. Such manifestations can be equally or more, detrimental to the victim’s well-being than physical violence. It can generate an acute loss of self-esteem, which may inhibit the victim from taking steps to leave an abusive partner. This is coupled with a common modus operandi of domestic abusers which isolates victims from the personal and social support networks that might offer assistance. Over a prolonged period of abuse, many victims come to accept its inevitability or to even believe that they are responsible for its perpetration. The sense of powerlessness and desperation that being the victim of abuse from a partner or family member—who is supposed to be the most trusted of companions—generates may be crippling. 28 There are many resilient victims who find the strength, and the means, with which to leave abusive partners, but there are many more who suffer repeated and systematic attacks in silence. Statistics from the British Crime Survey suggest that a significant proportion of incidents of domestic abuse are not reported to the police: see Walby and Allen, “Domestic Violence, Sexual Assault & Stalking: Findings from the British Crime Survey” (Home Office Research Study 276) (2004). Rates of attrition following a police report also remain high (often, although by no means exclusively, as a result of victims withdrawing complaints or refusing to cooperate in subsequent investigations or proceedings): see HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate, “Violence at Home: A Joint Thematic Inspection of the Investigation and Prosecution of Cases Involving Domestic Violence” (2004). 29 In recent decades, the protective veil cast over the family home has been pierced, permitting increased intervention to respond to domestic abuse. However,

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270 Vanessa Munro and Sangeeta Shah the extent to which good practice guidelines have been translated into “on the ground” enforcement has been variable, and domestic abuse charities continue to highlight many cases in which women have been met with a dismissive, sceptical, or insensitive response from police officers. In addition, a lack of alternative, and safe, accommodation for victims of domestic abuse persists, as does the link between domestic abuse and homelessness. Experience of domestic abuse does not destroy all scope for agency, but the suggestion that women like Gurjit Dhaliwal, who stay in an abusive relationship, have exercised a “choice” to do so is often ill-conceived. When it comes to assessing causation, therefore, the insistence in R v Blaue [1975] 1 WLR 1411 that victims should be taken as they are found applies with equal force in domestic abuse cases. 30 To assess whether the chain of causation, which links the unlawful infliction of psychological harm upon the victim to her death, is broken by the victim’s act of suicide it is necessary to look to the surrounding context. There may be situations in which committing suicide constitutes a sufficiently free, deliberate and informed act as to constitute a novus actus interveniens. However, where the victim has been subjected by the defendant to psychological injury, this should put the court on alert as to the need to explore the voluntariness of her actions more fully, and to direct the jury accordingly. 31 There is a well-established link between domestic violence and suicide. Statistics, produced by the Women and Equality Unit, indicate that over onethird of the 1,497 women who committed suicide in the UK in the year 2000 had experienced domestic abuse. A firm link between the abuse and the suicide was established in 188 of those cases: see Walby, “The Cost of Domestic Violence” (2004), p 62. In addition, there is evidence to suggest that this problem may be particularly acute in Asian communities in the UK, where rates of suicide amongst women are up to three times the national average. This has been attributed in particular to pressures associated with maintaining cultural identity and traditional, submissive gender roles: see Raleigh et al, “Suicide and Self-Burning Amongst Indians and West Indians in England and Wales” (1992) 161 British Journal of Psychiatry 365. 32 It is hard to imagine the desperation and hopelessness that must engulf a person driven to take her own life. Women (or men) who commit suicide in the wake of experiences of domestic abuse do not, I am quite sure, do so lightly. Some will suffer from psychiatric conditions as a result of their victimisation that may impair their ability to make fully reasoned assessments. This complicates, but must be accommodated within, our evaluations of the voluntariness with which the choice is made. For others, the lack of a recognised psychiatric condition should not be assumed to remove these difficulties. The abuser does not pull the trigger or provide the rope. The victim may even see the act of suicide as a form of liberation or a final expression of rebellion or subversion against a partner’s control. But this does not mean that the abuser is not a significant cause of death, and nor does it mean that the act of taking life is a reflection of voluntary agency. On the contrary, it arises in a context in which the victim may have been removed from familial and community support networks, she may have been denigrated and had her confidence radically diminished. She may have felt trapped by a lack of alternatives and may be suffering from deep psychological or emotional trauma. In such a context,

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R v Dhaliwal—Judgment 271 it is far from unforeseeable, and—employing the language of the Court of Appeal in R v Roberts (1972) 56 Cr App R 95, 102—far from “daft”, that a victim of domestic abuse would commit suicide. 33 Thus, it is perfectly appropriate for it to be left to the jury in such cases to consider whether the defendant’s unlawful and dangerous conduct, in inflicting or causing psychological harm, remains a significant and operative cause of the victim’s death, regardless of the fact that the immediate cause was her act of suicide. 34 In Gurjit Dhaliwal’s case, the judgment of the Court of Appeal indicated, per curiam, that her suicide would not necessarily be a bar to causation. However, in light of the Court’s narrow interpretation of the Offences against the Person Act 1861 in cases of non-physical injury, this acceptance was restricted to scenarios in which a recognisable psychiatric illness had been inflicted by the defendant. I see no reason to limit this analysis to such scenarios. For the reasons given above, I accept a wider remit for the unlawful and dangerous act that satisfies the first two limbs of the test for “unlawful act” manslaughter. Having done so, I confirm as correct the Court of Appeal’s suggestion that the chain of causation can remain unbroken where a person who is fragile and vulnerable commits suicide in the context of the defendant’s previous abuse. I would add that this is relevant not only to the common law on “unlawful act” manslaughter but to the stand-alone offence, created under section 5 of the Domestic Violence, Crime and Victims Act 2004, of causing or allowing the death of a child or vulnerable adult in one’s household. 35 However, this finding in relation to the certified question should not blind us to the possibility that broader social and institutional structures may also have played a contributory role in Gurjit Dhaliwal’s suicide. It is hard to assess in this particular case whether Gurjit Dhaliwal’s religious and cultural background provided additional barriers to her accessing support and seeking redress against her husband. Some communities may be more inclined than others to turn a blind eye to domestic abuse, to encourage incidents to be kept confidential or to blame victims for contributing to the problem through “provocative” or “inappropriate” behaviour. In their 2006 submission to the Law Commission Consultation Paper 177, ”A New Homicide Act for England and Wales?”, Southall Black Sisters suggested that this is often the case in South Asian communities living in the UK. Caution should be urged, however, in over-emphasising the importance of cultural context. Deplorable attitudes present barriers to victims of domestic abuse of all races, religions and cultures. 36 The UK has an obligation under articles 2 and 3 of the European Convention on Human Rights to take steps to safeguard the lives of those within its jurisdiction and to protect them from inhuman or degrading treatment: see Osman v United Kingdom (1998) 29 EHRR 245, para 115. The fact that this danger is posed in the context of a marital relationship, or arises in the confines of the family home, does not engage any legitimate protections under article 8 (right to private and family life), and nor should it provide any basis for a less wholehearted and urgent response. Although, as noted in Osman at para 116, regard must be paid to “the difficulties involved in policing modern societies, the unpredictability of human conduct, the operational choices which must be made in terms of priorities and resources” and the need not to “impose an impossible or disproportionate burden on the authorities”, where state

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272 Vanessa Munro and Sangeeta Shah authorities know, or ought to have known, that an individual is at real and immediate risk from the criminal acts of another individual, the European Court of Human Rights has found the existence of a positive duty to take operational measures to protect that person from harm. 37 Mindful as I am of the dangers of hindsight, the case of Gurjit Dhaliwal is one in which indicators of vulnerability and risk, both in relation to domestic abuse and suicide, were clearly present. She had a documented history of self-harm which she explicitly attributed to ”family problems”. She had reported incidents of marital abuse on several occasions and taken steps to file for civil protection orders against her husband. As such, she was known to the medical, criminal and family justice authorities. This raises the question of whether more should, and could, have been done to protect Gurjit Dhaliwal from further abuse. 38 The adoption of a mandatory prosecution policy in the context of domestic abuse is contentious, risking alienation of the victim whose expressed wishes are disregarded in favour of others’ assessments of her longer term best interests. But it is wrong to suggest that, in its absence, the police and other agencies with which Gurjit Dhaliwal had contact were paralysed from further action when she, like many other victims of domestic abuse, withdrew her complaints. Greater time dedicated to speaking with the victims of abuse, increased attempts to encourage them to trust the officials to whom they make an initial report, multi-agency responses and better facilities to support exit from relationships may decrease rates of victim withdrawal, or at least increase a victim’s sense of the feasibility of leaving an abusive partner at some point in the future. One can only hypothesise as to the difference which this more proactive assistance might have made to the outcome for Gurjit Dhaliwal. Conclusions 39 In my view, the certified question should be answered in the affirmative. The 1861 Act has rightly benefitted from a purposive interpretation in recent decades. This has enabled it to transcend the temporal limits of its original drafting in the mid-nineteenth century. So long as it is sufficiently severe in its effects, it is in my view entirely appropriate for psychological harm to fall within the Act’s remit. Such conduct is both unlawful and dangerous, and creates liability for manslaughter where it causes the victim’s death. Rules on causation must be interpreted with a measure of flexibility. Where the victim commits suicide, the extent to which this represents a voluntary act must be considered in light of the surrounding circumstances, including the vulnerability of the victim and the existence (both real and perceived) of avenues for alternative resolution. While each case should be considered on its merits, in cases involving domestic abuse, such as the one out of which this certified question arises, the jury is entitled to conclude that the defendant is liable for ”unlawful act” manslaughter notwithstanding the fact that the immediate cause of death lies, strictly speaking, in the victim’s suicide.

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16 Commentary on R v Zoora (Ghulam) Shah SUSAN EDWARDS

Background Zoora Ghulam Shah, at her trial in 1993 for the murder of Mohammed Azam, who died from arsenic poisoning, gave no evidence. In interviews with police, she denied any involvement in the killing. As she said little to either her solicitor or counsel, constructing a defence was difficult. The prosecution, on the other hand, depicted her as a scheming and lying woman whose motive for the killing was to retain the title to the house, 251 Legrams Lane, Bradford which, although Zoora Shah made the mortgage payments, had been bought and registered in the deceased’s name. Without a defence, and with traces of arsenic found in her hair and clothing, Zoora Shah was convicted of murder and sentenced to life imprisonment. The trial judge fixed an unprecedented 20-year tariff. In 1998, at the time of her appeal,1 the average term served by lifers was 14.2 years.2 Her appeal against conviction was refused. The Court of Appeal judges (Lord Justice Kennedy, Mr Justice Butterfield and Mr Justice Richards) found her account difficult to believe: yet, her supporters (mainly Asian women), who sat through the appeal hearing, believed her. They saw a fragile, vulnerable woman, diminutive in stature, who spoke little English, and who was the victim of men’s use, abuse and brutality. As they listened to her recounting each detail of her tragic life, they held hands and silently wept.3 Both Samia Bano and Pragna Patel, the feminist judgment writers, were closely involved with this case and the campaign which followed Zoora Shah’s conviction. Working with the organisation Southall Black Sisters,4 a feminist activist group providing legal advice and support for women escaping from domestic and other forms of gender-based violence, Pragna Patel spent many months gaining the confidence of the appellant and drawing from her the facts upon which the appeal was based. I also had some involvement with the case, providing an expert report for the instructing solicitors which researched some of the issues involved in the appeal.5

1

R v Zoora (Ghulam) Shah [1998] EWCA Crim 1441. Home Office, ‘Prison Statistics: England and Wales’ (Cm 4017 1998). 3 The author attended the Court of Appeal hearing. 4 Southall Black Sisters was established in 1979 to meet the needs of Asian and African-Caribbean women. See further Southall Black Sisters, Against the Grain: A Celebration of Survival and Struggle (London, Southall Black Sisters, 1990); R Gupta (ed), From Homebreakers to Jailbreakers: Southall Black Sisters (London, Southall Black Sisters, 2001). 5 See S Edwards, ‘Beyond Belief—The Case of Zoora Shah’ (1998) 148 New Law Journal 667; S Edwards, cited in ‘A Murderer or the Victim of Racial Ignorance?’ The Times (London, 27 October 1998). 2

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274 Susan Edwards

The Trial Zoora Shah was charged with the murder and attempted murder of Azam, with soliciting to murder, and with forgery. The facts heard at trial revealed that Azam, who was a drug dealer and a powerful member of the Asian community in Bradford, had lived for some time with her and that she killed him by putting arsenic into his food. The jury heard that she had previously hired a man to kill Azam, and that she and another man had forged a document which would enable her to secure the house. At trial, she gave no evidence in her defence, but sought to rely on statements from her family and other members of the Asian community. The jury convicted her on all counts, and she served most of her sentence as a maximum security prisoner. In 2000, following a concerted campaign by Southall Black Sisters, Lord Bingham, the Lord Chief Justice, was asked by the Home Secretary to give his views and recommendation on tariff. He recommended that her tariff be reduced from 20 to 12 years before being eligible for parole.6 This recommendation was accepted, and Zoora Shah was released from prison in 2006.

The Court of Appeal At her appeal hearing in 1998, Zoora Shah confessed to killing Mohammed Azam7 and entered a guilty plea to manslaughter on the grounds of diminished responsibility. In her new statement, and in the fresh evidence presented following the painstaking and careful case building undertaken by Pragna Patel, she spoke for the first time of her life as a victim of violence which she endured from her first husband and then, later, from Azam, and her reactive mental state to this life of abuse. The plea of diminished responsibility was tactical, since the facts of Azam’s domestic and sexual violence towards her, and threats of sexual abuse directed at her daughter, might equally have been presented as supporting evidence in a provocation defence. The success of the defence depended on the Court of Appeal accepting the fresh evidence of her mental state at the time of the killing. Before exercising its discretion to accept fresh evidence, the Court of Appeal must have regard to a number of factors, including whether the evidence is ‘capable of belief ’, and whether there is a ‘reasonable explanation’ for not adducing it at the original trial.8 In addition, the evidence adduced must provide grounds for allowing the appeal, and should be ‘on 6 I participated in the campaign and protest outside the Home Office in 1999 to reduce the length of the sentence. Lord Bingham took account of all the new evidence that was before the Court of Appeal and appears to have come to a different conclusion. This suggests that if he and not Lord Justice Kennedy had presided over the Court of Appeal hearing, Zoora Shah may well have succeeded in overturning her conviction for the murder and attempted murder of Mohammed Azam. Patel and Bano draw upon some of the views expressed by Lord Bingham towards the end of their feminist judgment (“Having accepted the fresh evidence, we cannot agree with the majority of this court that Zoora Shah committed a particularly callous and premeditated murder for material gain. On the contrary, we are of the view that this was the conduct of a desperate woman threatened with the loss of her home and with destitution in what remained, for her, a foreign country”). 7 Post-trial confessions made by an appellant are rare. They are more often made by co-accused or third parties (for example the confession of O’Dowd to the Guildford bombings), or else they are made in connection with parole hearings. 8 Criminal Appeal Act 1968 s 23(2)(a) and (d).

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R v Zoora (Ghulam) Shah—Commentary 275 an issue’ argued at the original trial and not, as in this case, part of an entirely new defence.9 Overall, the Court must decide whether it is necessary or expedient in the interests of justice to admit the fresh evidence. In R v Ahluwalia, for example, the court stated: It cannot be too strongly emphasised that this court would require much persuasion to allow . . . a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth.10

In order to understand Zoora Shah’s mental state at the time she killed Azam, it was necessary for the Court of Appeal to comprehend the abuse to which she had been subjected. She explained to the court that she agreed to have sex with Azam in return for help, that he abused and pimped her, asked her to bring drugs back from Pakistan, raped her once in a cemetery where two of her children were buried, and when she was ill, threatened that he would have sex with her daughter. Further, while Azam was in prison, she was abused by other men at his instigation, and threatened with eviction. Zoora Shah’s explanation for her denial and silence at the original trial was her fear of the consequences to her children’s reputation, fear of reprisals, and the shame attached to the discovery that she had been sexually abused. Azam controlled her reputation as he had the power to make her sexual involvement with other men (which were rapes) known to her community. The appeal judges were not convinced by her account that Azam’s abuse would have had such a devastating effect on her reputation as to silence her. They said: ‘Her way of life had been such that there might not have been much left of her honour to salvage’.11 As part of Zoora Shah’s attempt to explain the influence of her culture, her religion, her way of life and izzat (honour) on her original silence, the story of the taveez is illuminating and compelling. Whilst in Pakistan for the wedding of her daughter she visited a Holy man from whom she obtained a taveez—a Holy writing or charm that offers protection and represents the physical manifestation of a plea for divine assistance.12 In her case it consisted of the Holy man’s incantation of words on a piece of paper, which were intended to make Azam impotent. She was to put the paper in water until the ink dissolved, and then ensure that Azam drank the water. In this way the charm would work. The court no doubt found this story unconvincing. Indeed, overall they found Zoora Shah to be ‘a most unsatisfactory witness’,13 even though they themselves recognised that their knowledge of Asian culture and Islam was limited. As to the arsenic (neela thotha) that killed Azam, Zoora Shah explained that she had procured it from a Dr Sejad in Pakistan. She admitted that on 29 February 1992 she put some of the powder into a samosa mixture and on 10 April 1992 she put some more green powder into his food, hoping that he would become so ill that he would not be able to touch her again and would be no threat to her daughters. She said that Dr Sejad had said that the powder would affect Azam’s legs and make him impotent and that a teaspoon would be enough. The appeal judges accepted without question the evidence of the prosecution 9

ibid s 23(2)(b) and (c). See R v Dodd (CA 10 June 1971); R v Melville [1976] WLR 181 (CA) 185. R v Ahluwalia [1992] 4 All ER 889 (CA) 900. 11 Above n 1 at [7(d)]. 12 Consultations with Holy men are an integral part of Pakistani/Islamic tradition and culture both in Pakistan and in the UK. The Holy man functions as the Sunday priest in the Christian faith tradition and is consulted on all matters of birth, sex of a child, life, death, family and financial troubles. 13 Above n 1 at [7d]. 10

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276 Susan Edwards expert, Dr Collins, that the use of arsenic was incompatible with clinical depression, and considered that the repeated use of the green powder was an indicator of an intention to kill. It is worth noting, as I discovered in my researches for the expert report prepared for the instructing solicitors, that there is no academic, expert or scientific evidence to suggest that using poison as a modus operandi is incompatible with clinical depression. What evidence there is indicates that poison as a method of killing is used extremely rarely, making the drawing of any general conclusion impossible.14 Because of its rarity, intrigue and sophistry often surround those who use poison to kill. Indeed, Zoora Shah was misunderstood and demonised by some of the press (though not all)15 and was described as ‘the arsenic killer’.16

The Feminist Judgment Bano and Patel, in their dissenting feminist judgment in the Court of Appeal, consider that the fresh evidence presented by Zoora Shah should be received, and on that basis she should be granted a retrial. They find that the evidence satisfies all of the criteria in section 23 of the Criminal Appeal Act 1968. On the issue of the fact that the defence of diminished responsibility was not raised in her original trial, Bano and Patel take the view that it would have been impossible to do so. Zoora Shah’s decision to remain silent about the abuse she had suffered—a product both of her cultural context and of her depression induced by that abuse—meant that there was no opportunity for her lawyers or the medical experts to arrive at a proper understanding of her mental state. Thus, it cannot be said that the defence on appeal is an alternative line of defence which was deliberately not pursued at trial, nor can it be said that Zoora Shah was having two bites at the forensic cherry. In relation to the questions of whether the fresh evidence was ‘capable of belief ’ and whether Zoora Shah had provided a ‘reasonable explanation’ for not producing that evidence at trial, cultural solipsism explains the failure of the Court of Appeal to perceive and understand that her ‘choice’ of modus operandi in killing her abuser was certainly no more heinous than stabbing or shooting; nor is religious symbolism, custom and practice the prerogative of Western faith. As Bano and Patel note in their feminist judgment, when Zoora Shah spoke, her story fell to be interpreted by those whose reference points were fixed in their own culture and experience, and limited by them.17 In the section of their judgment dealing with ‘Honour and Shame’, Bano and Patel also make the point that not only was an understanding of the cultural and social context, and the intersecting experiences of gender, culture and poverty, essential, but the absence of a body of research on cross cultural issues 14 S Edwards, ‘Ascribing Intention—The Neglected Role Of Modus Operandi—Implications For Gender’ (1999/2000) 4 Contemporary Issues in Law 235; S Edwards, ‘Abolishing Provocation and Reframing Self Defence— The Law Commission’s Options for Reform’ [2004] Criminal Law Review 187; S Edwards, ‘Descent into Murder— Provocation’s Stricture—The Prognosis for Women Who Kill Men Who Abuse Them’ (2007) 71 Journal of Criminal Law 342. 15 Duncan Campbell’s reporting was sympathetic: see his discussion of the ‘shame’ of Zoora Shah that has cast light on a hidden world: D Campbell, ‘Murder appeal: despair drove woman to kill’ The Guardian (London, 24 January 1998); D Campbell, ‘Arsenic murder appeal: abuse drove woman to kill; fears for her children made woman stay silent, court hears’ The Guardian (London, 1 April 1998). 16 ‘Arsenic killer awaits appeal judges ruling’ The Guardian (London, 4 April 1998). 17 See G Spivak, ‘Can the Subaltern Speak?’ in R Guha and G Spivak (eds), Selected Subaltern Studies (New York, Oxford University Press, 1988); A Nandy, Intimate Enemy: Loss and Recovery of Self Under Colonialism (Delhi, Oxford University Press, 1983).

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R v Zoora (Ghulam) Shah—Commentary 277 meant that Zoora Shah went misunderstood. This was particularly true of her silence. While silence is traditionally characterised within the legal forum as an indication of guilt, for women, guilt is only one of a number of more pressing reasons for silence. Silence is not fixed in its meaning. It can be malign,18 as, for example, when it is imposed rather than freely given. On their alternative reading of the evidence, which carefully considers the social, cultural and medical issues involved, Bano and Patel reach the conclusion that the fresh evidence, which they consider at length, needed to be tested by a jury.

Conclusion In 1998, the Human Rights Act entered the statue books, prior to coming into force as part of British law in 2000. Article 6 of the European Convention on Human Rights insists on the right to a fair trial, which requires fairness as to the procedure and the reception of evidence. In addition, article 14 asserts that: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The reception of Zoora Shah’s account by the Court of Appeal, however, was characterised by both misunderstanding and misrecognition, such that her ability to secure her rights without discrimination on the ground of sex, race, colour, language and religion became impossible.

18 See BP Dauenhauer, ‘Silence, the Phenomenon and its Ontological Significance’ in JM Edie (ed), Studies in Phenomenology and Existential Philosophy (Bloomington, Indiana University Press, 1980) 29, 114–16.

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[COURT OF APPEAL] REGINA v. SHAH 1998 April 30 Bano and Patel L.JJ. We have had the benefit of reading in draft the judgment of Kennedy L.J. However, we reach an entirely different conclusion based on our reading of the facts, which in our opinion require more detailed elucidation and discussion than can be found in his judgment. This is an unusual and tragic case of considerable factual complexity. The appellant, Zoora Shah, is a non-literate Muslim woman born in Mirpur, Pakistan and is now 48 years old. On 10 April 1992, following years of abuse and humiliation, she killed Mohammed Azam, a man with whom she was in a long-term relationship. On 17 April 1992, she was arrested for bringing about his death by poisoning. She was charged with four offences, namely forgery, soliciting to murder, attempted murder, and murder. On 21 December 1993, after a six week trial at Leeds Crown Court, Zoora Shah was convicted of all four offences and received sentences of seven years, ten years, 12 years and life imprisonment to be served concurrently. The life sentence carried a tariff of 20 years. On 2 April 1994, leave to appeal was refused by a single judge. Thereafter, Zoora Shah instructed her present solicitors who, with the assistance of the organisation Southall Black Sisters, visited her and prepared a detailed statement taken over a period of 18 months, reduced to 59 pages which we have before us. It is this account and further evidence uncovered that forms the basis of this appeal. On 7 July 1997, a differently constituted full court gave leave to appeal to this court against the convictions for attempted murder and murder, and adjourned the renewed application for leave to appeal against sentence. The trial At trial, the prosecution case was that Zoora Shah killed Mohammed Azam following several failed attempts to get her home, of which she did not have legal ownership, transferred to her name. She had sought the help of Raghib Shah, a local taxi driver, with whom she was in a relationship. The prosecution claimed that her motivation was greed—she wanted possession of 251 Legrams Lane, the house where she and her children lived. She was interviewed many times following her arrest but persistently denied that she had anything to do with forging documents in order to obtain transfer of her house or with the other counts of incitement to murder, attempted murder and murder. She did not give evidence at her trial, although her defence counsel did submit some evidence about her social circumstances and medical history. The defence case was that Mohammed Azam abused Zoora Shah’s trust in relation to 251 Legram Lane by asserting that his interest in the house was more than nominal. In respect of the counts involving arsenic poisoning which led to Mohammed Azam’s death, it was denied that Zoora Shah had anything to do with these events. The defence relied on medical evidence and family statements to suggest that she was not involved with the death, that Mohammed Azam could have suffered from a gastric illness in

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R v Zoora (Ghulam) Shah—Judgment 279 relation to the attempted murder, and that she did not have the opportunity to lace his food in respect of the fatal poisoning. The appellant’s new account Zoora Shah came to the U.K. in 1972 from Pakistan upon an arranged marriage at the age of 19 to a British citizen, Abid Hussain. She lived with him and his family in Bradford. She has three children who were born in the U.K., Naseem Shah, born on 13 November 1973; Amrez Shah, born on 5 January 1978 and Fowzia Shah, born on 19 July 1980. She had two other children but one died soon after he was born and another when she was five months old. Zoora Shah’s account of her early married life is one of violence and abuse from her husband and his family. She did not report the abuse to anyone including her G.P.s. On one occasion when pregnant, following an assault by her husband, she was referred to the hospital, where she explained that she had “fallen” down the stairs. She did not disclose the violence that she suffered, partly because she did not speak English, and partly because she was afraid of repercussions from her husband’s family. Around 1979–1980, Zoora Shah’s husband abandoned her for a younger woman and his family threw her out whilst she was pregnant with her third child. Her two older children were ill with tuberculosis at the time. She was homeless, penniless and entirely without support. She turned for support to her adult brothers who lived in Bradford. Her eldest brother offered to take her in but only on condition that she abandon her children—she refused to do so. Destitute and alone, in 1980, Zoora Shah was befriended by Mohammed Azam, a married man with children of his own. Tired of living in insecure and sub-standard rented accommodation, she accepted Mohammed Azam’s offer to buy her a house. As she could not obtain a mortgage on the house, it was bought in his name. She paid the deposit and made the mortgage repayments with benefits, earnings from factory and other work and savings. For this help, Mohammed Azam demanded sexual favours and the relationship soon became abusive. He forced her to have sex as and when he wanted: in the back of cars, at home when her children and relatives were in another room, and while she was recovering from operations and illnesses. He often became violent when she refused his requests for sex. On one occasion in 1982, he tried unsuccessfully to get Zoora Shah to bring heroin illegally into this country. When she refused, he assaulted and raped her in the cemetery where her children were buried. In 1983, Zoora Shah took one of several overdoses. She also had an abortion, again one of several throughout her adult life, some of which were performed illegally. In 1984, Mohammed Azam was convicted for trafficking in heroin and imprisoned for ten years. Whilst in prison he tried to pimp Zoora Shah to other men on the point of release, and he threatened to evict her from her home following discovery of her relationships with Zamoorat (his surname is not known), his brother-in-law, and Raghib Shah. Both men had offered to help her financially in return for sex. Both men took advantage of her vulnerability. In 1986, Mohammed Azam began to hint to Zoora Shah that he was sexually interested in Naseem, her eldest daughter. To protect her from Mohammed Azam, Zoora Shah sent her to Pakistan to get married.

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280 Samia Bano and Pragna Patel Around the same time, Raghib Shah also started to harass Zoora Shah, threatening to expose her sexual relationships with Zamoorat and Mohammed Azam to her family if she refused to have sex with him. In 1988, Mohammed Azam was released from prison, and a few months later Naseem returned from Pakistan. Out of fear of losing her home, Zoora Shah continued to see Azam, but she also continued to see Raghib Shah in the hope of enlisting his help in gaining legal title to her home. Thereafter Raghib Shah and Mohammed Azam became rivals, each seeking control over her, which in Mohammed Azam’s case involved threats, intimidation and violence. In 1990, at Raghib Shah’s instigation in response to one of several notices to evict served by Mohammed Azam, Zoora Shah made two attempts to forge transfer documents in relation to her home into Raghib Shah’s name. In the meantime Mohammed Azam continued to threaten her with eviction. Around 1990, following yet another threat by Mohammed Azam to evict her, Zoora Shah and Raghib Shah hired Mir Aslam (“Bala”) to kill Mohammed Azam. Unbeknown to her, Bala was a friend of Mohammed Azam, to whom he reported the matter. At the same time, he blackmailed her, promising his silence for money. Mohammed Azam contacted the police and all of them were arrested and bound over to keep the peace. Thereafter, matters escalated as Mohammed Azam threatened to set fire to Zoora Shah’s house and kill her. She made several reports of damage to her home to the police but nothing came of it. On several occasions the windows of her house were broken and on one occasion the contents of her home were smashed. It was also during this time that she became increasingly anxious for her own safety and that of her children. Despite Zoora Shah’s pleas to leave her alone, Mohammed Azam continued to harass her and refused to stop seeing her. She became increasingly agitated about his interest in Naseem and his attempt to involve her in his “nappy business”, which was a cover for drug dealing. She decided to accompany Naseem to Pakistan to arrange a second marriage for her, the first having ended in divorce. Following the marriage, she obtained a taveez—a paper carrying Quranic verses prepared by a Pir, a Muslim cleric, a common practice in some South Asian communities as a way of resolving disputes or problems. She also obtained neela thotha (green powder)—the arsenic that she later used to poison Mohammed Azam. In 1992, Mohammed Azam started to give gifts and cash to Naseem and also began to show a sexual interest in Fowzia, her younger sister. On 29 February 1992, Zoora Shah gave Mohammed Azam samosas laced with a small dose of arsenic in order to render him sexually impotent so that he would not pose a threat to her or her daughters. Mohammed Azam survived but was ill and considerably weakened for a short period of time. Naseem and Fowzia had also taken bites from a poisoned samosa but Zoora Shah had the presence of mind to help them vomit and gave them milk as an antidote as soon as Mohammed Azam left. On 10 April 1992, following Mohammed Azam’s recovery and renewed interest in Naseem—convinced that he would force her daughters into prostitution and thereby trap them into a cycle of sexual and financial abuse from which she herself could not exit—Zoora Shah administered a lethal dose of arsenic into his food at her home when he visited her. Mohammed Azam became ill that night and died in hospital the following morning.

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R v Zoora (Ghulam) Shah—Judgment 281 The new evidence Details of the new evidence which is sought to be introduced are set out in the judgment of Kennedy L.J. Briefly, in addition to Zoora Shah’s statement, it consists of evidence from psychiatric experts, her general practitioners, social services, a number of lay witnesses, and her solicitor at trial. Counsel for Zoora Shah contends that the fresh evidence, if received, establishes that she was suffering from a depressive illness at the time of the fatal events, sufficient to ground a defence of diminished responsibility. Her conviction is therefore said to be unsafe in accordance with section 2(1)(a) of the Criminal Appeal Act 1968 as amended. The appeal in relation to the count of murder should therefore be allowed and a re-trial ought to be ordered. It is further submitted that the conviction in relation to attempted murder should also be set aside so that Zoora Shah can present evidence of a lack of intent to kill at a re-trial. The Crown submits that the fresh evidence should not be received, and that, without it, the appeal must fail. Alternatively, the Crown submits that if the fresh evidence is received it can be seen on analysis to be of little weight, and would not render her conviction unsafe. The Court of Appeal is entitled to accept new evidence under section 23 of the Criminal Appeal Act 1968 as amended. In deciding whether to exercise our discretion to do so, we must under sub-section (1) give primary consideration to what is necessary or expedient in the interests of justice. But we must also pay particular regard to the four matters listed in sub-section (2), viz: “(a) whether the evidence appears to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” We consider each of these four matters in turn. Section 23(2)(a): capable of belief In the new account now given by Zoora Shah, she presents a social history of appalling hardship, deprivation and immense cultural pressures. In the interests of justice, it is important to grapple with the facts, however difficult, extraordinary and unfamiliar they may be to an English court. A careful and sensitive understanding of the interplay between poverty, race, gender and culture is vital, as these matters lie at the heart of Zoora Shah’s story. They form an important background to the issues which we have to determine. It needs to be stated at the outset that allowance must also be made for the difficulty of receiving evidence through an interpreter because meaning, inflexions and intonations are all too often lost in translation to English judges whose experience of Asian culture can be limited. This problem cannot be underestimated. The social background and history Zoora Shah has said that her problems started when her husband left her for a younger woman when she was pregnant and had two young children. She felt a great sense of shame at being deserted because, in her culture, women who live

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282 Samia Bano and Pragna Patel outside of marriage are considered to be “dishonourable”, with potentially harsh consequences. Zoora Shah tried to juggle between working, finding a home and looking after her children but found this difficult in circumstances where she was still new to the country and did not speak a word of English. She states that she “felt desperate and petrified, not knowing where she was going to go and who to turn to”. Her daughter Naseem describes vividly an occasion when she tried to negotiate travel on a bus to the local hospital with her three very young children but got lost and disoriented, breaking down in front of the bus driver because she did not know where she was or what to do. It was in these miserable circumstances that Zoora Shah was befriended by Mohammed Azam, a well connected married man with one foot in the criminal underworld of Bradford, who offered to help her. It would appear that she attempted to survive on the margins of an extremely hostile community, accepting the help of whoever she came into contact with, which consisted of a series of Asian men offering to secure accommodation for her and her children. Her relationships with those men—her “protectors”—were complex and complicated. Each offered to help her gain ownership of her house but each also exploited her. It is noteworthy, however, that she remained indignant at being labelled and treated as a prostitute. Zoora Shah’s account of her desperate and pathetic circumstances appears to be supported by considerable contemporaneous social services and medical records that have been unearthed by her solicitors. The available social work records make frequent reference to Zoora Shah’s social and mental problems. For example, in the words of her social worker, the departure of her husband “obviously affected her emotional stability”. She writes that Zoora was pregnant again and “needed to move house, had changed her address on 4 occasions, was constantly surrounded by practical and financial difficulties; increased general insecurity; deeply ashamed of being in current predicament; cannot cope with 4th child; termination requested.” It has to be said that it is difficult for an English court to comprehend the reality of many women’s lives in cultures where their main source of legitimacy derives from their marital status. The significance of Zoora Shah’s comment—that her husband’s desertion ruined her life—must therefore be properly understood in its social, cultural and religious context: one in which it would appear that many uneducated, married Asian women have little or no power or status if they have to live outside their marriage. Honour and shame It is unfortunate that we do not yet have any coherent body of research and information about the reality of the lives of women in the various minority communities in the U.K. and their responses to issues of violence in the family. We are, however, assisted by the evidence of Dr. Lipsedge, since it provides important insight into the prevailing cultural and gender norms which have clearly shaped Zoora Shah’s responses to events in her life. Dr. Lipsedge has stated that: “Mrs. Shah’s predicament as a single mother has to be understood in the context of South Asian mores transplanted to West Yorkshire. . . . As a single woman she

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R v Zoora (Ghulam) Shah—Judgment 283 would be vulnerable to exploitation by men, while at the same time she would have to protect her reputation for the sake of her family’s honour (izzat). Loss of izzat would bring shame and disgrace (sharam) on both herself and her family in both the Bradford community and her own village and would have severe adverse effect on her own daughters’ chances of getting married.” Dr. Lipsedge’s comments echo the available material which points to the prevalence of powerful, patriarchal conventions of “honour” and “shame” in most Asian communities, giving rise to marked patterns of gender segregation and gender inequality: see Southall Black Sisters, “Domestic Violence and Asian Women” (1992). It would appear that those tendencies are particularly strongly marked in some Asian communities such as that in Bradford, characterised by its peculiar mix of conservatism, parochialism, strong and powerful, male-dominated kinship networks and an apparent obsession with the social control of women and girls: see Ballard, Desh Pardesh (1994); Ali, Refusing Holy Orders (1992). In such communities, Asian women are regarded as the upholders of family honour, and if they deviate from social customs and norms, they are deemed to have brought their family and even their caste group or whole community into disrepute: see Southall Black Sisters, “Domestic Violence and Asian Women” (1992). Few Asian women in such communities are in any position to withstand the pressure to conform, since even quite small degrees of nonconformity may be sufficient to provoke massive pressures. The prospect of social rejection from her whole social world is often felt to be too catastrophic for a woman to withstand: see Ali, Refusing Holy Orders (1992). These powerful phenomena and their constraining effects on Asian women have come to be acknowledged by the English courts in Reg. v. Ahluwalia [1992] 4 All E.R. 889. It would appear that Zoora Shah’s predicament was that she was regarded as an “outcaste”, a woman of “improper” virtue, the moment her husband left her and she was forced to step out into the public domain. It must have been extremely difficult for her to survive with small children in a hostile world both inside and outside her community, without any knowledge of English or any financial means or networks of support. In the context of powerful, patriarchal networks riddled with complex codes of conduct, especially regarding the control of women, her survival required connections with those who were powerful—connections which she did not have. She was unable to interact “freely” and yet she had to find the means to survive, especially for the sake of her children. She appears to have done so, as best she could, by guile and by building what she thought were useful but which ultimately proved to be disastrous alliances with men of dubious intentions. An understanding of the cultural and social context to this case is essential in the interests of justice. That is not to accept culture as an “excuse”, but rather to understand the logic of Zoora Shah’s actions and the sequence of events which would otherwise be rendered extraordinary and at times incomprehensible. In order to understand any cultural and social context, it is necessary to analyse how it operates, in whose interests, and where power really lies within it. This is particularly important where the cultural and social context is not familiar to English courts, since otherwise we could not reasonably determine what is and is not capable of belief in cases such as these. Following her husband’s desertion in 1980, Zoora Shah lived in squalid conditions, struggling to get by, and taking on exhausting and pitifully paid work looking after

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284 Samia Bano and Pragna Patel physically handicapped children. Her misery, frailty and exhaustion were noted by numerous independent witnesses and by the social services themselves. They are particularly powerful contemporaneous accounts of her living conditions and state of mind. Kausar Hafiz stated that: “She never looked as if she took care of herself, never wore any make up, looked disturbed. She was always rushing, quickly coming in and going, and never relaxed . . . she always looked low, had “dead” eyes with bags under her eyes, as if she had not slept. She looked tired, I never saw her in a happy state of mind. She never looked fresh . . . she looked depressed to me.” Mahroof Iqbal stated: “If her life had been nice, she would not have worked as a domestic in another household, so her life must have been troubled. . . . She looked as if she was ashamed to talk, because we were Asians. . . . She had no energy . . . I think she was very depressed.” Amina Bi Hanif stated that: “She never looked happy . . . she cried tears of sorrow whenever she spoke to me. She was thin, as if she was not eating properly . . . I went to her home once. . . . It was in a bad state. There was no wallpaper or carpet, and it looked to me as if she was poor.” A history of abuse: Zoora Shah has given evidence of a long history of physical and sexual abuse at the hands of her husband, Mohammed Azam, Zamoorat and Raghib Shah: a history which is not entirely supported by direct evidence, perhaps unsurprisingly since gender-related violence was barely acknowledged in the 1980s and early 1990s, in the wider society or in minority communities. Kennedy L.J. comments on the fact that, apart from a bruised black eye, Zoora Shah did not make any report of violence, rape or sexual abuse to the police, to her G.P.s or to social services, although she had plenty of opportunities to do so. We have heard from her that she did not find it easy to report matters of a sexual nature. As an Asian woman from her particular community, she would have deemed it inappropriate to do so. It would appear that once she decided to build her future within, rather than without, the context of the community, albeit on the margins, she seems to have gone out of her way to maintain an appearance of propriety for the sake of her children’s future. As a woman brought up not to have a public presence and to maintain silence, she could not have disclosed her true circumstances and experiences of abuse, especially sexual abuse, to others—especially not to members of the community in which she lived, even her own G.P.s—without inviting further negative judgement upon herself. They were, after all, the very same community which had shunned her. Even if we do not consider the cultural constraints on Zoora Shah to be sufficient, there are compelling indicators of abuse which should be taken into account. There is evidence in the police and social services records of threats made and damage to her property. For example, she says that an incident involving a brick being thrown through her window whilst she was in Pakistan was instigated by Mohammed Azam out of revenge and jealousy. Her social worker recorded this incident, and also commented on her relationship with Mohammed Azam:

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R v Zoora (Ghulam) Shah—Judgment 285 “It appears that Zoora Ghulam has been exploited by both men (Azam and Bala). . . . Zoora told me her house had also been broken into in early June. She feels this was done deliberately by one of the men . . . because she is a vulnerable lady by the nature of her being a single parent and a woman dependant on others for help this being one of the reasons why she had been exploited to the extent that she has been.” There is also overwhelming evidence to show that Zoora Shah was the victim of financial abuse at the hands of Mohammed Azam, and to some extent, the other men too. It would seem that following the purchase of her home at 251 Legrams Lane in Mohammed Azam’s name, he used his ownership of the property as a way of exerting maximum control over her and to keep her in a state of dependency, anxiety and fear. Mohammed Azam’s threats to her, and his numerous attempts to evict her, are not in dispute. Zoora Shah turned to Mohammed Azam because he was the only male in her community who was willing to help her secure a roof over her head. She was living on welfare benefits and was therefore not eligible to apply for a mortgage. She spoke little or no English and, in any event, it would appear that it would have been most unusual for a woman to negotiate matters for herself given the male-dominated nature of her community. Mohammed Azam’s absolute control over Zoora Shah’s home seems an essential part of her account of his overall abusive behaviour. The property was at the heart of her problems since his control over it ensured her total dependency on him in relation to her responsibility to keep a roof over her children’s heads. Approaching the question of Mohammed Azam’s abuse of her in this way is perhaps a novel one, but one that this court is bound to consider when examining cases of this kind. In assessing whether or not Zoora Shah’s account of abuse is capable of belief, it is in our opinion also necessary to consider the behaviour and character of Mohammed Azam himself. In examining abusive domestic relationships generally, the focus is all too often on the responses of the abused women rather than the characteristics of the perpetrators themselves. Mohammed Azam was no angel. He was a married man with children and yet he flaunted his relationship with Zoora Shah openly. We heard her describe how he attempted to put her to work as a prostitute and tried to get her to become a drugs courier. He was a convicted drug dealer who served a lengthy prison sentence for possession of heroin. Whilst this does not of itself provide direct evidence, it does indicate the possibility that he was capable of criminal conduct and violence. The fact that he consorted with her even after he knew that she had contacted “Bala” to attack him indicates his confidence in his power over her in the relationship. There is also evidence to show that Zoora Shah made a number of attempts to seek help in the face of Mohammed Azam’s behaviour. Facing eviction, she states that she sought help from his wealthy and powerful brother, Sher Azam, the then leader of the Bradford Council of Mosques. Sher Azam would have known about his brother’s relationship with Zoora, including her loyalty to him—she had perjured herself at his trial for possession and trafficking of drugs and continued to visit him when in prison, in the hope of having her house legally transferred to her. Yet, despite her pleas for help, Sher Azam refused to intervene. In doing so, he closed off her only route out of her abusive relationship. She had taken her case to the highest authority in her community,

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286 Samia Bano and Pragna Patel as Asian women often do when seeking to stay within the confines of social customs: see Southall Black Sisters, “Domestic Violence and Asian Women” (1992). She found herself on her own and the rejection would have made her more vulnerable within the community. Kennedy L.J. makes much of the fact that Zoora Shah was an “unusual” woman, without maternal instincts and, to use the words of her daughter, “strong willed” in the sense that she developed a capacity for taking independent action. An example is given in the incident when, faced with men who turned up at her home for sex, she fended them off with sticks and smashed the windscreen of their car. But in our view, her actions do not negate her account of being abused and exploited by the men in her community. Indeed, they could be taken to be indicative of a desperate woman trying to survive in the face of abuse and humiliation. Evidence from Zoora Shah and lay witnesses suggests that she was fiercely protective of her children and much of her behaviour was geared towards ensuring that they had a home. It could be argued that, had Zoora Shah been less exposed and vulnerable to charges of impropriety and above all less depressed, she might have had nothing to do with the manoeuvres around the legal ownership of her home, most of which were planned by men who were for the most part more concerned to advance their own interests than hers. But she went along with them, she says, because her aim was to protect her home and her children, especially her eldest daughter Naseem, from Mohammed Azam’s clutches. Dr. Lipsedge has pointed out that in Asian communities, female sexual impropriety can lead to negative labelling which transfers to girl children in particular who are often assumed to be of the same “mould”. To avoid the same fate befalling her daughters, Zoora Shah arranged Naseem’s marriage in Pakistan on two occasions. It would seem to us that this is logical behaviour for a woman trying to protect her daughters from being imprisoned by the cultural and social mores that sealed her fate. We are reluctant, therefore, to view Zoora Shah’s actions as necessarily a sign of someone who had real freedom or complete choice and autonomy. She appears to be a woman who was compelled to survive for the sake of her children in a marginal world peopled by thieves, fraudsters, sexual predators and drug dealers. The social, economic and political forces at play inevitably determined the boundaries of how her agency and autonomy could be exercised. We turn briefly to the medical reports by Dr. Lipsdge and Dr. Shubsachs. Both took a history from Zoora Shah and initially based their opinions on her account. During the course of this appeal they provided supplementary reports stating that their conclusions are also adequately supported by evidence drawn from other contemporaneous sources, G.P. records, hospital records, social services records, lay witnesses’ observations, etc. They conclude that she was suffering from a major depressive illness at the relevant time. Their view is also supported by her G.P.s, Dr. Mughal and Dr. Abassi, who state that at the relevant time there was something wrong with her and that, in the light of all that they now know, they are convinced that she was suffering from a depressive illness at the time of the offences. Dr. Rix, on the other hand, agrees that Zoora Shah was suffering from a mixed anxiety and depressive disorder, but he does not think it was sufficient to diminish her responsibility. He quotes Dr. Collins, who saw her on two occasions for the purposes of her original trial in 1992, and concurs that “deliberate fatal poisoning of adults is not compatible with significant clinical depression”. However, the scientific basis for

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R v Zoora (Ghulam) Shah—Judgment 287 this view is not clear. On the contrary, there is evidence to suggest that severely depressed people are capable of fairly detailed planning prior to a suicide attempt. We therefore see no reason why this analogy cannot be extended to the planning required in a poisoning case such as this. We conclude that the evidence laid before us—from Zoora Shah herself and from the lay witnesses, general practitioners, social workers and the two consultant psychiatrists—is capable of belief and could be considered so by a jury. Section 23(2)(b): grounds for allowing the appeal Section 2 of the Homicide Act 1957 provides that in order to establish the defence of diminished responsibility, the defendant must prove that “he was suffering from such abnormality of mind . . . as substantially impaired his mental responsibility for his acts”. Dr. Lipsedge and Dr. Shubsachs state that Zoora Shah was suffering from a depressive illness at the time of the killing of Mohammed Azam to the extent that it constituted an abnormality of the mind that substantially impaired her mental responsibility. Both doctors have relied on a number of sources including notes from her G.P.s. The evidence provided by Dr. Mughal and Dr. Abassi documents a consistent pattern of physical and mental health-related illnesses. Dr. Mughal also gave evidence and had himself observed her to be “thin and malnourished and rather highly strung”. His records showed depression or anxiety intermittently since early 1986. He said that Zoora Shah was often weeping because of her personal and financial difficulties and presented with a multitude of physical illnesses such as urinary tract and kidney infections which at times led to her hospitalisation. He was aware of her deprived and troubled circumstances, stating that her home was in disarray and that her children did not follow regular meal patterns, wore the same clothes for weeks at a time and did not bathe for long periods of time. He prescribed a variety of anti-depressants and although he did not carry out a formal assessment of her mental state prior to the killing, he now believes that a diagnosis of either endogenous or exogenous depression is entirely justifiable. Dr. Lipsedge finds that Zoora Shah displayed characteristic symptoms of a major depressive episode including persistent lowering of mood, anhedonia (that is, marked loss of interest and pleasure in daily activities), significant weight loss, insomnia, lack of energy, feelings of worthlessness and recurrent thoughts of suicide. He pointed to her psychiatric history which consists of a number of episodes of deliberate self-harm. On five separate occasions (two during her marriage and three during her relationship with Mohammed Azam) she took overdoses. Significantly, Dr. Lipsedge also comments on the occasions when Zoora Shah presented to her G.P. with a variety of physical symptoms for which no organic cause could be demonstrated. He points out that it is well recognised that many patients with clinically undetected depression present to their G.P.s with somatic symptoms and that there is extensive literature on the process of “somatisation” with patients from South Asia, where presentation of physical symptoms serves as an “idiom of distress”. Dr. Lipsedge concluded that the depressive illness that Zoora Shah had developed was a reaction to Mohammed Azam’s behaviour towards her and towards her daughters. In his evidence he stated that she felt trapped, helpless and hopeless. The

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288 Samia Bano and Pragna Patel prolonged period of domestic violence placed her in the characteristic position of the “battered wife” with an ambivalent relationship to her male partner, being materially dependent on him while at the same time being subject to repeated abuse and degradation. As a result, she lost her self-respect and her self-confidence. This opinion is shared by Dr. Shubsachs who also draws upon the medical and other evidence to support the view that Zoora Shah was suffering from a depressive illness. He also refers to the psychiatric reports by Dr. Wood and Dr. Collins for the original trial which document two episodes of deliberate self-harm with overdoses which had taken place “at times of distress” eight years and 13 years prior to their examination of her. Both Dr. Shubsachs and Dr. Lipsedge conclude that at the time of killing Mohammed Azam, Zoora Shah was suffering from an abnormality of mind of a degree and nature to substantially diminish her responsibility. Dr. Rix, for the Crown, points out that it does not necessarily follow that because a depressive or mixed anxiety and depressive disorder is present there was an abnormality of mind. Relying on the reports of Dr. Wood and Dr. Collins, he concludes that this is not a case of diminished responsibility We emphasise again that Dr. Wood and Dr. Collins did not have the full account or access to all of Zoora Shah’s medical notes. She told Dr. Wood that she had been beaten by her husband and felt disgraced by his leaving her, but she denied having a succession of men friends. She told Dr. Collins that she was not depressed at the time of Mohammed Azam’s death and that she did not have any problems with her general health. She described her life as “normal” and refused to answer questions relating to sexual matters which she said were of no relevance. Having weighed the evidence provided by the new medical experts against that which was available at trial from Dr. Wood and Dr. Collins, we are of the view that a jury may well find that this is a case of diminished responsibility. Her social circumstances certainly would have predisposed her to depression. Little of the evidence about her social circumstances or the medical history came out at trial because she denied the offences altogether. But now that the new evidence is available it transforms the entire factual basis of the case. We recognise that the medical evidence as to whether Zoora Shah suffered from an abnormality of mind to the extent that it diminished her responsibility is conflicting. Nevertheless, the majority view from the medical experts is that she was suffering from some form of depression. The question of whether or not this amounted to such an abnormality of mind as would have substantially impaired her responsibility for her acts is one that must be left to a jury, since to do otherwise would be to usurp their function. We are of the view that there is considerable contemporaneous objective evidence which can provide a “proper and viable evidential basis for the defence of diminished responsibility”: see Reg. v. Arnold [1996] 31 B.M.L.R. 24. Section 23(2)(c): admissibility The Crown submits that, following Reg. v. Melville [1976] 1 W.L.R. 181, 185, the reference in section 23 of the 1968 Act to evidence being “admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal” should be read to mean “an issue which was raised below and is the subject of the appeal in this court”. It therefore follows that the fresh evidence does not meet the criterion in section 23(2)(c).

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R v Zoora (Ghulam) Shah—Judgment 289 We do not accept that Reg. v. Melville can be applied as if it provided an inflexible, mechanistic rule. A series of cases decided following Reg. v. Melville have emphasised that the statutory discretion under section 23 must be exercised with regard to the interests of justice in all the circumstances of the case: see Reg. v. Richardson (unreported) 9 May 1991; Reg. v. Ahluwalia [1992] 4 All E.R. 889; Reg. v. Straw [1995] 1 All E.R. 187; Reg. v. Binning (unreported) 12 April 1996; Reg. v. Campbell [1997] 1 Cr. App. R. 199; Reg. v. Borthwick (1998) Crim. L.R. 274. We accept that it will be only in exceptional circumstances that evidence in support of a defence not raised at trial will be admitted on appeal, but each case necessarily turns on its facts. Given what we now know of Zoora Shah’s cultural and social background in particular, it would appear that she was incapable of availing herself of a defence of diminished responsibility at trial. Difficulties of communication may also have played some part in the course that was taken at trail. There are many reasons due to factors intrinsic to a defendant (such as mental illness, fear, anxiety and, we would add, strong cultural codes of conduct) which may affect a defendant’s effective access to a defence: see Reg. v. Ahluwalia [1992] 4 All E.R. 889; Reg. v. Binning (unreported) 12 April 1996; Reg. v. Borthwick (1998) Crim. L.R. 274. We have now before us compelling evidence as to why Zoora Shah did not give at trial a full and frank account of her actions. Without the account she has now given and without the cultural and medical evidence now available to help make sense of that account, we cannot see how a defence of diminished responsibility could have been fully explored at trial, notwithstanding the evidence of Dr. Collins and Dr. Wood. It follows, therefore, that in our opinion, the fresh evidence does meet the criteria in section 23(2)(c). Section 23(2)(d): reasonable explanation for failure to adduce In evidence, Zoora Shah states that she was not able to give her story at trial, partly because she was afraid of retaliatory violence from Mohammed Azam’s family and the local community, and partly because she was too ashamed to talk about intimate aspects of her life in public. She was petrified of the social condemnation and ostracism that would ensue. So, she decided to maintain silence in order to salvage “honour”, not for herself but for her daughters, and thereby to save them from a life of prostitution and exploitation. Zoora Shah now states that it was only after coming into contact with Southall Black Sisters and the support that she received from them that she was able to tell the truth. In evidence, she said that her decision to recount her history now, particularly her history of sexual relationships, was made easier by the support she has received from her now adult children who have reassured her and helped her to overcome her fears for herself and for them. We have heard from Dr. Lipsedge of how the notion of “honour” attaches to the sexually chaste or the dutiful wife and how dishonour can transfer to female children in particular, thereby ruining their chances of living with respect and dignity in their communities. We accept the importance and impact of “honour” on women from communities such as that of Zoora Shah. The Crown contends that she was capable of striking out on her own, and that her way of life had been such that there might not have been much left of her honour to salvage. This would appear to us to be an unduly harsh and uninformed view of her circumstances. This court must be careful not to

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290 Samia Bano and Pragna Patel substitute Zoora Shah’s interpretation of her cultural constraints with our own. We should not underestimate how difficult and humiliating it must be for a woman from her background to state in public, as she did in this court, that “she had become a bed mattress for all the men in her community”. Zoora Shah has admitted that her denial at trial of the offences was based upon a tissue of lies. However, this court is concerned with the question of whether there is a reasonable explanation for her failure to tell the truth at her trial. Taking all the circumstances and evidence into account, we conclude that Zoora Shah has put forward a reasonable explanation for her failure to adduce at trial the evidence that is now presented. Section 23(1): necessary or expedient in the interests of justice? We return now to the discretionary power set out in section 23(1) of the 1968 Act, which states that this court may receive the evidence if we consider it necessary or expedient in the interests of justice to do so. It is only in very rare cases that a defendant will be permitted to raise a matter at the Court of Appeal that has not been raised before, since this would allow applicants to have another bite of the “forensic cherry”: see Reg. v. Ahluwalia [1992] 4 All E.R. 889 per Lord Taylor; Reg. v. Arnold (1996) 31 B.M.L.R; Reg. v. Jones [1997] 1 Cr. App. R. 86, 93C per Lord Bingham. However, we do not view this as a case where, having put forward one defence before the court at trial and having failed, Zoora Shah is now trying her luck again. Her case in this respect is not dissimilar to Reg. v. Ahluwalia [1992] 4 All E.R. 889, where the defence of diminished responsibility was not adduced at trial but nevertheless, in the interests of justice, the Court of Appeal allowed fresh medical evidence showing diminished responsibility. In Zoora Shah’s case, there was some evidence at her first trial that she was suffering from depression but without her full account and the benefit of her medical records and other evidence now uncovered, this could not be properly explored. Her medical and social history now reveals a most appalling picture of poverty, neonatal and other problems related to sexual exploitation which Zoora Shah has stated she was most ashamed to talk about publicly. It is now well recognised that their very experiences of violence and abuse often preclude women from being able to provide a full account of such experiences in the first place. Shock, fear of physical and social repercussions, feelings of shame and worthlessness, depression and suicidal thoughts are common in women’s accounts of abuse and violence. Those who work with abused women state that it often takes months if not years to recover, if they ever can fully recover : see Browne, When Battered Women Kill (1987); Women’s Aid Federation of England, “Women’s Education Project: Breaking Through—Women Surviving Male Violence” (1989); Southall Black Sisters, “Domestic Violence and Asian Women” (1992). We must also mention the fact that medical awareness of domestic violence and abuse was not as advanced in the early 1990s as it is now, and this absence of knowledge may have impacted on how Zoora Shah was assessed by Dr. Collins and Dr. Wood. At the time of her trial, they did not find her to be suffering from a major or severe depressive illness. However, medical knowledge now recognises that women who have been subjected to repeated abuse can develop a severe depressive illness such as the “battered woman’s syndrome”, which refers to a state of hopelessness, helplessness, despair, and low self-esteem: see Reg. v. Ahluwalia [1992] 4 All E.R. 889; Reg. v.

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R v Zoora (Ghulam) Shah—Judgment 291 Humphreys [1995] 4 All E.R. 1008; Reg. v. Thornton (No 2) [1996] 1 W.L.R. 1174. We are mindful of the need to take into account all the circumstances of a case rather than assume that all women will always respond to abuse and violence in a particular way. This court must be careful not to create a “battered woman” standard which is then used to measure all other abused women. Nevertheless, Dr. Lipsedge has concluded that Zoora Shah was suffering from the “battered woman syndrome”, and Dr. Shubsachs concurs with this view. We note that the “battered woman syndrome” was not part of the British psychiatric classification before 1994 and as such would not have formed part of Dr. Wood’s and Dr. Collins’ medical assessment of Zoora Shah. For these reasons, we consider this case to fall within the exceptional category of cases in which, in the interests of justice, the appellant should be permitted to rely upon fresh evidence in order to advance a defence not raised at trial. Having accepted the fresh evidence, we cannot agree with the majority of this court that Zoora Shah committed a particularly callous and premeditated murder for material gain. On the contrary, we are of the view that this was the conduct of a desperate woman threatened with the loss of her home and with destitution in what remained, for her, a foreign country. We accept that, on the basis of the fresh evidence, a defence of diminished responsibility might well have succeeded at trial, and we therefore hold that the present convictions are unsafe. We would allow the appeal and accordingly direct that a new trial be fixed.

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17 Commentary on Attorney-General for Jersey v Holley CLARE CONNELLY

Introduction Over the past 30 years, domestic violence and domestic homicide have been placed on the political and law reform agendas in the UK, largely as a result of sustained campaigning by Women’s Aid1 and other feminist groups such as Justice for Women2 and Southall Black Sisters.3 During the 1990s, feminist campaigns in respect of women who had killed their violent partners culminated in convictions for manslaughter on the basis of provocation or diminished responsibility rather than murder,4 most notably in the cases of Kiranjit Ahluwalia,5 Sara Thornton6 and Emma Humphreys.7 These cases were monumental in securing legal recognition of the experiences of abused women who kill their violent partners. The cases challenged the law on provocation, with its masculine bias in favour of those who react to provoking events with anger—classically in the case of men who discover that their wives have committed adultery and/or are planning to leave them—as opposed to abused women who react through terror and despair, often in response to years of abuse rather than a single provoking event. In doing so, they brought to the fore the concept of ‘battered women’s syndrome’ (BWS). This is a state characterised by anxiety, depression and a feeling of total helplessness,8 which was recognised for the first time as being relevant to the pleas of provocation and diminished responsibility in the cases of Kiranjit Ahluwalia and Sara Thornton. Provocation and diminished responsibility are both partial defences to murder, reducing the offence to manslaughter and consequently, and crucially, avoiding the imposition of a mandatory life sentence for murder. Ordinarily, for provocation, it is necessary for the defendant to show that some provoking words or conduct caused him or her to lose self-control, but it was accepted 1

RP Dobash and RE Dobash, Women, Violence and Social Change (London, Routledge, 1992). Justice for Women was started by journalist Julie Bindel and campaigned against the convictions of Sara Thornton and Emma Humphreys for the murders of their respective partners. See www.justiceforwomen.org.uk. 3 Southhall Black Sisters was formed in 1979. Their first campaign to highlight the injustice of battered women convicted of murdering a violent partner was for Kiranjit Alhuwalia. See www.southallblacksisters.org.uk. 4 Unlike other jurisdictions, eg Canada, women in England and Wales have generally not been able successfully to plead self-defence and thereby secure an acquittal. See, eg, S Griffiths, ‘Women, Anger and Domestic Violence: The Implications for Legal Defences to Murder’ in J Hanmer and C Itzin (eds), Home Truths About Domestic Violence (London, Routledge, 2000). 5 R v Ahluwalia [1992] 4 All ER 889 (CA). 6 R v Thornton (No 2) [1996] 1 WLR 1174 (CA). 7 R v Humphreys [1995] 4 All ER 1008 (CA). 2

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Attorney-General for Jersey v Holley—Commentary 293 that a battered woman may experience a ‘slow burn’ reaction to prolonged abuse which may ultimately cause her to lose self-control.9 Diminished responsibility applies where there is an ‘abnormality of the mind’ which sufficiently affects the person’s capacities such as to diminish their responsibility for the killing. While a diagnosis of BWS is helpful in allowing women who kill violent men to plead the defence of diminished responsibility in particular, it is also controversial. Criticisms of the use of BWS include that it essentialises battered women; that it is contradictory when used by women who kill as their ‘learned helplessness’ is at odds with the action of killing another; and that it pathologises women victims of domestic abuse.10 As a medicalised term, BWS will be spoken to by experts at a criminal trial, but this can also allow for generalised evidence about domestic abuse and its effects to be led in court. In the late 1990s Southall Black Sisters and Justice for Women were once again involved in a high profile provocation case. R v Smith (Morgan)11 involved a man who had killed a friend but claimed that his ability to exercise self-control was adversely affected by his severe depression. This case centred on a different element of the defence of provocation: the requirement that the ‘reasonable man’, provoked as the defendant was, would have lost self-control and done as the defendant did. The specific issue was whether the standard of self-control of the ‘reasonable man’, against which the defendant’s actions were measured, was the same in all cases, or variable depending upon the particular characteristics of the defendant. Was the standard expected of Smith, suffering depression, the same as that of someone not suffering depression? Feminist groups campaigned around this case because of its implications for battered women who killed their abusers: is the standard of selfcontrol expected of an abused woman, or woman suffering BWS, the same as for women or men who have not been subject to such abuse? In Smith, the House of Lords decided, reversing earlier case law, that the standard of selfcontrol expected of a defendant could vary depending on his or her characteristics. In Smith’s case, this meant that his depression was relevant. For abused women, this would mean that greater consideration would be given to their experiences when considering whether they had met the requisite standard of self-control. The judgment in Smith was widely welcomed by feminist groups. It seemed that the law on provocation had become more accessible to abused women who kill, thereby reducing their reliance on the more stigmatising defence of diminished responsibility. However, this victory was short-lived, with the judgment in Attorney-General for Jersey v Holley 12 a few years later reversing Smith.

8 BWS, developed by psychologist Lenore Walker, explains the possible effects of long-term abuse on women. It suggests that following repeated violence a woman is likely to become passive and unable to escape her situation. This ‘learned helplessness’ leads the woman to remain with the abuser and helps to explain why some women continue a relationship with a man who abuses them. See L Walker, The Battered Woman Syndrome (New York, Springer, 1984). 9 R v Ahluwalia, above n 5. 10 For further discussion, see D Nicolson, ‘What the Law Giveth, It Also Taketh Away: Female Specific Defences to Criminal Liability’ in D Nicholson and L Bibbings (eds), Feminist Perspectives on Criminal Law (London, Cavendish, 2000); S Noonan, ‘Battered Women Syndrome: Shifting the Parameters of Criminal Law Defences (or (Re)Inscribing the Familiar?)’ in A Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (London, Cavendish, 2000); E Sheehy, J Stubbs and J Tolmie, ‘Defending Battered Women on Trial: The Battered Woman Syndrome and its Limitations’ (1992) 16 Criminal Law Journal 369. 11 R v Smith (Morgan) [2000] UKHL 49, [2001] 1 AC 146. 12 Attorney-General for Jersey v Holley [2005] UKPC 23, [2005] 2 AC 580.

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294 Clare Connelly

The Holley Case Dennis Holley was convicted of the murder of his long-standing girlfriend, Cherylinn Mullane. He admitted killing her with an axe on 13 April 2000 at their home in Jersey, but claimed that he had acted under provocation. At his first trial he led evidence that his chronic alcoholism was a disease and, as such, a characteristic relevant when considering his capacity to exercise self-control. Following a number of appeals and retrials, the case was finally appealed to the Privy Council, on the question of whether a defendant’s particular characteristic(s) were relevant when considering whether a reasonable person would have acted as the defendant had done. The Privy Council is the final court of appeal of a number of British territories and former colonies, including Jersey. Its composition largely consists of UK Law Lords, and in this case, it was made up of nine Law Lords, to ensure that the decision would be binding in English law.13 Jersey law on provocation was the same as English law and there was great concern to clarify, definitively, the English and hence, Jersey law, on the subject. Their Lordships held, by a 6:3 majority, that the reasonable person standard is objective and fixed and does not vary from person to person depending on their different characteristics, other than age and sex.14 The majority drew a distinction between the gravity of the provocation offered, which may vary according to the particular characteristics of the accused (for example, a racist slur will have a more serious effect on a member of a racial minority than on a white person), and the expected standard of self-control in response to the particular provocation, which is unvarying. The minority, by contrast, found this to be an unrealistic distinction, and preferred the reasoning of the House of Lords in the Smith case. The feminist activism which accompanied Smith was largely absent from Holley. It is not clear why this was so. Perhaps it was because by 2005 the rules of provocation had come under consideration by the Law Commission.15 Or maybe feminist organisations were unwilling to campaign, or to be seen to campaign, on behalf of a man with a history of domestic violence who had killed his partner. The outcome in Holley may be seen to present a dilemma for feminists, in that it limits the use of the provocation defence by jealous and violent men who kill intimate partners (or who claim a ‘cultural’ basis for killing women family members)—cases that are numerically more frequent—but at the same time, it limits the use of the defence by abused women who kill in response to prolonged domestic violence.16 In this respect, the Privy Council’s decision threatened the feminist gains made in the 1990s which had highlighted the ‘hidden gender’ of defences such as provocation. 13 The decision was held to be binding in the subsequent Court of Appeal hearing of the conjoined appeals R v James; R v Karimi [2006] EWCA Crim 14, [2006] QB 588. On the effect of the unique composition of the Privy Council in Holley, see J Elvin, ‘The Doctrine of Precedent and the Provocation Defence: A Comment on R v James’ (2006) 69 Modern Law Review 819. 14 The decision in R v Camplin [1978] QB 254 (CA), which allows for the defendant’s age and sex to be taken into account in assessing the expected standard of self-control, was upheld in Holley. 15 Law Commission, ‘Partial Defences to Murder’ (Law Com No 290 Cm 6301, 2004). For a comment on the proposals, see S Edwards, ‘Abolishing Provocation and Re-framing Self Defence —The Law Commission Options for Reform’ [2004] Criminal law Review 181. A version of the Law Commission’s proposals was ultimately enacted in the Coroners and Criminal Justice Act 2009, which received Royal Assent on 12 November 2009. 16 For further discussion on the impact of Holley on the sentencing of women who kill violent men, see S Edwards, ‘Descent into Murder: Provocation’s Stricture—The Prognosis for Women Who Kill Men Who Abuse Them’ (2007) 71 Journal of Criminal Law 342.

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Attorney-General for Jersey v Holley—Commentary 295

The Feminist Judgment The feminist judgment prepared by Susan Edwards dissents from that of the majority of the Privy Council and joins the minority in favouring the position in Smith. With regard to the expected standard of self-control, she concludes that there may be circumstances where it is both logical and just to consider the characteristics of the accused as they affect both the gravity of the provocation to him or her and the capacity for self-control. In other words, the actions of the accused should be judged against the notional response of a reasonable person sharing his or her characteristics that would affect self-control. This would create a flexible or variable standard rather than the fixed standard preferred by the majority. In the case before the court, Edwards does not agree with the majority opinion that the characteristic of chronic alcoholism should be excluded from the objective test for self control, although she questions whether in fact it would have affected Holley’s capacity for selfcontrol in the circumstances of the case. More broadly, Edwards’ judgment focuses on the implications of the majority decision in Holley for battered women who kill abusive men. In doing so, it ranges more widely than either the majority or minority opinions in the Privy Council, undertaking a more comprehensive review of the law of provocation from the perspective of abused women.

The Subjective Test—Loss of Self Control The requirement that the defendant must have suffered a ‘sudden and temporary’ loss of self control17 has created difficulties when there is a time lapse between the last provoking incident and the killing. This is seen in cases where women have killed a partner in the context of a history of abuse and they fear that there will be further abuse. There are a number of cases in which women have either waited until the man was incapacitated, such as in Ahluwalia (where the victim was asleep), or went to retrieve a weapon and then acted, such as in Thornton. Edwards suggests that the state of mind of the accused during the period of time elapsing is and should be the central consideration. She suggests that loss of selfcontrol must take account of life experiences including grief, despair and anxiety, fear and trauma that might lead to a loss of self-control.

The Relevance of Adultery Holley claimed that he was provoked by the deceased’s admission of infidelity. Edwards correctly identifies concerns around this claim, considering that the modern law has been too sympathetic to men who kill women due to jealousy or possessiveness. Edwards’ judgment attempts to redress the male bias of the law of provocation both by questioning the assumption that wounded masculine or sexual pride constitutes a sufficient basis for the defence of provocation, and, conversely, by incorporating women’s experiences into the development of legal doctrine.

17

This requirement derives from R v Duffy [1949] 1 All ER 932 (CCA).

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296 Clare Connelly

Conclusion The Coroners and Criminal Justice Act 2009 precludes the use of sexual infidelity as a basis for provocation,18 thereby dealing to an extent with Edwards’ concerns in this regard. But Holley itself remains good law. The feminist judgment, in underscoring the masculine bias of this area of law, demonstrates the possibilities of a judgment which puts at its centre the experiences of abused women who kill and seeks to provide them with justice.

18

Section 42(6).

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Privy Council

Attorney General for Jersey v Holley [2005] UKPC 23

BARONESS EDWARDS OF BUCKINGHAM 1 I regret that I cannot concur in the opinion of the majority of the Board. I fully agree with the reasons given and conclusions reached in the dissenting judgments of my noble and learned friends Lord Carswell, Lord Bingham of Cornhill and Lord Hoffman. However, in view of the importance of this case for the criminal law of England and Wales, as well as Jersey, I would like to add some reasons of my own. 2 This appeal, from the Court of Appeal of Jersey, provides a unique opportunity for the Board to set on a firm footing and resolve for the twenty-first century the confusion that currently resides within the law of provocation, not only with regard to issues upon which the present case turns but more generally; and to do so, as far as is possible, in the pursuit of logic and justice. 3 This case involves a domestic homicide in Jersey of a most ferocious kind committed by a man on his long-term partner. Following a retrial, the defendant, Dennis Holley, was convicted of the murder of his girlfriend, Cherylinn Mullane. He was a chronic alcoholic and killed the deceased with an axe during an argument, hitting her seven or eight times. The principal issue at trial was the defence of provocation. The Court of Appeal [2003] JLR 22 allowed the appeal and set aside the murder conviction on the basis of a misdirection on the law of provocation. From that decision, the Attorney General has appealed to their Lordships’ Board. 4 In the United Kingdom, domestic homicide accounts for nearly 100 deaths of women each year and 25 deaths of men: Home Office Research, Development and Statistics Directorate, British Crime Survey data 1995–2000. Domestic violence is a gender-based crime and women are its principal victims. It is a crime which has been under-reported and under-prosecuted in the courts: House of Commons Home Affairs Committee, Third Report of Session 2005–06 (HC 1231). There has been a groundswell of public opinion that the courts should do more both for survivors of domestic violence and for those victims who are murdered. With regard to the latter, I am mindful of the recommendations of the Law Commission in “Partial Defences to Murder” (Consultation Paper No 173) (2003), and also public feeling that male partners too easily escape a conviction for murder. Indeed, Lord Hoffmann acknowledged in R v Smith (Morgan) [2000] 1 AC 146, 159, that the law on provocation “has serious logical and moral flaws”. 5 The partial defence of provocation is of common law origin. It has often been described as “a concession to human frailty”. The common law position has been altered by statute. Article 4 of the Homicide (Jersey) Law 1986 (which reproduces section 3 of the Homicide Act 1957) provides: “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said

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298 Susan Edwards or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which in their opinion, it would have on a reasonable man.” 6 Section 3 of the 1957 Act lays down two elements. The first element is known as the subjective test, and requires the defendant to prove that she or he did indeed lose her or his self-control in response to the provocation. All evidence which is probative of the defendant’s state of self-control is admissible, including evidence of any mental or other abnormality, such as “battered woman syndrome”, or in this example, the effects of abuse, which would make it more or less likely that the defendant lost his or her self-control. 7 The second element is known as the objective test and requires the jury to consider whether a reasonable person so provoked (formerly expressed as the “reasonable man test”), would have reacted in the same way as the defendant. In considering this requirement there are two aspects. First, in assessing the gravity of the provocation, the jury is required to take into account any relevant characteristic(s) of the defendant to which the provocation was directed. Second, in assessing the expected standard of self-control, the courts have debated whether this is a fixed standard or whether it can vary from one individual to another, and on this point there has been no firm agreement. 8 In the present case, the Deputy Bailiff at trial directed the jury that the fact that a person is drunk or under the influence of alcohol at the time of the killing, and as a result is provoked more easily than if he were sober, is not something to be taken into account in his favour. The Deputy Bailiff purported to direct the jury on provocation in accordance with the law as expounded by Lord Hoffmann in R v Smith (Morgan) [2001] 1 AC 146. 9 The Court of Appeal held that the Deputy Bailiff, in directing the jury, should have drawn a clear distinction between being drunk, which gives rise to no arguable legal ground for being more easily provoked, and suffering from the disease of chronic alcoholism, which may do. The Court of Appeal substituted a verdict of manslaughter. 10 The Attorney General for Jersey appealed to their Lordships’ Board. The specific point of law before the Board lies in the interpretation of that part of section 3 of the Homicide Act 1957 which considers “whether the provocation was enough to make a reasonable man do as he did [taking] into account everything both done and said according to the effect it would have on a reasonable man”. The specific question to be decided is whether chronic alcoholism could be a relevant characteristic coming within the reasonable person test and if so, whether that characteristic is eligible to affect a person’s capacity for self-control. 11 I agree with the majority of the Board that the defendant’s intoxicated state is not a matter to be taken into account by a jury when considering whether the defendant had exercised the ordinary powers of self-control. However, I cannot agree with the majority’s view that the characteristic of chronic alcoholism, however repugnant, should also be excluded. In this regard I concur with the opinion of the House of Lords in R v Smith (Morgan) [2001] 1 AC 146, followed by the Court

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Attorney-General for Jersey v Holley—Judgment 299 of Appeal in the present case, which would hold that chronic alcoholism, because it is a disease, is a relevant characteristic for the purpose of the objective test and may affect a person’s capacity for self-control. 12 The majority of the Board is of the view that the accused must be judged by the standard of a person possessing the ordinary powers of self-control, which is a constant, objective standard in all cases. Respectfully, I cannot agree that under the Homicide Act 1957 the degree of self-control expected of the reasonable person has to be judged by one standard, and one standard alone. In my opinion, there may be circumstances where it is appropriate, and indeed logical and just, to consider those characteristics of the accused which affect both the gravity of the provocation to him or her and his or her capacity for self-control. 13 In order to explain these conclusions, it is necessary to review the law on provocation more generally, before applying the law to the facts of the present case. The subjective test—“sudden and temporary” loss of self-control 14 In considering the subjective test—did the defendant lose his self- control?— the courts have demanded that the loss of self-control follows immediately upon the provocation. The direction to the jury given by Devlin J in the case of R v Duffy [1949] 1 All ER 932 has been considered then, as now, to be the classic definition of the loss of self-control. 15 Whilst the present case does not turn on temporality, it has nonetheless been an especially vexed question since Duffy and therefore requires some consideration here. In that case, no time frame for loss of self-control was stipulated, but the court said that there had been a delay between the last act of provocation and the killing. The Court of Criminal Appeal approved Devlin J’s direction, which situated a “sudden and temporary” loss of self-control at the epicentre of provocation, and held this to be a “model direction”. 16 Since that case, in order to satisfy the loss of self-control requirement, case law has required an immediate response from the defendant in order to succeed. In R v Ibrams; R v Gregory [1982] 74 Cr App R 154, the lapse of five days was held to be too long to support the requirement of a “sudden and temporary” loss of selfcontrol. In R v Brown [1972] 56 Cr App R 564, a lapse of several hours was held in law to be sufficient, although the defence of provocation was ultimately not accepted by the jury. 17 The passage of time has been, in my view, incorrectly privileged as the paramount factor in determining whether there has been a loss of self-control in response to the provocation. In my view, the state of mind of the accused during that period of time elapsing is, and should be constituted as, the central consideration. Sir James Fitzjames Stephen in Digest of the Criminal Law (3rd ed, 1883) article 317 wrote: “In deciding the question [of provocation] whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender’s conduct during that interval, and to all other circumstances tending to show the state of his mind.”

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300 Susan Edwards Here, time is one of several factors to be considered. In R v Hayward (1833) 6 C & P 157, 159, Tindal CJ expressed a similar view, that for provocation to qualify the accused must have killed, “whilst smarting under a provocation so recent and so strong that he might not be considered at the moment the master of his own understanding”. Thus, it is clear that the focus of the common law rested with the state of mind of the accused during the passage of time and not with the passing of time in and of itself. 18 The origin of “sudden and temporary” is found not in Duffy but in a speech delivered by Viscount Simon in Holmes v DPP [1946] AC 588. In that case, a husband killed his wife after she confessed to adultery. The judge withdrew the defence of provocation from the jury. As Viscount Simon explained at p 128, “As society advances, it ought to call for a higher measure of self-control in all cases”. He further stated at p 127: “The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived.” Although it is worthy of mention that Viscount Simon did not identify a sudden and temporary loss of self-control as the precondition of provocation, he said at p 127: “It is hardly necessary to lay emphasis on the importance of considering, where the homicide does not follow immediately upon the provocation, whether the accused, if acting as a reasonable man, had ‘time to cool’ ”. 19 In the case of DPP v Camplin [1978] AC 705, where a young boy of 15 years of age killed a man who had anally raped him, Lord Diplock, in reflecting on the requirement in Duffy, suggested that it had no more than followed the case of R v Lesbini [1914] 3 KB 1116. This no doubt was intended to imply that the “sudden and temporary” requirement was of long standing. This could not be further from the truth, as Lesbini makes no mention of the term “sudden and temporary”. 20 In the case of R v Ahluwalia [1992] 4 All ER 889, however, Lord Taylor CJ recognised as pivotal the state of mind of the accused, and especially the slow burn reaction of a battered woman suffering from a course of cruel conduct. Counsel for the appellant had suggested that the time lapse in that case was not a cooling off period but a brooding period. Nevertheless, Lord Taylor declared that to overrule the “sudden and temporary” formulation was properly a matter for Parliament rather than the courts. 21 The “sudden and temporary” requirement was also challenged in R v Thornton (No 1) [1992] 1 All ER 306, another case of a battered woman who killed her violent spouse. Beldam LJ in delivering the judgment of the Court of Appeal said at p 313: “The words “sudden and temporary loss of self-control” have ever since been regarded as appropriate to convey to a jury the legal concept of provocation first expressed by Tindal CJ in Hayward (1833) 6 C & P 157”. In my opinion this is a misreading of Hayward. At the Thornton retrial in 1996, Scott Baker J directed the jury to consider whether the defendant was “unable to control herself or unable to stop herself”. And in re-addressing the jury he reminded them of the relevance of her personality disorder and the whole background of the relationship, thus recognising the relevance of cumulative provocation. Whilst the facts in

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Attorney-General for Jersey v Holley—Judgment 301 the present case do not turn on the question of an abused woman’s predicament of despair, or on the question of time lapse between the last provocative act and the killing, it behoves their Lordships’ Board to use this opportunity to consider the law on provocation and provide much-needed clarity. Loss of self-control and anger 22 It is also convenient at this point to review the appropriateness of current thinking on what behavioural responses have been validated in law to constitute loss of self-control. It is accepted that the conception of loss of self-control has been limited to a state of anger and rage and to what the Law Commissioner, Professor Horder, in “Reshaping the Subjective Element in the Provocation Defence” (2005) OJLS 127, 140 has described as “stereotypically male, violent reactions to provocation”. Such a legal formulation has excluded fear and despair, which have been very often the reactions of women. The result has been the creation of a onedimensional, masculinist view of the effects of provocation. 23 This one-dimensional view of loss of self-control has developed with its own language. For example, in R v Humes (Re Attorney General’s Reference (Nos 74, 95 and 118 of 2002)) [2003] 2 Cr App R (S) 42, para 58, where a wife said “I don’t love you we are finished”, the accused explained that he “lost it completely” and said, “you can see a red mist” and “I was bellowing like a bull”. In R v Wilkinson (Re Attorney General’s Reference (Nos 74, 95 and 118 of 2002)) [2003] 2 Cr App R (S) 42, para 73, where the victim had said, “I’ve got the kids . . . I don’t care if I’ve hurt you”, the accused told the jury “that he just boiled over, red haze, gripped hold of her, adrenaline really going”. 24 The law, however, must take into account the experience of life and the several ways in which loss of self-control might be made manifest. In this regard grief, despair and anxiety, fear and trauma are also of relevance. As Fisher in The Vehement Passions (2002) at p 15 notes, whilst anger is the template for the passions and the aroused spirit, despair and grief and fear are passions by which we are overwhelmed and we believe “may damage or destroy us”. According to Fisher, “With fear we are the victim or potential victim of something coming towards us in the world, something that undermines, for at least the moment, our capacity to think of ourselves as agents”. 25 It was not until 1992, in the case of R v Ahluwalia [1992] 4 All ER 889, that the law recognised despair and anxiety as capable of constituting a loss of self-control; see also R v Thornton (No 2) [1996] 1 WLR 1174 and R v Humphreys [1995] 4 All ER 1008. The loss of self-control was described somewhat differently by these women, as despair, as a purple rather than red haze, and as an effort to survive. Lord Hoffmann in R v Smith (Morgan) [2001] 1 AC 146, 168 observed that “the law now recognises that emotions which may cause loss of self-control are not confined to anger but may include fear and despair”. The objective test—the nature of the provocation 26 In turning to consider what has been defined, in law, as sufficient provocation to make the reasonable person lose self-control, it has been for the main part male rhymes, reasons and excuses that have shaped the development of the law.

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302 Susan Edwards For example, the medieval legal doctrine whereby a man finding his wife in flagrante delicto was entitled to kill her and be acquitted of murder, being convicted only of manslaughter, was followed in the case of R v Mawgridge [1707] Kel J 119, where the court said, “jealousy is the rage of man and adultery is the highest invasion of property”. 27 This excuse continued and continues to be relevant. It has, not surprisingly, been the subject of feminist critique in all Anglo-American jurisdictions for the past four decades. In 2001, the House of Lords in R v Smith (Morgan) [2001] 1 AC 146 tried to banish such overweening male thinking from the law. Lord Hoffmann pointed out at p 169, “Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted on the woman herself or on her new lover”. He also suggested that a judicial direction be given to juries that they should ignore characteristics such as jealousy and obsession. Agreeing with Lord Hoffmann, the Law Commission, in their Report “Partial Defences to Murder” (2004), recommended that men should not be permitted to rely on such excuses. Section 3 of the Homicide Act 1957, however, prevents a judge from withdrawing such a defence from the jury. 28 In the present case, the accused claimed that his long-standing partner had said that she had slept with another man and it was this knowledge that caused him to lose his self-control and kill her. That remains in law a valid provocation. 29 Furthermore, while the case of Bedder v DPP [1954] 1 WLR 1119 turned the tide on the impotent man being able to claim impotency as provocation, ruling that impotence or lack of sexual prowess was no longer an adequate justification for loss of self-control, that was soon to be reversed in R v Camplin [1978] AC 705. In the latter case, the House of Lords expressed the view that the decision in Bedder, where taunts to an impotent man from a prostitute were excluded as sufficient provocation to make a reasonable man lose self-control, was too harsh. 30 By contrast, the reasonable person was never considered or permitted to lose self-control in response to a long course of cruel conduct. Indeed, Devlin J in R v Duffy [1949] 1 All ER 932, a case in which a battered wife killed her husband with a hammer and an axe when he tried to prevent her from leaving him, expressly excluded such a basis for provocation. Provocation in law is not: “Circumstances which merely predispose to a violent act . . . Severe nervous exasperation or a long course of conduct causing suffering and anxiety” (at p 932). The expected standard of self-control 31 Case law has also considered the question of what (if any) characteristics of the defendant can be taken into account when assessing the notional capacity for self-control of the reasonable man. As asserted in the case of R v Smith (Morgan) [2001] 1 AC 146, 172: “The concept of the reasonable man has never been more than a way of explaining the law to a jury; as an anthropomorphic image to convey to them . . . the legal principle that even under provocation people must conform to an objective standard of behaviour which society is entitled to expect.” 32 The definition of the reasonable person (or in the terms of the Homicide Act 1957, the reasonable man) follows the leading case of R v Camplin [1978] AC 705,

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Attorney-General for Jersey v Holley—Judgment 303 717, in which Lord Diplock explained: “It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today”; see also Lord Simon of Glaisdale at p 726. In Camplin, their Lordships rejected the notion that the objective comparison should be made with an abstract, hypothetical, reasonable man but instead Lord Diplock put this question at p 717: “If the jury think that the same power of self-control is not to be expected in an ordinary, average or normal boy of 15 as in an older person, are they to treat the lesser powers of self-control possessed by an ordinary, average or normal boy of 15 as the standard of self-control with which the conduct of the accused is to be compared?” Lord Morris of Borth-y-Gest added at pp 719–20, “To consider the mind of some different person, and to consider what his reactions would have been if comparably provoked could involve an unreal test”. Lord Simon of Glaisdale agreed, observing at p 724 that “it hardly makes sense to say that an impotent man must be notionally endowed with virility before he ranks within the law of provocation as a reasonable man”. 33 Other characteristics such as chronic alcoholism have also been considered. In R v Newell (1980) 71 Cr App R 331, the accused was a chronic alcoholic. It was accepted that he had lost his self-control. The issue was whether, in considering the objective test, account could be taken of his chronic alcoholism. The Court of Appeal, whilst accepting that chronic alcoholism could indeed be a characteristic for the purpose of the reasonable person test, concluded that the provocation to which Newell reacted bore no relation to his characteristic of chronic alcoholism. 34 Certain characteristics have been expressly excluded. In Mancini v Director of Public Prosecutions [1942] AC 1, 9, Viscount Simon LC said: “The test to be applied is that of the effect of the provocation on a reasonable man . . . So that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did.” 35 In relation to battered women, the effects of cumulative violence on the victim-come-defendant were authoritatively recognised in the case of R v Ahluwalia [1992] 4 All ER 889, where the court said that for the defence of provocation, “characteristics relating to the mental state or personality of an individual can also be taken into account by the jury, providing they have the necessary degree of permanence”. In R v Thornton (No 2) [1996] 1 WLR 1174, the Lord Chief Justice also addressed the relevance of the “battered woman syndrome” and held that it was potentially relevant to both the factual or subjective and the objective limbs of the provocation defence. 36 In recent case law, two strands of opinion have emerged which consider whether the capacity for self-control expected of a reasonable person is a fixed or standard capacity, or whether it is variable from one individual to another. 37 The first strand has taken the capacity for self-control as a fixed standard. The majority of the Privy Council in Luc Thiet Thuan v R [1997] AC 131 considered the

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304 Susan Edwards capacity for self-control as fixed. Similarly, in R v Smith (Morgan) [2001] 1 AC 146, Lord Millett (dissenting) observed at p 211: “having assessed the gravity of the provocation to the accused, the standard of self-control by which his conduct is to be evaluated for the purpose of the defence of provocation is the external standard of a person having and exercising ordinary powers of self-control. That is the standard the jury should apply when considering whether or not the provocation should be regarded as sufficient to bring about the accused’s response to it.” 38 Their Lordships’ Board in Luc expressed itself to be indebted to Professor Andrew Ashworth’s article entitled “The Doctrine of Provocation” [1976] CLR 292, 300 which suggested that “The proper distinction . . . is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused’s level of self-control should not”. 39 The effect of the Privy Council’s judgment in Luc was to limit the ruling of Lord Taylor CJ in R v Thornton (No 2) [1996] 1 WLR 1174. If the capacity for selfcontrol was fixed and did not vary from individual to individual, it followed that the characteristic of battered woman syndrome would be relevant to that part of the test dealing with the gravity of the provocation to the defendant but would not be relevant to the expected capacity for self-control. The decision in Luc affected legal strategy in later cases, and defendants who might otherwise have pleaded provocation advanced instead a defence of diminished responsibility. This was true of R v Sangha [1997] 1 Cr App R (S) 202, in which a woman who suffered years of domestic violence and might otherwise have pleaded provocation chose not to do so because of the impact of Luc upon the law. A defence of diminished responsibility requires evidence of an abnormality of mind and rests solely on the defendant’s abnormality. The standard of abnormality required in practice, however, is somewhat higher than that required to constitute a characteristic within provocation’s objective test. I agree with Lord Clyde in R v Smith (Morgan) [2001] 1 AC 146, 177, who recognised that a person’s “capacity to restrain themselves in the face of provocation [may be] lessened by some affliction which falls short of a mental abnormality”. In addition, where there is provocation, a defendant should not be denied the opportunity to rely on this defence merely because, in addition to the provocative act, there is some evidence of a mental state which might constitute an abnormality of mind sufficient to provide a basis for the defence of diminished responsibility. 40 For the battered woman, in the world of life if not in law, the gravity of the provocation and the capacity for self-control are impossible to sever. Women who are abused suffer from various effects of being abused, including effects on their capacity for self-control or self-restraint. 41 Their Lordships in the majority judgment in Luc Thiet Thuan v R [1997] AC 131 did consider, by way of example, the predicament of the battered woman. They said that the evidence of the woman’s condition of “battered woman syndrome” may be relevant on two issues: whether she in fact lost her self-control and the gravity of the provocation to her. The jury will then decide whether, in their opinion, having regard to the actual provocation and their view of its gravity for the accused, a woman of her age having ordinary powers of self-control might have

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Attorney-General for Jersey v Holley—Judgment 305 done what the accused did. This, I respectfully suggest, is confusing. My noble and learned friends Lord Bingham of Cornhill and Lord Hoffman, in their dissenting judgment in this case, are concerned that in the real world there are indeed circumstances in which the defendant’s characteristics and her capacity for self-control are fused and become one, whatever else theoretical abstractions may suggest. I agree with their view that in such cases, consideration of the gravity of the provocation cannot rationally and fairly be divorced from consideration of the effect of the provocation on the particular accused in relation to both limbs of the defence. 42 The second strand of opinion in the recent case law has taken the view that the expected standard of self-control can be variable. The dissenting judgment of Lord Steyn in Luc Thiet Thuan v R [1997] AC 131, the majority in Smith (Morgan) [2001] 1 AC 146 (Lord Hoffmann, Lord Slynn of Hadley and Lord Clyde) and the dissenting judgments of my noble and learned friends Lord Bingham, Lord Hoffmann and Lord Carswell in this case, together share the broad view that the expected capacity for self-control may vary with the characteristics of the individual. 43 The majority of their Lordships in R v Smith (Morgan) held that the defendant’s depression (although the provocation was not directed at that characteristic) could be taken into account as affecting the capacity for self-control to be expected of a reasonable person in his position. Lord Slynn said at p 155, “The jury must ask themselves whether the defendant “exercised the degree of self-control to be expected of someone in his situation””. 44 I do share the concern of the majority of the Board that the majority of the House in R v Smith (Morgan) were wrong to invest the legal question of what characteristics may be imputed to the reasonable man with a moral consideration of whether the loss of self-control was “sufficiently excusable”: per Lord Hoffmann at p 173. I cannot agree with that formulation, since “sufficiently excusable” is both too vague and too moralistic, permitting whatever the jury of the day considers exonerable. At the same time, however, I cannot agree that Lord Diplock’s judgment in R v Camplin [1978] AC 705 constrained the law in such a way as to preclude from the ambit of provocation a person whose capacity for self-control was also affected by the particular characteristic to which the provocation was directed. 45 Provocation, it is widely agreed, is a concession to human frailty. It has been constrained in law as a one-dimensional concession, accommodating frailty in respect of characteristics that might affect the gravity of the provocation, but not accommodating frailty when it impacts on the capacity for self-control. Malecentric accounts of what amounts to human frailty have prevailed whilst women’s accounts have been precluded. It is my concern that the majority judgment of the Board, by limiting the capacity for self-control to a fixed standard, will make it more difficult if not impossible, for battered women to succeed with a defence of provocation. The present case 46 The accused and the deceased, Cherylinn Mullane, were both alcoholics. They lived together for several years. When drunk, they had rows. In the course of their rows the deceased, so the accused’s counsel argued, was given to making derogatory comments affecting the accused’s self-esteem. There had been a history

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306 Susan Edwards of violence, and prior to the deceased’s death in April 2000, on several occasions, the accused was convicted and sent to prison because of his violent attacks on his partner. He was undoubtedly a very violent and dangerous man. On his release from prison in December 1999 he returned to the flat which he had shared with the deceased prior to his imprisonment. It is understandable that she did not want him back to live with her. But he did return to the shared home. 47 There were further episodes of violence and rows, which the accused’s counsel submitted were “mutual”. This scenario of a level playing field of domestic disharmony is the habitual template deployed by defence counsel where the deceased is the female party. 48 The deceased spent the afternoon in a public house drinking on that fatal day, and returned to the flat at about 5.15 pm. The accused had already returned to the flat, and had drunk about 11 cans and three pints of beer or lager. According to the accused, the deceased was drunk and she entered the flat and according to the accused, told him she had just had sex with another man. According to the accused, he then picked up the axe, intending to leave the flat to chop some more wood. According to the accused, the deceased then said, “You haven’t got the guts”. The accused then struck the deceased seven or eight times with the axe. 49 There are two points I would wish to make about how this evidence has been presented. First, the defendant claimed that the deceased had been unfaithful to him and that this was the reason for his loss of self-control. His claim cannot, of course, be tested. Secondly, he claimed that her provocation caused him to lose his self-control to such an extent that he struck her seven or eight times in a prolonged and sustained course of violence. Hacking the victim to death with an axe in this way requires considerable continued and sustained force. Such prolonged violence might suggest more of a deliberate intention to kill rather than a momentary loss of self-control under provocation. 50 In any event, in my view, infidelity and taunts related to infidelity should be excluded as a basis for provocation on public policy grounds. In Bedder v DPP [1954] 1 WLR 1119, mocking or undermining male sexual prowess was excluded because of the changing times, although it was resurrected in R v Camplin [1978] AC 705. On the same basis, so too in this modern era should male hubris and sexual jealousy be excluded as grounds for provocation. 51 On the other hand, however objectionable, chronic alcoholism is, in my opinion, a characteristic which can be taken into account when assessing whether the reasonable person would have acted as the defendant did. Unlike male sexual hubris it is not gender specific. In my view, since the capacity for self-control is affected in life by the characteristics of the accused, the law should recognise those characteristics which have a degree of permanency and are recognised as a disease, including those which affect a person’s mental state. Law cannot pick and choose between those diseases it considers worthy of facilitating an excuse for conduct and those that it considers unworthy. In the present case, however, the defendant’s chronic alcoholism was not the subject of the taunt that precipitated his loss of self-control. 52 So far as the relationship between the provocation and the characteristic relied upon as part of the objective test is concerned, two possibilities arise. First, the characteristic that allegedly affects the capacity for self-control may be remote

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Attorney-General for Jersey v Holley—Judgment 307 from the provocation to which the defendant reacted (as in the present case). Second, the capacity for self-control may be affected by a characteristic(s) which is intimately connected to the provocation to which the defendant reacted (as in the case of a woman who kills her abuser after suffering prolonged attacks on her integrity at his hands). In the first case, although it would be less likely for a defendant to succeed with a defence of provocation, it would not be impossible, and would depend upon the facts of the case in hand. In the second case, where there is a nexus between the characteristic upon which an accused relies with regard to provocation and the loss of self-control, it should follow as a matter of law that the standard of self-control against which the accused’s behaviour is measured must incorporate that characteristic. 53 Another example that demonstrates the reality of a nexus is where the accused suffers from a personality disorder or mental affliction, and taunts or cruel treatment are directed at the personality disorder or mental affliction. In such a case, the personality disorder or mental affliction would affect both the gravity of the provocation, and also the capacity for self-control, and hence should be incorporated into the expected standard of self-control for the purposes of the defence of provocation. 54 In the present case there was no nexus established between the alleged taunt and the defendant’s chronic alcoholism. But as I have said, this was a case in which the defendant’s disease of chronic alcoholism ought to have been left to the jury as a relevant characteristic which may have affected the standard of self-control expected of him for the purposes of the reasonable person test. The Court of Appeal in my view correctly allowed the appeal on the basis of a misdirection. I might add that, in my opinion, if the characteristic of chronic alcoholism had been properly considered by the jury, they might have found that it had no bearing on the defendant’s capacity for self-control as it was not the subject of the taunt. But that is not the point at issue in this appeal. The question is whether the law has been correctly applied. 55 I would, therefore, dismiss the Attorney-General’s appeal for the reasons given.

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Part V Public Law

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18 Commentary on YL v Birmingham City Council and Others MORAG MCDERMONT

Introduction The case, YL v Birmingham City Council and Others,1 both before it reached the House of Lords and afterwards, received much public attention as well as a close following in the legal community. For lawyers, it followed a long debate about where the public/private divide should be situated, and in particular, to what extent private and charitable bodies providing public services would be considered public bodies and therefore subject to public law restrictions. With the enactment of the Human Rights Act 1998 (HRA), this debate acquired further meaning, and with the YL case, meaning that brought the issue into the public eye.2 In section 6(3)(b) of the HRA a public authority is defined to include ‘any person certain of whose functions are functions of a public nature’. This formulation (potentially) steered the debate away from questions about what sort of ‘body’ was providing the service to the nature of the ‘functions’ they were performing. Indeed, some in the professional and academic legal community took the government’s rhetoric during the debate on the Human Rights Bill seriously and assumed that the meaning of ‘public function’ would be interpreted broadly.3 There was, then, considerable surprise at a series of decisions that found that a housing association would only fall within the HRA for a very narrow band of homelessness functions it had taken from the local authority;4 and that a charity providing residential care to people with disabilities was not performing public functions.5 Despite the Joint Committee on Human Rights (JCHR) arguing for a broad interpretation to include all those functions which have their origins in ‘governmental responsibilities’,6 in June 2007 the 1 YL v Birmingham City Council and Others (Secretary of State for Constitutional Affairs intervening) [2007] UKHL 27, [2008] 1 AC 95. 2 For a fuller discussion of the issues surrounding the public/private divide debate see D Cowan and M McDermont,‘Obscuring the Public Function: A Social Housing Case Study’ in C O’Cinneide and J Holder (eds), Current Legal Problems, vol 61 (Oxford, Oxford University Press, 2008). 3 Jan Luba QC, who chaired the lecture on which the article in n 2 is based, made this observation. 4 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48. 5 R (on the application of Heather and Others) v Leonard Cheshire Foundation and Another [2002] EWCA Civ 366, [2002] 2 All ER 936. 6 House of Lords/House of Commons Joint Committee on Human Rights, ‘The Meaning of Public Authority Under the Human Rights Act’ HL (2003–04) 39, HC (2003–04) 382 [31]; see also JCHR, ‘The Meaning of Public Authority Under the Human Rights Act’ HL (2006–07) 77, HC (2006–07) 410; M Sunkin, ‘Pushing the Frontiers of Human Rights Protections: The Meaning of Public Authority Under the Human Rights Act’ [2004] Public Law 643.

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312 Morag McDermont House of Lords ruled that an 84-year-old woman with Alzheimer’s disease (known as ‘YL’) placed in a private care home by Birmingham City Council was not covered by the HRA. This case, unlike many of the others on ‘public function’, received considerable media attention. The Court of Appeal ruling in January 2007 that private care homes could not be classified as public bodies7 hit the news.8 Leading up to and following the House of Lords decision there was increased media attention, and public statements by charities and campaigning groups condemning the decision. That a case concerning residential care for older people became headline news in the way that previous judgments had not is perhaps unsurprising. With an ageing population, daily stories about the inadequacy of pensions to support people in retirement, and periodic stories of elder abuse in the media, YL came to symbolise a national concern. The House of Lords decision was described as ‘scandalous’ by the Alzheimer’s Society, and ‘a sickening blow’ by Help the Aged.9

The House of Lords Decision The case came to the courts following a decision by the managers of the care home in which YL had lived since January 2006 to evict her. The dispute was between the staff of the care home (run by Southern Cross, a company that provided care homes throughout the UK) and YL’s family. Birmingham City Council had contracted with Southern Cross to provide accommodation for residents placed by the Council, in order to meet its statutory duty under the National Assistance Act 1948. Section 21(1)(a) required local authorities to ‘make arrangements for providing residential accommodation for persons who by reason of age, infirmity or any other circumstances are in need of care and attention which is not otherwise available to them’. For each resident placed, Southern Cross received a fee. The argument made in court was that to evict YL from the care home would contravene her right to respect for her home under article 8 of the European Convention on Human Rights. The care home was not just a bedspace (to use the care industry’s terminology), but should be seen as YL’s home. However, prior to any decision on article 8 rights, the House of Lords had to decide whether, in providing accommodation and care to YL, Southern Cross was performing ‘public functions’. By a 3:2 majority, it decided that the company was not carrying out public functions, but was ‘simply carrying on its private business’,10 and therefore was not subject to the HRA.11 The opinions in the House of Lords provide an important sketch of how care—and in particular, care providers—are viewed in legal discourse. Reading the opinions you realise that the majority and minority Law Lords come from two very different poles: you can almost feel the anger between the two opposing ‘camps’, one positing a commodified version of care, the other a somewhat old-fashioned, welfarist version. 7 Johnson and Others v London Borough of Havering, L v Birmingham City Council [2007] EWCA Civ 26 and [2007] EWCA Civ 27, [2008] QB 1. 8 ‘Lords to rule on care home rights’, BBC News, 30 January 2007. 9 Reported in C Dyer, ‘No human rights for old in private homes’ Guardian (London 21 June 2007). 10 Above n 1 at [27] (Lord Scott). 11 It should be noted that YL may have had a contractual remedy against Southern Cross for breach of her human rights, but this would be a privatised, individualised action for damages, whereas the declaration sought that Southern Cross was performing ‘public functions’ had much wider implications, and if a breach of art 8 was found, a wider range of remedies would be available.

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YL v Birmingham City Council—Commentary 313

The Commodified, Contractualised View of Care Lord Scott’s opinion encapsulates the ‘modern’ view of care as a commodity procured by contract: Southern Cross is . . . neither a charity nor a philanthropist. It enters into private law contracts . . . receives no public funding . . . is at liberty to accept or reject residents as it chooses . . . is simply carrying on its private business with a customer who happens to be a public authority.12

Lord Scott’s framing of the relationship as a purely contractual arrangement does two critical things: first, it removes YL from the picture; Southern Cross’s business is with its customer, Birmingham City Council. Second, it turns the sums paid by Birmingham City Council into fees charged for a service; they are not perceived as public subsidy, so breaking any link or responsibility that Southern Cross might have to a wider public. In this commodified version of care, ‘care’ itself disappears. In the majority opinions there is no mention of the relationship of care that exists between care home provider and resident. When considering what might or might not be public, Lord Scott refers to institutions—schools, hospitals, lifeguards13—but not the relationships that these institutions enter into, that is, caring for others, providing care and support. There are many contradictions between market-driven organisations and the provision of care. A recurring one is the atomisation of the service into separate and distinct acts, some public, others private.14 For example, the notice of termination of the agreement (effectively a notice of eviction from her home) ‘was served in purported reliance on a contractual provision in a private law agreement. It affected no one but the parties to the agreement.’15 Apart from the obvious point that of course the termination affected others than the parties, the more salient point is that the act of termination is entirely disconnected from its environment. This is obviously problematic, since terminating the agreement meant that YL could no longer live in the place she thought of as home. Dissociating acts from their proper place within the lives of people affected is one of the mechanisms by which market organisations purport to be ‘efficient’ service deliverers, and a reason why this approach is entirely antithetical to the culture required in providing care. Market efficiency—the requirement to minimise cost, maximise profits and meet performance targets—frequently means dividing up responsibility for care between different persons, sometimes different agencies, meaning that care cannot be seen as a holistic process that involves interactions between carer and care receiver.16 The majority judges acknowledge some of the contradictions that marketised provision creates: Some of the particular duties which it has been suggested would follow—a duty not to close the home without regard to the Convention right to a home of publicly funded residents, and perhaps

12

Above n 1 at [26]–[27] (Lord Scott). ibid [30]–[31]. 14 ibid [130] (Lord Neuberger). 15 ibid [34] (Lord Scott). 16 See, eg, B Fisher and J Tronto, ‘Toward a Feminist Theory of Caring’ in E Abel and M Nelson (eds), Circles of Care: Work and Identity in Women’s Lives (Albany, State University of New York Press, 1990) who propose four dimensions of care: caring about, caring for, taking care of and care receiving. 13

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314 Morag McDermont even a duty to give priority to accepting such residents into the home—fit in my view uneasily with the ordinary private law freedom to carry on operations under agreed contractual terms.17

This is ‘judicial economising’:18 a juristic categorisation of decisions as economic, and therefore in the private sphere, taking them outside the bounds of public action. The court creates a zone of non-interference around bodies not thought to be state actors, immunising them from constitutional constraints.19 This is an entirely legalistic viewpoint. It cannot acknowledge that the public/private divide is political and that designating something as public is arguing for political recognition that it matters and requires public attention and acts of public responsibility.

Care as Welfarism Lord Bingham and Baroness Hale came to an entirely different conclusion: that the care home where YL lived was performing a public function. Their defence of the public responsibilities of care homes stands in stark contrast to the majority and is very welcome, but their view of care nevertheless falls within the paternalist model seen in the welfare state. For example, Lord Bingham states: Historically, the attitude of the state towards the poor, the elderly and the incapable has not been uniformly benign. But for the past 60 years or so it has been recognised as the ultimate responsibility of the state to ensure that [they] are accommodated and looked after through the agency of the state and at its expense if no other source of accommodation and care and no other source of funding is available . . . That the British state has accepted a social welfare responsibility in this regard in the last resort can hardly be a matter of debate.20

This is a limited, means-tested role for the state in dealing with vulnerability. Baroness Hale goes a little further, suggesting that standards of care, rather than merely the provision of care, are important: ‘In a state that cares about the welfare of the most vulnerable members of the community, there is a strong public interest in having people who are unable to look after themselves . . . looked after properly’.21 This is a dependency model of the collective responsibility that ‘publicness’ and state funding implies. Not much was said in the case about this model, but this is hardly surprising: Hale and Bingham were brought up in an era of the welfare state, a model which they appear passionately to believe in. But it was impossible for them, in this case, to bring back the welfare state; the neoliberal policies of the Thatcher government (of contracting out, privatisation and public–private partnerships) which were so enthusiastically taken up by New Labour, had ensured that there could be no return to state-run welfare provision. The best they could do was to maintain the ideal through maintaining the ‘publicness’ of the functions carried out 17

Above n 1 at [116] (Lord Mance). D Cooper, ‘Punishing Councils: Political Power, Solidarity and the Pursuit of Freedom’ in S Millns and N Whitty (eds), Feminist Perspectives on Public Law (London, Cavendish, 1999) 245. 19 C MacKinnon, Towards a Feminist Theory of the State (Cambridge, MA, Harvard University Press, 1989) 164–67; CR Sunstein,‘Lochner’s Legacy’ (1987) 87 Columbia Law Review 873; OM Fiss,‘Why the State?’ (1989) 100 Harvard Law Review 781. 20 Above n 1 at [14]–[15]. 21 ibid [67]. 18

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YL v Birmingham City Council—Commentary 315 by the care home. Their version, in effect, pulled YL into a hierarchical system of protection, rather than a space of collective relationality of care.

Political and Legal Developments Following YL 22 The outcome in YL was clearly not one the New Labour Government wanted.23 Ministers stated that human rights would become an important feature in the registration requirements for the new regulatory system for the care sector,24 and then introduced legislation, in the Housing and Social Care Act 2008, in an attempt to close the ‘YL loophole’ for private care providers. Section 141(1) of 2008 Act states that: a person (‘P’) who provides accommodation, together with nursing or personal care, in a care home for an individual under arrangements made with P under the relevant statutory provisions is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (c. 42) (acts of public authorities) to be exercising a function of a public nature in doing so.

That the Government took this line is unsurprising. The HRA is a very New Labour Act, included in the 1997 election manifesto and enacted within a year of taking office. It is part of a New Labour plan to create ‘citizen-consumers’.25 New Labour’s social programme privatised the institutions that the state needs to provide care, and set up relationships to turn service users into consumers. At the same time the HRA brought in statutory social and political rights that could be litigated by active citizens through the courts. Care for older people is no exception to this commodification programme, with, for example, the introduction of direct payments to care-receivers who are to control their own individualised care budgets. The whole policy preoccupation is with promoting increased individual autonomy as the ultimate outcome of care.26 It requires active citizens, older people who will negotiate their own care packages whilst at the same time being responsibilised citizens who acknowledge that they must keep demands within available resources.27

22 In 2009 the Court of Appeal decided in R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587, [2010] 1 WLR 363 that the housing management and allocation functions of the Housing Trust were public functions. Whilst housing associations are significantly different from care homes (a point that was argued in this case), the decision has important implications, since housing associations have argued for several decades that they are private, risk-bearing bodies. Whilst the Supreme Court refused permission to the Housing Trust to appeal the declaration (that it had acted as a public authority for the purposes of the HRA s 6), this is unlikely to be the end of the matter. The Supreme Court order of 19 November 2009 accepted that the point was ‘clearly one for the Supreme Court’ and invited a ‘leap-frog’ appeal if a suitable case could be identified (see Arden Chambers eflash No 366: www.ardenchambers.com/uploads/File/pdf/eflash%20366.pdf). 23 As evidenced by their ‘intervener’ status in the House of Lords, arguing for Southern Cross to be understood as carrying out public functions in this particular case. 24 Government Response to the Committee’s Eighteenth Report of Session 2006–07: The Human Rights of Older People, www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/5/5.pdf; see also Care Quality Commission, Draft Guidance for consultation on new standards for registration of care homes, www.cqc.org.uk/_db/_documents/Draft_guidance_about_compliance_for_website_280509_(2).pdf. 25 J Clarke, J Newman, N Smith, L Westmarland and E Vidler, Creating Citizen-Consumers: Creating Publics and Changing Public Services (London, Sage, 2007). 26 S Webber, ‘Does Current Health and Social Care Legislation “Care”’ for Vulnerable Older People?’ (MSc thesis, , 2008). 27 See, eg, Department of Health, Independence, Well-being and Choice: Our Vision for the Future of Social Care for Adults in England (London, Department of Health, 2005) 31.

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316 Morag McDermont Bringing the HRA back in was all about promoting the agenda of a minimalist role for the state in care, making provision for rights and duties as a way of ‘containing the fragmenting effects of unregulated economic activity’.28 The Government’s legislative reversal of the House of Lords decision was not a return to the welfare state vision of Lord Bingham and Baroness Hale, but rather was a necessary act to ensure that New Labour’s neoliberal framework appeared intact.

The Feminist Judgment From the outset, Helen Carr and Caroline Hunter set their decision in a different context: the starting point here is YL herself, made visible by appreciating her role as wife and mother, as well as her vulnerability and the vulnerability of thousands of older people like her. The judgment also specifically acknowledges YL’s invisibility in the complex contractual relations set up in order that she can receive care, thereby reversing the legal disappearing trick. This context setting, or re-ordering of what come to be understood as the ‘material facts’, is critical; a judgment that places the appellant and her particular characteristics at the centre must, then, take a different tack, which is exactly what happens here. For Carr and Hunter, at the heart of the case ‘lies the question of responsibility for the dignity of this ageing, vulnerable population’.29 This leads them to create a distance from the paternalistic, welfare state answer which has a tendency to disempower those in need of care. The decision points to developments under the Community Care (Direct Payments) Act 1996 which purport to allow those in need of care services to make their own decisions about how care services are provided. Fundamentally, this judgment departs from all the other opinions in YL in two respects. Rather than repeating the somewhat stale legal arguments about what constitutes the ‘public’ in law, the judgment looks to the Human Rights Act to achieve transformational change, drawing on the notion of ‘transformative constitutionalism’ developed in the context of the South African Constitution. The debates in Parliament on the Human Rights Bill made clear that it was intended to support a cultural change in organisations, to ‘stimulat[e] a culture in which human rights considerations are considered proactively rather than reactively’.30 To achieve such a change requires an acceptance that the state can never relinquish its responsibility to ensure that the human rights of vulnerable groups are protected, whether provision is by the state itself, or the private or voluntary sectors. Here, Carr and Hunter are taking a lead from the JCHR in its report, ‘A Bill of Rights for the UK?’. This report concluded that: We are of the view that the United Kingdom should adopt a Bill of Rights and Freedoms. Our work over the last few years has demonstrated that there are many groups in society, such as older people and adults with learning disabilities, whose human rights are insufficiently protected. We argue that a UK Bill of Rights and Freedoms is desirable in order to provide necessary protection to all, and to marginalised and vulnerable people in particular.31 28 L McNay, ‘Self as Enterprise: Dilemmas of Control and Resistance in Foucualt’s The Birth of Biopolitics’ (2009) 26 Theory, Culture and Society 55, 70. 29 YL v Birmingham City Council, this volume [13]. 30 JCHR (2006–07), above n 6 at [75]. 31 JCHR, ‘A Bill of Rights for the UK?’ HL (2007–08) 165-I, HC (2007–08) 150–1.

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YL v Birmingham City Council—Commentary 317 So for Carr and Hunter, where the state has taken responsibility, the functions of providing care and support for such vulnerable groups cannot then be evaded by contracting with the private sector. The responsibility for protecting such vulnerable groups must be passed on to the provider through section 6(3)(b) of the HRA by accepting that these functions will always remain ‘public functions’. They acknowledge that in the case before them they can only decide the matter for care recipients funded by the state. However, they indicate that the correct response should be that state responsibility for a vulnerable group becomes the mechanism that triggers the protection of the HRA. Considering the HRA alongside the South African Constitution allows for the HRA to be seen as a transformative tool, one that allows the feminist judge to go beyond the conservative legal paradigm prevalent in UK courts. Used in this way, the HRA could become part of a long-term project of transforming power relations to become more ‘democratic, participatory, and egalitarian’.32 This approach allows the judgment to encapsulate a much broader set of principles in relation to older people, derived from the UN Principles on Older People: independence, participation, care, self-fulfilment, and dignity. The judgment sees YL, and other older people in similar circumstances, as being part of a web of relationships. These include caring relationships in which care is understood as a two-way process, with care giver and care receiver both being active parties in the relationship. This conception has been neatly summed up by Selma Sevenhuijsen, who sees care as ‘part of the practices of active citizenship, which should be based upon notions of relationality and interdependence’.33 The judgment rejects the commercialised–contractualised opinions of Lords Scott, Mance and Neuberger. Carr and Hunter point to the highly problematic nature of the solution proposed by the majority opinions—protection through the contractual arrangements and by the state’s regulators—if for no other reason than that YL is not party to the contracts or processes of state regulation. Regardless of the intentions of the chair of the new Care Quality Commission34 that it will be the ‘people’s regulator’,35 the regulatory relationship will always be between service provider and regulator, a process of controlling care standards, not protecting individual rights. In addition, Carr and Hunter highlight the regulator’s lack of resources to deal with complaints from service users: in the example given in paragraph 38 of their opinion, the regulator was unable or unwilling, for whatever reason, to address the issues raised by the complaint until the next routine inspection, by which time the person raising the complaint had been evicted. In conclusion, Carr and Hunter provide a model of what can be done when the focus of judicial decision-making is relocated away from doctrinal paths that focus on institutional relationships towards understandings of law as having the potential to support and empower vulnerable groups.

32 KE Klare has described the project of transformative constitutionalism that the South African Constitution sets in motion as having the intention of moving adjudication in South Africa in this direction: KE Klare ‘Legal Culture and Transformative Constitutionalism’ (1998) 12 South African Journal on Human Rights 146, 150. 33 S Sevenhuijsen ‘The Place of Care: The Relevance of the Feminist Ethic of Care for Social Policy’ (2003) 4 Feminist Theory 179, 179. 34 At the time of the case, the regulator was the Commission for Social Care Inspection, which merged with the Healthcare Commission and the Mental Health Act Commission on 1 April 2009. 35 Nigel Hawkins, ‘Will “People’s Regulator” Adopt a Heavier Approach than Former Commission?’ (2009) 338 British Medical Journal 738.

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House of Lords

YL v Birmingham City Council and others (Secretary of State for Constitutional Affairs intervening) [2007] UKHL 27

BARONESS HUNTER-CARR 1 My Lords and my Lady, the appellant in this case, YL, is 84 years old. She has Alzheimer’s disease and this litigation is conducted on her behalf by her litigation friend. She is currently cared for in the Elderly Mentally Infirm unit within a nursing home owned by the second respondents (“Southern Cross”). She was placed there under a complex contractual arrangement involving YL herself, Southern Cross, the first respondents (“the Council”) and the appellant’s daughter. 2 YL is, of course, the focus of this case, although it is very easy to lose sight of this, both because she loses her identity through the use of her initials, and because inevitably the legal debate is captured by the complexity of the contractual arrangements and the statutory provisions. We must remember that it is her dignity, health and family life that are our concern. 3 Nor are our concerns conceptual or theoretical. Respecting YL’s dignity refers to the physical and emotional care she is offered on a day to day basis. In 2003, Munby J in R (A & B) v East Sussex County Council (2003) 6 CCL Rep 194 recognised that dignity derives from the relationship between the carer and the individual in receipt of care. He said, at para 120: “I recognise of course that the compassion of the carer is itself a vital aspect of our humanity and dignity and that at a very deep level of our instinctive feelings we value and need the caring touch of the human hand. That no doubt is one of the reasons why the nobility of compassionate carers as different in their ways as Florence Nightingale, Leonard Cheshire and Mother Teresa resonates so strongly with us. It underlies the most savage of AWN Pugin’s Contrasts, his comparison of the compassionate care of the medieval monastery and the cruel heartlessness of the early modern workhouse.” 4 Today the contrast is between regulated, market-tested care in which dignity is audited by a tick box alongside affordability, efficiency and user friendliness and the ideal of ethically driven, culturally sensitive, professional care for all those in need. It is to human rights, rather than noble individuals, that we look to transform the culture of care from the perfunctory to the compassionate. Whilst noble individuals may transform through example, human rights have the capacity to be transformative in themselves. 5 My Lords and my Lady, YL’s human right to respect for her family life and home reminds us that we are all complex beings immersed in networks of relationships. YL has an identity which includes her role as a wife and a mother. She is important to her husband and family. We should bear in mind, as we learn of the

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YL v Birmingham City Council—Judgment 319 incidents which provoked this litigation, the trauma that families go through when they are forced to give up caring for a much loved wife and mother. Indeed, in this case, the family turned down an earlier offer of institutional placement, so important to them was the day to day care that they provided. We should understand their feelings and their sense of loss when listening to accounts of what happened next. 6 Southern Cross also plays an important part in this case. Its commercial identity is worth describing. Its latest annual report, dated October 2006, explains that Southern Cross is now the UK’s leading provider of care home services for the elderly. In March 2002 it provided 5,966 residential places. By October 2006 this had risen to 28,299 residential places. In the same period its fee income rose from £103.6 million to £610.9 million. Southern Cross became a public listed company during 2006. Its Chief Executive explains its commercial strategy: “We will . . . continue to pursue our strategy of increasing capacity via acquisition and organic growth programmes in anticipation of the growing demand for our services. As the UK’s largest provider, we still have only a 6% share of a £12 billion revenue market, and consequently have resourced our development and acquisition teams to ensure that we continue to add capacity and increase our market penetration over the next five years.” Eighty-one per cent of Southern Cross’s income derives from local authority funding. It should be noted, however, that the relationship between Southern Cross and local authority social services has not been unproblematic: see R (Haggerty) v St Helens Borough Council [2003] HLR 69. 7 Returning to YL’s relationship with Southern Cross, within a very short period of her moving into the nursing home in March 2006, Southern Cross expressed concern about the behaviour of YL’s family; the aggressive behaviour of her husband towards her and aggression from both her husband and daughter towards care home staff. Attempts were made to resolve the situation with negotiations between Southern Cross, the Council and the appellant’s daughter. However, the behaviour continued and, on 21 June 2006, Southern Cross wrote to YL’s daughter giving 28 days’ notification of termination of the placement. Following the issuing of proceedings in this case, Southern Cross agreed not to implement the notice. Access supervised by the Council has enabled YL’s husband and daughter to continue to visit co-operatively and without incident. Southern Cross are now content for YL to remain in the home. 8 The powerlessness and vulnerability of YL in this situation is self-evident. She was not party to any of these decisions, and indeed was the victim of the alleged behaviour from her husband. While the effect on her of any move to alternative accommodation is bound to be speculative, the evidence of the effect of moving on elderly, disabled residents does not suggest that it is likely to be beneficial to her, particularly if carried out hurriedly without careful support and preparation: see the evidence referred to in the decision of Silbers J in R (Haggerty) v St Helens Borough Council [2003] HLR 69, and a review of the literature contained in an article by Robertson, Warrington and Eagles, “Relocation Mortality in Dementia: The Effects of a New Hospital” (1993) 8 International Journal of Geriatric Psychiatry 521.

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320 Helen Carr and Caroline Hunter 9 While the particulars of this case may be unique to YL, the issues about how the state cares for those such as YL are not. It is projected by the Government’s Actuary Department, population projections database, 2006-based projections, that the total population of those aged over 80 will increase by 85 per cent over the next 20 years to 2.3 million. Poverty is a particular feature of old age. As the most recent data from the Department for Work and Pensions illustrates, many pensioners are dependent on financial aid from the state, with over 60 per cent receiving half their income from state pensions and benefits. For those over 85 it is estimated that a quarter live in poverty. Women are more reliant on state aid, as they are less likely to have made contributions entitling them to the full basic pension or to a private pension. The importance of this case is illustrated by the number of interveners who include not only the Government and the Disability Rights Commission, but also a number of pressure groups: Help the Aged and Age Concern England, Liberty, Justice and the British Institute of Human Rights. 10 That there are increased health problems as one grows older really needs no data, but it is worth noting figures from the Alzheimer’s Society that one fifth of those aged 80–89 have dementia and more than two-thirds of all people with dementia are aged 80 and over. Although men’s life expectancy is lower than women’s, men who survive beyond 80 are healthier than women of the same age. Thus at age 85 plus, 31 per cent of women have “substantial” dependency rates compared to only 17 per cent of men: see Ungerson, “Thinking About the Production and Consumption of Long-Term Care in Britain: Does Gender Still Matter?” (2000) 29 Journal of Social Policy 623. 11 In recent years the numbers being cared for in residential homes have reduced. It is inevitable, however, that many of those who require more intensive levels of care find that care within a residential setting and, as it has been put to us by the Disability Rights Commission in this case, those in residential homes are “often the most vulnerable with the most intensive needs”. Again there is a gendered difference which is noted in Professor Ungerson’s article. In residential care homes the ratio of women to men is 3:1. 12 Historically, many residential homes were provided by local authorities, but for reasons to which I shall return below, that pattern has changed considerably over the last 30 years or so, such that 92 per cent of care homes are now provided by the independent sector (whether by private sector or voluntary providers): see Joint Committee on Human Rights of the House of Lords and House of Commons, “The Meaning of Public Authority under the Human Rights Act” (the Seventh Report of Session 2003–04, HL 39 and HC 382), p 52. This is not to say that the state has no role in this provision; indeed the latest figures from the Commission for Social Care Inspection indicate that 63 per cent of people aged 65 and over living in care homes in England are supported by their local authority. For the type of care provided in the home where YL is placed this is probably an underestimate. Of the 76 places in the home, only 12 service users are privately funded. In that sense YL is typical of this population. 13 At the heart of this case lies the question of responsibility for the dignity of this ageing, vulnerable population. As the state has withdrawn from making direct provision itself and moved to contracting for provision, can we leave it to the contractual relations between the parties, and the oversight of care homes under the

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YL v Birmingham City Council—Judgment 321 Care Standards Act 2000 by the Commission for Social Care Inspectorate to provide protection? The evidence before us from both the Disability Rights Commission and Help the Aged and Age Concern England, indicates the sorts of things that can go wrong in residential care homes. My noble and learned friend Baroness Hale of Richmond, whose opinion I have read in draft, has already given one example of the loss of dignity that can occur. I would also point to another example from the same report of the British Institute of Human Rights, “Something for Everyone: The Impact of the Human Rights Act and the Need for a Human Rights Commission” (2002), which illustrates how the threat of eviction can be used when complaints are made about treatment: “The caller’s mother has been asked to leave her residential care home because she complained about a member of staff who would not attend to her in the night. She wanted to go to the toilet so she rang the buzzer but the staff member didn’t come for about half an hour, by which time it was too late. The care worker left her in her wet night clothes, took the buzzer from her and threw it across the room.” 14 Although the concept of dignity can seem somewhat theoretical, this brief example highlights its very real, practical importance in day to day life. The need for the translation of the concept of dignity into day to day action has been recognised by the Government in its “Dignity in Care Campaign” which was launched in November 2006. The Guidance issued at the same time by the Social Care Institute for Excellence, “Guide 15: Dignity in Care”, recognises that: “Factors that have been held responsible for the absence of dignity in care include bureaucracy, staff shortages, poor management and lack of leadership, absence of appropriate training and induction and difficulties with recruitment and retention leading to overuse of temporary staff. There are also wider societal issues, including ageism, other forms of discrimination and abuse. A great deal of work is needed to tackle negative attitudes towards older people, to bring about a culture change and to ensure that such attitudes have no place in the health and social care sectors.” It seems to me that one of the questions raised by this case is whether the legal framework can have a role in bringing about that culture change. 15 The issue is one which is of concern beyond the jurisdiction of this country, as can be seen from the international principles set out in the United Nations Principles on Older People, which are intended to influence national governments. The principles are predictable but important: independence, participation, care, self-fulfilment, and dignity. I note how these have been embraced in Wales in the Welsh Assembly Government’s strategy for older people, which has led to the enactment of the Commissioner for Older People (Wales) Act 2006. 16 The legal context of this case sits at the intersection of two developments in public administration. First, over the last 30 years or so we have seen an increased privatisation of services provided by the state. Secondly, and more recently, the Human Rights Act 1998 provided a constitutional framework by which the decisions and actions of the state could be measured against the requirements of the European Convention on Human Rights. Before turning to how the Human Rights

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322 Helen Carr and Caroline Hunter Act 1998 achieves this, it is worth considering the legal framework for assistance for the vulnerable elderly. The statutory framework of care 17 Mr Arden QC for the Council took us back to the Poor Law and the role of local authorities and their predecessors in filling in the gaps left by private provision and charities. However, the twentieth century saw dismantling of that draconian and fragmented provision and the development of a much more comprehensive welfare state. Indeed, the provision of care in this area is one of the few still to be governed by one of the seminal statutes of the post-war settlement, the National Assistance Act 1948, which in specific terms stated in section 1 that the existing Poor Law was to cease to have effect and be replaced by the Act. 18 As subsequently amended, section 21(1) of the 1948 Act now provides that local authorities should: “make arrangements for providing—residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.” Lying beneath this apparently straightforward provision is a plethora of statutes relating to social care, which includes a duty under section 47 of the National Health Service and Community Care Act 1990 to assess the needs of the vulnerable. 19 As is clear from the current wording of section 21(1) of the 1948 Act, the local authority is not required to provide the residential accommodation directly itself, although it may do so under section 21(4). Section 26 of the 1948 Act as originally enacted also envisaged that such care might be provided by voluntary organisations. This section was, however, extensively amended in 1992 so that it now encompasses not only voluntary organisations but also the “not for profit” sector and the private sector. My noble and learned friend Baroness Hale sets out the policy changes during the 1980s at paras 49–51 of her opinion. 20 Although the 1948 Act has been criticised for its focus on institutional care (the form of care with which this case is concerned), it has remained the bedrock of the safety net which the state provides. Its longevity can perhaps be accounted for in the words of Lord Woolf MR in R v Hammersmith & Fulham London Borough Council, Ex parte M (1998) 30 HLR 10, 16, where he said that it is “A prime example of an Act which is ‘always speaking’ and so should be construed ‘on a construction that continuously updates its wording to allow for changes since the Act was initially framed’”. Much has changed since the 1940s when William Beveridge was framing his legislation. In particular it is widely accepted that the state no longer paternalistically knows what is best for those in need of welfare. As an example of this the Community Care (Direct Payments) Act 1996 empowered local authorities to make direct payments to people who have been assessed as needing community care services in order that they can make their own arrangements to meet their needs. For those needing care in a residential home there is an element of choice: see the National Assistance Act 1948 (Choice of Accommodation) Directions 1992. Thus, the move towards a contracting state is not driven entirely by the view that

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YL v Birmingham City Council—Judgment 323 the market knows what is best (in terms of economic efficiency), but also by the view that the consumer of welfare also knows what is best for themselves. I note, however, the evidence from the Office of Fair Trading, “Care Homes for Older People in the UK: A Market Study” (2005) (OFT 780), that in fact, choice is declining as there is a decreasing number of providers with each having an increasing share of a shrinking market. 21 What is not clear in this case is how far YL herself has been able to exercise choice in any meaningful sense about her care. The contracts 22 The heading for this section of my opinion is in the plural. The move towards the contracting state has led to the complex form of contracting arrangements that we see in this case. There are at least four relevant contracts. (I say at least because this account ignores the role of the NHS which is paying for the nursing elements of YL’s care.) There are four parties involved in these contractual arrangements: Southern Cross, the Council, YL and YL’s daughter. The latter is included as she is paying a small weekly top-up towards the fees. 23 The first contract is one entered into between Southern Cross and the Council which may be termed the “Generic Placement Agreement”. Under this contract, Southern Cross agree to provide services to the Council. Southern Cross has the option whether or not to accept a particular resident nominated by the Council, but once a resident is placed, either party is entitled to terminate the individual placement agreement on 14 days’ notice. Notice of termination may be made by Southern Cross “only for a good reason, including and without limitation, if they are unable to provide the care required to meet the . . . resident’s needs following a review of such needs but excluding any reason related to cost and/or price”. One other important clause in this agreement is clause 55 which provides that: “[Southern Cross] shall ensure that its employees agents and officers shall at all times act in a way which is compatible with the Convention Rights within the meaning of section 1 of the Human Rights Act 1998.” 24 Even were, as my noble and learned friend Lord Scott of Foscote suggests in his opinion, YL able to enforce this clause, through its incorporation in the agreement with her, this would only protect her financially through a claim in damages. She would not have access to the breadth of remedies available under section 8 of the Human Rights Act 1998, which permits the court to “grant such relief or remedy, or make such order, within its powers as it considers just and appropriate”. 25 More intriguingly, I would ask why Southern Cross agreed to the clause being inserted into the contract. Ms Lang QC has argued on their behalf that any human rights obligation would prevent owners from being able to close a home. This, in turn, would reduce lenders’ willingness to lend to care home providers, as they would be “denied the freedom to sell their assets for alternative use”. But why agree to the clause if it is so important, as Ms Lang has argued before us, not to be bound by the principles of the Human Rights Act? There seems to be a contradiction between these arguments and agreeing to have the clause inserted into the contract.

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324 Helen Carr and Caroline Hunter 26 The second contract is between Southern Cross, the Council, YL and YL’s daughter, to provide accommodation and care for YL. The termination clause in this contract provides for four weeks’ notice. It states that Southern Cross will “normally only give notice to terminate” in three circumstances. The first relates to non-payment of fees, the second to the home no longer being able to meet the needs of the resident. The third is where Southern Cross “considers the circumstances or behaviour of the Resident to be seriously detrimental to the Home or the welfare of other residents”. It is under this provision that Southern Cross served the termination notice on YL’s daughter. 27 The third and fourth contracts are also between Southern Cross, the Council, YL and YL’s daughter. They are the “Care Home Placement Agreement” (the individual agreement arising out of the first contract) and the “Third Party Funding Agreement”. The former provides that “the period of notice to terminate a placement will be 14 days for [Southern Cross], the Resident and the Council. Notice can be given verbally, but must be followed up in writing”. 28 YL is enmeshed in this web of contracts and it is argued on behalf of Southern Cross that these contracts, with their inconsistent termination provisions and limited remedies, provide her with a private law structure which protects her interests as a vulnerable person. The Human Rights Act 1998 29 YL, like all residents in the UK, has had, since the year 2000, the benefit of the domestic implementation of the European Convention on Human Rights. As the Joint Committee on Human Rights said in its Seventh Report of the 2003–04 Session, “The Meaning of Public Authority under the Human Rights Act” (HL 39 and HC 382), para 1, the Act “was intended to make the exercise of public power more fully accountable against standards of fundamental human rights and to provide effective remedies in UK courts for breaches of human rights.” The drafting of the Act was designed to recognise the changing nature of the state, in particular that the state is no longer the principal provider of vital services. The Parliamentary debates make it clear that the Act was intended to have a definition that was broad and adaptable to the way government had changed. Thus, the Home Secretary said (Hansard (HC Debates) 16 February 1998, col 773): “The Government have a direct responsibility for core bodies, such as central Government and the police, but they also have a responsibility for other public authorities, in so far as the actions of such authorities impinge on private individuals. The Bill had to have a definition . . . that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies and charities, have come to exercise public functions that were previously exercised by public authorities.” 31 Section 6 of the Human Rights Act 1998, on which this appeal turns, is a crucial mechanism in achieving this. It provides:

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YL v Birmingham City Council—Judgment 325 “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right . . .” “(3) In this section ‘public authority’ includes: (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature . . .” “(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.” 32 The Council are, of course, a public authority under the Act. But in providing services to YL under contract to the Council, do Southern Cross fall within the definition of a public authority in section 6(3)(b)? We have to consider this question in the light of the mixed economy of care which is now provided under the National Assistance Act 1948. This has blurred the distinction between the public and the private. With all due respect to my noble and learned friends Lord Scott, Lord Mance and Lord Neuberger of Abbotsbury, simply to recategorise what was once public as private because it has been contractualised and to deny the role of the state in this provision is to fail to recognise its continued relevance. Should the private sector fail, the state would once more have to assume responsibility for direct provision. 33 This is the first time that this House has had to consider this issue directly, although it was touched upon in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546. This and the existing decisions of the Court of Appeal which have addressed it, and in particular the decision in R (Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936, have been carefully analysed by my noble and learned friends and I do not propose to repeat their analysis. For Lord Bingham of Cornhill and Baroness Hale, a set of factors lead to the conclusion that the function performed by Southern Cross is public in nature. Lord Neuberger on the other hand does not consider these sufficient to outweigh a rather different set of factors and in particular that the relationship between YL and Southern Cross arises as a matter of private law. These competing lists therefore result in divergent conclusions about the status of the care provided to YL. 34 Although I agree with the conclusions of my noble and learned friends Lord Bingham and Baroness Hale, I do so from a different starting point. We should recall that certain statutes, in order to achieve their purpose, must be “always speaking”, as Lord Woolf in R v Hammersmith & Fulham London Borough Council, Ex parte M (1998) 30 HLR 10 so eloquently put it. The Human Rights Act 1998 is pre-eminently one such statute. Moreover, it is not an ordinary English statute, as Buxton LJ pointed out below at [2008] QB 1, para 73. It must respond to changing circumstances. It would be a tragic irony if citizens gained more rights against the state only to have the state slough off its responsibilities to the most vulnerable. What is required is a transformative interpretation of the Act, which seeks to use it to transform social and political institutions to promote a culture of human rights, in the way that the South African Supreme Court has taken a transformational approach to its Constitution: see the explanation of this approach by South African Chief Justice Pius Langer in “Transformative Constitutionalism” (1996) Stellenbosch Law Review 353. 35 The Human Rights Act 1998 is not limited to responding to the consequences of abuse, but is about embedding a culture of human rights within organisations which are in a position to enhance human dignity. As the Joint Committee on

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326 Helen Carr and Caroline Hunter Human Rights in its Ninth Report of Session 2006–07, “The Meaning of Public Authority Under the Human Rights Act” (HL 77 and HC 410), para 75, points out, the role of Human Rights legislation is to “stimulat[e] a culture in which human rights considerations are considered proactively rather than reactively”. While the welfare state of the immediate post-war years took a paternalistic and disempowering approach to those it perceived to be in need of its protections, the Human Rights Act 1998 insists that the recipients of services provided by or on behalf of the state must be accorded dignity and respect. 36 My noble and learned friends Lord Mance, Lord Scott and Lord Neuberger interpret the 1948 Act as amended to suggest that there is a distinction between the responsibility to arrange for the care of YL and the responsibility to provide care services to YL. With respect, that distinction is a false one. I agree with the reasoning of my noble and learned friends Lord Bingham and Baroness Hale on this point. To achieve a human rights culture, the state must always remain responsible for those entitled to services under the 1948 Act. This is patently true; if a placement fails then the state must make alternative arrangements for the care of the vulnerable individual. The fact that the Council are a party to the ongoing contractual arrangements underlines the persistence of their obligations. When a statute provides that the state has responsibility for services to a vulnerable group, whether the duty is to provide the services directly or to ensure that they are provided by others, then those services must be public functions within section 6(3)(b) of the Human Rights Act 1998. While, for the purposes of this case, our decision extends only to those for whom the state has taken a direct responsibility, I do not preclude the possibility that it may also apply to those who are entirely self-funding. We do not, however, need to decide that issue on this occasion. Protecting human rights 37 It has been suggested to us by Ms Lang QC for Southern Cross that the existing regime of protection (primarily through the Care Standards Act 2000 and the Care Homes Regulations 2001) is vastly more comprehensive and pro-active than that which can be achieved by extending the scope of the Human Rights Act 1998 to private care homes. 38 Regulatory approaches are to do with the relationship between the state, whether in the form of the Council (through the Protection of Vulnerable Adults Regime) or the Commission for Social Care Inspection (under the 2000 Act), and the provider. They leave out the individual, in this case YL. A telling illustration is provided by Age Concern in their evidence to the Joint Committee on Human Rights (Ninth Report of Session 2006–07, “The Meaning of Public Authority Under the Human Rights Act” (HL 77 and HC 410), Written Evidence 5): “The daughter of a care home resident made a formal complaint to the home after her mother had experienced delays in obtaining medical assistance for a respiratory infection. The daughter also complained to CSCI and to the local authority, which was funding the care home place. As a result of this complaint, the resident was given 28 days’ notice to leave the care home. The home relied on a clause in the contract stating that it could be terminated following ‘any circumstances or behaviour which the home feels may be seriously detrimental

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YL v Birmingham City Council—Judgment 327 to the home or welfare of other service users.’ [It may be noted that this is the same clause as was relied upon to terminate YL’s contract.] “CSCI declined to deal with the complaint apart from during the course of their next planned routine inspection. The local authority also refused to investigate as it claimed that its complaints procedure only applied to block bookings of care home places, rather than individually purchased places. During the period of notice, the resident became ill and was admitted to hospital. The home refused to allow her to return when she was ready for discharge—even though she was still within her notice period. The resident was subsequently moved to another home where she died two months later.” 39 The regulatory process is often, as illustrated here, limited by bureaucratic hurdles and fails to deliver any immediate response for the individual. I therefore reject Ms Lang’s argument that the regulatory regime is sufficient. It is section 6 of the Human Rights Act 1998 that provides the mechanism with which to protect YL’s human rights 40 It might be argued that article 8 of the Convention, on its current interpretation, will not achieve the protection of YL’s human rights. At the moment there are few limitations on YL being evicted from the home. It is clear that she is merely a licensee, who can be evicted in accordance with the contractual provisions she has entered into. Further, the regulatory protections to which Ms Lang points are unlikely to prevent an eviction in the sort of circumstances of this case. We are, of course, not being asked to decide whether there has been a breach of article 8 here, merely to consider whether the Convention is applicable. It is, however, worth noting the lack of any considered structure of statutory protection for care home residents, in contrast to those cases which have considered the position of tenants of public authority landlords who fall into categories intentionally excluded from the full statutory protection and where it has been found that their eviction is not in breach of article 8: see Kay v Lambeth London Borough Council [2006] 2 AC 465. 41 The arguments before us have focused on the interpretation of section 6 of the Human Rights Act 1998. There is, however, another mechanism by which the Human Rights Act may be made applicable to care homes, through application of the doctrine of horizontality. It is interesting that the 1996 South African Constitution includes some horizontal protections in recognition of the increasing impact of the commercial sector on individual rights, for instance privacy and respect for family life. Direct horizontality does not form part of the UK’s human rights protections. However the courts themselves are public bodies for the purposes of the Act. What obligation does that impose upon them when considering the gap in the protection of the rights of YL? It is a pity that this point has not been taken and that this House has not had an opportunity to express its views on this important matter. That is, therefore, a matter for another day. Conclusion 42 Given the context that I have outlined above, in my opinion it is appropriate, given the duties under the 1948 Act and the vulnerability of the group of service users to which YL belongs, that the protections of the Convention be extended to

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328 Helen Carr and Caroline Hunter the circumstances of this case. This interpretation recognises the central, transformative constitutional role of the Human Rights Act 1998 in establishing the culture of rights and values within which elderly people, and in this case YL, are cared for in our society. 43 For these reasons, I would allow this appeal and make the declaration sought.

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19 Commentary on R (on the application of Begum) v Governors of Denbigh High School HOLLY CULLEN

Introduction The case of Shabina Begum1 is a highly complex one. Although litigated under freedom of religion as guaranteed in article 9 of the European Convention on Human Rights (ECHR), made part of UK law through the Human Rights Act 1998, the case involved a wide array of factors concerning autonomy and equality. In addition, gender, race, religion, culture and age are all implicit if not explicit factors in the various judgments. The case resonated with so many legal, political and social issues, that the individual involved in the case, Shabina Begum, has often been lost in the whirlwind of media and academic commentary. Maleiha Malik’s feminist judgment replaces her at the centre of the case, arguing eloquently for her autonomy.

The Facts and Background Shabina Begum was 14 when the dispute arose which gave rise to this case. She had commenced her secondary education at Denbigh High School in Luton in 2000. The student population is very diverse, including 21 ethnic groups and 10 religious groups.2 For approximately two years, Shabina Begum followed the school’s uniform policy without question. The policy, which had been developed by a working party of the governors, which consulted parents, students, staff and the imams of local mosques, had existed in the same form since 1993. The uniform included the shalwar kameeze (a sleeveless, smock-like dress and loose trousers) and headscarf, which were explained as follows: Shalwar: tapered at the ankle, not baggy. Kameeze: between knee and mid-calf length, not gathered or flared. Fabric must be cotton or poplin, not shiny, silky or crinkly. Headscarves. Girls who wish to wear headscarves may do so as long as these conform to the requirements listed below.3 1

R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100. ibid [3]. 3 R (on the application of Begum) v Denbigh High School Governors [2004] EWHC 1389 (Admin), [2004] ELR 374 [26], [41]. In R (on the application of Begum) v Denbigh High School Governors [2005] EWCA Civ 199, [2005] 1 WLR 3372 [6]–[7], Brooke LJ describes the accompanying sketches and the headscarf specifications. 2

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330 Holly Cullen This form of dress was chosen by the school’s working party on uniform as there were no objections to it and ‘no suggestion that it failed to satisfy Islamic requirements’.4 Brooke LJ, in the Court of Appeal, noted that the shalwar kameeze was worn also by some girls of other faith backgrounds.5 In September 2002, Shabina Begum attended the school with her brother (who was her litigation friend in the proceedings) and a friend of the brother, to request that she be allowed to wear the jilbab (a long, loose garment covering the entire body except face and hands) instead of the shalwar kameeze and headscarf. The testimony of the Assistant Headteacher, who spoke to Ms Begum and her brother, stated that the brother and his friend put the request in forceful and aggressive terms, and even at that stage referred to possible legal proceedings.6 The Assistant Headteacher told Ms Begum to return wearing the correct uniform, but Ms Begum regarded herself as having been expelled from the school. Despite attempts at compromise, the matter remained unresolved. From the evidence presented to the High Court, it is clear that there is no single view of what is appropriate dress for a Muslim woman of Shabina Begum’s age. The law at the time was extremely vague on how religious beliefs should be accommodated in the matter of school uniform. The relevant provisions were contained in non-statutory guidance from the Department for Education and Skills, which stated: 10. Whilst pupils must adhere to a school’s uniform policy, schools must be sensitive to the needs of different cultures, races and religions. The Department expects schools to accommodate these needs, within a general uniform policy. For example, allowing Muslim girls to wear appropriate dress and Sikh boys to wear traditional headdress. 11. The Department does not consider it appropriate that any pupil should be disciplined for non-compliance with a school uniform policy, which results from them having to adhere to a particular cultural, race or religious dress code.7

The Courts’ Decisions In February 2004, Ms Begum instituted judicial review proceedings against the decision of the school. In the High Court, Bennett J took the view that Ms Begum had not been excluded from school, stating that the school’s insistence that she conform to the uniform policy in order to attend was not evidence of intention to exclude.8 He rejected the claim on that basis, but considered in the alternative whether Ms Begum’s right to manifest her religion under article 9 of the ECHR had been infringed. Unsurprisingly, he followed the wellestablished contracting-out doctrine, where the courts will find no interference with the freedom to manifest religion ‘where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practice or observe his or her religion without undue hardship or inconvenience’.9 In other words, having been aware of Denbigh High School’s uniform 4 5 6 7 8 9

Above n 1 at [7]. Above n 3 (CA) at [11]. Above n 3 (HC) at [3]. Department for Education and Skills, Uniform Guidance 0264/2002. Above n 3 (HC) at [53]–[63]. Above n 1 at [23].

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R (Begum) v Governors of Denbigh High School—Commentary 331 policy when she started at the school, Shabina Begum was required either to abide by that policy, or to attend another school in the area that would permit her to wear the jilbab. If a policy does interfere with freedom of religion, it may nevertheless be justified under article 9(2) of the ECHR if it is prescribed by law, is directed to one of the legitimate purposes listed in article 9(2) and is a proportionate means of achieving that purpose. Bennett J’s evaluation of whether the uniform policy was a reasonable limitation on freedom of religion within the terms of article 9(2) was also informed by the contracting-out doctrine.10 The Court of Appeal reversed the High Court decision, determining that Ms Begum had indeed been excluded from school and finding that she had been sent home for disciplinary reasons.11 It allowed the appeal on the ground that the school had failed to follow a proper decision-making process that would respect Ms Begum’s rights under article 9 of the ECHR. The House of Lords found in favour of the school. Three members of the court found that there was no interference with article 9 and all five agreed that any interference would be a justifiable limitation under article 9(2). Lord Bingham, while acknowledging that the contracting-out doctrine had sometimes been applied overly strictly, found that it was applicable in this case as Ms Begum’s family had specifically chosen Denbigh High School.12 Even if the policy was an interference with freedom of religion, it was justified and proportionate because it was responsive to the needs of the local community, and to accede to Ms Begum’s demands ‘might have significant adverse repercussions’.13 Lord Nicholls agreed with the opinions of Lord Bingham and Baroness Hale. Lord Hoffmann found that there was no interference on the basis of the contracting-out doctrine, deciding that it would not have been difficult for Ms Begum to attend another school.14 Lord Scott followed similar reasoning.15 Baroness Hale expressed unease at the application of the contracting-out doctrine in this case, noting that in most cases the choice of school is one made by the family rather than children themselves.16 To bind adolescents irrevocably to that choice would limit their freedom to develop independent moral and religious views.17 While she was of the view that the uniform policy constituted an interference with Ms Begum’s freedom of religion, she decided that it was justified. Schools were entitled to have a uniform policy which fostered a sense of community and cohesion even if it did not meet the demands of every pupil’s conscience.18 The role of Ms Begum’s brother in the events leading up to the application for judicial review, and his evidence to the High Court, have been regarded with suspicion in some quarters, not least by Bennett J in his decision, who queried why the evidence of Ms Begum’s changing views on what was necessary to comply with her religion was given by him rather than by Ms Begum herself.19 However, it is also worth noting that Ms Begum’s mother, who died in 2004, did not speak English, and her father had died in 1992, so it is probably not surprising that her brother took a more active role in her life than would often be the case.20 10

Above n 3 (HC) at [78]. Above n 3 (CA) at [24]. 12 Above n 1 at [25]. 13 ibid [34]. 14 ibid [52]. On justification, he was of the view that the courts should defer to Parliament’s decision to leave uniform policy to individual schools, see [64]. 15 ibid [88]–[89]. 16 ibid [92]. 17 ibid [93]. 18 ibid [97]–[98]. 19 Above n 3 (HC) at [68]. 20 Above n 3 (CA) at [13]. See also S Edwards, ‘Imagining Islam—Of Meaning and Metaphor Symbolising the Jilbab—R (Begum) v Headteacher and Governors of Denbigh High School’ (2007) 19 Child and Family Law Quarterly 247. 11

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332 Holly Cullen

The Feminist Judgment Maleiha Malik’s feminist judgment agrees with the House of Lords in result, but departs substantially from the opinions in that decision. In relation to the question of whether there was an interference with Ms Begum’s freedom of religion, it considers that the concept of voluntariness underpinning the contracting-out doctrine is insufficiently context-sensitive. In the case of Ms Begum, two factors are emphasised: the fact that she is a young woman and her membership of a religious minority. The judgment queries the view that it would have been easy for Ms Begum to choose another school which did allow for her choice of dress, and observes that such a view places the costs of accommodating religious practices disproportionately on the individual rather than on public institutions. The contractingout doctrine also fails to account for the fact that, particularly in the case of younger people, choices about religious observance may change over time. The judgment argues that rather than creating a conflict for Shabina Begum between her choice of religious dress (as a member of her religious group) and her choice of her preferred school (as a British citizen and a member of the wider community), the law should enable both ‘recognition’ of her culture and religion, and her access to education, employment and public goods, both of which are important for her individual autonomy. In relation to the question of justification, other cases concerning article 9 of the ECHR have justified limiting individual freedom of choice of religious dress for reasons of national security or gender equality. The feminist judgment, however, rejects these rationales in this case, and also rejects the view that the school was justified in refusing to allow Shabina Begum to wear a jilbab because it is perceived to represent an ‘extreme’ version of Islam. Rather, the judgment finds justification in the need to promote the values of tolerance and pluralism in a diverse liberal democracy. The delegation of decision-making as to how best to accommodate religious dress to individual schools, and Denbigh High School’s inclusive and human rights-sensitive decision-making process, were both proportionate means of achieving that purpose, so that the interference with Shabina Begum’s rights by the resulting uniform policy was justified.

Media Commentary The Begum case received a significant amount of media coverage. A search of the online archives of UK national newspapers reveals that all of the broadsheet newspapers and at least some of the tabloids (not all have complete archives) covered all three judgments in the case. The level and intensity of interest in Shabina Begum and her court case grew, particularly after the Court of Appeal found in her favour. The largest amount of coverage can be found in the Daily Telegraph. The Telegraph, uniquely amongst newspapers, published leaders on the case at every level, and it is instructive to compare these leading articles. The leader following the trial judgment was partially supportive of Ms Begum, while supporting the court’s decision to back the school’s uniform policy: ‘the grounds for the ban—the jilbab’s potential for setting one Muslim girl against another—are not sufficient to penalise Shabina for her religious convictions’.21 The leader following the Court of Appeal decision 21

‘Freedom of Dress’ Daily Telegraph (London 16 June 2004).

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R (Begum) v Governors of Denbigh High School—Commentary 333 began: ‘Shabina Begum, 16, spouted a great deal of nonsense yesterday after the Appeal Court upheld her right to wear the full head-to-toe jilbab . . . Every word that this Muslim schoolgirl uttered smacked more of politics than of true religious feeling’.22 From this point, the Telegraph’s coverage of the case, particularly the opinion pieces, bore evidence of hostility to three things: the Human Rights Act,23 Cherie Booth QC (Ms Begum’s counsel)24 and criticism by British Muslims of UK foreign and domestic policies.25 Its leader following the House of Lords decision proclaimed: ‘Common sense wins’.26 Comment pieces published in the paper in the days following the House of Lords ruling were uniformly hostile to Ms Begum, and endorsed what they saw as a judgment restricting frivolous use of the Human Rights Act. Ms Begum’s claim also attracted criticism from feminist columnists. Notably, Joan Smith in the Independent linked Ms Begum’s claim to that of those demanding the teaching of creationism in schools—a very different type of demand, one challenging the national curriculum rather than arguing for individual expression.27 In the Guardian, Fareena Alam reflected the criticisms of the jilbab by some Muslim women, although she also affirmed Ms Begum’s right to choose her clothes, and thought that the school had over-reacted.28 The Times’ coverage was highlighted by accusations that Ms Begum’s case was supported by Hizb ut Tahrir, a group which advocates the creation of a Muslim caliphate in the Arab world and which has been banned in some states.29 Although The Times was less hostile to Ms Begum personally than the Telegraph, it advanced a consistent view that she was pressurised into making her claim to wear the jilbab, thereby denying that she was an autonomous actor in the case.30

Academic Commentary The academic commentary on the Begum case, on the other hand, highlighted many of the problems with the Court of Appeal and House of Lords decisions. A common criticism of the Court of Appeal judgment was that its requirement that schools ask themselves a series of questions, which essentially required them to apply article 9 of the ECHR in a quasijudicial manner, introduced the ‘judge inside the head’.31 Several commentators criticised 22

‘Religion and school rules must both be respected’ Daily Telegraph (London 3 March 2005). ibid. 24 V Woods, ’Where modesty stops and madness begins’ Daily Telegraph (London 18 February 2006). The point that right-wing criticism of Ms Begum’s claim extended to hostility to her counsel is also made by I Ward, ‘Headscarf Stories’ (2005) 28 Hastings International and Comparative Law Review 315. 25 J McCartney, ‘The school uniform case was a victory for bigots’ Daily Telegraph (London 6 March 2005). See also, following the House of Lords decision, B Johnson, ‘The Shabina Begum case never had anything to do with modesty’ Daily Telegraph (London 23 March 2006). 26 ‘Common sense wins’ Daily Telegraph (London 23 March 2006). A similar view was expressed by M Bunting, ‘Hijack averted’ Guardian (London 22 March 2006). 27 J Smith, ‘Our schools are no place for the jilbab. Or for the Creationists’ Independent (London 26 March 2006). See also, S Moore, ‘Victory for Shabina . . . and Muslim men’ Mail on Sunday (London 6 March 2005); C Bennett, ‘Of course women have the right to choose. But agreeing to wear a jilbab is no choice at all—even Mrs Blair must see that’ Guardian (London 15 September 2005). 28 F Alam, ‘Style and substance’ Guardian (London 22 March 2006). 29 N Hellen, ‘Revealed: radicals who backed girl in dress fight’ The Times (London 20 June 2004). The Sun also printed this allegation: Neil Syson, ‘School-row mob “like BNP”’ The Sun (London 5 March 2005). 30 J Gerard, ‘Jasper Gerard meets Shabina Begum: Faith, the veil, shopping and me’ The Times (London 26 March 2006). This profile also expressed great hostility to Cherie Booth QC and the idea of children’s rights. 31 T Poole, ‘Of Headscarves and Heresies: the Denbigh High School Case and Public Authority DecisionMaking under the Human Rights Act’ [2005] Public Law 685. 23

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334 Holly Cullen recourse to the contracting-out doctrine.32 Nicholas Gibson agreed with the House of Lords that the interference could be justified under article 9(2) of the ECHR because the uniform policy was a set of ‘neutral rules of general application’ rather than an attempt to ban a specific item of religious dress.33 He also supported the view of Lord Bingham that although the courts must engage in their review function, they should also recognise the institutional expertise of the school.34 Some of the academic commentary went beyond criticising the courts’ legal reasoning and examined the social and political assumptions which appear to underlie the decisions. On one side can be found commentators who argued that the judges often engaged in a worrying evaluation of the legitimacy of Ms Begum’s religious beliefs. Gibson argued that ‘Judges are ill-equipped to assess the validity of belief ’.35 Julian Rivers more directly expressed concern that a ‘problematic aspect of the Begum judgment is the tendency to distinguish between good and bad religion’.36 On the other side, some commentators, as the feminist judgment does, emphasised the need to ensure a real choice for Ms Begum. Anastasia Vakulenko particularly criticised Baroness Hale’s suggestion that she would have taken a different position in respect of an adult Muslim woman.37 Vakulenko interpreted this distinction as reflecting an assumption that there is something wrong with Muslim dress.38 She found this position ironic given the overall empathy shown in Hale’s opinion for Muslim women and girls, but grounded this apparent paradox in the conflict between post-colonial and Western feminisms, and the tendency, seen clearly in some of the journalistic commentary on Begum, to suggest that women from non-Western cultures lack full agency. Also developing the issue of agency, Susan Edwards noted that only Baroness Hale addressed the issue of whether Ms Begum was competent to make this type of decision for herself without having her wishes overruled by a parent or the state.39

Subsequent Developments The United Kingdom took a year to respond to the Begum decision in terms of providing further guidance to schools on uniform policy. The initial consultation paper, published in March 2007, appeared to encourage head teachers to ban full face veils.40 The consultation document emphasised the contracting-out doctrine from the case law, suggesting that pupils might be able to accommodate their concerns about religious dress by changing 32 N Gibson, ‘Faith in the Courts: Religious Dress and Human Rights’ (2007) 66 Cambridge Law Journal 657; J Rivers, ‘Law, Religion and Gender Equality’ (2007) 9 Ecclesiastical Law Journal 24; Russell Sandberg, ‘Is Nothing Sacred? Clashing Symbols in a Secular World’ [2007] Public Law 488. 33 Gibson, ibid 677. 34 ibid 685. 35 ibid 686. 36 Rivers, above n 32 at 36. 37 Above n 1 at [96]–[97]. 38 A Vakulenko, ‘Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends’ (2007) 7 Human Rights Law Review 717. See also Edwards, above n 20. 39 Edwards, ibid. 40 Department for Education and Skills, Guidance to Schools on Uniform Related Policies: A Consultation, 20 March 2007; see P Wintour, ‘Minister gives schools right to ban Muslim veil’ www.Guardian.co.uk (20 March 2007).

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R (Begum) v Governors of Denbigh High School—Commentary 335 schools, and even where that could not be done, asserting that schools have a wide discretion to justify restricting religious dress. The final version of the guidance is as vague as the guidance in force at the time of the Begum case, emphasising that schools should act reasonably in accommodating religious requirements, but asserting that individual claims of right should be rejected if issues of ‘health, safety, security and effective teaching and learning’ are in issue.41 Among the list of permissible grounds for refusing requests for accommodation of religious dress is: protecting young people from external pressure to wear clothing they would not otherwise choose to adopt, protecting them from harassment, and from having to adopt dress codes associated with extreme or anti-social elements in the wider community, including styles and colours of clothing associated with gangs.42

The policy explicitly mentions the jilbab as possible clothing to accommodate the requests of Muslim girls. It suggests that the face veil (niqaab) is unnecessary, but does not explicitly call on schools to ban it. The policy does encourage schools to consult widely, including engaging students in the development of uniform policies, but has nonetheless been criticised as inconsistent and as giving schools mixed messages.43

Conclusion One goal of human rights, and of feminism itself, is to promote the dignity and autonomy of the individual. The case of Shabina Begum demonstrates the difficulties in realising dignity and autonomy in a pluralist society. The House of Lords and the feminist judgment agree on the need to allow schools reasonable space to define policies that meet the needs of their communities. Much commentary, particularly in the mass media, has converted Ms Begum’s human rights claim into a vehicle for ideological debate. However, the feminist judgment brings a focus on Shabina Begum as an individual, in her social and personal context. It recognises her human rights claim as part of a process of development as an autonomous individual and a member of a wider community in whose public spaces she participates. In short, the feminist judgment restores Shabina Begum to the centre of her own story.

41 Department of Children, Schools and Families, Guidance to Schools on School Uniform and Related Policies: www.dcsf.gov.uk/consultations/downloadableDocs/uniform%20guidance%20-%20final2.doc. 42 ibid. 43 J Shepherd, ‘Uniform dissent’ Guardian (London 9 October 2007).

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House of Lords

Regina (SB) v Governors of Denbigh High School [2006] UKHL 15

BARONESS MALIK 1 My Lords, I have had the advantage of reading in draft the opinions prepared by each of my noble and learned friends. I agree with your Lordships that this appeal should be allowed. On the question of whether there was an interference with Shabina Begum’s freedom of religion under article 9(1) of the European Convention on Human Rights, I agree with my noble and learned friends Lord Nicholls of Birkenhead and Baroness Hale of Richmond that there was such an interference, but I do so for different reasons. Therefore, I find it necessary to set out my own reasoning on this point. On the question of justification under article 9(2), I agree with your Lordships that the interference in this case is justified, but again I do so for different reasons. In my view, the interference is justified not because Shabina Begum’s dress is an aspect of “extremist” Islam or because the majority of Muslim school girls are happy with the uniform, but because the UK Parliament is pursuing the permissible purpose of “pluralism” by allowing decisions about religious accommodation to be made at a local level. In this case, the school has provided clear evidence that making accommodation to Shabina Begum’s convictions with regard to religious dress would lead to adverse consequences for its effectiveness and efficiency. 2 Shabina Begum is a young Muslim woman who wanted to wear a more extensive covering (a jilbab) than is permitted under her school’s uniform policy. She challenges the decision of Denbigh High School, which has refused to allow her to attend unless she complies with their uniform requirements. Denbigh High School instituted its uniform policy after extensive consultation with parents who included Muslims. The headteacher who led this consultation is also a Muslim. The uniform permitted an “Islamic” form of dress that included wearing a tunic and trousers (shalwar kameeze) and headcovering (hijab). Shabina Begum, however, stated that her interpretation of her obligations as a Muslim woman led her to conclude that she was required to wear a more extensive form of robe covering (jilbab). There was another school in the area which would have allowed Shabina Begum to study there whilst wearing her jilbab. However, she insisted that her first choice was Denbigh High School where she had been receiving her education for some time. Bennett J at first instance held that there was no interference with her article 9 right to freedom of religion. The approach of the Court of Appeal 3 The Court of Appeal allowed Shabina Begum’s appeal. Brooke LJ articulated the procedure that the school should follow as a set of questions which include consideration of the individual student’s right to freedom of religion under article 9 of

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R (Begum) v Governors of Denbigh High School—Judgment 337 the Convention. Brooke LJ explicitly refrained from reaching a substantive conclusion as to whether or not the applicant should be allowed to wear the jilbab. The Court of Appeal held that the school had failed to follow the proper decisionmaking procedure in order to determine whether there had been a possible infringement of an article 9 right. The school should have asked itself, inter alia, the following questions: (1) Has the claimant established that she has a relevant Convention right which qualifies for protection under article 9(1)? (2) Subject to any justification that is established under article 9(2), has that Convention right been violated? (3) Was the interference with her Convention right prescribed by law in the Convention sense of that expression? (4) Did the interference have a legitimate aim? (5) What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim? (6) Was the interference justified under article 9(2)? It is important to note that the Court of Appeal set these out as the questions that the school should have, but did not, consider. Therefore, it found that the school had failed to consider properly the applicant’s article 9 rights and found in her favour. However, Brooke LJ [2005] 1 WLR 3372, para 81 explicitly stated: “Nothing in this judgment should be taken as meaning that it would be impossible for the school to justify its stance if it were to reconsider its uniform policy in the light of this judgment and were to determine not to alter it in any significant respect.” 4 I agree with my noble and learned friend Lord Bingham of Cornhill at para 31 of his opinion that the Court of Appeal’s focus on the procedure rather than the substance of the article 9 right was mistaken. A procedural approach would lead to unnecessary judicialisation of public decision-making. What matters in a case such as this is the practical outcome rather than the nature of the decision-making that led up to it. Interference with the right to freedom of religion 5 On the substantive issue of whether there was a violation of Shabina Begum’s right to freedom of religion under article 9 of the Convention, there is clear authority within the Strasbourg jurisprudence that a ban on religious dress such as headscarves could be permissible under article 9(2). This is clearly established by authorities such as Dahlab v Switzerland (Application No 42393/98) (unreported) 15 February 2001 and Sahin v Turkey (Application No 44774/98) (unreported) 10 November 2005. Significantly, in both these decisions, the European Court of Human Rights found that there was an infringement of the right to freedom of religion under article 9(1), but that there was objective justification for this infringement under article 9(2). 6 In the present case, however, a majority of your Lordships have found that there was no infringement under article 9(1). The Strasbourg Court has developed a definition of the scope of religious freedom that deems an individual’s voluntary or contractual agreement to limit the scope of religious freedom as a situation that falls outside article 9(1). Therefore, where an individual either puts themselves into a situation that restricts their religious freedom in some way, or has a choice that

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338 Maleiha Malik would allow them to change their situation in a way that allows them to exercise their religious freedom, it is assumed that there has been no interference. In this way, the Strasbourg Court places the concepts of choice and voluntariness at the centre of its analysis of the scope and nature of the individual right to religious freedom in article 9. The Court and the European Commission on Human Rights have adopted and endorsed this approach in a number of cases. This point was confirmed in Stedman v United Kingdom (1997) 23 EHRR CD 168, where it was held that a woman who objected to Sunday working as an interference with her right to freedom of religion could have left her job if she found that her employment was interfering with her individual religious beliefs. Another example of “contracting out” of the right to religious freedom is the decision of the European Commission on Human Rights in X v United Kingdom (Application No 8160/78) (1981) 22 DR 27, which held that a Muslim school teacher had limited his right to religious freedom when he accepted an employment contract which included set working hours which prevented him from taking time off for Friday prayers. 7 There is some acknowledgement within Strasbourg jurisprudence that there are limits to the concept of voluntariness and choice in these contexts. Darby v Sweden (1991) 13 EHRR 774 indicates that there may be situations where expecting an individual to change their position in order to manifest their religion may be unreasonable. In that case, the Strasbourg Court rejected the argument that the choice of moving countries to Sweden, which was available to the individual and which he did not exercise, meant that he had voluntarily accepted payment of a Church tax that breached his article 9 rights. 8 The fact that the “contracting out doctrine” may require onerous changes from those who seek to exercise their right to freedom of religion has also been criticised in recent British cases. In Copsey v WBB Devon Clays Ltd [2005] ICR 1789, Mummery LJ commented that “costs” such as requiring an employee to change jobs may not be compatible with the importance of the right to freedom of religion. That case involved the dismissal of an employee who refused to work on Sundays because of his Christian beliefs. The Court of Appeal applied the contracting out doctrine to dismiss Mr Copsey’s claim that a requirement to work on Sundays was an infringement of his right to freedom of religion under article 9 of the Convention. However, Mummery LJ stated at para 35 that the Strasbourg rulings on contracting out : “are difficult to square with the supposed fundamental character of the rights. It hardly seems compatible with the fundamental character of article 9 that a person can be told that his right has not been interfered with because he is free to move on, for example, to another employer, who will not interfere with his fundamental right, or even to a condition of unemployment in order to manifest the fundamental right.” He concluded at paras 36–37: “In the absence of the Commission rulings, I would have regarded this as a case of material interference with Mr Copsey’s article 9 rights. The rights would be engaged and interference with them would require justification under article 9(2). Under the 1998 Act, however, this court must take the Commission rulings

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R (Begum) v Governors of Denbigh High School—Judgment 339 into account, so far as they are relevant in determining a question which has arisen in connection with a Convention right: section 2(1)(c). They are relevant. It is not a case of an isolated ruling. So far as the Commission is concerned it seems to be well established that the qualified article 9 right of a citizen in an employment relationship to manifest his belief is not engaged when the employer requires an employee to work hours which interfere with the manifestation of his religion or dismisses him for not working or agreeing to work those hours because he wishes to practice religious observances during normal working hours. As Lord Nicholls of Birkenhead said in Williamson [R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246], at para 38: “What constitutes interference depends on all the circumstances of the case including the extent to which in the circumstances an individual can reasonably expect to be at liberty to manifest his beliefs in practice.” “Applying that approach to the specific situation of Mr Copsey in the light of the Commission rulings, there was no material or significant interference with his article 9 right and the decision of the employment tribunal that article 9 was not engaged was correct in law.” 9 Despite criticism of the contracting out doctrine, this line of European and British cases confirm that the contracting out doctrine will be relevant to any interpretation of the scope of the right to freedom of religion in article 9. As already noted, the contracting out doctrine is based on the idea that there is no interference with freedom of religion where the individual is left with a viable and voluntary choice to put themselves in a position where they can manifest their religion, even if this requires some personal sacrifice. In these fact situations individuals have, through the exercise of choice, put themselves in a situation which limits their ability to manifest their religion. Moreover, they have a choice to remove themselves from this restrictive context. Yet, in the present case, is it possible to say that Shabina Begum was able to exercise choice and still exercise her right to freedom of religion? There are two factors that are specific to Shabina Begum that are relevant to an analysis of how the contracting out doctrine can be applied to her case. First, the fact that Shabina Begum is a young woman has an impact on the concepts of choice and voluntariness. Second, the fact that she is a member of a minority rather than a majority religion is also relevant. The costs associated with finding an appropriate context within which to manifest religious belief will be higher for minorities who will be faced with mainstream political, social and economic structures that do not match their religious needs. Carolyn Evans, a leading academic commentator on freedom of religion, has demonstrated in Freedom of Religion under the European Convention on Human Rights (2001) the way in which Convention jurisprudence is much better at securing religious freedom for the majority religion and that it has consistently failed to respond to minority religious practices. An analysis of Shabina Begum’s claim to wear her preferred choice of religious dress as part of her right to freedom of religion under article 9 must take both these aspects into account by recognising that this is a claim by a young woman from a religious minority. 10 The application of the contracting out doctrine in relation to a young minority woman, such as Shabina Begum, first requires attention to specific factors relating to

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340 Maleiha Malik “voluntariness” and “choice”. Initially, there is a question about whether a young woman such as Shabina Begum has made her choice to wear a jilbab as a result of social pressure. As my noble and learned friend Lord Scott of Foscote discusses at paras 79–80 of his speech, there is evidence to suggest that Shabina Begum’s brother and family were involved in negotiations with the school about whether she could wear the jilbab. I fully agree with my noble and learned friend that this resulted in an unnecessarily confrontational atmosphere. Nevertheless, I also concur with him that in the absence of any evidence to the contrary, it must be accepted that her belief that her faith required her to wear a jilbab, and that a shalwar kameeze was not sufficient, was a genuine one. There is no evidence to suggest that Shabina Begum has been coerced into wearing this religious dress. 11 In this context, I disagree with the conclusion that there would be no difficulty in requiring Shabina Begum to move from the school that she is attending to another school for the purposes of the contracting out doctrine. For the reasons given by my noble and learned friend Lord Nicholls, I consider that this overestimates the ease with which Shabina Begum can move between different schools. I would add that such a conclusion fails to treat Shabina Begum’s choice of religious dress as something that she can negotiate over an extended period of time, and that she should be able to integrate with other important aspects of her life such as her public role as a student and a citizen. It unduly limits the public space available for individual women such as Shabina Begum to negotiate between a range of choices as they develop as individuals throughout their lives. In my opinion, it also places the costs of accommodation of a minority religious practice solely on Shabina Begum, a young school girl from a religious minority, rather than on public institutions such as Denbigh High School which have greater political, social and economic power. 12 Those areas of public life that are critical for autonomy because they allocate important social goods—such as education and employment—should provide a wider public space within which individuals can not only express but also transform their cultural or religious commitments in ways that integrate rather than segment their personal identity. The contracting out doctrine may have undesirable consequences because it creates conflicts between an individual's personal religious conscience and their full participation in mainstream civic public institutions. This also forces them to make a false and dangerous choice between their personal membership of a religious community and their full participation as citizens in a liberal democracy.. 13 I agree with my noble and learned friend Lord Scott that there was no formal infringement of Shabina Begum’s right to education under article 2 of the First Protocol of the Convention in this case, because that provision is infringed only if there is a denial of access to the education system as a whole. Nevertheless, in relation to minority women such as Shabina Begum, the contracting out doctrine creates a conflict between her choice of religious dress (as a member of her religious group) and her choice of her preferred school (as a British citizen and a member of the wider community). This undermines her choice to wear religious dress and to receive her education in a school of her choice, both of which are important for her individual autonomy. In this instance, Shabina Begum’s choice of dress was more “conservative” than the predominant norms in the local Muslim community

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R (Begum) v Governors of Denbigh High School—Judgment 341 who were consulted by the school. However, this process can also be reversed in situations where minority women are seeking to re-interpret a cultural practice to comply with gender equality, whilst also insisting on remaining members of that group. The approach to freedom of religion under article 9(1) focuses on individuals rather than on the accommodation of a wider minority group, although it is important to stress that consultation with minority groups will remain an important guide to social policy. The approach should also avoid requiring an all or nothing choice between two core components of autonomy for minority women: on the one hand, “recognition” of culture and religion; and on the other hand, access to education, employment and public goods. 14 The contracting out doctrine ignores the complexity of the choices that are faced by minority women such Shabina Begum. It presents them with a stark choice between either the expression of their religion and culture or full participation in their preferred educational institution, rather than placing a duty on key educational and employment institutions to widen the range of opportunities that they provide to minority women. 15 For these reasons, I agree with my noble and learned friends Lord Nicholls and Baroness Hale that there has been an infringement of Shabina Begum’s right to freedom of religion under article 9(1). Justification under article 9(2) 16 A limitation or interference with an article 9(1) right to freedom of religion can be justified under article 9(2) if it is: (a) prescribed by law; and (b) necessary in a democratic society for a permissible purpose. I agree with your Lordships that on the basis of the Strasbourg jurisprudence, and on the facts of this case, the UK acted within its margin of appreciation under article 9(2). However, it is important to be clear about the basis of the article 9(2) justification. 17 Strasbourg jurisprudence, in cases involving Muslim women being banned from wearing the headscarf, has considered the permissible purpose of the ban deemed to be “necessary in a democratic society” to be either national security or gender equality. In Dahlab v Switzerland (Application No 42393/98) (unreported) 15 February 2001, the applicant, who was a Swiss Muslim school teacher, challenged a school headscarf ban as both religious and sex discrimination, that is, as a breach of the article 9 right to freedom of religion, and also a breach of the article 14 right to non-discrimination on the grounds of gender. The Strasbourg Court permitted the ban on the headscarf under article 9(2) on the basis that it was a symbol of gender inequality. In Sahin v Turkey (Application No 44774/98) (unreported) 10 November 2005, the Turkish state argued that the headscarf—as a symbol of both Islamist politics and gender oppression—was a threat to liberal democracy. The majority of the Grand Chamber at para 116 accepted the Turkish state’s argument that the headscarf was a religious symbol that was contrary to the values of “pluralism, respect for the rights of others . . . and equality before the law of men and women”. 18 However, there is a very different political situation in the UK, which is a democracy with a small Muslim minority, as compared to Turkey which has a majority Muslim population as well as established Islamist political parties. The UK does not face any prospect that an Islamist party will form a majority and take over control of the state. It is clear, therefore, that the national security argument is

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342 Maleiha Malik not relevant to the justification for banning the headscarf, or by extension the jilbab, in UK schools. 19 The gender equality argument is also not persuasive to justify a restriction on freedom of religion under article 9(2) in this case. In this context, it is sometimes argued that young women are coerced into wearing items of religious dress through the actions of their fathers or brothers or other men in their community. Where there is evidence of force or coercion by families or religious groups, the state has an obligation to safeguard women and young girls—even (and especially) where the source of this injustice is their own religious or cultural community. Cases where individual women have been explicitly coerced and where there is clearly no consent should be resolved by taking action against those men who are coercing them, or through social policy measures aimed at their communities. The solution to the coercion of young Muslim women by some men in their religious community cannot be a blanket ban that would constitute state coercion of those young Muslim women who wear religious dress out of free choice. 20 In this case, as mentioned earlier, although there is the involvement of Shabina Begum’s brother and some elements of a confrontation with the school, there is no evidence that Shabina Begum adopted the jilbab as anything other than an autonomous choice. It is sometimes argued in these contexts that these choices are not “real” and not in the best interests of the women themselves. I concur with the conclusion of my noble and learned friend Baroness Hale at para 96 of her opinion that if a woman freely chooses to adopt a way of life for herself, it is not for others, including other women who have chosen differently, to criticise or prevent her from doing so. I would add that in some cases, individual women’s choices will not conform to established majority or even feminist norms, and this may be especially true in relation to minority women such as Shabina Begum, because their choices operate across a complex nexus which includes not only gender, but also minority religion, race and culture. As I have suggested, choice for young women such as Shabina Begum also needs to be related to opportunities in education, and to be seen not as a once-and-for-all decision, but as a fluid and ongoing process of negotiation and integration over an extended time frame. On this analysis, Shabina Begum’s choice of a jilbab at this stage in her life may be the result of her present life conditions and options. However, as well as defending this present choice, it is important to offer Shabina Begum sufficient freedom to be able to re-negotiate different systems of cultural and religious influence within her own community, as well as majoritarian norms, values and power in her school and in the public sphere. 21 For these reasons, I find that the arguments from national security and gender equality do not provide a sufficient justification under article 9(2) for the infringement found to have occurred. Instead, the permissible purpose that provides a justification for a limitation on Shabina Begum’s right to wear a jilbab stems from the need for pluralism and tolerance in contemporary European liberal democracies. Many European democracies are now diverse in terms of the race, ethnicity, culture, religion and sexuality of their citizens. In the UK, this has meant that different groups—defined by categories such as race, religion, gender and sexual orientation—feel that they can make legitimate claims for public accommodation of some of their practices. In these circumstances, the UK is justified in

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R (Begum) v Governors of Denbigh High School—Judgment 343 providing that individual schools, as close as possible to the local context in which the decision will impact on the individual, rather than political or legal institutions, are best placed to decide how to accommodate religious dress, in order to safeguard the values of tolerance and pluralism in a diverse liberal democracy. 22 The Convention gives a wide margin of appreciation to individual states, especially in the application of article 9(2), because it considers the domestic circumstances to be important in assessing whether a restriction of freedom of religion is justified. Counsel for Shabina Begum has referred the House to the decision of the Canadian Supreme Court on similar facts: Multani v Commission scolaire Marguerite-Bourgeoys [2006] SCC 6. Multani provides an important persuasive authority for this House in developing its analysis of article 9(2), particularly as the case provides detailed guidance on how schools can approach these issues. In Multani, the majority of the Canadian Supreme Court found that a school had breached the right to freedom of religion of a young Sikh boy who had been prevented from wearing a ceremonial dagger (kirpan). They stated that treating the kirpan as a symbol of violence was disrespectful to believers in the Sikh faith and failed to take into account Canadian values based on multiculturalism. The Court also emphasised the importance of schools as institutions that socialise all young pupils into the values of religious tolerance, pluralism and the importance of protecting minorities. The UK context is distinct because it permits schools a wide discretion in deciding questions about accommodating religious difference and dress. Nevertheless, this discretion in decision-making is subject to the Human Rights Act 1998. Therefore, it remains important to examine in more detail the issue of how schools can accommodate claims to religious freedom, especially in the context of dress codes. 23 The accommodation of religious dress in UK schools and workplaces is well established. The Race Relations Act 1976, for example, prohibits indirect race discrimination in the context of education that can be justified under limited circumstances. This provision provides an important remedy for those who want their religious beliefs accommodated, as illustrated by the case of the young Sikh school boy in Mandla v Dowell Lee [1983] 2 AC 548. There is also a legislative exemption for Sikhs from the statutory obligation to wear protective head gear on building sites: see section 11 of the Employment Act 1989. One difficulty with the “accommodation of difference” approach, however, is that there needs to be some understanding of which exemptions are required. This in turn requires a more detailed understanding of the specific needs of minorities and the way in which existing structures fail to accommodate these needs. 24 The Race Relations Amendment Act 2000, which introduces a duty on public institutions such as schools to promote racial equality, is an example of the statutory enactment of the rule-exemption approach in relation to race in the area of public services. In the context of religious discrimination, the problem is complex because of the massive diversity in the sorts of needs that can arise, especially when a wide definition is given to religion and belief. Some of these needs will be accommodated through an overlap between race and religion, which allows the Race Relations Amendment Act 2000 process to reach areas such as education, health care and social services and public transport. There is also now specific legislation in the form of the Employment Equality (Religion or Belief)

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344 Maleiha Malik Regulations 2003, that prohibits indirect religious discrimination in employment and training, but this does not extend to education. The institutional context within which accommodation takes place is critically important in all these cases. For example, the Race Relations Amendment Act 2000 requires public decision makers to consult with representatives as part of an incremental process of public accommodation. 25 The crucial point is that the approach to accommodating religious beliefs has to give weight to the article 9(1) right, and therefore should not use a “contracting out” analysis by assuming that an individual such as Shabina Begum should exercise her right to religious freedom by taking herself outside the scope of her choice of school. In the UK, public institutions such as schools should examine whether they can design solutions that are an integrated strategy of minority protection: that is, which allow women like Shabina Begum to enjoy their article 9 rights to freedom of religion whilst at the same time remaining within mainstream public education. 26 The provisions relating to indirect race and religious discrimination, as well as the public sector equality duty in the Race Relations Amendment Act 2000, put into place a framework of “reasonable accommodation”. Section 75 and Schedule 9 to the Northern Ireland Act 1998 have also placed a statutory obligation on public authorities, in carrying out their various functions relating to Northern Ireland, to have due regard to the need to promote equality of opportunity on the ground of race and religion. This developing concept of reasonable accommodation in domestic legislation is an important context within which the right to freedom of religion in article 9 is applied in the United Kingdom. 27 It is sometimes argued that public accommodation would lead to unreasonable claims by minorities. However, giving voice to minorities or consulting with them in relation to the design of public services does not give them any decisionmaking power. Public bodies can consult individuals and groups about accommodation, but they can still legitimately overrule this advice where there are good reasons to do so, for example where the principles of reasonableness and proportionality suggest that accommodation is not possible or where there is a conflict with the minimum standard (floor) of constitutional and human rights norms. 28 In this case, the House is not required to determine whether there should or should not be a general rule that prohibits certain types of Islamic dress in UK schools. It is for each school to consult and consider all the facts and local circumstances before reaching its final decision. Moreover, the key issue for the House is not how other groups of Muslim school girls are treated, but the individual rights of Shabina Begum. Nor is the fact that some may consider Shabina Begum’s dress to indicate an “extremist” version of Islam a good reason to infringe an individual right to religious freedom. It is not for this House or the school to impose an external, unilateral and pejorative meaning upon the religious dress she has chosen. As the case of Multani v Commission scolaire Marguerite-Bourgeoys [2006] SCC 6 confirms in the context of interpretations that treat the kirpan as a symbol of violence, in these situations such a construction is a sign of disrespect towards the religious believer. Racial, cultural and religious stereotypes that associate religious symbols worn by individual pupils with violence can undermine the atmosphere of religious tolerance and pluralism in schools. Schools should challenge rather than replicate these stereotypes.

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R (Begum) v Governors of Denbigh High School—Judgment 345 29 Since, in the UK, decisions about the religious dress of pupils have been appropriately delegated to individual schools, it is for the school to justify its position that it cannot organise its administration in a way that accommodates the right to freedom of religion of Shabina Begum. On the facts, there is clear evidence that the school had consulted widely and undertaken its construction of the school uniform with great attention to the needs of local Muslims, as well as non-Muslims. The school has stated that a standard uniform that has been developed after a considerable amount of consultation is essential for it to function effectively and efficiently. It has categorically and unequivocally stated at all stages that the accommodation of Shabina Begum’s distinct dress would lead to adverse consequences, and it has cited some evidence to support this conclusion. There is no evidence that allows the House to conclude that the school acted outside the sphere of judgment allocated to it. 30 In conclusion, therefore, I agree with your Lordships that this appeal should be allowed. There was, in this case, an infringement of Shabina Begum’s article 9(1) right to freedom of religion and belief. However, this infringement can be justified under article 9(2) as falling within the permissible purpose, necessary in a democratic society, of promoting pluralism and tolerance via the delegation of decisionmaking with regard to the accommodation of religious dress to individual schools. In this case, the school’s decision-making procedures and the resulting uniform policy were a proportionate means of achieving that purpose.

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20 Commentary on Sheffield City Council v E JONATHAN HERRING

Introduction The marriage of unsuspecting daughters of rich families to unworthy men was the staple of many a Victorian novel. Indeed, the fear of unsuitable marriage played a not insignificant role in the development of early modern marriage law1 and was a regular feature of cases for family lawyers at the turn of the twentieth century. It is intriguing that at the turn of the twenty-first century, ‘unsuitable’ marriage became again an issue of public concern and legal intervention. But this time the concern was not that a family’s inheritance would be at risk from a rogue, but rather that people—particularly women and girls—would be forced into marriages without their consent.2 The language used was of breaching human rights, rather than protecting family property. The rash of cases on preventing marriages fell into two connected categories. There were those where it was feared that a competent person was to be pressurised by their parents into marrying against their wishes, in other words the ‘forced marriage’.3 The second were cases where a person lacked capacity and their family, or they themselves, were keen on entering a marriage.4 It is notable that nearly all of these cases involved applications seeking to protect women from undesirable marriages.5 Feminists have disagreed on how to approach these cases. To some they reflect an overeagerness to find women lacking in capacity,6 thereby justifying state intervention; while to others the case law reflects the social reality that it is women who are more often than men pressurised into marriage without their consent and that the law is justifiably protecting women’s rights. Underlying the gender difference may also be a perception that marriage (and perhaps sexual intercourse) cannot harm a man. Needless to say the gendered nature of the cases is not mentioned in the case law. Sheffield City Council v E 7 was a good example of the second category of case. E was a young woman of 21 years with a learning disability. She was befriended by S, a 37-year-old man with a history of sexual violence. It was said that the relationship was abusive. There was, specifically, a fear that E would suffer domestic violence and sexual exploitation. The couple wished to marry and the issue was brought to the court by the local authority seeking declarations as to whether E had the capacity to marry. 1 2 3 4 5 6 7

S Cretney, Family Law in the Twentieth Century (Oxford, Oxford University Press, 2003). See, especially, Forced Marriage (Civil Protection) Act 2007. eg NS v MI [2006] EWHC 1646 (Fam), [2007] 1 FLR 444. eg Re SK; London Borough of Ealing v KS and LU [2008] EWHC 636 (Fam), [2008] 2 FLR 720. One exception being Westminster City Council v IC [2008] EWCA Civ 198, [2009] 2 WLR 185. J Mosoff, ‘Motherhood, Madness and Law’ (1995) 45 University of Toronto Law Journal 107. Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326.

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Sheffield City Council v E—Commentary 347

Background Comments Legal issues aside, a number of matters call out for comment. First, why was it that the local authority was only willing to intervene when marriage became a possibility? If the relationship was already abusive and harmful to E, why had intervention to protect her not been attempted earlier? Second, the presentation of the facts is revealing. E was said to function as a 13-year-old.8 This is an interesting way of describing her. Clearly, E was not living the life of a 13-year-old. The reference automatically creates suggestions of paedophilia, especially combined with the information about S’s previous convictions for sexual offences against minors. It also involves infantilising E and reducing the weight that is attached to her views, and it affects the assessment of her capacity. Third, and more broadly, it is notable that local authorities have limited statutory powers and obligations towards vulnerable adults. While the Children Act 1989 imposes statutory duties on local authorities to offer services for and protection to children in need, the only vehicle for imposing an equivalent obligation towards adults is the Human Rights Act 1998, which requires local authorities to ensure that the rights of individuals under the European Convention on Human Rights (ECHR), such as the right to be free from torture or inhuman or degrading treatment under article 3, are respected.9 However, these duties are limited and are not an adequate substitute for a proper statutory regime of protection.10 It is likely that there are large numbers of vulnerable adults like E who are being abused or exploited without the protection of the state.

The Nature of Marriage Munby J was asked to rule on the preliminary issue of how the expert witness in the case should be instructed to determine whether E had the mental capacity to consent to marriage. In line with modern understandings of capacity, Munby J emphasised that it is assumed an adult has capacity and that questions of capacity are issue specific.11 In other words, the law recognises that a person might have capacity to make some decisions, but not others. The question, therefore, in this context was: what issues had to be understood before a person could be said to have capacity to enter a marriage? What was the ‘nature and quality’12 of marriage that had to be appreciated if a person was to have capacity to marry? Munby J held that the ‘central question’ was whether a person understood the ‘duties and responsibilities that normally attach to marriage’.13 8 9

ibid [2]. For further discussion, see J Herring, Older People in Law and Society (Oxford, Oxford University Press, 2009)

ch 3. 10 See J Williams, ‘State Responsibility and the Abuse of Vulnerable Older People’ in J Bridgeman, H Keating and C Lind (eds), Responsibility, Law and the Family (Aldershot, Ashgate, 2008). Local authorities also have powers to provide care under the Mental Capacity Act 2005, or may invoke the inherent jurisdiction of the High Court in order to protect a vulnerable adult, but while these provisions are enabling, they do not impose positive duties on the state. 11 Above n 7 at [18]–[19]. 12 ibid [19]. 13 ibid [68].

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348 Jonathan Herring In determining that this was the relevant question, Munby J went through dicta discussing the nature of marriage from 1854 up to 1954.14 One might wonder what cases of that vintage would inform us about the nature of marriage today. Indeed, having trawled through the cases, he revealingly commented: We tend to forget the astonishing extent to which society’s views about marriage, and about the place of women, not merely in society but also in the home and in marriage, have changed; not only, and most obviously, since Sir James Hannen P was speaking in 1885 but also in the fifty years and more that have elapsed since the Court of Appeal gave judgment in In the Estate of Park deceased, Park v Park [1954] P 112.15

Munby J’s conclusion was perhaps designed to reflect a modern approach to marriage: Today both spouses are the joint, co-equal heads of the family. Each has an obligation to comfort and support the other. It is not for the husband alone to provide the matrimonial home or to decide where the family is to live. Husband and wife both contribute . . . Insofar as the concept of consortium—the sharing of a common home and a common domestic life, and the right to enjoy each other’s society, comfort and assistance—still has any useful role to play, the rights of husband and wife must surely now be regarded as exactly reciprocal.16

It is notable that the equality that Munby J refers to is largely that the wife now has the same rights as the husband. They are ‘co-equal heads’. It might be thought that the notion of headship of any kind is an anathema to modern marriage. It is also noticeable that the primary obligations are seen in terms of property and home, rather than emotional matters. The closest we come to love, tenderness or passion in this model is the concept of ‘consortium’, hardly a turn of phrase to set the heart beating. It is also of note that central to Munby J’s conception of marriage were the responsibilities and duties of marriage. He explained: The duties and responsibilities that normally attach to marriage can be summarised as follows: Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance.17

Munby J was keen to ensure that those of ‘limited or borderline capacity’ should not lose the opportunity to have their lives ‘immensely enriched by marriage’.18 But is it marriage that enriches their lives, or the fact of a loving and supportive relationship? Munby J described marriage as a matter of responsibilities and duties, yet assumed marriage to be an enriching thing. It is hard to see why that is so, given his understanding of its primary nature lying in obligations. An important part of Munby J’s approach was that he did not want to set the bar for capacity to marry too high because it might prevent individuals with mild or moderate learning difficulties from being able to marry. He therefore claimed that the basic obligations of marriage were easy to understand. However, as Ruth Gaffney-Rhys has ably demon14 15 16 17 18

Harrod v Harrod (1854) 1 K&J 4, 69 ER 34; In the Estate of Park deceased, Park v Park [1954] P 112. Above n 7 at [117]. ibid [131]. ibid [141]. ibid [144].

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Sheffield City Council v E—Commentary 349 strated, the obligations he outlined in fact involve some complex legal notions, which are far from straightforward.19 Indeed it is hard to believe that there are many who are aware of the nature of the legal obligations when they choose to marry. Munby J held that the issue of capacity related to the nature of marriage and not the identity of the individual whom the person proposed to marry. The question was not whether it was wise for E to marry S, but simply whether or not she had capacity to consent to marriage per se.20 That was because: [T]he nature of the contract of marriage is necessarily something shared in common by all marriages. It is not something that differs as between different marriages or depending upon whether A marries B or C. The implications for A of choosing to marry B rather than C may be immense. B may be a loving pauper and C a wife-beating millionaire. But this has nothing to do with the nature of the contract of marriage into which A has chosen to enter. Whether A marries B or marries C, the contract is the same, its nature is the same, and its legal consequences are the same. The emotional, social, financial and other implications for A may be very different but the nature of the contract is precisely the same in both cases.21

This approach is rejected by Nicola Barker and Marie Fox in their feminist judgment. Correctly so. Munby J’s argument belies the lived-in experience of marriage. Some marriages are no more than a mask for a regime of terror, others are mutually supportive and enriching. The identity of the partner is central to the form marriage takes in real life. A person, in entering a marriage, does not see themselves as taking on the legal obligations to which he referred. Rather, a marriage is perceived as taking on an emotional commitment to another person; and receiving a social recognition of a relationship. As such, the relationship is key, not the formal legal trappings. And as such, the identity of the other person, far from being an irrelevance, is key. In this regard Barker and Fox’s feminist judgment takes a far more realistic look at the dangers of marriage.22

Maternalism Munby J was clear that if it was found that E did have capacity, there would be no scope for any further inquiry into whether marriage was in her best interests. It was not for a court to determine whether a person had made a good choice of spouse: Can it seriously be suggested that the court has the right to vet E’s suitors, to decide that X is suitable but that Y is unsuitable, to select who E is to marry? The answer to that question, in my judgment, is that the court quite clearly has no such role.23

Yet courts are willing to ask that sort of question in other contexts. For example, courts are regularly called upon to determine whether an adult without capacity should live in a care home or with their family. Is there a huge difference between determining with whom a person should live and whom a person should marry? What is betrayed here is an exaggerated 19 R Gaffney-Rhys, ‘Capacity to Marry and the Rights and Responsibilities of Married Couples’ (2006) 18 Child and Family Law Quarterly 139. 20 Above n 7 at [84]. 21 ibid [85]. 22 ibid [29]. 23 ibid [91].

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350 Jonathan Herring significance of marriage, which is regarded as of far greater importance than the arguably more substantial issue of where and with whom a person lives. In focusing on the issue of whom E proposed to marry, and the particular risks involved for E in a marriage to S, Barker and Fox’s approach in this case may be dismissed by some as ‘paternalistic’, and feminists have learned from past experience to have grave concerns about paternalism. However, the feminist judgment shows how a ‘maternalistic’ approach, intervening to protect from harm, can be justified.24 Maternalism, unlike paternalism, involves making the decision with another person, rather than for them. This approach is reflected in the feminist judgment, as there is an attempt to engage with the woman in question, and not some abstract person whose capacity is being examined. There is an appreciation of the wider social and personal forces which impact on the lives of women, and the aim to enable E to live a life in which she can pursue her goals and relationships free from violence. At the same time, it should be noted that the case involved consideration of a preliminary issue which was decided on the basis of written evidence. There was, therefore, limited scope to put E at the centre of the judgment.

Conclusion There are two major distinctions between the judgment of Barker and Fox and that of Munby J. First, Barker and Fox regard the identity and character of the marriage partner as essential to the nature of marriage. This recognises that the reality of a marriage is not determined by the legal obligations but the behaviour of the parties. Second, Barker and Fox take seriously the obligations on the state to protect vulnerable adults from violence, imposed by article 3 of the ECHR. It is notable that an understanding of domestic violence pervades Barker and Fox’s judgment, but is hardly mentioned in the judgment of Munby J. Barker and Fox also consider E’s countervailing rights to respect for her private life, to marry and found a family, and to be free from discrimination (articles 8, 12 and 14 of the ECHR respectively). Yet while these rights may be subject to reasonable limitations, rights under article 3 are absolute, and so must be protected by the test of capacity to marry that the feminist judgment formulates.

24

L Weiner, ‘Maternalism as a Paradigm Defining the Issues’ (1993) 5 Journal of Women’s History 96.

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Court of Appeal

Sheffield City Council v E and another [2005]

BARKER and FOX LJJ* 1 This case is an appeal from the Family Division of the High Court on the preliminary issue of the appropriate question to put to a consultant psychiatrist in order to determine whether E, the first defendant, has the capacity to marry S, the second defendant. 2 The facts are outlined in detail in Munby J’s judgment in the court below. For present purposes, it is sufficient to note the following. E is a 21-year-old woman who has hydrocephalus and spina bifida. Sheffield City Council (“the Council”) consider her to be an “adult patient” and allege that she “functions at the level of a 13-year-old”, has limited independence skills and is very vulnerable to exploitation. Though E disputes the Council’s categorisation of her as an adult patient and claims that the Council has no statutory power over her or S, this is to be determined at the full hearing, and judgment in this appeal is in respect of the preliminary matter and given without prejudice to that issue. 3 S is 37 years old and a Schedule 1 offender with a substantial history of sexually violent crimes, including convictions for buggery of a minor for which he received a total sentence of eight years’ imprisonment. E and S met in January 2004 and they began to cohabit in June 2004, planning to marry in September 2004. 4 The Council began these proceedings because they were concerned that S had become abusive and that E was at risk of domestic violence and sexual exploitation. While this preliminary issue before the court concerns the Council’s attempt to prevent their marriage, the Council also seeks to prevent E and S from associating. Their contention is that E lacks the capacity to make decisions about where she should live, about whether she should have contact with S and about whether she should marry S. 5 This case, therefore, raises important questions about the extent to which the court should exercise its inherent jurisdiction to determine capacity and potentially prevent a young woman from marrying the person whom she wants to marry: see Re F (Adult: Court’s Jurisdiction) [2001] Fam 38 and In re S (Adult’s Lack of Capacity: Carer and Residence) [2003] 2 FLR 1235. 6 The dispute concerns the question to be put to the consultant psychiatrist, Dr M. The Council asked Dr M to determine the following issues: “1. Does E have the mental capacity to conduct litigation? 2. Does E have the mental capacity, in accordance with the re MB test to decide: (a) whether or not she should have contact with [S] and whether she is able to assess the risk of * We would like to thank Davina Cooper, Peggy Ducoulombier, Jonathan Herring, Ben Hunter, Rosemary Hunter, Clare McGlynn, Jean McHale, Erika Rackley and Hilary Sommerlad for their helpful comments.

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352 Nicola Barker and Marie Fox contact with [S], (b) where she should live in the light of such a risk assessment, (c) whether or not she should marry [S] in the light of such a risk assessment? 3. Is it likely that E will acquire capacity to make her own decisions in respect of these matters and if so, what is the likely timescale and what help or support could be given to that end?” 7 E’s solicitors argued that the appropriate questions concerned whether or not E has the capacity to understand the nature of the marriage contract and the rights and responsibilities of marriage generally, rather than whether she understands the implications of marrying S in particular. The Council’s solicitors rejected this view, arguing that Dr M “should be asked to address the issue of capacity in the context of the particular decisions [E] apparently wishes to take”. The issue that this court must determine is which is the appropriate test of capacity to marry. 8 In seeking the correct test for capacity in this case, Munby J considered, and then rejected, an analogy between capacity to marry and capacity to make medical decisions and to litigate. Holding that the question in this case is whether E understands the nature of the marriage contract and the rights and duties that attach to it, he concluded at [2005] Fam 326, para 68, that: “The law, as it is set out in these authorities, can be summed up in four propositions. (i) It is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words. (ii) He or she must understand the nature of the marriage contract. (iii) This means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage. (iv) That said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend. The contract of marriage can readily be understood by anyone of normal intelligence.” 9 Munby J thus agreed with counsel for E and S that the contract of marriage is the same for everyone. The Council appeals on the grounds that Munby J misdirected himself on the issue of capacity to marry. Tests of capacity 10 English law presumes that, in the absence of evidence to the contrary, adults are capable of making decisions about how to live their lives. Capacity is a matter of law, in the sense that a person having capacity is legally recognised as having authority to make decisions about their lives. It is a foundational concept not only in the context of this case, but more broadly in our legal and political lives. If the threshold for capacity is set at a high level this may disempower individuals by taking decisions out of their hands, whereas to set the threshold too low risks allowing individuals to reach decisions they are not competent to make. 11 The Council contend that E lacks the capacity to make decisions about where she should live, about whether she should have contact with S and about whether she should marry S. As Munby J observed, given the presumption of capacity, the onus is therefore on the Council to establish the lack of capacity on E’s part that they allege.

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Sheffield City Council v E—Judgment 353 The correct approach to determining capacity 12 Munby J held that capacity is the ability to understand the nature and quality of the transaction: see M’Naghten’s Case (1843) 10 Cl & Fin 200. He thus followed a long established approach that capacity is “transactional”’ or “functional”: see In the Estate of Park, decd [1954] P 112; Masterman-Lister v Brutton & Co (No 1) [2003] 1 WLR 1511. This means that one may have capacity for one purpose (such as litigation) whilst not having capacity for another (such as marriage). In its review of the law on capacity, “Mental Incapacity” (1995) (Law Com 231), para 3.5, the Law Commission found that: “Most respondents to our overview paper strongly supported the ‘functional approach’. This also has the merit of being the approach adopted by most of the established tests in English law. In this approach the assessor asks whether an individual is able, at the time when a particular decision has to be made, to understand its nature and effects.” 13 In the context of capacity to consent to medical treatment, this “functional test” is clearly endorsed. Munby J referred, amongst others, to the statement of Lord Donaldson of Lymington MR in Re T (Adult: Refusal of Treatment) [1993] Fam 95, 113: “What matters is that the doctors should consider whether at that time he had a capacity which was commensurate with the gravity of the decision which he purported to make. The more serious the decision, the greater the capacity required.” Similarly, in relation to litigation, Munby J concluded at [2005] Fam 326, para 39, after reviewing the relevant case law, that: “Someone may have the capacity to litigate in a case where the nature of the dispute and the issues are simple, whilst at the same time lacking the capacity to litigate in a case where either the nature of the dispute or the issues are more complex. In this sense litigation is analogous to medical treatment. Some litigation, like some medical treatment, is relatively simple and risk free. Some litigation, on the other hand, like some medical treatment, is highly complex and more or less risky. Someone may have the capacity to consent to a simple operation whilst lacking the capacity to consent to a more complicated—perhaps controversial—form of treatment. In the same way, someone may have the capacity to litigate in a simple case whilst lacking the capacity to litigate in a highly complex case.” 14 In contrast, when Munby J turned to the issue of marriage, his analysis of the case law suggested that marriage is a different type of institution, which lacks the variations to be found in the broad categories of medical treatment and litigation. He followed Singleton LJ in In the Estate of Park, decd [1954] P 112 by holding at para 83 that in order for a person to have capacity to marry, they must be capable of understanding the nature of the marriage contract and “be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage”. Thus, on Munby J’s reading of the marriage cases, there are no different levels of understanding required in relation to capacity to marry.

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354 Nicola Barker and Marie Fox 15 Munby J explained that it is not enough for a person simply to understand the words of the marriage ceremony; they must also comprehend the meaning of those words and the rights and duties that attach to marriage. We will return below to this view of marriage as a transaction imposing rights, responsibilities and duties. Here we are concerned with Munby J’s conclusion at para 60, in agreement with Sir James Hannen P in Durham v Durham (1885) 10 PD 80, 81–82, that the case law demonstrates that: “the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all others.” Similarly, in In the Estate of Park, decd [1954] P 89, 100, Karminski J said: “It is clear, then, that marriage is in its essence a simple contract which any person of either sex of normal intelligence should readily be able to comprehend.” The distinction between capacity to marry and to consent to medical treatment 16 Following these authorities, Munby J concluded that the capacity required to enter into a valid marriage is relatively low, and certainly that the threshold is lower than the capacity required to decide about medical treatment or to litigate. Having examined the relevant jurisprudence and concluded that the test for capacity to marry had remained unchanged since 1954, Munby J also accepted, at para 86, the submissions of counsel for S and E that the test to be applied differs from that which has evolved in a medical context: “It is not, in my judgment, an appropriate analogy at all, not least for the reason Mr Whitfield [counsel for E] gave, namely that medical procedures, as he rightly says, vary whilst the contract of marriage is the same for everyone.” However, although well-established precedent does indeed support this view, it is notable that such precedents all predate the evolving law on capacity to determine medical treatment. This raises the question of why entering into a transaction such as marriage, which may have vastly greater consequences for the individual and pose considerably more risk to them than consenting to medical treatment, should require a lower level of capacity. 17 In our view, the lower court’s attempt to distinguish between tests for capacity in various situations requires further scrutiny. Munby J stated that two features distinguish capacity to consent to or refuse medical treatment and capacity to litigate on the one hand, from capacity to marry on the other. 18 First, he suggested at para 86 that “medical procedures . . . vary whilst the contract of marriage is the same for everyone”. However, this serves, wrongly, to ascribe a fixed essence to both types of transaction. Certainly, cases such as Re T (Adult: Refusal of Treatment) [1993] Fam 95, 113 suggest that medical procedures vary according to the risks they present. Some—such as a test for blood pressure— will be risk free, thus requiring little by way of comprehension of risks and benefits and how they are to be balanced. Other medical interventions will be potentially life threatening, and will require the patient to demonstrate that they

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Sheffield City Council v E—Judgment 355 meet a higher threshold of capacity. As Butler-Sloss P stated in Re MB (Medical Treatment) [1997] 2 FLR 426, 437: “The graver the consequences of the decision, the commensurately greater the level of competence is required to take the decision.” 19 Similarly, marriage contracts will vary in the degree of risk that they pose. In our view, the matter of whom one chooses to marry will be a crucial determinant of the risk that entering into such a contract poses. Contracting a marriage with a spouse who has a history of convictions for serious violence is precisely the sort of transaction that demands a higher level of understanding of the risks involved. 20 We are reinforced in our view that there is no abstract and universal contract of marriage that remains the same for everyone by the fact that, as Munby J correctly noted, there is no definitive list of factors that must be present in all marriages. Herring in Family Law (2nd ed, 2004), p 34, sums up the position thus: “The law on marriage merely provides parameters within which the couple are free to develop the content of their marriage as they wish.” We agree. To some extent, marriage is what the parties make it, subject, of course, to the broad framework imposed by the state that is contained largely within the Matrimonial Causes Act 1973. 21 We find that although there are certain (largely unarticulated) social norms and ideals associated with marriage, it is impossible to capture the range of relationships that may be encompassed within the legal framework of marriage in an abstract definition. Marriage should not be universalised. Nor should it be idealised. In contrast to commonly held romantic notions of what marriage is, we must recognise that legal marriages, as Lord Millet has recently outlined in Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 78, “need not be loving, sexual, stable, faithful, long-lasting, or contented”. All too often they are unpleasant, abusive and violent. In this context, it is appropriate that E should, at a minimum, be aware of the fact that sometimes marriage is not pleasant and have the capacity to weigh the potential benefits and risks inherent in a marriage to S. 22 On this basis, we reject Munby J’s view that marriage is a universal and simple contract. Once it is recognised both that marriage no longer has (or should have) what Professor O’Donovan referred to in Family Law Matters (1993) as a sacred, magical status, and that there is no universal fixed essence of marriage, it can be seen that the analogy with medical treatment is appropriate. Just as there are different types of medical treatment, there are varieties of marriage. Just as the level of risk involved in medical treatment depends on the type of treatment and who administers it, the level of risk within marriage depends on the spouses and other circumstances. 23 The second distinction that Munby J drew between marriage as compared to litigation and medical treatment, at [2005] Fam 326, para 87, was that: “Marriage . . . is not something on which the average person needs to obtain either expert advice or expert assistance. Litigation and medical treatment, in contrast, are both activities where the average layman [sic] needs, and is accustomed to obtaining from an appropriately qualified professional person, expert information, advice and assistance.” However, whether someone in fact needs such expert advice and assistance will depend on the context in which the decision is to be made. As the case law on

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356 Nicola Barker and Marie Fox consent shows, decision-making in medical contexts is no longer a process dominated by health care professionals. As Lord Scarman stated in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and others [1985] AC 871, 888, in the realm of diagnosis and treatment of disease, the doctor is undoubtedly qualified in a way that the patient is not, and therefore the application of a professional standard—rooted in the Bolam test of what a responsible body of medical opinion would do (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582)—is appropriate. However, when it comes to determining what information should be disclosed to the patient to facilitate his or her decision-making process, a more patient-centred test is appropriate, as the choice will be dependent on the patient’s own values. Although this was not the prevailing view at the time, since 1987 the law has certainly moved closer to Lord Scarman’s position, in recognising the importance of informed consent and grounding it in a rhetoric of human rights: see Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167; Chester v Afshar [2005] 1 AC 134. Mundane treatment decisions will frequently be reached autonomously by the patient, while more complex ones will be made in partnership with a health professional in the light of the patient’s own values. 24 Similarly, in reaching a decision about marriage, many potential partners may benefit from professional relationship counseling. We therefore doubt that assumptions regarding the necessity for or desirability of professional guidance in reaching a decision can provide a valid reason to distinguish decision-making about marriage from decisions about medical interventions. We would also add for the avoidance of doubt that nothing in this judgment is intended to call into question the current law on capacity to consent to medical treatment, or to require a higher threshold of capacity than that which currently applies. Rather, we find that the test which currently governs determination of capacity in decisions about medical treatment can appropriately be applied to the context of marriage, so as to enable courts to arrive at decisions which take account of all the circumstances that are pertinent to that decision. 25 We find that Munby J too readily characterised medical decision-making as a difficult and inherently risky procedure requiring professional advice and guidance, while marriage was rendered as a straightforward and uniformly beneficial contract. In fact, both transactions are hugely variable and in each case the role of the court is to determine whether the person has the requisite capacity to enter into the particular transaction in question. 26 Having found that no reason exists in principle to draw a distinction between the capacity required to marry and the capacity to consent to medical treatment, we must consider whether any practical reasons exist which would support the existence of different tests. In our view they do not. In the first place, as Munby J himself acknowledged at [2005] Fam 326, para 117, the institution of marriage has changed significantly since the 1950s: “We tend to forget the astonishing extent to which society’s views about marriage, and about the place of women, not merely in society but also in the home and in marriage, have changed; not only, and most obviously, since Sir James Hannen P was speaking in 1885 but also in the 50 years and more that have elapsed since the Court of Appeal gave judgment in In the Estate of Park, decd [1954] P 112.”

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Sheffield City Council v E—Judgment 357 27 This judicial acknowledgement (also evident in R v R [1992] 1 AC 599), coupled with an evolving body of jurisprudence which has elaborated on the test for capacity in other contexts since 1954, makes it surprising that Munby J should have concluded that the marriage contract and the test of capacity to enter into it should have remained unchanged over that same period. Growing societal awareness of the risks of domestic violence suggests that marriage is not a transaction to be entered into without full awareness of the risks that may accompany it, particularly given the sexually violent history of E’s intended spouse. It is therefore wrong, in our view to hold that the test for capacity to marry has remained unchanged, given the significant social changes in the understanding of marriage since 1954. 28 Furthermore, it is unclear how workable the test in Park, which is defined in terms of ‘normal intelligence’, is in practice. Interestingly, a test rooted in intelligence has been expressly rejected in cases concerning medical treatment. In Re T (Adult Refusal of Treatment) [1993] Fam 95, 112 Lord Donaldson stated: “The right to decide one’s own fate presupposes a capacity to do so. Every adult is presumed to have that capacity, but it is a presumption which can be rebutted. This is not a question of the degree of intelligence or education of the adult concerned.” 29 The test employed in medical treatment cases is considerably more nuanced, in that it allows context to be taken into account. The first case to offer a detailed test of the capacity to consent or refuse medical treatment was Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 295. Thorpe J formulated a three-fold test in the following terms: “I consider helpful Dr Eastman’s analysis of the decision-making process into three stages: first, comprehending and retaining treatment information, secondly, believing it and, thirdly, weighing it in the balance to arrive at a choice. The Law Commission has proposed a similar approach in paragraph 2.20 of Law Commission Consultation Paper No. 129, “Mentally Incapacitated Adults and Decision-Making.” Applying that test to my findings on the evidence, I am completely satisfied that the presumption that C. has the right of self-determination has not been displaced.” 30 This three-fold test of capacity was subsequently affirmed by Butler-Sloss P delivering the judgment of the Court of Appeal in Re MB (Medical Treatment) [1997] 2 FLR 426, 427 and in Re B [2002] 1 FLR 1090, para 33. 31 Recently Munby J himself emphasised the role which the ability to think rationally plays in competent decision-making. In R (Burke) v General Medical Council [2005] QB 424, para 42, he stated: “Essentially capacity is dependent upon having the ability, whether or not one chooses to use it, to function rationally: having the ability to understand, retain, believe and evaluate (ie, process) and weigh the information which is relevant to the subject matter.” 32 It is beyond dispute that a competent person may choose to act irrationally and to make unwise decisions. As Butler-Sloss P stated in Re MB (Medical Treatment) [1997] 2 FLR 426, 432:

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358 Nicola Barker and Marie Fox “A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death, see Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 per Lord Templeman at pp 904–905; see also Re T (Adult: Refusal of Medical Treatment) [1993] Fam 95, 102 . . . per Lord Donaldson MR.” 33 Yet a person must, for the purposes of making medical decisions, be capable of evaluating relevant information, including the risks of alternative courses of action. Such a definition of capacity, based on possessing the ability to comprehend and retain information, which is then weighed to arrive at a decision, is fact and context specific. It acknowledges that different types of medical treatment will require different levels of understanding, so that a person may have capacity to decide about a procedure that is less medically risky, whilst lacking capacity for a procedure that carries more risk. In our view this is equally true of decisions about marriage. 34 A similar test should, therefore, in our view, be applicable in cases where it is the capacity to marry which is at issue. As Thorpe LJ stated in Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290, 295, in the medical context: “the question to be decided is whether it has been established that C’s capacity is so reduced by his chronic mental illness that he does not sufficiently understand the nature, purpose and effect of the treatment.” Applying a similar test to E’s situation would require her to be capable of processing and understanding information about S’s sexually violent background, believing it and then evaluating and weighing the risks that would attach to marrying someone with a violent past. The information that is available about E’s intended spouse in the circumstances of this case renders it a more complex transaction than other decisions to marry, and focuses the test on the risks of marrying this particular person. The significance of S’s history 35 This case is not concerned with whether S will in fact abuse E, but rather with whether E understands that this is a possible consequence of marrying him. Though we must not presume guilt or ignore the possibility of S’s rehabilitation, it is reasonable to consider that a greater level of risk exists when an intended spouse has a number of convictions for sexually violent offences and is a Schedule 1 offender than when he is not. 36 Although a recent study by Craig, Browne and Stringer, “Treatment and Sexual Offence Recividism” (2003) 4(1) Trauma, Violence and Abuse 70, has suggested that in general, treatment programmes are not particularly effective in reducing sexual offence recividism, we have little information about S’s history and whether he has received treatment, and it is not for this court to speculate on whether he will reoffend. Such a prediction is impossible to make. 37 Were S to reoffend, however, the consequences for E’s safety would be grave. Conviction levels for all categories of sexual offences and domestic abuse are notoriously low and this is, unfortunately, very likely to be exacerbated where

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Sheffield City Council v E—Judgment 359 the victim has mental health or learning disabilities. In this case it is likely to present particular difficulties for E should she be a victim of such abuse. 38 It may be suggested that since S is on or has completed probation, which may entail treatment, that he may thus pose less risk than another man without such a history: S will no doubt be well aware both that he is subject to increased scrutiny and suspicion and of the legal consequences of his past actions. Short of requiring that all men must disclose their conviction status prior to marriage, it will be impossible for most putative spouses, vulnerable or otherwise, to make the assessment we are expecting of E. Alternatively it may be suggested that any man is a potential abuser and on that basis we should treat S no differently. However, in our view this case may be distinguished from the typical decision to marry for the following reason. 39 E’s family and the Council, which believe they have responsibility for her welfare (a matter to be determined at the full hearing), have become concerned by her relationship with S. In effect, the Council has notice that E may be being mistreated. In this context, the Council has a duty to act to protect E which must, at a minimum, involve ensuring that E has capacity to make an informed decision about whether to marry S. 40 This duty derives from article 3 of the European Convention on Human Rights, which imposes an obligation on the state to protect citizens from torture, inhuman or degrading treatment. If the state is aware of allegations of domestic abuse, they have a duty under article 3 to intervene even where the allegations are made against a private individual: HLR v France (1998) 26 EHRR 29. In fact, the European Court of Human Rights has indicated in A v United Kingdom (1999) 27 EHRR 611, 629–630, that a heightened duty may exist in relation to more vulnerable members of society: “Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity.” 41 Parliament, through the Human Rights Act 1998, has made it clear that the courts must uphold the duties contained within the Convention. We find Munby J’s approach to capacity to be inconsistent with the article 3 obligation. If E is in fact a vulnerable adult (an allegation which she contests and which is to be determined at the full hearing), then the court has a particular duty to protect her. This protection is denied if the test for capacity to marry is set inappropriately low due to romanticised views of marriage as a universal good. 42 We emphasise that this duty does not end if E is found to have capacity to marry S. Abuse is not confined to marriage, and the article 3 duty applies whether or not the parties are married. This case, however, is concerned only with E’s capacity to marry S. The question of whether E and S should continue to cohabit or associate is a separate one and is not at issue before us. Protection or discrimination? 43 We share Munby J’s concern about unnecessarily discriminating against those with learning difficulties by setting the test of capacity too high. However, an element of protection, whether for third parties or those who might be vulnerable within marriage, is an important aspect of the legal institution of marriage. For

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360 Nicola Barker and Marie Fox example, provisions exist in the Matrimonial Causes Act 1973 to prevent minors and those within the prohibited degrees of relationship from contracting a valid marriage in any circumstances (section 11(a)(i) and (ii)); and a marriage is voidable if it was not voluntary (section 12(c)). The formalities required to marry also suggest an element of protection, particularly in relation to third parties. Thus, in order for a valid marriage to be formed, whether civil or religious, the parties must publicise their intention to marry and the ceremony must usually take place in public: Marriage Act 1949, section 27; Marriage Act 1994. 44 It is worth emphasising that the question of E’s capacity in this case is not a matter of her being considered unfit or somehow “defective” as a spouse because of her disabilities, but rather about whether she might be rendered more vulnerable through marriage. The key question is therefore less about discrimination against E as such, but rather concerns the extent to which the court should intervene to protect her. We return to the potential issue of discrimination against E and S below. 45 This case concerns both E’s status as someone who may lack a full understanding of marriage and S’s history. To allow a “vulnerable adult” to put themselves into a potentially dangerous situation without giving full consideration to claims that she is unable to assess the (potential) consequences of the decision she is about to take would be to abdicate the court’s responsibility for protecting E. We reject suggestions that this constitutes discrimination or undue paternalism. We are not claiming that the court “knows best” what is good for E. Rather, we find that the court has an obligation to ensure that E has the capacity to make this decision. 46 In this case, strong grounds exist, based on S’s history, for concerns about E’s safety and that is something that, however cautiously, we must address. We are very mindful of the risk of infantilising E. A tendency to infantilise those with learning difficulties is a particular danger when the concept of mental age is invoked. Such standardised tests of intelligence have largely been discredited in professional circles and have no role in defining capacity. Regardless of whether E is found to have capacity to marry by the lower court, it is certainly wrong to infantilise those who have been assigned the mental age of a child by treating them as actual children, given that they are biologically, and perhaps emotionally, adults. 47 The focus must, instead, be on the circumstances and context in which E intends to marry. To suggest, as Munby J did, that if E lacks capacity to marry S she would lack capacity to marry anybody, is analogous to failing to distinguish between capacity to consent to the removal of a wart on her finger and to openheart surgery in a medical context. While it is not the court’s place to determine the suitability of putative marriage partners, the court does have a role to play in addressing concerns about the nature of S’s history and satisfying itself that E is able to make a judgment about the potential threat this poses. If the psychiatrist’s evidence were to show that E possesses this level of understanding and is able to weigh those risks, with a full understanding of what marriage to S means, then the court has no power to prevent the marriage. In any event, the article 3 duty remains and the state must act immediately in the event of any mistreatment.

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Sheffield City Council v E—Judgment 361 Articles 8, 12 and 14 48 Finally, it is necessary to address the implications of our decision in relation to rights arising under articles 8, 12 and 14 of the Convention. 49 Article 8(1) provides that: “Everyone has the right to respect for his private and family life.” This could be invoked in the context of a right held by E and S to a private and family life as a couple. However, unlike article 3, article 8 is not an absolute right and there are circumstances under which it can be lawfully infringed, as provided by article 8(2): “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of . . . the protection of the rights and freedoms of others”. 50 It is well established that any interference with a qualified right must be proportionate. As Lord Steyn outlined in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 547, this requires the courts to assess the balance struck between the rights of the individual and the legitimate aim being pursued. In this case, it is clear that the legitimate aim being pursued by the local authority and E’s family is the protection of E’s right to be free from inhuman and degrading treatment under article 3, albeit that such protection is against her wishes. 51 There have been a number of cases before the European Court of Human Rights in which it has been deemed necessary and consistent with the Convention to protect a party against their own wishes: see, for example, Nielsen v Denmark (1989) 11 EHRR 175; HM v Switzerland (2004) 38 EHRR 17; HL v United Kingdom (2005) 40 EHRR 32. This case falls within that category. 52 We find that interference with E’s and S’s right to a private and family life is necessary and proportionate to the aim pursued. The present proceedings simply require that there be a contextualised enquiry into E’s capacity to marry; there is no question of prohibiting the marriage per se. The issue of whether E and S may form a family (or otherwise associate) outside of marriage is not at issue in this case. If E is found not to have the capacity to marry S, the court will need to determine this at the full hearing with due regard to the rights under article 8. 53 Article 12 seeks to protect the right to marry and found a family. This right is subject to the national laws of the contracting states and is therefore, like article 8, not an absolute right. The right to marry is rightfully subject to a test of capacity under national law. To the extent that the test of capacity interferes with E’s right to marry and found a family, it does not violate article 12 for the same reason that it does not violate article 8. That is, it is imposed in pursuit of a legitimate aim, and is a necessary and proportionate means of achieving that aim. 54 Indeed, our construction of capacity to marry provides both a heightened and more nuanced respect for E’s right to marry. Had E failed to meet Munby J’s, albeit reduced, level of capacity to marry, she would have been unable to marry at all. Our test requires that in the present circumstances a higher threshold of capacity must be reached by E, in order to protect her physical and mental well-being. However, should it be determined that she lacks capacity to understand the (potential) nature of marriage to S, this would not necessarily preclude her from marrying in other circumstances. Continuing with the medical analogy, a lack of

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362 Nicola Barker and Marie Fox capacity to consent to (or refuse) open-heart surgery would not necessarily imply a similar lack of capacity to consent to (or refuse) a blood-pressure test. 55 There is also the potential for article 14 to be invoked, for example in the claim that our decision would entail discrimination against people with learning disabilities or people who are ex-offenders. It is well established that article 14 is not a stand-alone provision and that the issue in question must fall within the ambit of another article. Though we find no infringement of them, this case clearly falls within the ambit of articles 8 and 12. 56 For the purposes of article 14, there must be a distinction or difference in treatment which cannot be objectively and reasonably justified. In this case, however, there is no relevant distinction or difference in treatment. The test of capacity to marry we propose does not prevent the members of any group from marrying, but rather requires a contextualised enquiry in the circumstances of each individual case, which is aimed at protecting the interests of the vulnerable. Conclusion 57 The original letter to Dr M from the Official Solicitor set out the following information as being relevant to a decision about where E should live and whether or not she should marry or have further contact with S: “1. information about E’s understanding of the implications of marriage, the concept of marriage, sex, the ability to care for any children resulting from the relationship, the legal relationship between husband and wife, implications of marriage on finance and property rights; 2. information about any physical, psychological or emotional harm or distress which may be sustained as a result of further contact with [S] and/or the marriage; 3. information about the advantages and disadvantages for the individual and in her lifestyle or about the opportunities which further contact with [S] and/or marriage will provide in the short term, medium term and long term; 4. information about E’s understanding of the gravity and implications of [S]’s previous criminal convictions, his acceptance of or lack of acceptance of guilt and the risk [S] poses of committing further sexual or violent offences in the future; 5. information about E’s understanding of the weight to be attached to allegations made against [S] that may not result or have resulted in criminal convictions to date.” 58 We concur with the Official Solicitor’s view about the importance of this information to the decision concerning E’s capacity. Since marriage does not have a fixed and universal essence, and the risks associated with marriage will differ depending on who the intended spouse is, Munby J erred in rejecting the test of capacity applied in relation to medical decision-making. The proper question in this case is whether E understands the nature of the marriage she intends to enter. In other words, just as a medical patient will require a higher level of understanding in order to have capacity to consent to higher risk medical procedures, E must not only understand the institution of marriage generally, but also the risks and other consequences that may result from marriage to S. 59 We therefore hold that the question sought to be posed to Dr M by the Council was the correct one. We allow the appeal and remit the case for hearing on the substantive issue in light of our reasons given herein.

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21 Commentary on R v Portsmouth Hospitals NHS Trust, ex parte Glass ANNE MORRIS

Introduction The story of David Glass and his mother, Carol, illustrates the complexities of the relationship between the law and medicine and the potential for conflict when family carers dispute the expert (clinical) opinion of health care professionals. In the drama played out in court in such cases, it is rare for family to have a role that is more than peripheral. A law report is, in theory, the embodiment of rationality and objectivity. The judge as the disinterested observer ‘finds the facts’ (that is, chooses which story to believe) and applies the law. Emotion is secondary to science and in these cases the view of a mother, coloured by love, runs the risk of being dismissed as wishful thinking or even deliberately obstructive.1 The approach taken by the judges is, mostly, atomistic: the focus is on the best interests of the patient, so the views of the family are secondary, and certainly given less weight than clinical observations. As Jo Bridgeman’s feminist judgment illustrates, however, it is possible in arriving at a decision as to a child’s best interests for the law to recognise the importance of the views of the primary carer, based in their experience of the needs, welfare and interests of the child. Feminists have argued for the importance of an ethic of care which ‘stresses the moral force of the responsibility to respond to the needs of the dependent’.2 Rather than focus on the (unconnected) individual and the rational, it is argued that the ethics of care ‘typically appreciates the emotions and relational capabilities that enable morally concerned persons in actual interpersonal contexts to understand what would be best’.3 Medical law and ethics have countered medical paternalism by emphasising patient autonomy, but the result has been to create a ‘legal image of an isolated individual patient’.4 This does not accord with the lived realities of most people, whether adults or children. As Herring has argued, ‘the law must regard relationships as key to its thinking and not ignore them’.5 It is this recognition of interdependence and care that underlies the feminist judgment given by 1 A National Health Service Trust v D [2000] 2 FLR 677 (F); Re Wyatt (A Child) (Medical Treatment: Continuation of Order) [2005] EWHC 2293 (Fam), [2005] 4 All ER 1325. 2 V Held, The Ethics of Care (Oxford, Oxford University Press, 2006) 10. 3 ibid 11. 4 J Herring, ‘Where are the Carers in Healthcare Law and Ethics?’ (2007) 27 Legal Studies 51, 66. 5 ibid 67.

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364 Anne Morris Bridgeman, along with a recognition of the egregious failures of the NHS Trust in its approach to what was clearly a fraught situation.

The Facts Cases are decided by a judge ‘finding’ the facts from the evidence put before the court, and then applying the law to those facts. In evaluating the decision, a commentator must rely on information which the judge chooses to include in the judgment. At both stages, facts are carefully selected in order better to present the argument or support the judgment. Exceptionally, if the case attracts press attention or is of special significance to particular interest groups, more detail may be forthcoming.6 It can be difficult to gain an accurate picture and in the Glass case,7 there are particular problems in identifying exactly what happened and why. Some of the evidence put forward was contested by one side or the other, other information first appears when the case was heard in the European Court of Human Rights.8 But perhaps the most striking aspect is the discrepancy in the description of 12-year-old David Glass. While his family saw a happy, much loved boy who derived pleasure from his life and family, the doctors saw a seriously disabled child, whose quality of life was so dire that it would be better if he were allowed to die. What is clear is that the case arose out of a dispute as to appropriate medical treatment for David who was born with multiple physical and intellectual disabilities.9 He was described by the judge in the High Court10 as having ‘limited cognitive function’ but he laughed, smiled and registered likes and dislikes by facial expressions. David lived at home with his mother, who cared for him with the help of her extended family. The family GP, who had known the family since David was 18-months-old, thought that they were ‘sensible and intelligent people’. He also commented on the ‘unbelievable burdens of care’ which the family had undertaken, with little outside support. Following an elective tonsillectomy, carried out at St Mary’s Hospital Portsmouth to relieve his breathing, David’s health deteriorated: doctors concluded that he was dying, and that aggressive therapy would be inappropriate. He was discharged but returned to hospital on a number of occasions and doctors raised with his mother the possible use of morphine to ‘alleviate distress’. She consistently refused, knowing that a side effect is to depress respiration and that it was intended as palliative, rather than life-saving, treatment. Subsequently, relations between the family and the hospital worsened to such an extent that at one meeting a police officer was present at the request of the hospital. Carol said that if David was dying, she wanted to take him home, but was advised that if she attempted to remove him, she would be arrested. When administration of morphine was started, a violent struggle broke out on the ward. The family became embroiled in a fight with the 6 See, eg, www.spuc.org.uk/about/no-less-human/THE_CASE_OF_DAVID_GLASS_WV.pdf. For press reports, see eg, www.guardian.co.uk/uk/1999/jul/22/claredyer; www.telegraph.co.uk/news/uknews/1456791/ Do-Not-Resuscitate—-and-dont-bother-consulting-the-family.html. 7 R v Portsmouth Hospitals NHS Trust, ex p Glass (1999) 50 BMLR 269 (QB); [1999] 2 FLR 905 (CA). 8 Glass and Another v United Kingdom (2004) 39 EHRR 15. 9 Carol Glass’s views may have been coloured by the fact that after David was born at the same hospital she had sued them for negligence, and had recently settled the claim. 10 Above n 7 (QB).

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R v Portsmouth Hospitals NHS Trust, ex parte Glass—Commentary 365 doctors and during the ensuing disturbance Carol (or another family member) resuscitated David.11 Unknown to Carol, a ‘do not resuscitate’ order had been placed in David’s notes. According to Lord Woolf in the Court of Appeal, doctors told police that the family’s actions had prevented David’s death. David’s condition improved; he was swiftly discharged and under the care of his family and his GP his health recovered. The hospital wrote to Carol telling her they were no longer prepared to accept David as a patient and arrangements were made with a hospital 25 miles away to treat David should the need arise.

Judicial Review Carol Glass wished to establish that the hospital had acted unlawfully in ignoring her wishes and also sought declarations as to how doctors should lawfully proceed in the event of any future disagreements about David’s care. In the Queen’s Bench Division of the High Court, Scott Baker J refused to make the declarations sought, and the case arrived in the Court of Appeal on an application for permission to appeal against his decision. This is important: while the facts are dramatic, the judges were primarily concerned with the technical legal question as to whether David’s mother was entitled to seek judicial review of the Trust’s decisions in relation to David’s treatment.12 Most cases which arise out of disagreements between doctors and the parents of child patients are heard, often at short notice, in the Family Division of the High Court where the judge must decide, on the basis of expert evidence, what are the best interests of the child. The judge may be assisted by the Official Solicitor, an official appointed to represent the interests of the child patient.13 In Glass, however, because of the nature of the proceedings, the focus was less on David and more on the availability or otherwise of judicial review—a mechanism whereby the court can pronounce on the legality of the actions of a public authority, such as an NHS Trust.14 Carol Glass was outraged by the decision to offer only treatment which would ease David’s dying. By the time the case came to court David had proved the doctors wrong but the potential for conflict, even in a different hospital, remained. Carol wanted the court to declare, amongst other things, that withdrawal of treatment cannot proceed in the face of parental refusal without application to the Family Division of the High Court, and that it would be unlawful not to seek court authorisation in these circumstances. Neither the High Court nor the Court of Appeal would grant such a declaration, holding that judicial review was not an appropriate remedy. If there is disagreement, the case should be brought to court immediately, to determine the best interests of the child at that time. An answer to a particular problem was, according to the Court of Appeal, much better than a generalised, hypothetical answer given in advance.

11 This is an instance of different versions of the facts give by the Court of Appeal and the European Court of Human Rights. 12 At no stage did the judges in the domestic courts decide on the lawfulness of the doctors’ actions. 13 See the reference to the Official Solicitor in Glass, above n 7 (CA) at 910. 14 For example, decisions not to fund a particular treatment: see, eg, R v Cambridge Health Authority ex p B [1995] 1 WLR 898 (CA); C Newdick, Who Should We Treat? Rights, Rationing and Resources in the NHS (Oxford, Oxford University Press, 2005).

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366 Anne Morris

The Legal Background The idea of the patient as an autonomous, rights-bearing individual is reflected in the legal principle that competent adult patients may refuse medical treatment, and a doctor who treats a patient without consent commits an assault.15 In the case of children who lack the capacity to consent, whether because of their very young age or because of intellectual disabilities, the power to consent or refuse lies primarily with a person with parental responsibility. However, the law obliges that person always to exercise this power in the best interests of the child, otherwise parental wishes may be overridden.16 If parental refusal is contrary to the child’s welfare, doctors may seek authorisation from the court so that treatment can proceed. Similarly, if doctors do not wish to treat, they may ask a judge to confirm whether or not withdrawal of treatment will be lawful. Court involvement may be sought for a specific issue order under section 8 of the Children Act 1989, or under the court’s inherent jurisdiction.17 In either case, the court is bound to reach a decision which has as its paramount concern the welfare of the child.18 The law on withdrawing treatment from children was developed in a series of cases in the 1980s and 1990s which established the principle that the role of the judge is to perform a balancing exercise, weighing the benefits and burdens of continued treatment.19 While describing this as ‘the critical equation’,20 Lord Donaldson has also held that neither parents nor the court can order doctors to treat against their professional judgement.21 The courts are understandably reluctant to be drawn into second-guessing the clinical judgements of doctors, but this raises the question as to whether ‘best interests’ is a purely clinical matter. Who, precisely, judges whether the quality of a life is such that death would be preferable? Should it be the doctors, the judges, or those more intimately concerned with the patient, such as someone like David’s mother? Although best interests were once largely gauged by reference to medical considerations,22 in theory, this is no longer so. In Re A (Medical Treatment: Male Sterilisation),23 Butler-Sloss P held that ‘best interests encompasses medical, emotional and all other welfare issues’.24 It is arguable, therefore, that there is, rightly, room for the consideration of the views of carers. In general, however, the focus remains on the patient and not on the family: judges repeatedly state that while family views may be considered, they cannot be determinative.25 This overlooks not only the impact that 15

See Re B (Adult: Refusal of Medical Treatment) [2002] EWHC 429 (Fam), [2002] 2 All ER 449. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL) 184 (Lord Scarman). See also, eg, Re S (A Minor) (Medical Treatment) [1993] 1 FLR 377 (F): authorisation of blood transfusion contrary to wishes of Jehovah Witness parents. 17 See, eg, Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 3 WLR 758 (CA) 762 (Lord Donaldson). 18 Children Act 1989 s 1. 19 Re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421 (CA); Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 (CA). 20 Re J, ibid 46. 21 ibid 48. See also Re J (A Minor) (Child in Care: Medical Treatment) [1993] Fam 15 (CA). 22 F v West Berkshire Health Authority [1990] 2 AC 1 (HL), applying Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (QB). 23 Re A (Medical Treatment: Male Sterilisation) [2000] 1 FLR 549 (CA). 24 ibid 555(e). See also Re S (Sterilisation: Best Interests) [2001] Fam 15 (CA); Re L (Medical Treatment: Benefit) [2004] EWHC 2713 (Fam), [2005] 1 FLR 491. 25 See, eg, Airedale National Health Service Trust v Bland [1993] AC 789 (HL) 871 (Lord Goff); Re G (A Minor) (Parental Responsibility: Education) [1994] 2 FLR 964 (CA). cf Re Y (Mental Patient: Bone Marrow Donation) [1997] 16

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R v Portsmouth Hospitals NHS Trust, ex parte Glass—Commentary 367 treatment decisions have on others, but also the moral significance of the views of carers. The failure of the law is its inability to recognise that reality lies ‘not in our autonomy, but our relationships with others’.26 When Carol Glass clashed with doctors, she spoke from the position of someone who understood David’s needs and desires and who knew the importance of her family to David, and of David to the family. At the time the case was heard in the High Court and the Court of Appeal, the Human Rights Act 1998 was not in force and no mention was made of its possible impact. Subsequently, however, Glass went to the European Court of Human Rights where it was held that the decision to impose palliative treatment against the wishes of David’s mother, his proxy decision-maker, contravened article 8 of the European Convention on Human Rights, being an interference with David’s right to respect for his private life and in particular his right to physical integrity.27 Whilst this was a victory of a kind, it should be noted that it was merely held that the hospital was wrong to override parental objection in the absence of authorisation by a court. In other words, the Court did not say that the decision to withhold lifesustaining treatment was in itself a breach of the Convention. Indeed, the Court stressed that: it is not [the Court’s] function to question the doctors’ clinical judgment as regards the seriousness of the [patient’s] condition or the appropriateness of the treatment they proposed. . . . In addition, it cannot speculate on what would have been the outcome of an application by the trust to the High Court for authorisation to pursue the treatment proposed.28

Since the Court did not find that the conduct of the doctors in seeking to withdraw treatment was unlawful (as opposed to their failure to seek court approval), it can be assumed that even if the Human Rights Act had been in force, the outcome would have been no different. Appealing to ‘rights’ is unlikely to trump ‘clinical’ judgement. Moreover, to find a ‘right to treatment’ would lead inexorably into a discussion of resource allocation—an area which judges seem determined to avoid.29

The Feminist Judgment On any level, Glass is a shocking case. It raises some uncomfortable questions about how we judge quality of life and how far views are coloured by attitudes to the physically and intellectually disabled.30 In judging what was best for David, his doctors overlooked or chose to ignore the perspective of his principal carer. This would be less troubling if judges were more prepared to challenge clinical judgements as to quality of life. There is another way, however, as Bridgeman’s feminist judgment illustrates. She refers to Re T (A Minor) in which the Court of Appeal upheld the wishes of parents, contrary to Fam 110 (F): in the interests of incompetent adult to donate bone marrow because of the impact on the family. See also K O’Donovan and R Gilbar, ‘The Loved Ones: Families, Intimates and Patient Autonomy’ (2003) 23 Legal Studies 332. 26 Herring, above n 4. 27 Above n 8 at [70]. Claims based on art 2 (right to life), art 6 (right to a fair hearing) and art 14 (nondiscrimination) were declared inadmissible. 28 ibid [87]. 29 See above n 14. 30 P Boddington and T Podpadec, ‘Measuring Quality of Life in Theory and Practice’ in H Kuhse and P Singer (eds), Bioethics: An Anthology (Oxford, Blackwell, 1999). See also Treat Me Right! (London, Mencap, 2004).

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368 Anne Morris medical advice, not to allow a liver transplant for their infant son.31 The judges drew attention to the fact that the mother was taking a holistic view of her child: she was influenced not simply by the clinical prognosis but also by the pain and distress caused by earlier, unsuccessful treatment. In a statement which attracted a good deal of criticism, Butler-Sloss LJ held: ‘this mother and this child are one for the purpose of this unusual case’.32 This should perhaps be seen in the light of the words of Waite LJ in the same case. He commented that it was not a case of placing the clinical advice of doctors in one scale and the reasonableness of the parent’s view in the other. Rather, he held, there is a spectrum, at one end of which is the case where parental opposition to medical advice is prompted by beliefs irreconcilable with widely accepted principles of child welfare, but at the other end are cases where there is genuine scope for a difference of view between parent and doctor (and judge): [T]he greater the scope for genuine debate between one view and another the stronger will be the inclination of the court to be influenced by a reflection that in the last analysis the best interests of every child include an expectation that difficult decisions affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature.33

It may be that a child with multiple disabilities has a ‘helpless and sad life’, judged by most standards but there is still room for that life to include pleasure derived from being a member of a close and loving family.34 Cases must be decided on their facts and must focus on the particular legal issue raised. Bridgeman reaches the same decision as the judges who originally heard the case, but her reasoning is significantly different. It is clear that for Bridgeman, the role of carers is central and that their views, coloured by experience, must be weighed in the balance and given due recognition. One of the saddest aspects of the case was that those who cared for David—his family and the doctors—ended as adversaries rather than as a team working to promote his health and welfare. Bridgeman strives to clarify the law as it applies here and for others and stresses the importance of recognising the expertise gained from care, as well as from clinical practice.

Further References J Bridgeman, ‘The Quality of Life of Severely Disabled Children’ in Parental Responsibility, Young Children and Healthcare Law (Cambridge, Cambridge University Press, 2007). J Bridgeman, ‘Children with Severe Disabilities and Their Families: Re-examining Private Responsibilities and Public Obligations from a Caring Perspective’ in M Freeman (ed), Law and Bioethics: Current Legal Issues (Oxford, Oxford University Press, 2008). JC Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (New York, Routledge, 1993). P Fennell, ‘Withdrawal of Life Sustaining Treatment for a Child Without Parental Consent’ (2000) 8 Medical Law Review 125. A Pedain, ‘Terminating Care’ (2004) 63 Cambridge Law Journal 306. 31 32 33 34

Re T (A Minor) [1997] 1 WLR 242 (CA). ibid 251. ibid 254. An NHS Trust v MB [2006] EWHC 507 (Fam), [2006] 2 FLR 319 [100].

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[COURT OF APPEAL] REGINA v. PORTSMOUTH HOSPITALS N.H.S. TRUST, Ex parte GLASS 1999 July 21 Bridgeman L.J. Children depend upon others to care for them especially when young, sick or disabled. Naturally, the primary responsibility for the care of children rests with their parents, as those most interested in ensuring their welfare and well-being. But it is not only parents who have responsibilities to children, so too do other relatives, and carers, including professionals. When the child is sick or disabled, doctors, nurses, general practitioners and community health practitioners have responsibilities to them arising from their professional role. Bringing to their role different expertise, experiences and perspectives, it is not surprising if, sometimes, adults contributing to the care of a child form different opinions about what is best for that child. The law should encourage them to work in partnership in the shared endeavour of caring for the child. Yet, the law can operate to polarise positions, entrench differences and encourage the parties into an adversarial battle in which the full armoury of the law is employed in order that one view or the other may prevail. The applicant in this case is a mother who has loved, cared for and nursed her child, dependent upon her as a result of disabilities with which he was born. She placed her trust and the care of her sick and disabled child with doctors. She then found herself ignored by the doctors both she and her child depended upon, unable to convince them that her child was not, as they believed, dying. This is an inconceivable situation to have been put in; I cannot imagine the emotions this mother must have gone through. In my view, the horrific circumstances of this case demonstrate the need for this court to clarify the legal obligations of parents, healthcare professionals and their employing trusts with respect to decisions concerning the medical treatment of dependent and vulnerable children. The circumstances of this case reveal an uncertainty about the legal mechanisms to be employed where there is a difference of opinion between parents and professionals caring for a child which it is incumbent upon this court to clarify, if we are to ensure that events such as occurred at St. Mary’s Hospital, Portsmouth, in October 1998 are not to be repeated in any hospital. This is an application for permission to appeal against the decision of Scott Baker J., sitting in the Queen’s Bench Division, dismissing an application for judicial review of the decisions of Portsmouth Hospitals N.H.S. Trust (“the Trust”) with regard to the medical treatment of a child. I have had the advantage of reading in draft the judgment of Lord Woolf M.R. and I am in agreement with him that judicial review is a procedure of last resort, too blunt a tool and not the appropriate procedure by which to determine decisions about the future medical treatment of children. There is no suggestion that the decisions of the Trust were driven by questions of the allocation of scarce resources (as in Re J. (A Minor) (Child in Care: Medical Treatment) [1993] Fam. 15), the application of policy with respect to the prioritisation of resources, or limitations upon the resources available (as in Reg. v. Central Birmingham Health Authority, Ex parte Walker; Reg. v. Secretary of State for Social Services and another, Ex parte Walker (1987) 3 B.M.L.R. 32 and Reg. v. Central Birmingham Health Authority, Ex parte Collier, Court of Appeal (unreported) 6 January 1988). The decision was not a public decision about

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370 Jo Bridgeman the allocation of scarce resources amongst competing claims, rather it was a private decision about the best interests of a very sick child. Cases concerning the future medical treatment of children are particularistic decisions about the best interests of a child. Without exception, these are desperately important decisions for the children concerned and their families and can be desperately difficult decisions for the judges. Sometimes the cases also raise issues of principle which it is our duty to resolve. Gillick v. West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] A.C. 112 was one example. This case is another. Decisions about the future medical treatment of a child are to be made by means of a specific issue order under section 8 of the Children Act 1989, by the court in the exercise of its inherent jurisdiction or having made the child a ward of court. As Lord Woolf M.R. emphasises, the court should not be prevented from determining the issue by the parties’ choice of procedure, particularly where children are concerned. The crucial concern of the court is to determine which course of action is in the best interests of the child. The shocking events surrounding the medical treatment of David Glass demonstrate an urgent need for clarity to be brought to any uncertainty about the legal obligations of parents, doctors and the court in such cases. The parties in this case must be in no doubt as to the mechanism for involvement of the court, should that be necessary in the future medical treatment of this child. For these reasons, I set out my conclusions in full. As this case has been brought before us in the form of a judicial review application, the facts have not been established and areas of disagreement remain between the parties. I will therefore take the facts as they are admirably set out in the skeleton argument of counsel for the applicant, Mr. Gordon Q.C. and Ms. Hewson. We are now in an age when we must respect the legal rights not only of parents but also those of the child. The United Kingdom is a signatory to the United Nations Convention on the Rights of the Child 1989 which requires states to recognise the right of a child to life (article 6), the right to medical treatment (article 24) and the right of a disabled child to a full and decent life (article 23). The United Nations Convention is not enforceable in English law but must guide us in our interpretation of the law. When the Human Rights Act 1998 comes into force next year, the European Convention for the Protection of Human Rights and Fundamental Freedoms will be directly enforceable in English courts. We must get into the habit of ensuring our decisions are consistent with the rights contained therein. The hospital as a public authority will also have to ensure that their actions are compatible with the Convention rights. Decisions about the provision, withdrawal, or withholding, of medical treatment from a child must respect the child’s right to life (article 2), right to protection from inhuman or degrading treatment (article 3), right to respect for private and family life (article 8) and right of access to the courts (article 6). Furthermore, the rights of the child’s parents under articles 3, 8 and 6 must also be respected. In my judgment, English law governing decisions concerning the medical treatment of children is compliant with our obligations under the Convention. The question is whether English law is properly understood, and followed. Underpinning legal rights is the important principle of respect for the autonomy of the individual, but consideration must also be given to the principles of beneficence, non-maleficence, respect for life and respect for dignity as guides to decision-making about medical treatment: see Kennedy, “Ethics in Clinical Decision Making: The Care

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R v Portsmouth Hospitals NHS Trust, ex parte Glass—Judgment 371 of the Very-low-birth-weight Baby”, in Treat Me Right: Essays in Medical Law and Ethics (1988). Of course, decisions must also be informed if they are to be made in the best interests of the child. A further ethical dimension surrounding the care of severely disabled children is the obligation to support the parents, an obligation placed specifically upon healthcare professionals and upon society more generally. These guiding principles remind me that whilst David is an individual whose rights must be respected, he is a dependent and vulnerable child. His mother has, with love and dedication, fulfilled her responsibility to care for him and has, as she cares for him, developed expertise in his needs, wants and desires. We must recognise not only the dependency of David upon his mother, but also societal dependence upon a mother’s care of her disabled child; we cannot seriously expect her to care for him, as she indeed wishes to do, but then ignore the expertise she has gained through caring. Furthermore, we need to recognise that, particularly in times of crisis, his mother depends upon healthcare professionals to support her to care for her child. In other words, legal principles must be framed so as to recognise caring dependency, dependency work and derivative dependence: see Kittay, Love’s Labor: Essays on Women, Equality and Dependency (1999). The circumstances of this case are unusual amongst the small number of those in which the courts have been asked whether withdrawal or withholding of medical treatment is in the child’s best interests. Re B. (A Minor) (Wardship: Medical Treatment) [1981] 1 W.L.R. 1421, Re C. (A Minor) (Wardship: Medical Treatment) [1990] Fam. 26, Re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33 and Re C. (A Baby) [1996] 2 F.L.R. 43 can all be considered advisory. In all of these cases there was a measure of agreement between the treating doctors and those with parental responsibility for the child about future medical treatment, but uncertainty about the legality of withholding treatment from the child which the court was asked to clarify. In Re C. (A Minor) (Medical Treatment) [1998] 1 F.L.R. 384, the parents of baby C., a sixteen-month-old child with spinal muscular atrophy, agreed with her doctors that ventilation should be discontinued to ascertain whether she could breathe independently. However her parents, who were Orthodox Jews and thus believed that they were under a duty to take all possible steps to preserve her life, wanted the doctors to re-ventilate if she was unable to breathe independently. Her doctors considered that reventilation was not in her best interests. To date, that case stands alone as the only one in which the court was asked to reach an independent judgment of the child’s best interests in the face of different views held by the child’s parents and her doctors. I am certain that there will be more. The applicant in this case is Carol Glass, mother of a twelve-year-old son, David. Like the majority of mothers, she has provided her son with loving care since the day he was born. But David, being severely disabled, has greater needs—daily, nursing and medical—than most children. His mother has approached this long-term caring commitment with determination, dedication and attentiveness. An ultrasound examination had identified brain damage prior to David’s birth. Further brain damage was sustained as a result of oxygen deprivation during birth. With respect to the latter, Mrs. Glass sought damages from the Trust. A settlement has recently been agreed. David has cerebral palsy and hydrocephalus, managed by the use of a shunt to drain excess fluid from around his brain. He has epilepsy, controlled by medication. He has

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372 Jo Bridgeman curvature of the spine and a dislocated hip. He has limited cognitive function and sight. David interacts with his family and his surroundings, turns his head in response to sound, laughs and smiles and, through his facial expressions, demonstrates his likes and dislikes. He lives at home, with his mother, aunt and two older sisters. He is loved, cherished and cared for. To discharge her responsibilities to care for her son, the applicant has developed skills which range far beyond the ordinary skills of mothering to ongoing personal care, providing and monitoring his dietary needs, nursing, physiotherapy, medical care, assisting with communication, supervising and stimulating. To secure support in her care of her son she has also to work with community and hospital services, reporting to them, mediating, negotiating and, on occasion, fighting for what he needs. This is 24 hour, seven day a week, care work in which the applicant is supported by David’s G.P., Dr. Hughes and community-based paediatricians. David has received occasional treatment over the years as an in-patient due to epileptic fitting and, in 1990, a bout of pneumonia. There is no doubt that the quality of life which David enjoys is entirely due to the hard work, attentiveness and love of his mother and his family. On this basis, wardship would not be appropriate as the result would be that all decisions affecting the child would be made by the court, potentially hampering the excellent care provided, day to day, by his mother. The circumstances leading to this application are the result of complications arising from an elective tonsillectomy performed in order to reduce noisy and laboured breathing. Post-operatively, David experienced convulsions and was transferred to the intensive care unit. There he developed septicaemia and infections and suffered constant diarrhoea. The chest and lung infections and diarrhoea continued with a series of admissions and discharges, during which time medical staff, having formed the view that David was dying, discussed with the applicant the administration of morphine to alleviate his distress. The applicant refused her consent. The differences of opinion between the applicant and the doctors crucially came to a head upon David’s further admission in October 1998. The doctors responsible for his care, Drs. Walker, Ashton and Hallett, wished to administer diamorphine to alleviate his distress. The applicant continued to express her refusal: diamorphine, in the alleviation of pain, depresses respiratory function. Despite his mother’s refusal of consent, diamorphine was administered to David. In a meeting with the Chief Executive of the Trust, his family were told that unless they permitted the administration of diamorphine they would be removed from the hospital by the police. It is not my intention to question the medical judgment of his doctors. However, the actions of the Trust, if accurately described, appear to me in the best light to demonstrate the extent of the breakdown in trust; in the worst to betray extreme lack of sensitivity to a family whose child, his doctors believed, was dying. I note the entry in David’s medical notes made by Dr. Walker: “I have told [the applicant] that we can give morphine to alleviate distress even vs. their wishes (and we can—I am assured by the Official Solicitor that no judge has ever overturned a doctor’s decision to withdraw treatment/alleviate symptoms) but we wouldn’t without telling them.” Whilst this interpretation of the case law at the time was technically correct, the legal principle relied upon was based solely upon the contentious case of Re C. (A Minor)

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R v Portsmouth Hospitals NHS Trust, ex parte Glass—Judgment 373 (Medical Treatment) [1998] 1 F.L.R. 384. In that case, Sir Stephen Brown, President of the Family Division, expressed the view that the court could not consider making an order which would require the doctors to undertake a course of treatment which they were unwilling to do. That view was expressed in a case where the evidence clearly supported the doctors’ opinion that re-ventilation was not in the child’s best interests, a course of action which her parents, as Orthodox Jews, were unable to accept. Let me assure Dr. Walker and any parent who in the future may find themselves in such a situation: the law is that consent to the medical treatment of a child and to withholding or withdrawal of medical treatment proposed by a doctor is given, or withheld, by the child’s parents, according to their judgement of the best interests of the child and, in the event of a disagreement between doctor and parent, by the court. The decision is not one for the doctor to make. Whilst a judge would not order a doctor to treat contrary to their clinical judgement and would not consider interfering in medical judgement, judges are well aware that amongst practitioners themselves there are different clinical judgements. Judges can require the responsibility for care of the patient to be transferred to a practitioner who is prepared to provide the treatment. The alternative would limit the judicial role to giving legal authority to the medical view; a position which would wholly undermine our responsibility to protect the interests of children. On the night of 21 October 1998, a D.N.R. (Do Not Resuscitate) order was placed upon David’s notes without his mother’s knowledge. A D.N.R. order applies only to cardiopulmonary resuscitation, that is, cardiac massage and intensive respiratory support. All other treatment must continue to be provided. Guidelines published by the British Medical Association and Royal College of Nursing in 1993, para. 3, place responsibility for the decision to make a D.N.R. order with the consultant but only after consultation with the “other members of the medical and nursing team, the patient and with due regard to patient confidentiality, the patient’s relatives or close friends”. Without wishing to appear to criticise the actions of the doctors who genuinely believed they were acting in the best interests of their patient, the circumstances in which a D.N.R. order was placed on David’s notes amounted to a clear breach of these guidelines. That his doctors had decided not to take active steps to resuscitate the applicant’s child without even consulting her provides an important background to the events that followed. The doctors thought that David was more settled, peaceful and less distressed as a consequence of the administration of diamorphine; his family thought that his condition had deteriorated. It is indicative of the breakdown of trust and the distance between the applicant, her family and the doctors that a fight broke out as the family attempted to revive David and the doctors attempted to prevent their actions. I should state, lest reports of my judgment lead to speculation to the contrary, that violence against doctors and nurses can never be condoned. Indeed, criminal proceedings were brought against some of David’s family members, not his mother, as a consequence of this unfortunate incident. I am sure that both sides regret the heightened passions, breakdown in trust and resort to physical violence. All were motivated by a concern for David’s best interests but this was no way to set about securing them. Whether the applicant was correct in her belief, which Dr. Hughes observed acted as a red rag to the family, that the doctors were assessing David’s quality of life according to his disabilities and not making a judgement about the medical treatment necessary to treat his infections, I am

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374 Jo Bridgeman unable to comment. David was at this point, there is no doubt, seriously ill. His illness consisted of persistent infections and diarrhoea, not the disabilities with which he had lived all of his life and despite which he enjoyed a quality of life. The medical treatment of David thus included the administration, against his mother’s wishes, of medication to alleviate his distress but which would also have the effect of hastening his death, and the intention to withhold forms of resuscitation without his mother’s knowledge or consent. So pausing a moment to consider, not how the situation may have looked, but how it might have been experienced: the hospital staff, certain that David was dying, set about treating him in a way that would ease his passing, supported, at the instigation of the Trust, by the presence of the police, disrupted by physical force on the part of members of his family, whilst his mother resuscitated him. Something was seriously wrong. David was discharged later that day. His G.P. gave him an antidote to diamorphine and prescribed intravenous antibiotics. The applicant consulted with the clinical advisor of the company which manufactures the feed prescribed to David. His feed was changed and he recovered from diarrhoea. The antibiotics could then work and David recovered from the recurrent infections. The attentive care delivered by his mother, with the support of his G.P., led to David’s eventual recovery from the medical problems that had beset him for a period of some four months. Further to these events, the Medical Director of the Trust wrote to Mrs. Glass setting out the Trust’s position with regard to the future treatment of her child: “Following David’s recent admission to the paediatric wards the paediatric staff feel that they are no longer confident that they are able to give David the care which he deserves. The reasons for this I believe require no explanation other than they remain extremely anxious that there might be a repetition of the problems that arose on that occasion. “Unfortunately the Trust believe that all we could offer David would be to make his remaining time as comfortable as possible and take no active steps to prolong his life. This obviously means withholding or giving treatment with which you may not agree. As there seems no easy way to resolve these differences it would be sensible, if David required further inpatient care, for this to be provided at another hospital. “We have been in touch with the paediatric department at Southampton General Hospital and they are happy to look after David should he require to be admitted again. We have discussed this with the ambulance service and they are happy to transfer him to Southampton if the need arose.” In summary, certain of their view that active treatment was no longer in David’s best interests and concerned to avoid this difference of opinion manifesting itself in physical violence in the future, the Trust declined to accept David as a patient in the future. Should he need medical care in the future, which appears to me not unlikely, David would have to travel the 25 mile journey to Southampton. This strikes me as a most unsatisfactory position. This is therefore the vital background to the decisions of the Trust which are at issue in this case. This lengthy account is necessary to demonstrate the determination of his family to care, the tension which existed between the family, the doctors and the Trust and the importance of the parties, in any case concerning the medical treatment of a sick, vulnerable and dependent child, being very clear about their legal obligations. I

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R v Portsmouth Hospitals NHS Trust, ex parte Glass—Judgment 375 agree with Mr. Gordon Q.C., counsel for the applicant, that this case raises very important questions of law that should be resolved. I agree that it is possible for a similar situation to recur in Southampton to the one that gave rise to the difficulties in Portsmouth, and that the parties should know in advance where they stand. I am also aware that there is a very real possibility that in the future, David may need hospital care in circumstances where a journey to Southampton is simply not possible. His mother, most understandably, is very concerned about this eventuality. It will therefore be apparent that I disagree with the view of Scott Baker J. in the court below that “the situation has passed and will not again arise with these Respondents”. Whilst the particular crisis has been resolved, the issue is not in the past. An ongoing problem remains. With respect, the judge appears to have perceived the issue in very narrow terms of the immediate health needs of a child with severe physical and mental disabilities and numerous ongoing health problems. As a child with severe physical and mental disabilities, one thing is almost certain and that is that there will be a further crisis requiring emergency medical assistance. Scott Baker J. identified the “underlying problem” as “balancing the treatment of pain and the therapeutic benefit of diamorphine against the risk of shortening David’s life”, with his doctors having reached the conclusion that “it would be in David’s best interests to allow him to die without distress or pain”. I would identify the underlying problem rather differently, as one of uncertainty as to the legal obligations of parents, healthcare professionals and N.H.S. Trusts, the very issues which the applicant seeks to clarify. I agree that it would be extremely helpful for the medical profession, generally, to know what the law is in this regard and I would add, crucial for the child’s carers. It is incumbent upon the court to step back from what was clearly a stressful, emotional situation and ask what ought to have happened here: what does the law require of these parties? The applicant’s bundle of authorities includes three publications which draw attention to the sensitive nature and difficult ethical issues surrounding the medical treatment of severely disabled children: “Seeking Patients’ Consent: The Ethical Considerations” by the General Medical Council; “Withdrawing and Withholding Treatment: A Consultation Paper” from the B.M.A.’s Medical Ethics Committee; and “Withholding and Withdrawing Life Saving Treatment in Children—A Framework for Practice” from the Royal College of Paediatric and Child Health. Recent research has identified the work involved in caring for a child with severe disabilities: see Lamb and Layzell, “Disabled in Britain: Behind Closed Doors, The Carers’ Experience” (1995) (Scope); Beresford, Expert Opinions: A National Survey of Parents Caring for a Severely Disabled Child (1995); Beresford, “Positively Parents: Caring for a Severely Disabled Child” (1994). Professional and philosophical ethics may guide us, parental experiences instruct us, but the responsibility for establishing clear legal principles is ours. We are not here concerned with the provision of innovative treatment as in Reg. v. Cambridge Health Authority, Ex parte B. [1995] 1 W.L.R. 898, or an invasive, elective procedure as in Re B. (A Minor) (Wardship: Sterilisation) [1988] A.C. 199, but with routine, if life-saving, treatment. Scott Baker J. quoted at length from the judgment of Lord Donaldson M.R. in Re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33, 41, a case which concerned the future provision of life-saving mechanical ventilation to a four-month-old baby, J., who suffered severe disabilities as a result of

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376 Jo Bridgeman extreme prematurity. I repeat that quotation, directed as it is to the issue central to this case of the respective duties of the doctors, parents and the court: “The doctors owe the child a duty to care for it in accordance with good medical practice recognised as appropriate by a competent body of professional opinion: see Bolam v. Friern Hospital Management [1957] 1 W.L.R. 582. This duty is, however, subject to the qualification that, if time permits, they must obtain the consent of the parents before undertaking serious invasive treatment. “The parents owe the child a duty to give or to withhold consent in the best interests of the child and without regard to their own interests. “The court when exercising the parens patriae jurisdiction takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless in the end the responsibility for the decision whether to give or to withhold consent is that of the court alone. “No one can dictate the treatment to be given to the child, neither court, parents nor doctors. There are checks and balances. The doctors can recommend treatment A. in preference to treatment B. They can also refuse to adopt treatment C. on the grounds that it is medically contra-indicated or for some other reason is a treatment which they could not conscientiously administer. The court or parents for their part can refuse to consent to treatment A. or B. or both, but cannot insist on treatment C. The inevitable and desirable result is that choice of treatment is in some measure a joint decision of the doctors and the court or parents.” Neither the Trust nor the applicant sought a declaration of best interests. A best interests declaration would have secured the independent judgment of the court informed by established facts including the nature of the medical problem, the treatment options and the basis for disagreement between David’s mother and his doctors. David would have had independent representation by the Official Solicitor and the court would have had the benefit of independent, expert medical evidence. Either the applicant or the Trust could have sought a declaration. The onus rests not with the mother or the treating doctors but with the Trust to make an application to court in the event of a disagreement. The mother will be focused upon the health, well-being and day to day needs of a very sick child. The priority for the treating doctors will be the medical needs of this patient and others in their care. Judges who are familiar with making decisions about the medical treatment of children will be aware of criticism from some quarters to the effect that they demonstrate a tendency to adopt a medical model of critical illness or disability, focusing upon abnormality, dysfunction and pathology with too much weight being given in assessment of best interests to the possibilities of medical intervention and insufficient attention paid to the experiences gained by those who care for the child. Assessment of the best interests of the child is not solely a question of medical best interests, rather emotional, psychological and social interests must all be considered. I am aware of the critical comments on the decision of this court in the recent case of Re T. (A Minor) (Wardship: Medical Treatment) [1997] 1 W.L.R. 242. Bainham in “Do Babies Have Rights?” (1997) 56 C.L.J. 48, 50 described it as a “seriously retrograde decision”, “not very far removed from nineteenth-century notions of the natural rights of parents”. The Court of Appeal in that case overturned the ruling of Connell J. that it was in the best interests of the eighteen-month-old child to undergo a liver transplant

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R v Portsmouth Hospitals NHS Trust, ex parte Glass—Judgment 377 operation despite his mother’s refusal of consent. Baby T. had first undergone surgery when he was less than a month old, which had failed to correct the condition, bilary atresia. At this point his parents decided that they would not want him to go through the pain and distress of major transplant surgery. Medical evidence was unanimously in favour of the surgery, although not unanimously in favour of performing surgery contrary to the wishes of T.’s mother. The court assessed T.’s best interests considering all of the medical evidence (benefits of the transplant surgery, post-operative treatment, the risks of failure, his life expectancy with and without the surgery), and his mother’s judgement upon the ability of her son to withstand the pain and distress of major surgery, informed by her knowledge of his experience of the earlier operation. On this occasion perhaps Butler-Sloss L.J. failed to express herself with her usual felicity in acknowledging the importance of the views of the primary carer, based in her experience of the needs, welfare and interests of the child, to an assessment of best interests. Children, young, sick and disabled, depend upon others to make decisions on their behalf about medical treatment. Medical opinion about the clinical options available and the best option for the child is clearly very important to assessment of their best interests. The views of all health professionals who contribute to the care of the child must be considered, as they will have a deeper understanding of the child’s interests and quality of life than the doctors who offer detached and intermittent care and focus upon the medical condition of the child: see Re C. (A Minor) (Wardship: Medical Treatment) [1990] Fam. 26. So, too, must the views of the child’s parents, who care day in day out and will be most concerned with the welfare of their child as an individual. As stated at the outset, I agree with Lord Woolf M.R. that this court should not grant permission to appeal. Any future disagreements between the applicant and the Trust about the medical treatment of this child must be brought before the Family Division of the High Court for determination in light of all the facts. I conclude by summarising the legal principles derived from statute and developed in common law which govern the responsibilities of parents, healthcare professionals and N.H.S. Trusts in working together in the joint endeavour of securing the best interests of children who are dependent upon them: 1. The exercise of parental responsibility includes the responsibility of making decisions about the provision, withholding or withdrawal of medical treatment of a child from the range of treatment options. 2. Parents exercising parental responsibility must make decisions about the medical treatment of their child according to their judgement of the child’s best interests. 3. Differences of opinion between parents exercising parental responsibility and treating doctors about the provision, withholding or withdrawal of treatment from a child must be referred to the Family Division of the High Court for resolution. 4. An application to the High Court can be made in the exercise of parental responsibility or by the N.H.S. Trust. 5. In the event of a disagreement, N.H.S. Trusts should be aware that parents are unlikely to be familiar with the procedure for application to the High Court and in any event will be focused upon the needs of their child. The N.H.S. Trust should therefore take responsibility for making an application to the High Court. 6. The issue can be brought to court by way of an application for a specific issue order under section 8 of the Children Act 1989, by way of originating summons for a

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378 Jo Bridgeman declaration under the court’s inherent jurisdiction—see, for example, Re F. (Mental Patient: Sterilisation) [1990] 2 A.C. 1; Re B. (A Minor) (Wardship: Sterilisation) [1988] A.C. 199—or in wardship proceedings. 7. The High Court will make a decision on the best interests of the child having heard medical evidence of the nature of the child’s condition and of the treatment options, the evidence of independent experts, the views of the child’s parents and their reasons for holding those views and the view of the Official Solicitor. The court will recognise the expertise of those who care for the child and their experience of the child’s needs, welfare and quality of life gained as they care for the child. The court’s assessment of the best interests of the child will consider medical, emotional, psychological and social interests. It will not make open-ended decisions, nor oversee the treatment plan for a child. 8. Arrangements can be made for the High Court to determine urgent issues with regard to the medical treatment of a child out of hours and at short notice. 9. An N.H.S. Trust acts unlawfully if it permits its clinicians to administer medical treatment, or to withdraw or withhold medical treatment, contrary to the views of the person exercising parental responsibility or an order of the court. I have clarified the legal obligations of the parties. It is to be hoped that they can in the future work in partnership together in the best interests of the child without the need for further involvement of the court or officers of the law. I merely state, for I cannot order it, that I hope that the N.H.S. Trust will review its decision and support this mother to care for her child.

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Part VI Equality

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22 Commentary on Roberts v Hopwood STEPHANIE PALMER

Introduction The administrative law decision in 1925 of Roberts v Hopwood 1 arose from the decision of the Poplar Borough Council to pay a higher minimum wage to its employees than had been agreed through official negotiations with the trade unions, and to pay male and female employees at the same rate. The Council explained that the higher minimum wage of £4 per week was the very least that any man or woman should be offered. This policy was controversial as it had been adopted in spite of a sharp decline in the cost of living and, as a consequence, reduced wages. The councillors believed that a public authority should be a model employer and that wages should not be exclusively related to the cost of living. Section 62 of the Metropolis Management Act 1855 expressly gave the Council power to pay ‘such salaries and wages as [they] may think fit’. In 1923, the district auditor considered that the minimum wage paid in Poplar was excessive and unreasonable. In his view, the higher rate paid by Poplar had failed to take into account the interests of the ratepayers whose funds the Council was administering. Pursuant to section 247(7) of the Public Health Act 1875, the district auditor had power to ‘disallow any item of account contrary to law, and surcharge the same on the person making or authorising the illegal payment’. The auditor surcharged the members of the Council the sum of £5,000 (a fortune in the 1920s), the amount by which the wages paid exceeded what he thought to be reasonable. In the auditor’s view, the payments in question were not wages but gratuities to the workforce at the expense of the ratepayers. The councillors applied for a quashing order under section 247(8) of the Public Health Act 1875 (which permitted relief for errors of law and/or fact). They succeeded in the Court of Appeal but the district auditor successfully appealed to the House of Lords. The bald facts of the Poplar wage case disguise the intense social, economic and political tensions at play in the politically turbulent 1920s. This commentary will begin with an historical outline, then consider the decision and the feminist judgment. While the commentary is written with the benefit of hindsight, Harriet Samuels’ feminist judgment relies exclusively on information available at the time of the decision in 1925.2 1

Roberts v Hopwood [1925] AC 578 (HL). The judgment also imagines Samuels as the first woman Law Lord. Section 1 of the Sex Disqualification (Removal) Act 1919 provided that a person was not to be disqualified by sex or marriage from the exercise of any public function, or from being appointed to or holding judicial office or post. In Viscountess Rhondda’s Claim [1922] 2 AC 339 (HL), however, the House of Lords decided this Act did not permit Peeresses to sit and vote in the House of Lords. Although it is impossible to speculate with certainty, this decision may not have prevented a 2

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382 Stephanie Palmer

The Historical Context Poplar is situated in the east end of London and is now part of the borough of Tower Hamlets. During the 1920s it was the poorest part of Docklands. The majority of its residents lived ‘on the verge of destitution’.3 A large proportion of the male population was dependent on casual labour in the docks and associated employment on the canals, the railways or in road haulage.4 Reliance on the Poor Law was common during old age and periods of unemployment and sickness. At the same time, the poverty in Poplar meant that the rateable value was low. Thus the available resources in the borough to maintain the poor were slender. In 1919, Labour won a majority in the borough council elections in Poplar for the first time.5 Led by the socialist, George Lansbury, the newly-elected councillors in Poplar were determined to make significant changes to the lives of those who had elected them.6 Women played a significant role in governing Poplar.7 Of the four aldermen appointed after the election, two were women, both of whom had been actively involved in feminist organisations or the suffragette movement.8 Since 1834, it had been a guiding principle of English Poor Law that no relief should be given to the able-bodied except in the workhouse. In Poplar, the Labour Poor Law Guardians had abandoned this policy and outdoor relief (outside of the workhouse) was given to the unemployed.9 Unsurprisingly, this had led to tension with the ratepayers who were now a minority of the electors due to the electoral reform in 1918.10 These electors were owners of docks, railways and factories, who generally lived outside Poplar but contributed most of the rates.11 During the 1920s trade declined and unemployment dramatically increased. The Guardians continued to assist the unemployed with relief more generous than that given by other Boards. The escalating cost of the Poor Law dramatically increased the rates, with the threat of even further rises. At this time, the cost of poor relief was not spread evenly across woman from sitting on the Judicial Committee of the House of Lords given the specific inclusion of the holding of judicial office in s 1 of the Sex Disqualification (Removal) Act. 3 C Key, Red Poplar (1925), cited in N Branson, Poplarism, 1919–1925: George Lansbury and the Councillors’ Revolt (London, Lawrence and Wishart, 1979). 4 ibid 12, 13. 5 The Representation of the People Act 1918 had granted the vote to those who received Poor Law relief, which was influential in Labour’s victory. The 1918 Act also extended the franchise to women over 30 years of age. 6 In his autobiography Lansbury stated, ‘from the first moment I determined to fight for one policy only and that was decent treatment for the poor outside the workhouse and hang the rates!’ G Lansbury, My Life 133, cited in B Keith-Lucas, ‘Poplarism’ (1962) 7 Public Law 52. 7 Suffragettes and socialists enjoyed a close relationship during this period. See generally O Banks, The Politics of British Feminism 1918–1970 (Aldershot, Edward Elgar, 1993). 8 Susan Lawrence and Minnie Lansbury. See Branson, above n 3 at 17–18. 9 Lansbury was first elected to the Poplar Board of Guardians in 1892. Further details about the Board of Guardians and Poplar can be found in Keith-Lucas, above n 6 at 52–58. 10 The policy of generous assistance to the poor was the subject of an Inquiry by the Local Government Board in 1906. The conclusion was that generosity in giving relief encouraged pauperism and giving relief to the unemployed subsidised the system of casual labour. However, no direct action was taken against the Guardians in Poplar at this time. See Keith-Lucas, ibid 54–55. 11 Branson, above n 3 at 171. The rates were based on the value of the property held by the ratepayer and it was clearly in the interests of the local industrialists to ensure that rates were kept as low as possible. Industrialists were also competing for labour and thus were keen to see a reduction in the wages of council employees.

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Roberts v Hopwood—Commentary 383 London. In effect, impoverished boroughs such as Poplar were left alone to help their unemployed, while wealthy boroughs in the West End had few paupers to support. The Council decided to take dramatic action: they would collect money for themselves and the Guardians and they would default on the precepts (financial contributions to the London County Council, the Metropolitan Police, the Metropolitan Water Board, and the Metropolitan Asylums Board). This contentious decision was challenged in the courts. The High Court ordered the payment of the precepts but rather than obeying the order, the councillors chose to face the penalty for contempt of court. Writs of attachment were issued against the Mayor and 29 members of the Council who were taken to prison. The imprisonment was highly embarrassing for the Government. The danger of unrest among the unemployed was growing, as was the threat that other councils may follow the example of the Poplar councillors. After six weeks in prison, the councillors’ release was negotiated. The outcome of Poplar’s rate protest was a major victory. The existing machinery of the Common Poor Fund was used to achieve more equal contributions to the cost of poor relief across the London boroughs.12 The facts of Roberts v Hopwood should be understood against the background of these events and within the context of ‘Poplarism’,13 as the dispute in the case arose from a further battle for social justice waged by the Poplar Council. Increasing the wages of the most poorly paid was a controversial decision. Although the new Common Poor Fund arrangement had prevented the rates in Poplar from soaring, by the early 1920s many other borough councils were reducing rates as a result of the fall in prices and wages.14 The Labour Party itself was divided about the payment by Poplar of higher wages to its employees. Many were sensitive to the role of the trade unions while others disliked the idea that wages could be fixed by politicians: this could permit Conservative councils to push down wages.15 The decision to pay men and women equally was a further remarkable decision of the Poplar Council. George Lansbury had strongly supported women’s suffrage. In 1912, he had resigned from his parliamentary seat of Bromley and Bow in order to force a by-election over the issue of votes for women. After the partial extension of the franchise to women, the election manifestos of 1918 displayed considerable sensitivity to women’s issues. The Conservatives and Liberals announced their intention to remove all existing inequalities and the Labour Party promised women complete adult suffrage and equal pay.16 But in spite of such political promises, economic equality for women remained elusive. The reasons are complex. The prevailing economic climate after the war made the defence of women as wage-earners difficult. For example, legislation was passed in 1919 to restore the pre-war practice of reserving certain employment for returning servicemen.17 Women were viewed ‘as opportunists who had ridden to economic freedom at the expense of the fighting man’.18 The trade unions supported the concept of a family wage for men. The close connection 12

Keith-Lucas, above n 6 at 62–63. The actions of the Council led to the development of the term Poplarism: ‘The policy of giving generous or (as was alleged) extravagant outdoor relief, like that practised by the Board of Guardians of Poplar in 1919 or later’: Oxford English Dictionary. 14 Branson, above n 3 at 171. 15 GW Jones, ‘Herbert Morrison and Poplarism’ (1973) 18 Public Law 11, 25. 16 Banks, above n 7 at 86. See also ‘The Report of the War Cabinet Committee on Women in Industry’ (Cmd 135, 1919) 5. 17 Pre-War Trade Practices Act 1919. 18 C Law, Suffrage and Power: The Women’s Movement 1918–1928 (London, IB Tauris, 1997) 69 ff. See also J Alberti, Beyond Suffrage: Feminists in War and Peace, 1914–28 (Basingstoke, MacMillan, 1989). 13

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384 Stephanie Palmer between the Labour Party and the trade unions was detrimental for the position of women. It also led to divisions between the industrial women’s movement associated with the Labour Party and other women’s groups. Nevertheless, the campaign for equal pay was sustained throughout the 1920s. In 1921, campaigners achieved a qualified success in relation to women’s employment in the civil service including a promised review of women’s pay in three years time.19 During this campaign, it was argued by the women’s groups that the government should set an example with equal pay that would eventually be followed by private employers.20 Thus, the model employer policy adopted by the Poplar Council was not a novel idea but was influenced by the sustained feminist campaign and the 1918 Labour Party election manifesto promise of equal pay for equal work.

Abuse of Discretion Roberts v Hopwood is concerned with the control of administrative discretion. It was once regarded as ‘the high water mark of judicial activism in administrative law’.21 On the one hand, the case can be read as a product of its time and a clash between vested business interests and policies promoting social justice.22 On the other, it can be said to represent the beginning of a process whereby courts were able to restrain socialism in local authorities and ‘to establish a legally sanctioned hierarchy according to which legal accountability to the courts would be assured primacy over political accountability to the electorate’.23 It is also an example of the dismal failure of the courts to protect the interests of women. The common law never developed a concept of unlawful discrimination. The case against the councillors of Poplar rested on the rejection of unfettered discretion, in spite of the breadth of the statutory language. The House of Lords found that the councillors had abused their discretion, first by failing to take into account relevant considerations such as the declining cost of living and wages being paid by in the commercial sector, and second by taking into account irrelevant considerations. By requiring decision-makers to take account of all those factors which are relevant to the issue and prohibiting consideration of irrelevant matters, the courts claim to uphold the basic principle that decision-makers should use the power entrusted to them in a reasonable, as opposed to an arbitrary or capricious manner. This principle of relevancy is part of the fabric of administrative law principles which seek to promote good decision-making and uphold the rule of law. But a difficulty remains, as clearly displayed in Roberts v Hopwood, which raised these issues in a blatantly political context: how should the legally relevant or irrelevant factors be determined in practice? How much weight should the judiciary attribute to relevant factors? By ruling on the relevancy or irrelevancy of certain factors, the House of Lords was able to shape the decision-making process and to reach an outcome acceptable to them. Lord Atkinson, for example, was able to conclude that the 19

Law, ibid 84. ibid. 21 Sir David GT Williams, ‘Law and Administrative Discretion’ (1994) 2 Indiana Journal of Global Legal Services 191, 194. 22 See J Griffith, Judicial Politics Since 1920: A Chronicle (Oxford, Blackwell, 1933) 9–11. 23 P Fennell, ‘Roberts v Hopwood: The Rule Against Socialism’ (1986) 13 Journal of Law and Society 401, 405. 20

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Roberts v Hopwood—Commentary 385 Council’s decision was unlawful because they took into account irrelevant considerations such as ‘eccentric principles of socialist philanthropy’ and ‘a feminist ambition to secure the equality of the sexes’.24 Lord Sumner concluded that ‘the respondents have deliberately decided not to be guided by ordinary economic (and economical) considerations’.25 Lord Buckmaster acknowledged that when wide discretionary power has been conferred upon a local authority, ‘the court ought to show great reluctance before they attempt to determine how, in their opinion, the discretion ought to be exercised’.26 Nevertheless, he concluded that the Council had not determined the payment as wages, but ‘took an arbitrary principle and fixed an arbitrary sum’ and this was not a legitimate exercise of the statutory discretion.27 This decision clearly illustrates extensive judicial intervention in the decisionmaking process. Once characterised by the judges as lacking relevancy to the exercise of discretionary power, the Council’s philanthropic rationales were swept aside, thus undermining the decision made by democratically elected councillors. It is instructive to compare this judgment with the opposite conclusions of the majority of the Court of Appeal28 as well as the feminist judgment. The political opinions of the judiciary are hardly disguised in this judgment. Lord Atkinson commented that council members were guilty of ‘vanity’ in attempting to appear as ‘model employers’, and had ‘become such ardent feminists’ (using the term pejoratively) so ‘as to bring about, at the expense of the ratepayers whose money they administered, sex equality in the labour market’.29 Perhaps a ‘lurking awareness of their political leanings’ led their Lordships to employ an additional factor to shore up their ruling on abuse of discretion.30 This factor was the vague and ill-considered fiduciary duty owed by elected councillors to the ratepayers. As the local authority chose to ignore market rates when setting the wage levels, the court concluded that their policy was unreasonable because it overlooked the predominantly fiduciary interests of local ratepayers. Arguably, this decision violates the basic tenet of administrative law: the role of the court is to review the legality of administrative decisions rather than to substitute its own view for that of the decision-maker. The issue of whether decisions are best taken by the courts or democratically elected representatives lies at the heart of Roberts v Hopwood and is the tension that continues to shape the development of judicial review.

The Feminist Judgment In her judgment, Samuels maintains that the local authority, having discretion to pay its employees such wages as it thought fit, could consider factors such as equality of the sexes and a desire to be a model employer. She argues persuasively that as the Council is a public body, there is a ‘greater and not lesser duty on that body to consider a wider range of 24

Above n 1 at 594. ibid 609. 26 ibid 588. 27 ibid. 28 Roberts v Hopwood [1924] 2 KB 695 (CA) (Lord Atkin and Lord Scrutton). 29 Above n 1 at 591–92. 30 Williams, above n 21 at 198. This principle was followed in Bromley London Borough Council v GLC [1983] 1 AC 768 (HL); see also Gibb v Maidstone and Tunbridge Wells NHS Trust [2009] EWHC 862 (QB). 25

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386 Stephanie Palmer interests including its responsibilities to its electors and workers’. And she points out that the duty of the Council should be to the local community as a whole, not just to the ratepayers. The judgment also draws upon material available at the time to support the principle of equal pay for equal work, including the Treaty of Versailles and UK Government Command Papers. In light of decisions such as Roberts v Hopwood, which held that equal pay was not within the bounds of reason, it is unsurprising that women seeking legal change came to mistrust the male-dominated judiciary. Traditional public law in the UK and the articulation of constitutional values did not provide an appropriate avenue for women’s perspectives and experiences to be considered.31 Of course, law alone is insufficient to challenge disadvantage: legal forms are inadequate to promote full participation of men and women in all aspects of society. Yet law can also be exploited as well as potentially empowering. Public law has been substantially recast since the 1920s, providing new openings to reframe debates and to reinvigorate constitutional thought. The Human Rights Act 1998, for example, provides an opportunity to break down barriers and to present alternative perspectives to the court, as other cases in this collection illustrate.

31 S Palmer, ‘Feminism and the Promise of Human Rights: Possibilities and Paradoxes’ in S James and S Palmer (eds), (Oxford, Hart Publishing, 2002).

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[HOUSE OF LORDS.] ROBERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Appellant; and

H. L. (E.)

HOPWOOD and Others . . . . . . . . . . . . . . . . . . . . . . . . . .Respondents.

April 3. —

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1925

Baroness Samuels. My Lords, this case concerns a challenge by councillors and aldermen from the Poplar Borough Council (the respondents), to a decision by the district auditor (the appellant). The auditor has exercised his powers under sub-s. 7 of s. 247 of the Public Health Act of 1875 to disallow sums paid as wages and to surcharge the respondents for the sum of 5000l. for excessive expenditure on wages paid to their 600 employees for the year April 1, 1921 to April 1, 1922. The respondents claim that the auditor’s exercise of power is unlawful, and apply for a writ of certiorari as is their right under sub-s. 8 of s. 247 of the Public Health Act, 1875. The auditor’s power arises from sub-s. 7 of s. 247 of the Public Health Act, 1875 which states that “Any auditor acting in pursuance of this section shall disallow every item of account contrary to law, and surcharge the same on the person making or authorising the making of the illegal payment.” The auditor has taken the view that the council has exceeded its powers in s. 62 of the Metropolis Management Act of 1855 to pay “such salaries and wages as [it] may think fit.” He has decided that wages paid by the council go beyond what is reasonable and are so excessive as to be unlawful. The divisional court rejected the respondents’ claim for certiorari to quash the auditor’s decision. The Court of Appeal, by a majority, upheld the councillors’ appeal. The auditor appeals to this House. I have had the privilege of reading in draft the opinions of my noble and learned friends Lord Buckmaster, Lord Atkinson, Lord Sumner, Lord Wrenbury and Lord Carson and I am in the unfortunate position of being unable to agree with your Lordships on many of the important points. I would find in favour of the respondent councillors and uphold the decision of the majority in the Court of Appeal. In addition, I would like to add to the remarks made by the Court of Appeal and your Lordships on equality and equal pay. This dispute has arisen because of the decision by Poplar Borough Council to pay its workers wages at an amount that the auditor considers excessive. The auditor explains that in 1914 most of the metropolitan borough councils paid their workers approximately the same wage. Poplar’s rates were just above the average at 30s. weekly for men and 22s. 6d. for women. Gradually the minimum wage in Poplar rose so that by April 30,

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388 Harriet Samuels H. L. (E.)

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1920 it was 64s. for men and 49s. 9d. for women. But then on May 1, 1920 there was an increase in the minimum rate to 80s. (4l.) per week for both women and men. When these accounts were audited on March 31, 1921 the auditor did not object because the cost of living during and after the war had greatly increased. However, when the auditor examined the accounts on January 26, 1923 he found that the rate of 80s. was still being paid even though the cost of living had gone down. This was because the council had passed a resolution on August 31, 1921 upholding the existing rates of pay and this resolution was acted upon for the next 12 months. The auditor then compared the rate paid by Poplar with the rate paid elsewhere. The comparison was with (a) the bonus rates corresponding with the cost of living as shown in the Labour Gazette and (b) the bonus rates agreed by the Joint Industrial Council (Whitley Council), London district or appropriate trade union. The auditor then made the following findings which he set out in the ninth paragraph of his affidavit: “I found (a) that the total of the wage payments made by the Council in the year 1921–22 exceeded by about 17,000l. the total amount of the wages that would have been paid by them if the agreed wages of the awards referred to had been adopted, and that the rates of payment were much above those contained in the said awards in the last two months of that year. (b) That on a comparison with the weekly wages paid in 1914 increased by a bonus proportionate to the increase in the cost of living, the Council’s wages payments in 1921–22 showed an excess of over 25,000l. (c) That the wage increases paid at the end of the year 1921–22 were more than sufficient to compensate this increase in the cost of living by fully 100 per cent. in the case of men of Grade A, 200 per cent. in the case of women of Grade A, 80 per cent. in the case of men of Grade B, 85 per cent. in the case of general labourers. (d) That as the working hours per week were considerably shorter in 1921 and 1922 than in 1914, the figures given in (b) and (c) above would be much greater if the comparison were applied to wages per hour instead of to wages per week, and that the excess of over 25,000l. mentioned in (b) above would thus be raised to an excess of more than 35,500l. (e) That in the lower grades the new minimum rate varied from nearly three times to over four times the rate paid per hour in 1914.” These discrepancies led the auditor to consider whether to disallow and surcharge the councillors for a sum of 17000l. and he invited them to make representations to him at a meeting on May 31, 1923. A number of councillors attended as well as ratepayers who lived outside the area and who objected to the amount paid as wages to Poplar workers. Bankes L.J., in the Court of Appeal (1), makes reference to the statement made by (1) [1924] 2 K.B. 711.

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Roberts v Hopwood—Judgment 389

(1) [1924] 1 K.B. 522.

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George Lansbury, one of the councillors at the meeting, as referred to by the auditor in the thirteenth paragraph of his affidavit. Mr. Lansbury told the auditor that the council regarded itself as bound by what it called the “mandate of the electors.” This was because candidates supporting the wages policy had been returned by the electors in two bye-elections in November 1922. Furthermore, he stated that he owed no duty to the large number of ratepayers who reside outside the borough and have no vote. But it should be borne in mind that these were comments made by Mr. Lansbury at what, by all accounts, must have been a heated public meeting. I think it is right and proper to regard as more authoritative the more detailed and considered reasoning given by the councillors in their affidavit to the court which I shall come to shortly. Based on the audit and the statements made by some of the respondents, the auditor decided that the payments made by Poplar were illegal. The reasons for this decision were that “(a) The council when exercising its statutory power had failed to have due regard to the interests of the ratepayers whose funds they were administering. (b) They had imposed unreasonable charges upon those funds and had paid more than they needed to in order to employ efficient workers. (c) The moneys paid were not wages but gifts to their employees in addition to remuneration for their services. (d) The councillors had wasted ratepayers money and acted arbitrarily and contrary to law. (e) The councillors had disregarded important reductions that had taken place in the cost of living and in the trade union and other awards.” The auditor decided on a surcharge of 5000l. He reached this figure by taking the pre-war rate for wages, increasing it by the cost of living and then adding a sum of 20s. per week as a margin. Any sum paid in wages above this amount was deemed to be unlawful. The respondents challenge the auditor’s decision on the grounds that either the auditor had no power to consider the quantum of a payment— he could only find a payment illegal if it was made in bad faith or for an unlawful object—or that the payment should not be disallowed because it was not unreasonable. At first instance, the Divisional Court found against the respondents. Sankey J., on behalf of the court, held that (1): “The council are in a fiduciary position, not merely towards a majority who have elected them, but towards the whole of the ratepayers. A councillor is not entitled to follow the course which in his private capacity he might think it proper or advisable to pursue, but must confine his discretion within the limits imposed by law. He is not entitled to be unduly generous at the expense of those on whose behalf he is a trustee.”

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The Court of Appeal, by a majority, stressed the need for the auditor and the courts to respect the decision of a representative body. It reversed the judgment of the court at first instance and found in favour of the councillors. Atkin L.J. held that the council’s power to pay wages as it thought fit was not qualified by a requirement of reasonableness. As the council had acted in good faith, the auditor had no power to intervene and disallow the payments. In any event he held that the council could not be said to be acting so unreasonably as to be acting unlawfully. Scrutton L.J. found that the auditor did have the power to make a surcharge if the payments made went beyond what was reasonable. However, he held that the payments were not so large as to go beyond the reasonable limit of the discretion vested in an administrative body. The amounts paid, though near the line, could not be considered excessive. Bankes L.J. dissented and found that the payments made were unlawful. The council was a public authority entrusted with the expenditure of public money and had to pay reasonable wages. This must be determined by the market rate and not based on extraneous factors such as the council’s desire to be a model employer. The starting point is the decision of Poplar Borough Council, when exercising its statutory discretion to set wages, to adopt a policy on its workers’ wages with which the auditor disagreed. As the reasons for the council’s decision are crucial to the case it is important to review more carefully the council’s rationale for its decision. In addition to the councillors’ statements made at the meeting with the auditor and referred to above, the council has also explained its reasons in an affidavit sworn by the council leader, Mr. Scurr, and three other councillors, Mr. Key, Mr. Lansbury, and Mr. Sumner. The sixth paragraph of this affidavit states that: “The council and its predecessors the district board of works have always paid such a minimum wage to its employees as they have believed to be fair and reasonable without being bound by any particular external method of fixing wages, whether ascertainable by Trade Union rate, cost of living, payments by other local or national authorities or otherwise.” The ninth paragraph of the same affidavit goes on to explain further. “The council did not and does not take the view that the wages paid should be exclusively related to the cost of living, they have from time to time carefully considered the question of the wages and are of the opinion as a matter of policy that a public authority should be a model employer and that a minimum rate of 4l. is the least wage which ought to be paid to an adult having regard to the efficiency of their work-people, the duty of a public authority both to the ratepayers and to its employees, the purchasing power of the wages and other considerations which are relevant to their decision as to wages.”

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(1) [1911] A.C. 179.

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The consequence of this policy for the 44 women employed by the council was that their wages were raised from 50s. to 80s. in May 1920 and were maintained at that rate despite the fall in the cost of living. The maximum payable to women under the awards of the Joint Industrial Council was 69s. 3d. and with the margin allowed by the auditor the sum would be 75s. The minimum wage of 80s. was applicable to men and women and there is a dispute on the facts as to whether the wages were set with regard to the work in question. This has been the subject of adverse comment by my noble and learned friend Lord Buckmaster. In my opinion, this is a distraction from the main issue and little turns on this point as the council is entitled, in any event, to set a minimum wage based on equality between the sexes. This matter is discussed further below. Having looked at the councillors’ reasons for the decision and the impact on its workers I now turn to the legal points to be considered. Many of these points overlap but the main legal issues to be decided are: (a) Did the auditor, as an unelected official, have the statutory power to overturn the decision of the council, a representative assembly, on the grounds of unreasonableness? (b) Did the council’s statutory discretion in s. 62 of the Metropolis Management Act of 1855 to pay its workers such wages “as it thinks fit” entitle it to act as a model employer and pay a minimum wage of 4l. to its female and male employees? (c) Was the council as a representative public authority, as opposed to a private body or individual employer, entitled to set a minimum wage? (d) Did the council take into account extraneous factors by setting wages based on the principle of equality between the sexes? (e) Did the council pay equal wages to its male and female workers without regard to the actual work done, and if so was this unlawful? (f) Did the council have a fiduciary duty to its ratepayers, and was it in breach of its duty by failing to be guided exclusively by the market rate when fixing its wages? I will deal with each of these issues in turn. First, I would reject the argument of the respondent councillors that the law is not whether the auditor regards a payment as unreasonable or extravagant, but whether the object to which the money is being directed is illegal. There are exceptional circumstances where the auditor, and indeed the court, may come to the conclusion that a decision of a council to spend money on a lawful object is not reasonable. Nevertheless, the power of the district auditor to disallow and to surcharge the councillors must, in general, only be exercised where there is evidence of misuse of the funds, misconduct or negligence. It is only in rare circumstances that the courts will uphold a finding that the decision of an elected body is unreasonable. The case of Board of Education v. Rice (1), although not

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concerned with the auditor, is an example of the type of case that could fall within this category. In that case, a local authority had adopted a policy of paying teachers at secular schools, run by the authority, a higher rate of pay than teachers doing an equivalent job at church schools. As the Earl of Halsbury explained in his opinion (1): “The local education authority assumed to itself an absolute autocratic authority as to what schools they would keep efficient, and I cannot doubt for myself that they thought they were entitled to starve the Church schools and give advantages to the provided schools which they would not grant to the Church schools. It is impossible to resist the conclusion that this was done from hostility to the Church schools.” He went on to hold that there was no justification for the discrimination and concluded that “As I have said, here is a question of difference traced simply to the fact that one is provided and the other is not. No question has been raised that would justify such a difference as was here made. The local authority gave no evidence or argument, but relied upon their absolute authority.” This kind of unjustified discrimination is an example of a situation in which a court should intervene on the ground of reasonableness to quash an ultra vires decision. It can also be considered as a precedent to show the common law’s dislike of unjustified discrimination. However, I should emphasise that the power of the auditor should be exercised sparingly and the courts should only intervene in exceptional situations. This is because it is incumbent on the auditor and the courts to respect the decisions of elected bodies. I would agree in part with the judgment of Atkin L.J. in the court below when he stated that (2): “It seems to me to be essential to remember that we are dealing with powers given to public bodies consisting of representatives elected by the public on a wide franchise for comparatively short periods.” He referred to the case of Rex v. Carson Roberts (3), where the auditor’s decision to surcharge councillors because they had not accepted the lowest tenders was held to be unlawful. Fletcher Moulton L.J. acknowledged the importance of protecting ratepayers from misconduct on the part of representatives. But he went on to state that (4): “The true mode of securing the good management of municipal affairs is to induce the best men to take part in them, and to give their services to the community in this way. The task is at best unremunerative, and often thankless; but if those who accept it are to be liable to have their conduct pronounced upon and their character and property injured . . . no self-respecting man will take part in municipal affairs.” (1) [1911] A.C. 185. (3) [1908] 1 K.B. 407.

(2) [1924] 2 K.B. 725–726 (4) [1908] 1 K.B. 407, 433

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(1) [1898] 2 Q.B. 91. (3) [1908] 1 K.B. 407 (5) [1902] A.C. 165.

(2) [1898] 2 Q.B. 99–100. (4) [1898] 2 Q.B. 91. (6) 1921 1 Ch. 440.

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The importance of respecting the decision of an elected body was also emphasised by the divisional court in Kruse v. Johnson (1). In that case, the court emphasised the distinction between the courts’ scrutiny of bylaws made by commercial bodies such as railway authorities and those of bodies of a public, representative character. Lord Russell of Killowen C.J. noted that by-laws made by representative bodies ought to be “benevolently” interpreted and that a by-law should not be considered unreasonable just because a judge thinks that it goes further than is “prudent, necessary or convenient”. He also stressed the significance of the representative nature of the body in question (2): “Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges.” Turning now to Poplar Borough Council and its decision to use its statutory discretion to pay its workers a minimum wage of 4l. per week, and to pay women equal wages to men, the decision of the council was made by a representative assembly based on a policy that the council believed to be in the public interest. Since the decisions in Rex v. Carson Roberts (3) and Kruse v. Johnson (4), the representative nature of local authorities has increased. The Representation of the People Act of 1918 has widened the franchise so that in accordance with s. 4 of that Act, many women over 21 are now entitled to be registered as local government electors. Additionally, what was known as the “paupers qualification” has been removed by s. 9 of the Act, granting the vote to those who receive poor law relief. There has not only been an increase in the number of women electors but the number of women elected to local councils has also risen. Since the Qualification of Women (County and Borough Councils) Act of 1907, women have been eligible to stand as councillors and have been elected to local councils. This trend is illustrated by the fact that out of the 37 councillors surcharged by the auditor in this case, five are women. In view of this increase in the representation of women both as electors and representatives, it is not surprising that representative bodies such as the council should would want to make progress towards ensuring that the female members of the workforce are treated on an equal basis to the men on the workforce. A local authority is a creature of statute and must exercise its powers in accordance with law: see London County Council v. The Attorney General and Others (5); Attorney General v. Fulham Corporation (6). But as an elected body it is entitled to make

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policies that will improve the conditions of the workers and electors within its borough. Representative bodies have a special knowledge of their local area. This is a power that the auditor and the courts must respect and both should exercise their respective discretion to intervene carefully. Having established that it is incumbent on the auditor and the courts to respect the decisions of an elected body and to intervene sparingly, I turn to consider the approach the council took in setting wages. It was held by the Divisional Court that the council acted unlawfully because it failed to take into account the market rate and the interest of the ratepayers. The majority of your Lordships have held that the council’s aim of acting as a model employer led them to reject what my noble and learned friend Lord Sumner has called ordinary economic principles. Instead, your Lordships have held that the council took into account extraneous factors, described by my noble and learned friend Lord Atkinson as “eccentric principles” of socialist philanthropy and feminist principles of equality. Unhappily, I must dissent from these learned opinions. As I will explain below, the council’s decision to act as a model employer, by paying a minimum wage based on the principles of dignity and equality, was not, in my judgment, inconsistent with its statutory powers. I would hold the council as a public authority is entitled to act as a model employer and to set its workers’ wages on this basis. As a public employer it has a special duty to act in the public interest as opposed to acting purely for its own private, commercial interests. In the court below, Bankes L.J. held that as a public employer the council had to set wages in accordance with the market rate and unlike a private employer could not consider other factors. Bankes L.J. held (1) that a private employer could “. . . disregard all standard rates of wages in the sense that he can pay his employees as much above the standard rate as he pleases. His money is his own . . . Not so, however, the public authority entrusted with the duty of the expenditure of public money . . . In the case of the private individual dealing with his own money it is not only competent to him, but it is a humane and praiseworthy action, to approach the question of what he shall pay his employees from the point of view of what will enable them to live up to what he considers a reasonable standard of comfort, and to disregard altogether the question of what other people are paying for similar services or the sum for which he could obtain the service.” It is true a private employer may have greater latitude in deciding what wages to pay employees. By contrast, a public body must consider various factors depending on the statutory context. This may well include the (1) [1924] 2 K.B. 712.

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(1) (1919) (Cmd 135), para. 10(14), p. 5.

(2) [1922] 2 A.C. 339.

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ratepayers’ interest and the market rate. But it seems to me that the fact that the body in question is a public body imposes a greater and not lesser duty on that body to consider a wider range of interests including its responsibilities to its electors and workers. These interests may include acting as a model employer and paying a wage that would provide a reasonable degree of comfort and equality between its workers. In “The Report of the War Cabinet Committee on Women in Industry” (1) the authors recognise that the government should act as a model employer and one of their recommendations is that “The government should support the application to industry of the principle of ‘equal pay for equal work’ by applying it with the least possible delay to its own establishments.” This recognises the role and responsibilities that government and public bodies have in taking a lead on policies that will benefit the workforce and acting as a model employer to those in industry and other occupations. This responsibility may well include paying an equal wage to men and women. I turn to the question of whether the council acted lawfully when it considered the principle of equality between men and women when deciding what wage to pay its workers. It was held by Bankes L.J. in the Court of Appeal, whose judgment the majority of your Lordships have approved, that the council acted unlawfully by not being guided by ordinary economic considerations. In this House, my noble and learned friend Lord Atkinson has censured the council for taking into account, inter alia, the equality of the sexes when setting wages. I cannot agree with your Lordships’ approach to these issues. Treating equality as an extraneous matter when setting wages fails to take account of the many changes that have taken place in our country. During the war, many women rose to the challenge and undertook jobs that were formerly regarded as suitable only for men. Consequently, equality between the sexes has emerged as an important principle and has been acknowledged as such by Parliament. The Representation of the People Act of 1918 permits women over 30 to vote in Parliamentary elections, thus reversing the so-called common law incapacity of women to vote in Parliamentary elections. By virtue of the Parliament (Qualification of Women) Act of 1918, women are now also able to stand for Parliament. In addition, s. 1 of the Sex Disqualification Removal Act of 1919 provides that no person shall be disqualified by reason of sex or marriage from exercising any public function, holding any civil or judicial post or from entering any civil profession or vocation. It is regrettable that in Viscountess Rhondda’s Claim (2) the majority of this

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House failed to apply the clear and unambiguous language of the statute and refused to allow Viscountess Rhondda, who has inherited her father’s peerage, to take her seat in the House of Lords. I prefer the dissenting views of Lord Haldane and Lord Wrenbury in that case, both of whom held that the petitioner was, in accordance with the statute, entitled to exercise the public function of sitting and voting in the House of Lords. Lord Wrenbury stated (1): “I trace the ‘cause and necessity of the Act’ to the long and acute struggle of women to obtain the political and civil equality with men which they asserted to be their due. The considerations under this head point rather to complete equality of men and women.” This statement by Lord Wrenbury and the legislative changes that I have recounted demonstrate the significance and growing recognition of the principle of equality between men and women. It is for this reason that I cannot accept that the council erred when they took equality into account when setting wages. I now turn, more specifically, to the issue of equal pay, which is a principle that is also steadily gaining ground. Equal pay for equal work has not yet become part of our law but it has been acknowledged as a guiding principle in the labour provisions incorporated in the Treaty of Versailles, 1919. Article 388 establishes an International Labour Office. Most significantly Article 427 states that: “Among these methods and principles the following seem to the High Contracting Parties to be of special and urgent importance. First—The guiding principle above enunciated that labour should not be regarded merely as a commodity or article of commerce and . . . Seventh—The principle that men and women should receive equal remuneration for work of equal value.” Article 427 concludes that: “Without claiming that these methods and principles are either complete or final . . . they are well fitted to guide the policy of the League of Nations; and that, if adopted by the industrial communities who are Members of the League, and safeguarded in practice by an adequate system of such inspection, they will confer lasting benefits upon the wage-earners of the world.” A document such as this does not form part of our domestic law: see The Parlement Belge (2). But it is at least a statement of principle from those nations that are party to the establishment of the League of Nations. The reason why I draw attention to these provisions in particular is to illustrate that the principle of equal pay between men and women cannot be considered an extraneous matter in the setting of wages by a public body and certainly cannot be considered to be an eccentric or excessively philanthropic matter. A principle acknowledged and promoted by such an important organisation as this cannot be described as unusual or peculiar. (1) [1922] 2 A.C. 339, 398.

(2) (1878–79) L.R. 5 P.D. 129.

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(1) (1918) (Cd 9239), para. 49, p. 23.

(2) (1919) (Cmd 135), para. 10(1), p. 4.

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The notion of equal pay between the sexes has also gained increasing acceptance within this country. Over the last five years there have been two official government reports on equal pay. Neither of these reports can be described as excessively sympathetic to feminist ideas as both make what some would argue are unjustified assumptions about women’s role and capacities in the work place. Yet, both reports have, with some qualifications, concluded in favour of equal pay. “The Report of the Women’s Employment Committee of the Ministry of Reconstruction” states that (1): “Also the granting of equal pay for apparently equal work is not only a standard simple to enforce, but corresponds as well to an instinctive sense of equity and justice; and this principle alone gives hope of the final settlement of that old feud between men and women workers which is inspired by the fears of undercutting. It may not meet every individual case. But we confess that we can find no other working principle.” “The Report of the War Cabinet Committee on Women in Industry” also accepted the principle of equal pay and states (2): “That women doing similar or the same work as men should receive equal pay for equal work in the sense that pay should be in proportion to efficient output. This covers the principle that on systems of payment by results equal payment should be made to women as to men for an equal amount of work done.” Both reports discuss the complexity of deciding whether work is equal and the advantages and disadvantages to both sexes of implementing the principle of equal pay. In my view, given the current public discussion and gradual acceptance of the principle of equality in many areas of public life, the council cannot be described as acting unreasonably or arbitrarily in adopting principles of equality when determining the amount of wages to be paid to its workers. In fact, it may well be argued that a body that exercises its discretionary power without considering the comfort of the work force and the principle of equality may well be acting unlawfully. Some of your Lordships have objected to the council’s decision on wages on the grounds that the council paid equal wages to male and female workers without regard to the actual work done. My noble and learned friend Lord Buckmaster states in his opinion that the council has not established that the work done by men and women is actually equal work. The council, however, has denied this, and claim that the work done by the women is equal to that of the men. The Divisional Court made no finding on this point, and I would not draw the same inference from the statements contained in the councillors’ affidavit as my noble and learned friend Lord Buckmaster. I would accept the respondents’ claim that they have assessed the work as equal. This being the case, then it seems to me

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perfectly lawful for the council to pay equal wages to its workers rather than to pay the market rate, which discriminates against women by paying them lower wages. I would, however, like to consider the position of the council if it had decided to pay a minimum wage to all its adult workers, both male and female, without assessing the work undertaken. If the council had decided that the way to provide a dignified wage was to pay the lowest-paid workers a minimum wage and that this minimum wage should be based on the principle of equality, then once again this seems to be a perfectly proper decision that cannot be described as unlawful. Indeed, it has been argued by some that in the interest of fairness a minimum agreed wage should be imposed on a whole grade or vocation. In her Minority Report to “The Report of the War Cabinet Committee on Women in Industry”, Mrs. Sydney Webb maintained that (1): “There is no more reason for such occupational or standard rates being made to differ according to the workers’ sex than according to their race, creed, height or weight.” This view may be one with which some may disagree but it is open to the council as a representative body to decide that it is in the public interest that its lowest grade of workers should be paid a minimum wage and that this wage should not discriminate between men and women. In my view, the council acted reasonably when setting a wage of 4l. (80s.) for its employees and it is an exaggeration of some measure to describe these sums of 80s. as gifts as opposed to wages. This is particularly the case when, as Atkin L.J. noted in the Court of Appeal, the amount the auditor would have regarded as acceptable at the beginning of the period in question was 75s. It has been argued by the auditor that when setting its wages the council should have been guided by the market rate, the cost of living and the awards sanctioned by other bodies such as the Whitley Council. In the court below, Bankes L.J. accepted this view and held that (2): “Of recent years the tendency has everywhere been to standardise wages by either fixing the actual rate to be paid or by fixing minimum rates. In some cases the Legislature has stepped in to bring about this result. In most cases it has been due to the action of organised labour or associations consisting of employers and employed. The result has been to create in relation to labour what, in relation to commodities, is recognised as a market price. In relation to labour the market price is not a universal one; it may and does vary according to local conditions, but I think it is true to say that the standard rate of wages in any given locality for any of the well recognised forms of labour is ascertainable and can be ascertained.” (1) (1919) (Cmd 135), p. 254, para. 5.

(2) [1924] 2 K.B. 712.

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(1) [1924] 2 K.B. 726.

(2) [1924] 2 K.B. 728.

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It is argued before us by the auditor that because the council was not guided exclusively by these factors it was in breach of a fiduciary duty to its ratepayers. Whilst these factors may be used by councils when determining wages, I would draw attention to the dicta of Atkin L.J. in the Court of Appeal (1) when he stated that “the official figures as to the cost of living have no statutory authority and are not universally accepted as accurate.” Furthermore, I note that there is no evidence before us that women are represented on bodies such as the Whitley Council or that it has taken into account the equality of the sexes when setting wage rates. Moreover, as I have earlier noted, the market rate may discriminate against workers on the ground of sex without justification. In recent years we have seen that the government has found it necessary to try to regulate the practices of employers to prevent discrimination or unjustifiably low wages. For example during the war, the government entered into what has become known as the Treasury Agreement in 1915 to prevent women entering into traditional male work from being paid very low wages. One fear was that they would become what has been described as “sweated labour.” The success of this agreement has been much disputed and is not a matter that needs to be discussed here. But what the existence of this agreement does show is that the market cannot always be relied upon to produce a wage for workers that coincides with the public interest and that on occasion, it is necessary for government to intervene. This must be a matter for the local authority, which has been entrusted with the statutory power to decide. In short, it would be wrong to hold that the council had to set its wages in accordance with the market rate if this rate is discriminatory and fails to provide a wage that allows workers to live in comfort and dignity. Your Lordships have held that in setting the wages above the market rate, the council was in breach of its fiduciary duty to the ratepayers. My noble and learned friend Lord Atkinson, in this House, has described this duty to ratepayers as being a moral as well as a legal duty. I would reject the proposition that the council owed a fiduciary duty to ratepayers. I concur with the view of Atkin L.J. in the court below, who held there is no authority for the proposition that the ratepayers have any equitable rights that can be enforced in law. Of course, the council must exercise its powers for the public benefit and not for its own advantage. But as Atkin L.J. stated (2): “The duty of the council is to the local community as a whole.” I would hold that it is proper for the council to consider the interests of the ratepayers when setting wages, but that its responsibility is to the community it serves. Part of the purpose of devolving government to a local

April 3. —

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level is so that those involved in local government can use their knowledge and experience of the area they represent. In this case it is relevant to note that Poplar is one of the poorest boroughs in London. Its workers are reliant on the docks and the railways for employment, much of it casual or seasonal. It has numerous small factories and shops and many of its workers, including women workers are poorly paid. There is poor sanitation, over-crowded housing conditions and a high infant mortality rate. The recession has hit this area particularly hard and many of Poplar’s residents live in poverty. In 1919 the Labour Party won 39 out of the 42 council seats. It has a mandate to improve municipal services and introduce schemes to provide employment and improve the conditions of local residents. It is not for this court to judge whether these policies, including the council’s policies on wages and equal pay, are effective and in the interest of the residents. That is a matter of which the electors of Poplar, including the recently enfranchised female voters, will be the judge at the next election. It is apparent to me that the ratepayers have their own interest in opposing the council’s policies generally and in particular the wages the council pays its workers. It is also believed that if the council pays its workers higher wages and acts as a model employer in paying women equally with men and ensuring that there is a basic minimum wage, this will lead to workers demanding an increase in the wages paid by private employers. Employers’ costs will escalate and their profits will be driven down. These are legitimate points for the ratepayers to make and they are entitled to express their disagreements with council policy. They may seek to persuade the electors of Poplar that these policies are not in the long term interest of this country. They may also try to convince Parliament to change the law on the way wages are set. But what they may not do is to claim that policies that pursue the principle of equality for men and women, and attempt to relieve the conditions of workers, are unlawful as they are not within the statutory powers of Poplar Borough Council. The council has exercised its discretionary power properly and reasonably. It has considered all the relevant factors, including equality between the sexes, when making its decision. Its policies may not be approved of by the district auditor or by some parts of the community but as a representative body, its decisions are entitled to the respect of this court. I would dismiss this appeal and make the rule for certiorari absolute.

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23 Commentary on Del Monte Foods Ltd v Mundon GWYNETH PITT

The Law Relating to Dismissal on Grounds of Pregnancy Del Monte Foods Ltd v Mundon1 is a 1980 decision of the Employment Appeal Tribunal (EAT) on whether a woman had been dismissed on grounds of pregnancy contrary to section 60 of the Employment Protection (Consolidation) Act 1978 (EPCA). At that time, the legislation provided that it was automatically unfair to dismiss a woman if ‘the reason or principal reason for her dismissal is that she is pregnant or is any other reason connected with her pregnancy’.2 EPCA section 60 was originally section 34 of the Employment Protection Act 1975, introduced as part of the Social Contract between the Labour Government of the time and the TUC, according to which employees were granted some positive statutory employment protection rights in return for union restraint in wage claims. The timing is interesting: the Employment Protection Act 1975 and the Sex Discrimination Act 1975 (SDA) received Royal Assent on the same day (12 November 1975). The SDA came into force on 29 December 1975; but the relevant provisions of the Employment Protection Act had to wait until June 1976. It is striking that protection from dismissal on grounds of pregnancy was dealt with at this stage as an aspect of workers’ employment protection rights in general, proceeding on a parallel but entirely separate track from sex discrimination law. The theoretical and empirical arguments inextricably linking pregnancy, childbirth and caring responsibilities with women’s disadvantaged position in the workplace were a long way from gaining general acceptance, much less being addressed by the law. At European Union (EU) level, it was not until 1990, 10 years after Del Monte Foods Ltd v Mundon, that the European Court of Justice (ECJ) established, in Dekker v VJV Centrum,3 that less favourable treatment on grounds of pregnancy or childbirth should be regarded as sex discrimination. However, in another decision handed down the same day, Hertz v Aldi Marked,4 the ECJ conceded that outside the protected period of pregnancy and maternity leave, comparisons of the employer’s treatment of absence arising from pregnancy and maternity could properly be made with the treatment of a man absent from work through illness or accident. So far as EU legislation is concerned, pregnancy and childbirth were 1 2 3 4

Del Monte Foods Ltd v Mundon [1980] ICR 694 (EAT). EPCA s 60(1). Case C-177/88 Dekker v VJV Centrum [1990] ECR I-3941. Case C-179/88 Hertz v Aldi Marked [1990] ECR I-3979.

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402 Gwyneth Pitt initially presented as health and safety issues rather than as an aspect of sex discrimination law. The Pregnant Workers Directive,5 which required Member States to provide protection for female workers from discrimination on grounds of pregnancy or childbirth (including protection against dismissal), was passed as a health and safety measure, although it was widely recognised that this was mainly so that it could be passed using qualified majority voting, thus circumventing the entrenched opposition of the UK government of the time. Finally, however, the Equal Treatment Amendment Directive6 stated expressly that less favourable treatment related to pregnancy and maternity leave should be treated as sex discrimination.7 All these developments were a long way in the future when Del Monte Foods Ltd v Mundon came in front of the EAT in 1980. Earlier that year, the question of whether dismissal on grounds of pregnancy could be regarded as sex discrimination had been canvassed in front of the EAT in Turley v Allders.8 In that case, the EAT held that dismissal on grounds of pregnancy could not be regarded as sex discrimination because it was not possible to imagine a male comparator to a pregnant woman. Five years later, in Hayes v Malleable WMC,9 the EAT shifted its position and held that a comparison could be made between a pregnant woman and a man with a long-term health problem. It would thus be sex discrimination if a woman was dismissed on grounds of pregnancy if a man would not be dismissed for needing the same amount of absence because of illness. Despite the inappropriateness of this analogy, in a later decision, with a five-member tribunal especially assembled to deal with the point, the EAT reiterated the Hayes approach and it was confirmed by the Court of Appeal in Webb v EMO Air Cargo (UK) Ltd.10 Despite the fact that the ECJ had decided Dekker v VJV Centrum in the meantime, the House of Lords referred Webb to the ECJ, which duly reiterated that less favourable treatment on grounds of pregnancy constituted direct sex discrimination.11 UK legislation was not amended after this decision: it was left to tribunals and courts to interpret the SDA in accordance with the ECJ’s judgment; however, once the Equal Treatment Amendment Directive had been passed, a new section 3A was added to the SDA, making discrimination on grounds of pregnancy and maternity leave unlawful. At the time of Del Monte Foods Ltd v Mundon, there would have been two advantages to being able to claim under the SDA as opposed to the EPCA: first, the one-year qualifying period for claiming unfair dismissal did not apply to sex discrimination cases; secondly, compensation could have included a sum to compensate for injury to feelings, a head of compensation which is unavailable in unfair dismissal cases. Today the qualification period does not apply, so a claimant in Ms Mundon’s situation could claim both unfair dismissal and sex discrimination; but in 1980 her claim could only be for unfair dismissal under the EPCA. The particular issue which arose in Del Monte Foods Ltd v Mundon was whether the employer could be held to have dismissed an employee on grounds of pregnancy if they did not know of the pregnancy at the time that the decision to dismiss was taken. The current legislative provision on this point is to be found in regulation 20 of the Maternity and 5 6 7 8 9 10 11

Pregnant Workers Directive 92/85/EC OJ L 348/1. Equal Treatment Amendment Directive 2002/73/EC OJ L269/15. ibid art 2(2)(c). Turley v Allders [1980] ICR 66 (EAT). Hayes v Malleable Working Men’s Club [1985] ICR 703 (EAT). Webb v EMO Air Cargo (UK) Ltd [1992] 2 All ER 43 (CA). Case C-32/93 Webb v EMO Air Cargo (UK) Ltd [1994] ECR I-3567.

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Mundon v Del Monte Foods Ltd—Commentary 403 Parental Leave etc Regulations 1999 (as amended) (MPL Regs), which states that dismissal is automatically unfair if the reason or principal reason is one of those stipulated in regulation 20(3). Regulation 20(3) says that such reasons ‘are reasons connected with’, inter alia, pregnancy, childbirth and maternity leave. This is substantially the same as the earlier provision, so the point at issue in the case is still relevant today.

The EAT Decision in Del Monte Foods Ltd v Mundon In essence, the case involved a claimant who had a history of absenteeism for gastroenteritis and other intestinal problems. Two months before her dismissal she was given a written warning that her absence level was unacceptable and that she had two months in which to show an improvement. Following a further two-week absence during this period, the decision was taken to dismiss her, but before the dismissal took place, the claimant contacted the employers and informed them that she was pregnant. They still went ahead with the dismissal. The employment tribunal held that the final absence was due to the pregnancy and since the employers knew that she was pregnant at the time of dismissal, this was dismissal for a reason connected with pregnancy and automatically unfair under EPCA section 60. The central issue before the EAT was, what needed to be proved for a finding that the employer’s reason for dismissal was pregnancy or a reason connected with pregnancy? The view they took was that it was ‘essential’ that the employers should know or believe that she was pregnant ‘or that they were dismissing her for a reason connected with her pregnancy’. In the latter case, they held that the employer would have to know two things: first, the facts which gave grounds for the reason, and secondly, crucially,‘that those facts . . . are connected with the woman’s pregnancy’. Allowing the employers’ appeal, the EAT held that the tribunal was in error in apparently holding that because the employers knew that Ms Mundon was pregnant and went ahead with the dismissal, the dismissal was because of pregnancy. The EAT further held that there was no evidence on which the tribunal could find that the final absence for gastroenteritis was linked to her pregnancy, and even if it were, there was no evidence that the employers knew of the connection. The criticism which has been made of this decision is that while EPCA section 60 (and now MPL Regs regulation 20) refer(s) simply to a reason connected with pregnancy, this decision imports an extra requirement, that the employer subjectively knows or believes that the reason is connected with pregnancy. Among others, this point was made by Lindsay J in Heinz v Kenrick.12 Heinz v Kenrick was brought under the Disability Discrimination Act 1995 (DDA), which defines disability-related discrimination in analogous terms to EPCA section 60 as less favourable treatment for a reason related to the claimant’s disability.13 Commenting on whether or not this required the employer to know of the claimant’s disability, Lindsay J said this about Del Monte Foods Ltd v Mundon: If a woman was, for example, sacked for repeatedly falling faint one morning over the machinery at which she worked or over her food production line, would she not, objectively regarded, have 12 13

Heinz v Kenrick [2000] ICR 491 (EAT). See now DDA s 3(1)(a) (emphasis added).

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404 Gwyneth Pitt been dismissed for ‘a reason connected with her pregnancy’ if she was able to demonstrate at the hearing that it had been her pregnancy that had made her faint, even if both she and the employer had thought at the time that she had fainted because she had been out clubbing too late the night before?14

The EAT held in that case that it was sufficient if objectively there was a causal connection between the disability and the reason for the less favourable treatment, whether or not that connection was appreciated by the employer. It must be noted, however, that in a case of disability discrimination, an employer would have the possibility of arguing a defence of justification, whereas in a case of automatic unfair dismissal, an employer would not have the opportunity to argue that the dismissal was reasonable in all the circumstances. This issue was considered by the EAT again in Ramdoolar v Bycity Ltd,15 where the claimant was dismissed for absence which was caused by pregnancy, but the employer did not know that she was pregnant. The submission on the part of the claimant was that if the employer ought to have realised that the symptoms or behaviour of the employee were caused by pregnancy, then a dismissal for that reason would be automatically unfair if the employee was in fact pregnant. This would put an onus on the employer to make enquiries, most probably by asking the employee whether or not she was pregnant. The view of the EAT was that this would be impractical and that such inquiries might be regarded as offensive by a pregnant employee and an invasion of her privacy. They declined to follow Lindsay J’s observations in Heinz v Kenrick and reaffirmed the law as stated in Del Monte Foods Ltd v Mundon. So far as disability discrimination is concerned, the EAT’s decision in Heinz v Kenrick was effectively disapproved by the widely-criticised decision of the House of Lords in London Borough of Lewisham v Malcolm.16 The claimant, who suffered from schizophrenia, sub-let his council flat at a time when he was not taking his medication. Sub-letting was a breach of the terms of his tenancy and so the council began repossession proceedings against him. He argued that this was disability discrimination, because it was as a result of his untreated schizophrenia that he let his life get out of control and sub-let the flat. Was this less favourable treatment for a reason related to his disability? The House of Lords was unanimous in holding that there could be no discrimination for a reason related to disability if the alleged discriminator did not know of the facts establishing the claimant’s disability, although it was not necessary that they should know that it amounted in law to a disability. While other aspects of Lewisham v Malcolm will be changed by the Equality Act 2010 when it comes into force, no change will be made on this point. Section 15(2) of the Equality Act provides that there will be no liability for detrimental treatment of a disabled person unless the alleged discriminator knew or could reasonably be expected to know of the claimant’s disability.

The Feminist Judgment The feminist judgment imagines an appeal to the Court of Appeal from the EAT’s decision in Del Monte Foods Ltd v Mundon. Allowing the employee’s appeal and remitting the case to 14 15 16

Above n 12 at [24]. Ramdoolar v Bycity Ltd [2005] ICR 368 (EAT). London Borough of Lewisham v Malcolm [2008] UKHL 43, [2008] 1 AC 1399.

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Mundon v Del Monte Foods Ltd—Commentary 405 a different tribunal, Rachel Horton and Grace James hold that the EAT was wrong to find that the employer should be liable only if subjective knowledge of the pregnancy could be shown and wrong to hold that the employer had no obligation to review its decision to dismiss if it found out about the pregnancy before the dismissal actually took place. They hold that the employer has an obligation to investigate the reason for the employee’s absence to the extent that is reasonable in the circumstances. One of the most important facets of their approach is the reframing of the issues through a broader contextualisation of the factual and legal scenario. The purpose and practical importance of the maternity rights legislation are highlighted in at the outset of the judgment, thus ensuring that this informs and flavours the whole discussion that follows. A powerful passage in the middle of the judgment discussing the experience of women in early pregnancy foregrounds the realities of women’s lives and helps to support the reasons given later for expecting the employer to investigate the absence rather than putting the onus on the employee to disclose her pregnancy. The objective approach to the interpretation of EPCA section 60, that there is nothing in the wording of the legislation to suggest that the employer must have in mind a connection between pregnancy and the dismissal, is a perfectly justifiable conclusion as shown by its later adoption by analogy in disability discrimination cases such as Heinz v Kenrick. Had this position been taken in 1980 it is possible that the objective test might have been less contested in disability discrimination law. In Lewisham v Malcolm, one reason Baroness Hale put forward for dissenting was that the previous law had stood for nine years without challenge: had the position existed for nearly 30 years, this argument might have carried more weight. A bold step is taken towards the end of the judgment, where Horton and James argue that, presented with equivocal facts, the onus should be on the employer to seek to establish whether or not the reason for the employee’s absence or under-performance is pregnancy and to act accordingly. It is convincingly justified by analogy with the requirement for an employer to make a reasonable investigation of an employee’s medical condition before proceeding to dismiss on grounds of incapability and the discussion takes full account of potential difficulties for the employer, thus showing sensitivity to the position of both parties. Equal Opportunities Commission research in 2004 and 2005 concluded that 30,000 women lose their jobs each year as a result of pregnancy-related discrimination and almost half who work during their pregnancy will suffer some form of discrimination, although only about 1,000 per year actually institute tribunal proceedings.17 This suggests that the law as it is currently drawn and interpreted fails to achieve its aims. James’s research into tribunal cases involving pregnancy dismissals found that employers who argued that they were unaware of the pregnancy were highly likely to be absolved of liability: ‘in 69 per cent of cases where the employer argued that he or she was unaware of the pregnancy, the claimant was unsuccessful’.18 One reason for this appears to be too ready an acceptance of the employer’s assertion of lack of knowledge on the part of tribunals. Hence a shift which required the employer to investigate the position would redress the balance and would not be out of line with analogous legal duties, such as the employer’s duty to carry out a reason17 Equal Opportunities Commission, Greater Expectations: Final Report of the EOC’s Investigation Into Discrimination Against New and Expectant Mothers in the Workplace (Manchester, Equal Opportunities Commission, 2005) 5. 18 G James, The Legal Regulation of Pregnancy and Parenting in the Labour Market (London, RoutledgeCavendish, 2009) 70.

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406 Gwyneth Pitt able investigation of the circumstances before dismissing for sickness absence,19 or the employer’s duty to disprove discrimination if the employee has shown facts supporting an inference of discrimination, absent an adequate explanation by the employer.20 Horton and James further disagree with the EAT’s decision that if the employers had decided to dismiss before knowing about the pregnancy, they were under no obligation to reconsider once that information was disclosed to them. Clearly, if the pregnancy was the cause of the reason for which the employers decided on dismissal, it would be wrong not to require the employer to reconsider in the light of that information. This is in accordance with general principles of employment law. The decision to remit is thus amply justified.

19 20

See, eg East Lindsey DC v Daubney [1977] ICR 566 (EAT). SDA s 63A.

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[COURT OF APPEAL] MUNDON v. DEL MONTE FOODS LTD. 1980 Dec. 19 Horton and James L.JJ. Susan P. Mundon, a keypunch operator employed by Del Monte Foods Ltd., was dismissed on April 17, 1979. Mrs. Mundon had been absent for prolonged periods in 1977 and 1978 for reasons of ill health. She was also absent in the first quarter of 1979 for some 121⁄2 days, and on February 13, 1979, her employers issued her with a formal written warning that failure to improve her attendance would lead to a re-consideration of her suitability for employment with Del Monte Foods Ltd. Mrs. Mundon was then absent from work between March 30 and April 13, 1979. A medical certificate, received on April 4 or 5, stated that she was suffering from “gastro-enteritis”. The Tribunal found that on April 10, 1979, Mrs. Mundon’s immediate supervisor, Mr. Howard, asked that steps be taken to terminate her employment. On April 11, the employee telephoned her employer and informed them of her pregnancy. On April 17, Mrs. Mundon was dismissed, and on appeal to Mr. Alker (senior personnel manager), that decision was confirmed. Mrs. Mundon complained to an industrial tribunal that the dismissal was unfair because, she argued, the principal reason for her dismissal was pregnancy, contrary to section 60 (1) of the Employment Protection (Consolidation) Act 1978. Section 60 (1) provides that: “An employee shall be treated for the purposes of this Part as unfairly dismissed if the reason or principal reason for her dismissal is that she is pregnant or is any other reason connected with her pregnancy, except one of the following reasons —(a) that at the effective date of termination she is or will have become, because of her pregnancy, incapable of adequately doing the work which she is employed to do; (b) that, because of her pregnancy she cannot or will not be able to continue after that date to do that work without contravention (either by her or her employer) of a duty or restriction imposed by or under any enactment.” Del Monte Foods Ltd. claimed the reason for the dismissal was not Mrs. Mundon’s pregnancy but her prolonged periods of absenteeism. The industrial tribunal, sitting at London South on June 12, 1979, held that Del Monte Foods Ltd. had unfairly dismissed the employee on the grounds of her pregnancy. It found that the principal reason for the dismissal was pregnancy: the absence that triggered the dismissal was due to her being pregnant and although Mr. Howard decided to dismiss her for absence before he knew of the pregnancy, he and Mr. Alker went ahead, knowing she was pregnant. On appeal, Del Monte Foods Ltd. argued that the industrial tribunal had erred in law as there was not sufficient evidence to justify their finding. The appeal tribunal, allowing the appeal, held that before there could be a finding under section 60 of the Employment Protection (Consolidation) Act 1978, it was essential to show that the employer knew or believed that the employer was pregnant and, where the dismissal was for a reason connected with the pregnancy, that the employer had knowledge of the facts and their connection with the pregnancy.

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408 Rachel Horton and Grace James The purpose of section 60 (1) of the Act of 1978 is to protect women from being dismissed as a result of their pregnancies. At a time when a growing percentage of women are entering the workplace, such legislation is necessary to protect pregnant women from the antipathy of many employers to taking steps to accommodate the pregnant woman in the workplace during the pregnancy and, particularly, during and after her maternity leave. In addition to the protection from dismissal in section 60 (1), the wider scheme of the Act contains a number of provisions, at sections 33–48, aimed at providing the pregnant employee with some financial and job security during and on return from her maternity leave. The sum of these rights and protections is particularly welcome and necessary given the inevitable and serious detrimental effect on child and family welfare the disruption of the mother’s ability to contribute financially is likely to cause. It is against this wider background that we approach the issues in this case. At the time of her dismissal, Mrs. Mundon was absent due, according to her medical certificate, to “gastro-enteritis”. It appears to have been established at the industrial tribunal that the gastro-enteritis was linked to the pregnancy, although the appeal tribunal doubted whether the industrial tribunal was entitled to draw this conclusion on the strength of the evidence it had before it. Del Monte Foods Ltd. claim that it was Mrs. Mundon’s absenteeism alone that motivated the dismissal and not her pregnancy. It was, they claim, impossible for the pregnancy to be the reason for the dismissal given that they were unaware of the pregnancy (and necessarily, therefore, of any relationship between the gastro-enteritis and the pregnancy) at the time the decision to dismiss was made on April 10, 1979. Mrs. Mundon informed her employer of the pregnancy the following day, April 11, and was finally dismissed on April 17. The appeal tribunal were of the view that the lack of knowledge as to the pregnancy at the time of the decision to dismiss Mrs. Mundon was fatal to her claim. Slynn J. on behalf of the tribunal [1980] I.C.R. 694, 697 concluded that: “The section of the Act relied upon for the purposes of this claim, it seems to us, makes quite clear that there is to be a finding of unfair dismissal, without more, if either the reason or the principal reason for the dismissal is that the woman is pregnant or is for some other reason connected with her pregnancy. It must be shown in this case that the dismissal was because of the pregnancy or for another reason connected with the pregnancy. If this section is relied on, it seems to us essential that it be shown that the employers knew or believed that the woman was pregnant or that they were dismissing her for a reason connected with her pregnancy. If they do not know of the pregnancy, or do not believe that the pregnancy exists, it does not seem to us that it is possible for the employers to have as their reason for dismissal that the woman was pregnant. In a case where it is said that the reason for the dismissal is another reason connected with her pregnancy, not the pregnancy itself, it seems to us that the employers have to know the facts alleged by the employee as grounding the reason and also to know or believe that those facts relied upon are connected with the woman’s pregnancy. In summary it must be shown that the employers have either the knowledge of, or a belief in, the pregnancy, or knowledge of the facts, and their connection with the pregnancy, if there is some other reason than the pregnancy, which is the reason for the dismissal.”

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Mundon v Del Monte Foods Ltd—Judgment 409 This appeal from the decision of the appeal tribunal is brought by Mrs. Mundon on the ground that the appeal tribunal erred in law in finding that under section 60 of the Act of 1978 it was essential to show that Del Monte Foods Ltd. knew or believed that Mrs. Mundon was pregnant and that her illness was connected to her pregnancy at the time the decision to dismiss was made. Hence, Mrs. Mundon has requested that the original industrial tribunal decision be restored. The appeal tribunal appears to support a view that an employer’s knowledge of or belief in the pregnancy is strongly linked to culpability. We understand, and have sympathy with the reasons why such a view might be adopted; indeed, to completely abandon any requirement for knowledge on the part of the employer risks, if treated unsympathetically, a situation which is tantamount to an imposition of strict liability. Nonetheless, in our opinion, the reasoning of the appeal tribunal in this case imposes a heavy burden on pregnant employees to reveal their pregnancies in order to invoke the protection of the Act. Specifically, in our view, the grounds of this appeal require that the following inter-related issues be considered. First, it is necessary to consider the importance of knowledge under section 60 (1) of the Act: fundamentally, is liability possible under section 60 (1) if the employer had no knowledge of the pregnancy and, if relevant, no knowledge of the relationship between the pregnancy and the reason for dismissal at the time the decision to dismiss was made? Secondly, it is necessary to decide where the onus lies for revealing or discovering the pregnancy. Importantly, does the Act impose liability where the employer does not know of the pregnancy or the connection between the pregnancy and reason for the dismissal and has failed to make reasonable enquiries? Thirdly, it is necessary to consider whether section 60 (1) places any duty on the employer to reconsider a decision to dismiss when it learns of the pregnancy and, if so, the nature, extent and implications of that duty. In relation to the first issue, namely the importance of the employer’s knowledge under section 60 (1) of the Act, we would hesitate before adopting the view, favoured by the appeal tribunal, that to find an employer liable under the Act requires actual subjective knowledge of the employee’s pregnancy, or knowledge that the illness (or behaviour) complained of was or might be connected to pregnancy, at the time the decision to dismiss was made. We cannot imagine that such an approach was intended by the legislature. There is nothing in the wording of section 60 (1) that suggests that a connection between pregnancy and the dismissal should be in the employer’s mind at the time a decision to dismiss is made. Yet, this subjective knowledge is exactly what the appeal tribunal suggest is required. The appeal tribunal appear to base this construction on a belief that if the employer did not know of the pregnancy, or did not believe that the pregnancy existed, it is not possible for them to have as their main reason for the dismissal that the woman was pregnant. It is our view, however, that the issue of knowledge ought to be objectively regarded. Hence, if the illness which caused the absenteeism for which Mrs. Mundon was dismissed is found (at a later date) to be connected to her pregnancy, the fact that her employer was unaware of this connection at the time should not automatically prevent liability arising under section 60. This leads us to the second related issue that needs to be considered within this context—the question of who bears responsibility for ensuring that the pregnancy or its connection to the relevant “trigger” for dismissal, in this case absenteeism, is revealed. Put another way, upon whom does the onus lie in terms of knowledge of pregnancy or

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410 Rachel Horton and Grace James pregnancy-related illness in circumstances such as arise in the case before us—the employee or the employer? In the present case, the appeal tribunal clearly favoured the view that the employee should bear responsibility for informing her employer of the pregnancy or its connection to the reason for dismissal. This approach has the merit of providing certainty for employers against which they can be confident in their decision making. The well-intentioned employer who recognises possible symptoms of pregnancy in an employee certainly faces a dilemma. To proceed to make a decision about dismissal without further enquiry may result in dismissal for a reason connected to pregnancy. On the other hand, ruling out this possibility may involve making unwelcome enquiries of the employee in question. On behalf of Del Monte Foods Ltd. it has been suggested that such enquiries may be viewed as offensive by some female employees (particularly, perhaps, if they are not in fact pregnant) and that a female employee might regard such enquiries as an intrusion. To impose a burden, it is argued, upon the employer to make enquiries is unrealistic and impractical as it would require the employer to be aware of and alert to signs of possible pregnancy. The employee, on the other hand, it is argued, will normally be aware whether she is pregnant or not and it is not difficult for her to inform the employer of this fact. For these reasons, Del Monte Foods Ltd. submit that it is more appropriate to place the burden of disclosure on the employee. However, such an approach is not as straightforward as it may appear. Principally, it fails to consider the social and biological context of early pregnancy for the woman. This is a time of difficult choices and conflicting priorities for the pregnant woman. It is a time when the news of what may be an expected or unexpected, a welcome or unwelcome pregnancy, is still sinking in. It is a time when the pregnancy is at its most fragile and the fear of miscarriage greatest. It is also a time when in even the healthiest pregnancy the physical symptoms in the mother, including sickness, can be at their most acute. These symptoms are well known as signs of a possible pregnancy. The existence of legal protection for dismissal on grounds of pregnancy, however necessary and welcome it may be, therefore creates a dilemma for the newly pregnant woman to add to the others that she, and her family, may face. Should she reveal the pregnancy to her employer when she may not yet wish to make it known, even to her closest family, in order to secure the available legal protection? Or should she keep the matter private and take the risk that her employer may act to her detriment on suspicion of pregnancy, or even innocently in response to unrecognised symptoms of pregnancy, when they may still plausibly claim to have no knowledge or belief of the pregnancy? It is not difficult, for example, to imagine a scenario where a woman has told a colleague of her pregnancy and her colleague told other workers and the manager, discovering the pregnancy by way of office gossip, dismisses her before being informed in person. Or a scenario where a manager suspects pregnancy, because, for example, the employee uncharacteristically refuses an alcoholic drink in the bar after work, and dismisses her in anticipation of her pregnancy. In striking the balance between the rights of the employer and the pregnant employee, we must be mindful of the need to ensure that the law puts no more pressure on her than is necessary to disclose the pregnancy before she would otherwise choose to do so. Placing the onus on employees to reveal their pregnancy in order to gain legal protection under the Act of 1978 also risks undermining the purpose of section 60 (1) by providing dishonest employers with an opportunity to evade the law by simply stating

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Mundon v Del Monte Foods Ltd—Judgment 411 that the decision to dismiss the employee was made prior to them being “informed” of the pregnancy. This approach also raises significant evidential problems which, we fear, could lead to potentially unjust decisions being made simply because employees are unable to prove that the employer had the relevant knowledge. For example, if the onus is on the employee, is actual knowledge necessary or is it enough to show that the employer should have known of the pregnancy? Indeed, what if she is not actually pregnant and the assumption is false? One also wonders how many women would feel willing to challenge such a dismissal when faced with these evidential hurdles, especially when she is expecting a baby and hence has other priorities. Legal challenges are daunting for all claimants involved in workplace disputes. Pregnant women and new mothers are, however, in a unique situation, as the dismissal occurs at a time when they are likely to be experiencing the particular physical, emotional and social challenges related to pregnancies and caring for newborn babies. The second option, placing the onus on the employer to investigate the reasons for absenteeism or illnesses, is, we believe, more sensitive to the problems we have highlighted, as it is the employer who is better situated to air the concerns of the business to the employee and determine, prior to making a decision whether or not to dismiss, the relevance (or not) of pregnancy to the situation. It seems to us that the employer is better placed to know of the importance, given an imminent decision to dismiss, of understanding the likelihood of pregnancy or/and the connection of pregnancy to the particular situation. While the employee may control the information about her pregnancy, it is the employer, alone, who knows about the likelihood of dismissal and reasons they have for considering dismissal of the employee. Often, it will only be by making enquiries and giving the employee an opportunity to explain that the reasons the employer has for considering dismissal are related to pregnancy, that any connections between pregnancy and the reasons for dismissal can be made. Clarity and consistency would best be achieved through an amendment to the legislation regarding the burden of proof, so that it is explicit that the burden does not fall on the employee to prove that her employer had knowledge of the pregnancy, or a connection between it and the dismissal. This is clearly a matter for Parliament. We do not believe, however, contrary to the interpretation of the appeal tribunal, that the legislature intended these employees to carry such a heavy evidential burden. We are, therefore, of the view that the existing statutory test must be construed in a way that recognises the implications of simply placing the onus on pregnant employees to show actual knowledge on the part of the employer. We do not believe that enquiries into possible pregnancy would, or should, be seen as a detriment to an employee whose job is on the line. In order to succeed in showing that their reason for dismissal was not connected with the pregnancy, the employer must do all it can reasonably be expected to do to find out whether there is a connection between the reason for dismissal and the pregnancy. What is reasonable in any given case will depend on a number of factors which may include the frequency and visibility of any symptoms. Our conviction that an employer needs to gain an informed view of the position prior to dismissal is similar to the view taken by the appeal tribunal in East Lindsey District Council v. Daubney [1977] I.C.R. 566, a case involving a man dismissed on the grounds of illhealth who claimed unfair dismissal. The appeal tribunal held that a failure to investigate his medical condition and prognosis prior to dismissal for capability resulted in unfair dismissal, impacting upon the reasonableness of the decision to dismiss.

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412 Rachel Horton and Grace James It seems to us that to expect anything less here would endorse a less stringent onus in cases potentially involving pregnancy-related unfair dismissal, where it is clear that the employer’s decision is not subject to a reasonableness test, as is the case in ordinary unfair dismissal situations. We cannot imagine that this was the intention of the legislature. Our view, then, is that the initial onus for investigation lies with the employer in these cases and that the scope of this responsibility ought to be judged on a case-by-case basis and be no more than one would expect of a reasonable employer faced with similar circumstances. Subject to what is said below in relation to the implications of discovery of pregnancy post-dismissal, liability should extend only to employers who, whilst not knowing of the pregnancy or the fact that the reason for the dismissal was connected to the pregnancy, failed to make reasonable enquiries. We now move to consider the third issue, whether section 60 (1) of the Act of 1978 places any duty on the employer to reconsider a decision to dismiss once pregnancy is revealed. The appeal tribunal was opposed to the view that subsequent knowledge of the pregnancy, following the decision to dismiss (in this case) but prior to the actual dismissal, ought to gain some retrospective importance. The appeal tribunal’s conclusions do not support the industrial tribunal’s conclusion that the knowledge of the pregnancy ought to have changed the decision completely. Yet, if the test is an objective one, and there is no language in the Act to suggest otherwise, then having discovered prior to dismissal that pregnancy is at the root of the behaviour that led to the decision to dismiss, as opposed to lack of capability or misconduct per se, for example, this would clearly indicate that the dismissal was “for a reason connected with her pregnancy” and hence unlawful. In our view, any distinction between the decision to dismiss and the implementation of that decision, in terms of liability, is an artificial one: if we accept that the onus is upon the employer to make reasonable enquiries prior to dismissal, that is an onus that remains right up until the actual time of dismissal. If the employer is informed of the pregnancy during that time, between the decision to dismiss and dismissal, then clearly the relationship between the pregnancy and the reasons for the dismissal need to be fully explored. Only if the employer is satisfied that there is no connection can it dismiss the employee without fear of liability arising under section 60 (1). This does not, therefore, open any floodgates, as situations where the decision to dismiss was based upon a reason unconnected to the pregnancy are still excluded from the Act. If a woman was, for example, sacked for repeated lateness, and it is then discovered that she was pregnant but that the lateness was unconnected, but due to bad time keeping as opposed to morning sickness, the dismissal would not be unfair within the meaning of section 60 (1). Only if, using this example, morning sickness or some other pregnancy-related illness is found prior to dismissal to explain the lateness, and hence indicates a relationship between the pregnancy and the dismissal, will it be unfair within the meaning of section 60 (1). Indeed, such an approach actually protects honest employers, encouraging them simply to pause and consider whether the reason for the dismissal might relate to the pregnancy, and to reflect upon the legislation and its aims, before dismissing her. In conclusion, we find that the appeal tribunal erred in law in holding that the employer must, without any duty to make reasonable enquiries, have knowledge of, or a belief in, the pregnancy, or, where relevant, have knowledge of the facts and knowledge of, or a belief in, their connection with the pregnancy, in order to be liable under

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Mundon v Del Monte Foods Ltd—Judgment 413 section 60 (1) of the Act of 1978. Accordingly, we would allow the appeal. However, despite the decision of the industrial tribunal, we consider it is unclear in this particular instance whether Mrs. Mundon’s gastro-enteritis, which caused the absence that ultimately led to the dismissal, was connected to her pregnancy. The extent of the employer’s enquiries as to the likelihood of a connection is also unclear in this case and needs to be explored further. Given these circumstances, and in light of the conclusions reached herein, we are not willing to reinstate the decision of the original industrial tribunal and this case must therefore be remitted to a differently constituted industrial tribunal for a re-hearing.

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24 Commentary on James v Eastleigh Borough Council JOANNE CONAGHAN

Introduction James v Eastleigh Borough Council 1 is a veritable giant in the canon of British equality law. Decided by the House of Lords in 1990, it is one of those cases which students meet early in their acquaintance with the complexities of discrimination law and therefore tend to remember. Moreover, its facts are so simple, so commonplace as to lodge in the mind of even the most reluctant law student. At immediate issue was the seemingly paltry sum of 75 pence, which 61-year-old Mr James was charged to enter a public swimming pool in circumstances where his 61-year-old wife was admitted for free. This was because the swimming pool offered a concession to pensioners and while Mrs James had reached state pension age at 60, Mr James, being a man, did not qualify as a pensioner until he reached 65. Thus, although the sum was small, the stakes were high, for at the heart of the dispute lay contestation over the long-established gender-differential state pension age. That this was more than a minor skirmish around the boundaries of discrimination law was signalled by the involvement of the Equal Opportunities Commission (EOC) who backed the case, helping to propel it towards an ultimately successful conclusion for Mr James. In so doing, it raised a seemingly trivial complaint to the status of a leading authority on the concept of discrimination in law. There are lots of interesting sidebars to explore in James. One might note, for example, that the claim was brought (and won) by a man, notwithstanding that in the broader social context it is more often women who are seen to be disadvantaged on the ground of sex. Another interesting feature is the complete lack of concern about the use of an age requirement to determine access to services. James represents an innocent world where no one would dream of challenging age-based differentiation as discriminatory. Nowadays, the harm in James might be seen to lie as much in the reliance on age as a ground for differential treatment as sex. A related issue, lurking in the background but strangely never addressed even obliquely by their Lordships, is the fact that state pension ages for men and women diverge. How, one might ask, did such a state of affairs come into existence and what

1

James v Eastleigh Borough Council [1990] 2 AC 751 (HL).

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James v Eastleigh Borough Council—Commentary 415 is—or was—its rationale?2 Moreover, does an early state pension age for women confer a benefit on them or a detriment? Clearly, in the context of Eastleigh swimming pool’s admission policy, women appear to benefit, but in the broader context of a requirement that women retire from work and therefore forgo the benefits of a full salary five years earlier than men, any benefit seems to be far outweighed by financial and career detriment. All this suggests that what is or what is not (less) favourable treatment—the terms used by the Sex Discrimination Act 1975 (SDA) section 1—is highly dependent on context. As equality jurisprudence has evolved across the globe, we have learned that substantively equal results are more likely to be achieved by nuanced, context-dependent applications of the equality principle rather than by abstract, Aristotelian invocations which turn on difference rather than disadvantage. Alas, however, James represents an earlier, less evolved era and—alas again—one in which, by and large, UK equality law remains fairly firmly lodged. As Aileen McColgan points out in her feminist judgment, conceptual symmetry is the aesthetic which underlies the decision in James with conceptual simplicity (as favourably expounded by Lord Goff3) the practical result. Indeed, it is that very simplicity—against a background of potentially complex and convoluted inquiries into concepts such as reason, motive and intention—which explains James’ continued allure and authority. This is notwithstanding substantial contestation at the point of decision-making: both the lower court and the Court of Appeal rejected Mr James’ complaint, while the final determination of the House of Lords was a closely run three to two in his favour. Subsequently, commentators and judges alike have taken the occasional swipe at James.4 Indeed, in a later House of Lords case, Nagarajan v London Regional Transport,5 Lord Browne-Wilkinson (who, it must be acknowledged, sat on the Court of Appeal in James) felt able to remark: I find it difficult . . . to know exactly what was decided in the James case. Although it is binding on your Lordships I do not regard the question under section 1 as finally determined: it may require to be revisited in the future.6

Notwithstanding its relative longevity, James cannot confidently rest on its laurels. There is and always has been considerable room for argument about the issue it addressed and the outcome it adopted.

The Decision in James To return, then, to Lord Browne-Wilkinson’s sceptical remark: what precisely is the question under section 1 and how was it determined? 2 The state pension age was reduced to 60 for women in 1940, allegedly to accommodate the fact that women tended to marry men older than themselves, but also to facilitate their care of elderly relatives: P Thane, Old Age in English History: Past Experiences and Present Issues (Oxford, Oxford University Press, 2000). As things stand, the state pension age is currently 65 for men and 60 for women born on or before 5 April 1950. For women born on or after 6 April 1950, the state pension age increases from 60 to 65 between 2010 and 2020. It will further increase for both men and women from age 65 to 68 between 2024 and 2046. 3 Above n 1 at 771. 4 See, eg, B Watt, ‘Goodbye But-For, Hello But-Why’ (1998) 27 Industrial Law Journal 121; M Connolly, ‘Race, Gender and Mens Rea’ (2001) 6 Journal of Civil Liberties 151. 5 Nagarajan v London Regional Transport [2000] 1 AC 501 (HL). 6 ibid 509.

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416 Joanne Conaghan According to section 1(1)(a) SDA: A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if—(a) on the ground of her sex he treats her less favourably than he treats or would treat a man.

It was assumed by all in James that the applicant was treated less favourably. At issue was the question whether this was ‘on ground of her [or in this case his] sex’. Did Eastleigh Borough Council treat Mr James less favourably on the ground of his sex when they charged him admission because he had not yet reached the state pension age, while at the same time permitting his similarly aged wife—who had reached pension age—to enter for free? The House of Lords’ decision to allow Mr James’ appeal against the decisions of the lower courts rested on two related reasons. First, because the state pension age expressly relied on sex as a criterion of differentiation, the provision of a service tied to the state pension age was also unavoidably sex-based. Relying on the state pension age rather than on sex per se did not absolve the less favourable treatment from its sex-based roots.7 Secondly, but for his sex, Mr James would not have been treated less favourably. Therefore, sex was the ground upon which the less favourable treatment was objectively predicated. The fact that the Council did not intend to treat Mr James less favourably on the ground of sex; that the intention was to confer a benefit on pensioners—men and women alike—was neither here nor there.8 A benign motive could not serve as a defence to sex-based differential treatment.9 And the determination of whether treatment was sex-based—was on the ground of his sex—was objectively ascertainable by reference to the ‘but-for’ test. This was the position of Lords Bridge, Ackner and Goff. Lords Griffiths and Lowry took a different view. Lord Griffiths made much of the Council’s benevolent intention and argued that the construction of ‘on the ground of sex’ should be based on a ‘common sense’ interpretation which might permit the application of a but-for analysis in some cases but not in all.10 Lord Lowry’s judgment was more analytical and has since been invoked by commentators to critique James. Acknowledging that the case was difficult to decide, Lord Lowry identified ‘two logical and persuasive trains of thought which lead to opposite conclusions’.11 The first was what he termed the causative construction of ‘on the ground of his sex’, which, he argued, bypassed the reason for the less favourable treatment in favour of a purely causal analysis. The second—termed ‘the subjective construction’—involved considering the reason why the alleged discriminator treated the applicant less favourably. In other words, Lord Lowry saw the battle lines as drawn between an approach which excluded consideration of the discriminator’s mental processes altogether and one in which those processes—captured in the notion of the reason for the discrimination—were central to the determination. He went on to conclude that the obvious meaning of ‘on the ground of ’ in ‘ordinary speech’ referred to the reason for a particular act or decision12 and as this entailed some consideration of the discriminator’s mental processes, he rejected the causative construction adopted by the majority. 7

Above n 1 at 763 (Lord Bridge). According to Lord Bridge (at 763), to construe the phrase ‘on the ground of sex’ in terms of the discriminator’s subjective reason would be contrary to ‘a long line of authority’ including the House of Lords decision in Equal Opportunities Commission v Birmingham City Council [1989] AC 1155. 9 Above n 1 at 774 (Lord Goff). 10 ibid 768. 11 ibid 774. 12 ibid 775. 8

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James v Eastleigh Borough Council—Commentary 417 Was James rightly decided? And would a feminist have decided it differently? Let’s start from the position, as I do, that there is no ‘right’ or ‘wrong’ decision to be discovered, that the outcome of a case depends on judicial choice. This is not to say that judges do not choose under conditions of constraint. They do—they are constrained by interpretative conventions, by precedent and by the need to persuade fellow judges and commentators that their decision is legitimate and not merely a personal or political preference. Thus, the decision must, practically speaking, come within certain (mostly unarticulated) bounds of acceptability. However, as every trial advocate knows, this does not mean that judicial choice is not involved. Any case that comes before a court is necessarily contentious—and in resolving that contention, there are always a range of possibilities. Neither law nor language is sufficiently determinate to limit absolutely the space in which judges make choices. Thus, while some decisions may be more or less acceptable to those involved, none are right. To put it another way, ‘acceptability’ and ‘rightness’ are not epistemologically synonymous. There is, then, no right answer to James; there are just more or less acceptable answers. Which answer is most acceptable from a feminist perspective? This, I will acknowledge, is tricky. At the time James was decided, and notwithstanding that the complainant was a man, feminists were broadly in favour of the outcome. This was because James appeared to put beyond play pernicious defences to sex discrimination based on patronising, stereotypical but allegedly benign intentions to protect women or to secure their welfare.13 The emphatic rejection of motive as a defence to discrimination also made it impossible for defendants to argue that decisions motivated by business concerns (for example, an unwillingness to hire a woman or an ethnic minority employee because of a perceived, potentially deleterious effect on the respondent’s business) did not constitute unlawful discrimination.14 Arguably, too, James helped to pave the way for a better application of sex discrimination law to pregnancy cases.15 The overall effect of James was to broaden the concept of direct discrimination, thus making a discrimination claim easier to establish. In circumstances where claimants already faced considerable difficulties proving direct discrimination, the shift away from a need closely to interrogate the alleged discriminator’s subjective intention was, from a claimant’s point of view, to be welcomed. In the US, by contrast, proof of ‘discriminatory motive’ remains a necessary component in a direct discrimination (or, to use the US term,‘disparate treatment’) claim and an extraordinarily convoluted case law has evolved out of efforts to broaden the boundaries of discrimination liability. In the aftermath of James the main concern of critics was that the concept of direct discrimination had been so broadened as effectively to swallow up indirect discrimination or to make the distinction between direct and indirect discrimination virtually untenable.16 However, history has shown that direct and indirect discrimination have carried on quite happily as relatively independent concepts. (Nor is it necessarily problematic to acknowledge them as intertwined to a degree.) 13 See, eg, the arguments made by the respondents in Greig v Community Industry [1979] ICR 356 (EAT) and Ministry of Defence v Jeremiah [1980] QB 87 (CA). 14 Although Lord Lowry in his dissenting judgment did not see a ‘subjective construction’ as excluding from liability those cases where the motive may be a concern to avoid the effects of sex or race difference (as above) rather than sex or race per se, it is difficult to work out quite where the line was being drawn (a fair indicator that his reasoning lacks purchase as a practical tool for resolving disputes). 15 See Webb v EMO Cargo (No 2) [1995] 1 WLR 1454 (HL), although this was preceded by prolonged litigation, including a reference to the European Court of Justice. 16 This view was expressed by Connolly, above n 4, and also by Lord Browne-Wilkinson in Nagarajan, above n 5.

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418 Joanne Conaghan Where then lies the feminist concern with James? As Lord Goff observed: I fully appreciate that this conclusion [in favour of Mr James] means that some people, seeking to do practical good for the best of motives, may be inhibited in the sense that they will be precluded from using gender-based criteria to achieve their purpose.17

What if the motive for doing good is equality-driven? What if, for example, the desire is to treat women more favourably in order to counter the effects of systemic, sex-based disadvantage? It might be argued that, whatever its virtues at the time, the insistence in James that all sex-based distinctions are unlawful discrimination, by inhibiting the development of reverse discrimination strategies, now stands in the way of a substantive equality approach.

Substantive Equality and the Feminist Judgment As the relevant legislation stands, the opportunities for departing from a strictly symmetrical approach to sex discrimination are severely limited. Moreover, although the Equality Act 2010 does purport to widen the scope for ‘positive action’ in some limited contexts, the UK is still a long way away from the kind of transformative equality jurisprudence developed, for example, in South Africa, which understands inequality ‘as rooted in political, social and economic cleavages rather than the result of arbitrary or irrational action’.18 Within a substantive equality context, it is not the differentiation between groups per se which is, or ought to be, the focus of enquiry. Rather, the key question is whether such differentiation contributes to group-based disadvantage. It follows that where group differentiation arises out of efforts to combat group-based disadvantage, it may not—in an ideal substantive equality regime—constitute unlawful discrimination. Applying this approach to the facts in James, it might be argued that the sex-based differentiation which underpinned the Council’s swimming pool admission criteria unlawfully discriminated if it contributed to group-based disadvantage. Clearly it disadvantaged Mr James, but did it disadvantage men as a group? This is where another aspect of substantive equality jurisprudence kicks in. The concept of disadvantage here cannot be considered in the abstract. The application of a substantive equality approach—which focuses on combating disadvantage not difference and which is group-based rather than individually oriented—requires a contextual exploration of social and power relations and their effects. In the context of Mr James’ complaint, for example, I suspect that a strong correlation between gender, poverty and age can be found which places Mr James outside the sphere of disadvantage. Mrs James, by contrast, may well fall squarely within it. To put it another way, a contextual exploration of social and power relations and their effects may well reveal that the admission criteria to Eastleigh Borough Council’s swimming pool do not contribute to sex-based group disadvantage but rather, in their economically redistributive effects, help to ameliorate it. Could James have been decided in a way which opened the door to initiatives promoting substantive equality, while closing it firmly on the pernicious kinds of sex-based differentiation which rightly preoccupied their Lordships? In other words, could James be 17

Above n 1 at 772. C Albertyn, ‘Substantive Equality and the Transformation in South Africa’ (2008) 23 South African Journal of Human Rights 253, 254. 18

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James v Eastleigh Borough Council—Commentary 419 revised to permit motives, intentions or reasons which are equality-seeking ones, but not those which perpetuate inequality? Aileen McColgan, in her feminist judgment, concludes not and at this point, I am inclined to agree with her: it would be very difficult to articulate a construction which did not open doors best left closed. However, I also think that to revisit James in this way would be to place far too great a practical burden on the somewhat uncertain, often interchangeable, and sometimes confusing notions of motive, intention, reason, and ground. In particular, to invest energy in the elaboration of a substantive equality concept located in an enquiry into the subjective workings of the human mind is probably not advisable. Good intentions are all very well but it is good effects that make a difference. The development of a legal conception of substantive equality in a UK context must be firmly based in the material circumstances of people’s lives, not in the minds of those who profess to be ‘doing good’. As a final note, I would observe that the EOC intervention in James can be viewed as part of a broader feminist strategy to dislodge the tenacious grip of gender inequality on pensions, a process which remains ongoing. In this sense, challenging the unequal effects of the gender differential state pension age in James can be viewed as but a small step in what continues to be a long, hard feminist struggle for economic equality.

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[HOUSE OF LORDS] JAMES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellant and EASTLEIGH BOROUGH COUNCIL . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent 1990 June 14 Baroness McColgan. My Lords, the facts of this case are simple. Mr. James was charged for entrance to the public swimming pool at the Fleming Park Leisure Centre, whereas his wife was not, because, while both were aged 61, she had reached state pensionable age and he had not. He complained that the respondent Council, which operated the Leisure Centre, had breached sections 1(1)(a) and 29 of the Sex Discrimination Act 1975, which provide as follows: “1(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if—(a) on the ground of her sex he treats her less favourably than he treats or would treat a man . . . “29(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a woman who seeks to obtain or use those goods, facilities or services— . . . (b) by refusing or deliberately omitting to provide her with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in his case in relation to male members of the public or (where she belongs to a section of the public) to male members of that section. (2) The following are examples of the facilities and services mentioned in subsection (1)—(a) access to and use of any place which members of the public or a section of the public are permitted to enter; . . . (e) facilities for entertainment, recreation or refreshment; . . .” Also relevant to the complaint are sections 2 and 5(3) of the Act: “2(1) Section 1, and the provisions of Parts II and III relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite. “5(3) A comparison of the cases of persons of different sex . . . under section 1(1) . . . must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.” The case for the appellant is that the Council refused to provide him with facilities, that is, admission to the swimming pool, on the same terms as applied to female members of the public of the same age as himself. This, he claims, was a clear contravention of sections 29(1) and 1(1)(a) because in the same relevant circumstances the Council were, on the ground of his sex, treating him less favourably than they would treat a woman. The Council’s main defence, which succeeded in the County Court, was that the relevant “section of the public” was that of persons of statutory pensionable age. The Court of Appeal rejected this defence but found in favour of the Council on the ground that the Council’s less favourable treatment of a man than a woman was not “on the ground of his sex”. The condition being applied by the local authority for

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James v Eastleigh Borough Council—Judgment 421 free access to the swimming pool was that of having reached state pensionable age, and this condition, in the Court’s view, applied equally to men and women. I have had the advantage of reading your Lordships’ opinions in draft form. My noble and learned friends Lord Bridge of Harwich and Lord Goff of Chieveley take the view that the correct approach to direct discrimination is to ask whether, “but for” the appellant’s sex, he would have been more favourably treated. If the answer is “yes”, they conclude that direct discrimination has been established, such discrimination being unlawful in the absence of a specific defence. No such defence is applicable here. It is not without misgivings that I find myself in agreement with my noble and learned friends Lord Bridge and Lord Goff that the appeal should be allowed. In sum, while I am not convinced that the “but for” test adequately captures the concept of discrimination, because it fails to distinguish between action which exacerbates and that which ameliorates existing disadvantage, I am forced to conclude that section 1(1)(a) of the Act does not permit a distinction to be drawn between these two categories of differential treatment. It might be possible to read such a distinction into the demand that treatment be “on the ground of ” (her) sex, or even that it be “less favourable”. I am not confident, however that this is possible to do without opening too broad a scope for judicial discretion, and arrogating the role of Parliament which has chosen to adopt a broadly symmetrical approach to the prohibition of sex discrimination. I note that section 35 of the Race Relations Act 1976 expressly permits nonsymmetrical treatment designed to alleviate disadvantage by meeting the special educational, social or other needs of groups defined by reference to race. I also note that section 35 of the Act of 1975 makes specific provision for some differential treatment of men and women, though for the most part in the context of sex-segregated services. Both Acts also make special provision for targeted training and encouragement of job-related applications from persons of under-represented racial groups or sexes. But although in my own view an adequate response to discrimination requires at least the possibility of what might be called “reverse” discrimination (that is, differential treatment designed to alleviate disadvantage), and the amelioration of sex-based disadvantage is an element of, rather than an exception to, the prohibition of sex discrimination, it seems clear to me that the approach taken by the Act of 1975 and the Act of 1976 is tightly to constrain such treatment by permitting it only where the normal rules are disapplied. Section 1(1)(a) of the Act of 1975 is not capable, in my view, of being read in order to permit such differential treatment in a more general way except by the adoption of such a narrow approach to its definition of direct discrimination as to open the door for all manner of discriminatory treatment which is motivated other than by the desire of the discriminator to treat women (or men) less favourably on the basis of their sex. Sir Nicolas Browne-Wilkinson V.C., for the Court of Appeal, took the view that the Council had not treated Mr. James less favourably “on the ground of his sex”, because (in his view) the aim of the Council’s charging policy was “to give benefits to those whose resources would be likely to have been reduced by retirement” rather than “to give preference to one sex over the other”. He further emphasised that “the condition which had to be satisfied in order to qualify for free swimming did not refer expressly to sex at all” and took the view that the difference in state pensionable ages for men and women had the effect of rendering the Council’s charging policy indirect discrimination at worst.

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422 Aileen McColgan I agree with my noble and learned friend Lord Bridge that the question of whether treatment involves direct discrimination should not turn on whether the Council expressly made their concession of free entry to the swimming pool available to women aged 60 and to men aged 65, as distinct from referring to “state pensionable age”. I also agree with him that it is not possible to read a discriminatory factor such as state pensionable age into the “relevant circumstances” referred to in section 5(3). I use the term “discriminatory” here because state pensionable age differentiates between men and women. That difference in treatment is not itself unlawful, since the Act of 1975 falls short of prohibiting all differential treatment of men and women. But the fact that it does so differentiate has the effect that, in my view, it cannot be relied upon as the basis for a relevant difference in circumstances for section 5(3) purposes. To hold otherwise would be to “hole” the Act under the waterline. I further agree with my noble and learned friend Lord Bridge that the Court of Appeal erred in relating the words “on the ground of her sex” in section 1(1)(a) of the Act of 1975 to the discriminator’s subjective “reason” for performing the disputed act (here, charging Mr. James and not his wife). This approach reduces direct discrimination to a very narrow ambit and is inconsistent with the decision of this House in Reg. v. Birmingham City Council, Ex parte Equal Opportunities Commission [1989] A.C. 1155. I have reservations as to whether the appropriate test for direct discrimination should be that set out by my noble and learned friend Lord Goff in the Birmingham case. The “but for” test there proposed had the benefit of blocking the Council’s claim in that case that the operation of different examination pass marks for girls and boys in the “11 plus” was lawful unless motivated by an intention on the part of the Council to discriminate against girls. It also has the beneficial effect, to use Lord Goff’s example, of denying a defence to the employer who discriminates “because of customer preference, or to save money, or even to avoid controversy” [1989] A.C. 1155, 1194. It has the unfortunate result, however, of treating differential treatment designed to ameliorate disadvantage in precisely similar terms as that designed or bound to exacerbate such disadvantage. It is not inevitable that a prohibition on direct discrimination has to be understood in the symmetrical way which is set out in section 1(1)(a) of the Act of 1975. But it is clear in my view that this is the effect of that provision. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court of the United States accepted that what in the United States is termed “affirmative action” (that is, differential treatment designed to ameliorate race-based disadvantage) was compatible with the constitutional prohibition on race discrimination, albeit within strict boundaries. In particular, the Court recognised that race could be a legitimate factor in school admissions, although the use of inflexible quotas such as were at issue in the particular case was not. In Fullilove v. Klutznick, 448 U.S. 448 (1980), the Court went further in allowing some quotas, upholding a federal law requiring that 15 per cent of funds for public works be set aside for qualified minority ethnic contractors. More recently, in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), the same Court ruled that protection of minority ethnic staff in a redundancy situation imposed a disproportionate burden on other employees and so breached the prohibition on race discrimination. These cases illustrate the understanding of the Supreme Court of the United States that an ameliorative intention can prevent race-conscious treatment from amounting to unlawful race discrimination.

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James v Eastleigh Borough Council—Judgment 423 The difference between those cases and this, however, is that the United States constitutional prohibition on race discrimination is not absolute, but allows such discrimination to be justified if it passes “strict scrutiny”. The “affirmative action” case law concerns the question whether and to what extent the ameliorative purpose of differential treatment can satisfy “strict scrutiny” review. The position under the Act of 1975 is wholly different. It seems evident to me from the structure of the Act, in particular when it is read with its sister legislation, the Act of 1976, that direct discrimination, defined (rather crudely) as “less favourable treatment” on the ground of race or sex, is not capable of justification. It is not the case that all such discrimination is unlawful. As I have noted earlier, both Acts contain a number of exceptions to the prohibitions on direct discrimination, in particular, section 35 of the Act of 1976 (which allows “act[s] done in affording persons of a particular racial group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare, or any ancillary benefits”) and sections 37–38 of the Act of 1976 and of the Act of 1975 (which deal with targeted training). Favour as I might the outcome proposed by my noble and learned friend Lord Griffiths, I cannot agree with his reasoning that the Council refused to give free swimming to Mr. James “because he was not an old age pensioner and therefore could presumably afford to pay 75p to swim”, rather than “because he was a man”. In my view, the fact that Mr. James was not an “old age pensioner” (in the sense of not being someone who had reached state pensionable age) is indistinguishable from his being a man. And given the sex differentiated nature of state pensionable ages, my concern is that to separate artificially the two criteria in this case will invite future distinctions to be drawn between (for example) being a woman and being pregnant, or a mother. However reluctantly, therefore, I find myself bound to agree with my noble and learned friend Lord Goff that in cases of direct discrimination under section 1(1)(a) of the Act of 1975, the simple question to be asked is: “would the complainant have received the same treatment from the defendant but for his or her sex?” Similarly I am unable to agree with my noble and learned friend Lord Lowry’s adoption of what he calls the “subjective”, as distinct from “causative”, construction of section 1(1)(a), the former involving consideration of the reason why the alleged discriminator has treated the claimant unfavourably. In the first place, Lord Goff’s test cannot, in my view, correctly be described as “objective”: the person making that judgment will be required, in the majority of cases, to determine the basis on which the differential treatment occurred. For example, in the absence of an articulated policy to deny entrance to a club to Black customers, it will be necessary to determine whether a particular exclusion was based on race, or the fact that the club had reached capacity, or because the person seeking entrance had been ‘barred’ for previous misbehaviour, or was scruffily presented, or too young or too old. Further, and more importantly, if the benign motivation for the differential treatment in this case is permitted to transform it into something other than less favourable treatment “on the ground of ” Mr. James’ sex, then I am at a loss to understand what there is in section 1(1)(a) of the Act of 1975 to prevent treatment motivated by a desire to avoid alienating customers, or a paternalistic concern as to the well-being of a potential employee’s husband or children, or the protection of her hair-do, similarly being defined as treatment other than “on the ground of her sex”.

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424 Aileen McColgan In his judgment in Armagh District Council v. Fair Employment Agency [1983] N.I. 346, 354–355, my noble and learned friend Lord Lowry referred to the facts of Peake v. Automotive Products Ltd [1977] Q.B. 780 in order to distinguish actions which are “deliberate” (in a sense in which he does not accept the Council’s differential treatment of Mr. James was) from actions which are “malicious”: “If women are allowed to stop work five minutes early in order to avoid being endangered when the day’s work ends, it has been decided that the men in the workforce are discriminated against on the ground that they are men. The employer’s decision to keep the men at work longer, though reached in good faith, was deliberately based on the fact that they were men.” With the utmost respect to my noble and learned friend, I cannot see how such treatment is deliberately based on sex in any way in which the Council’s treatment of Mr. James was not. Just as the Council might claim that it was interested in targeting need, rather than advantaging women, so the employer in the Peake case could state that his action was designed to protect women from jostling rather than to disadvantage men. I reach a similar conclusion in relation to the facts in the case of Reg. v. Birmingham City Council, Ex parte Equal Opportunities Commission [1989] A.C. 1155: just as the Council there, however regretfully, knew it was treating the girls less favourably than the boys, so the Council here must know that it was engaged in less favourable treatment of men, however justifiable (as distinct from regrettable) it may have regarded that treatment as being. And while I agree that the policy of advantaging pensioners was laudable, and that the approach adopted by the Council in this case is the only one practically available to it if it is to target need, I do not, as I have stated above, accept that section 1(1)(a) of the Act of 1975 can correctly be interpreted to make this policy lawful in the absence of a specific statutory provision permitting it. Whether the Act of 1975 ought to allow a defence based on excusable or worthy motives, the current position is that it does not. It would be wholly wrong in my view for the judiciary to read such a defence into the Act. Accordingly, I would allow the appeal.

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25 Commentary on Wilkinson v Kitzinger KARON MONAGHAN QC

Introduction The facts of Wilkinson v Kitzinger 1 are straightforward. The case concerned the question whether the parties’ marriage, effected lawfully in Canada, should be recognised in English law. The parties were both women. But for that fact the marriage was unremarkable. Sue Wilkinson and Celia Kitzinger were part of a loving and intimate relationship and had been for some time. They wished to secure the public recognition of their relationship that other married couples seek and the security that the institution brings to the management of financial and other affairs. Their case followed the path trodden by other gay and lesbian partners seeking equality for their relationships. As Rosie Harding’s feminist judgment illustrates, that has been a rocky road, both domestically and at European level. A legal attack on the quintessentially heteronormative institution of marriage—an institution that forms the foundation for so many gendered assumptions and the social structure that has historically contained women in their relations with men—was always going to be a challenge.

The Civil Partnership Act In England and Wales the recognition of same-sex partnerships occurs through the legal device of civil partnerships. The Civil Partnership Act 2004 (CPA) came into force after the date on which the parties’ petition in this case was lodged.2 However, it affected the recognition of their marriage. Section 1 of the CPA provides that a civil partnership is created by a civil registration process, or by the automatic recognition of certain overseas same-sex relationships, including lawful same-sex marriages.3 Civil partnerships confer, in the main, the same benefits on civil partners as are available to married couples, and the CPA provides for the breakdown of a civil partnership in much the same way as marriage. However, some distinctions remain between marriage and civil partnerships. In particular, a civil partnership may not be formed on religious premises or in a religious ceremony4 and civil 1 2 3 4

Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), [2007] 1 FLR 295. 5 December 2005: see SI 2005/3175, art 3, sch 2. CPA ss 212–15 and sch 20. ibid ss 6(1) and 2(3).

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426 Karon Monaghan partnerships are exclusively for same-sex couples, allowing the heteronormative institution of marriage to be retained unscathed. By reason of the provisions of the CPA, the marriage of Ms Kitzinger and Ms Wilkinson is treated as a civil partnership, without any choice by them and contrary to their wishes, simply because they are part of a same-sex married couple.

Private International Law Ms Kitzinger and Ms Wilkinson sought recognition of their marriage, as such, via the rules of private international law pertaining to the legal recognition of ‘foreign’ marriages. However, the effect of the ‘legal capacity’ rule in private international law, which holds that capacity to marry is governed by the law of each party’s country of domicile prior to the marriage,5 is such that polygamous marriages might be recognised but not those of samesex partners escaping to marry in a different jurisdiction because their own jurisdiction will not permit it. Nevertheless, private international law does permit a court to recognise (or to decline to recognise) a marriage effected overseas for reasons of public policy. ‘Public policy’ has been used, for example, so as to decline to recognise an incapacity to marry. As Sir James Hannen P stated in Sottomayer v De Barros: Numerous examples may be suggested of the injustice which might be caused to our own subjects if a marriage were declared invalid, on the ground that it was forbidden by the law of the domicile of one of the parties. It is still the law in some of the United States that a marriage between a white person and a ‘person of colour’ is void . . . Suppose a woman domiciled in North Carolina, with such an amount of colour in her blood as would arise from her great grandmother being a negress, should marry in this country, should we be bound to hold that such a marriage was void? . . . [C]ould the Court be called on at the instance of the husband to declare that the marriage was null and to give a legal sanction to his repudiation of his wife?6

By the same reasoning, the lack of capacity to marry according to the law of their domicile could have been set aside in Ms Wilkinson’s and Ms Kitzinger’s case on public policy grounds, particularly by reliance on the European Convention on Human Rights (ECHR). The President of the Family Division of the High Court, Sir Mark Potter, held, however, that the relevant ‘public policy’ was that expressed in the CPA, which requires overseas same-sex marriages to be treated in England and Wales as civil partnerships.

The Human Rights Act Ms Kitzinger and Ms Wilkinson also relied on the Human Rights Act 1998, arguing that the CPA and the Matrimonial Causes Act 1973 (which specifies that parties to a marriage must 5 Padolecchia v Padolecchia (otherwise Lei) [1968] P 314 (PDA) 336; L Collins (ed), Dicey, Morris and Collins on Conflict of Laws, 14th edn (London, Sweet and Maxwell, 2006) Vol 2, 810, rule 67. 6 Sottomayer v De Barros (Queen’s Proctor Intervening) (1879) LR 5 PD 94 (PDA) 104.

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Wilkinson v Kitzinger—Commentary 427 be male and female) were incompatible with their rights under articles 8 and 12, in conjunction with article 14, of the ECHR. Article 8 provides for the right to respect for ‘family’ and ‘private life’. Case law from the European Court of Human Rights has been ambivalent on the question whether the concept of ‘family’ includes childless same-sex relationships. This is an area, according to the Court, in which states ‘still enjoy a wide margin of appreciation’7 and as such, it is the domestic court’s duty, when faced with the issue, to exercise that margin and decide the question for domestic law purposes. Sir Mark Potter P concluded that to the extent that article 8 protected the private or family life of childless same-sex couples, it did not extend to recognising them as married. According to his judgment: By withholding from same-sex partners the actual title and status of marriage, the Government declined to alter the deep-rooted and almost universal recognition of marriage as a relationship between a man and a woman, but without in any way interfering with or failing to recognise the right of same-sex couples to respect for their private or family life in the sense, or to the extent, that European jurisprudence regards them as requiring protection. Withholding of recognition of their married status does not criminalise, threaten, or prevent the observance by, such couples of an intimate, private life in the same way as a married heterosexual couple and indeed [the CPA] provides them . . . with all the material legal rights, advantages (and disadvantages) as those enjoyed by married couples. Not only does English law recognise and not interfere with the right of such couples to live in a very close, loving, and monogamous relationship; it accords them also the benefits of marriage in all but name.8

This approach fails to address the social and psychological effect of an exclusionary rule on an historically stigmatised group but instead focuses on tangible benefits and detriments not in issue in the case. Sir Mark Potter P also held that the ‘right to marry’ in article 12 meant marriage in its traditional, heterosexual sense, so the claimants’ rights under article 12 were also not infringed. He did decide, however, that article 12 was engaged for the purposes of article 14. Since there was a difference in the treatment of same-sex and opposite-sex couples in relation to their ability to marry, he was required to consider whether the discrimination against same-sex couples in this regard was justified—that is, did it pursue a legitimate aim, and were the means chosen to achieve that aim necessary and proportionate? In Ghaidan v Godin-Mendoza, Baroness Hale asked: [W]hat could be the legitimate aim of singling out heterosexual couples for more favourable treatment than homosexual couples? It cannot be the protection of the traditional family. The traditional family is not protected by granting it a benefit which is denied to people who cannot or will not become a traditional family. What is really meant by the ‘protection’ of the traditional family is the encouragement of people to form traditional families and the discouragement of people from forming others . . . The distinction between heterosexual and homosexual couples might be aimed at discouraging homosexual relationships generally. But that cannot now be regarded as a legitimate aim. It is inconsistent with the right to respect for private life accorded to ‘everyone’, including homosexuals.9

Moreover, in ruling that the bar on same-sex marriage was unconstitutional, the South African Constitutional Court observed that: 7 8 9

Mata Estevez v Spain (App no 5650/00) ECHR 10 May 2001. Above n 1 at [87]–[88]. Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 [143].

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428 Karon Monaghan A democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are. To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour or extolling one form as supreme, and another as inferior, but an acknowledgement and acceptance of difference. At the very least, it affirms that difference should not be the basis for exclusion, marginalisation and stigma. At best, it celebrates the vitality that difference brings to any society . . . At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect.10

Sir Mark Potter P however, addressed justification shortly, with little analysis and by reliance on a heteronormative idea of marriage which was the very matter in issue. According to him: [M]arriage, is by longstanding definition and acceptance, a formal relationship between a man and a woman, primarily (though not exclusively) with the aim of producing and rearing children . . . and if that is the institution contemplated and safeguarded by Article 12, then to accord a same-sex relationship the title and status of marriage would be to fly in the face of the Convention as well as to fail to recognise physical reality.11

The Feminist Judgment Rosie Harding’s feminist judgment imagines an appeal to the Court of Appeal against Sir Mark Potter P’s decision in Wilkinson v Kitzinger. While she agrees with his conclusions on the application of private international law and the lack of a violation of articles 8 and 12 of the ECHR, her reasoning in reaching these conclusions is very different. In particular, she is far more sensitive to the realities of gay and lesbian lives, and to the symbolic and potential material harm caused by their continued exclusion from a highly valued social institution. In particular, she notes the potential invasions of privacy involved in having to constantly ‘out’ oneself when answering queries about ‘marital status’. Further, Harding finds a violation of article 14, in conjunction with both articles 8 and 12. In so doing, she exercises, or regards the courts as already having exercised, the (increasingly narrow) ‘margin of appreciation’ afforded to states under the ECHR jurisprudence and concludes that same-sex relationships do indeed constitute ‘family life’. Harding’s approach is vindicated by the decisions of the House of Lords and the European Court of Human Rights in Re G (Adoption: Unmarried Couple)12 and EB v France,13 both decided some time after the hearing in Wilkinson v Kitzinger. As she observes, sexual orientation is regarded as a ‘suspect classification’ in the jurisprudence of the European Court of Human Rights and accordingly, any discrimination on such grounds will require particularly 10

Minister of Home Affairs and Others v Fourie and Others [2005] ZACC 19, 2006(1) SA 524 (CC) [60] (Sachs J). Above n 1 at [120]–[122]. In Schalk and Kopf v Austria (App no 30141/04) ECHR 24 June 2010, the European Court of Human Rights confirmed that article 12 does not (yet) impose an obligation on States to grant same-sex couples access to marriage and, further, that such an obligation could not be derived from articles 8 and 14. Nor were articles 8 and 14 violated by the State’s failure to confer a status in all respects equivalent to marriage, such as civil partnerships. 12 Re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] 1 AC 173. 13 EB v France (2008) 47 EHRR 21. 11

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Wilkinson v Kitzinger—Commentary 429 convincing and weighty reasons to justify a difference in treatment. In her feminist judgment she finds that even if the protection of the ‘traditional family’ can be accepted as a legitimate aim, it is disproportionate to create an entire new institution, identical to civil marriage for all practical purposes, in order to prevent same-sex couples from describing their partnerships as ‘marriage’. Accordingly, Harding would have granted a certificate under section 4 of the Human Rights Act declaring the CPA, and the limitation of marriage to opposite sex couples in the Matrimonial Causes Act, to be incompatible with Ms Wilkinson and Ms Kitzinger’s rights under the ECHR. The distinction in treatment between same-sex and different-sex partners in the institution of marriage and civil partnership may, of course, work both ways. There are many straight, feminist women who eschew marriage because of its patriarchal and misogynist historical and contemporary connotations but want, equally, the benefits that come with a state-recognised union. Whether the courts will ever countenance a straight woman legally rejecting the marriage paradigm and insisting on her relationship being recognised as a civil partnership is yet to be seen.

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Court of Appeal

Wilkinson v Kitzinger [2007]

HARDING LJ 1 Susan Wilkinson and Celia Kitzinger were legally married in British Columbia, Canada on 26 August 2003, at which time there was no legal recognition of same-sex relationships in the UK. Their marriage is in accordance with, and is valid under, the law of British Columbia. This fact is not in dispute. On their return to the UK and before the Civil Partnership Act 2004 came into force, they instituted proceedings seeking a declaration that their marriage was a valid marriage at its inception, under section 55 of the Family Law Act 1986. In case their claim to have their Canadian marriage recognised as a valid marriage in the UK failed, they also sought a declaration of incompatibility under section 4 of the Human Rights Act 1998 in relation to section 11(c) of the Matrimonial Causes Act 1973 and section 1(1)(b) and Part 5, Chapter 2 of the Civil Partnership Act 2004, which provides for the recognition of overseas relationships. Sir Mark Potter, President of the Family Division, handing down judgment in the High Court, ruled that the marriage could not be recognised under the ordinary rules of private international law, and, on the human rights issues: (1) that there was no infringement of either article 8 or article 12 of the European Convention on Human Rights; (2) that the complaint did not fall “within the ambit” of article 8 for the purposes of article 14; and (3) that the complaint fell “within the ambit” of article 12 for the purposes of article 14, that there was discrimination under article 14 in conjunction with article 12, but that such discrimination was justified. 2 The appeal before this court raises three distinct questions of law: first, whether the judge erred in finding that a legally valid Canadian marriage between partners of the same sex cannot be recognised as a marriage in English law through the rules of private international law; second (in the alternative) whether the judge erred in his conclusion that the recognition of this Canadian marriage as a civil partnership neither constitutes a breach of article 8 of the Convention, nor falls within the ambit of article 8 for the purposes of article 14 of the Convention; and third, whether the judge erred in his conclusion that the discrimination under article 12 together with article 14 of the Convention is justified. Recognition of overseas marriages in private international law 3 It is not in dispute that the appellant’s marriage is a valid marriage in Canada. The question to be answered, therefore, is whether, under the existing rules of private international law, this marriage is capable of being recognised as such under English law. The general rule as to the recognition of a marriage conducted outside England and Wales, that of lex loci celebrationis, was set out by Viscount Dunedin in the case of Berthiaume v Dastous [1930] AC 79, 83:

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Wilkinson v Kitzinger—Judgment 431 “If a marriage is good by the laws of the country in which it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would not constitute marriage in the country of the domicile of one or other of the spouses.” On the face of it, this rule would appear to provide for the common law recognition of the appellant’s marriage as a marriage in English law—the marriage between Susan Wilkinson and Celia Kitzinger is valid under the laws of Canada, therefore it should be considered “good the world over”. There are, however, a number of other private international law rules which must be taken into consideration, not least of which is the rule relating to capacity to marry, which states that capacity to marry is governed by the law of each party’s ante-nuptial domicile: Rule 67, Dicey, Morris & Collins on The Conflict of Laws, 14th ed, Vol 2. This was reiterated by Ackner LJ in the Court of Appeal in Lawrence v Lawrence [1985] Fam 106, 123: “The traditional and still prevalent view is that the capacity to marry is governed by what may conveniently be called the dual domicile doctrine. This prescribes that a marriage is invalid unless, according to the law of the domicile of both contracting parties, at the time of the marriage they each have the capacity to contract that particular marriage. The alternative view is that legal capacity to marry, again generally speaking, is governed by the law of the intended matrimonial home.” 4 In this case, the ante-nuptial domicile of each of the parties was England, as despite the fact that the appellant was living in British Columbia at the time of the ceremony, she intended to return to England to live permanently. In addition, the intended matrimonial home was in England. As such it is clear that the issue of capacity to marry in this case must be determined by the relevant rules of English law. Capacity to marry in English law is governed by the Matrimonial Causes Act 1973. Relevant to this case, section 11 provides that: “11 Grounds on which a marriage is void “A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say— . . . (b) that at the time of the marriage either party was already lawfully married or a civil partner; (c) that the parties are not respectively male and female; (d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales. “For the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its inception neither party has any spouse additional to the other.” Under the usual application of the rules of private international law and the 1973 Act section 11(c), the appellant’s marriage would be void because the parties did not, at the time of contracting this valid Canadian marriage, have the capacity to contract that particular marriage under the law of England and Wales. 5 Having considered the usual application of the rules of private international law as they have applied to heterosexual marriage, it is important to note that these rules, including the requirement enshrined in the 1973 Act that the parties be respectively male and female, arose through judicial consideration of two types of

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432 Rosie Harding marriage which have, in the past, been troubling to the English courts: that of (potentially) polygamous marriages, as in Hyde v Hyde (1866) LR 1 P&D 130, and marriages where one party is a transsexual or transgendered person, as in Corbett v Corbett [1971] P 83 and Bellinger v Bellinger [2003] 2 AC 467. In both of these cases, legislative changes have overridden the specific limitations to marriage imposed by the common law. In respect of transsexual marriages, following the declaration of incompatibility under the Human Rights Act 1998 that was issued in Bellinger, Parliament has enacted the Gender Recognition Act 2004, which allows for the full legal recognition of the acquired gender of a transsexual person, including for the purposes of marriage. 6 In Hyde v Hyde (1866) LR 1 P&D 130, Lord Penzance determined, when a dissolution of a potentially polygamous marriage (the parties were married under the rules of the Mormon church, which at that time permitted polygamy, though the marriage itself was not polygamous at the time of its inception) was requested on the grounds of adultery, that “marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others”: at p 133. As will be clear from section 11 of the 1973 Act as reproduced above, certain polygamous marriages are now considered valid under English law, providing neither party was domiciled in England and Wales at the time of the marriage, and (contrary to Hyde) a marriage is not to be considered polygamous where at the time of the marriage “neither party has any spouse additional to the other”. Whilst it is true, therefore, that the Hyde definition of marriage, as stated by the President in this case [2007] 1 FLR 295, para 11, “has been applied and acted upon by the courts ever since”, it is not necessarily the case that this definition of marriage remains appropriate today. 7 In addition to the settled common law rules of private international law outlined above, the implementation of the Civil Partnership Act 2004 in December 2005 adds a further layer of complexity to any consideration of the recognition of overseas same-sex marriages in England and Wales. The effect of this statutory change relating to the recognition of overseas same-sex marriages has not, until the present case, been considered by the English courts. Indeed, the issue of same-sex marriage per se has not been considered by the courts except insofar as same-sex marriage was implicated in the issues raised in relation to marriage by transsexual persons in their acquired gender. 8 Section 1(1)(b) in conjunction with Part 5, Chapter 2 of the 2004 Act allows for the recognition of same-sex relationships as “civil partnerships”, which are defined in section 1 as “a relationship between two people of the same sex” which “ends only on death, dissolution or annulment”. In addition to creating a registration and recognition framework for such relationships in the UK, section 1(1)(b) of the 2004 Act makes provision for the recognition of “overseas relationships”. Section 212 provides that: “212 Meaning of “overseas relationship” “(1) For the purposes of this Act an overseas relationship is a relationship which—(a) is either a specified relationship or a relationship which meets the general conditions, and (b) is registered (whether before or after the passing of this Act) with a responsible authority in a country or territory outside the United

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Wilkinson v Kitzinger—Judgment 433 Kingdom, by two people—(i) who under the relevant law are of the same sex at the time when they do so, and (ii) neither of whom is already a civil partner or lawfully married. “(2) In this Chapter, “the relevant law” means the law of the country or territory where the relationship is registered (including its rules of private international law).” 9 Under section 213 of the 2004 Act in conjunction with Schedule 20, as amended by SI 2005/3129, paragraph 2(b), Canadian marriage is a specified relationship. As such, the marriage entered into by Susan Wilkinson and Celia Kitzinger is, under the law of England and Wales, a civil partnership, which was entered into on 5 December 2005: section 215(3) of the 2004 Act. Since the implementation of the 2004 Act, the procedure for recognition of this Canadian marriage is the 2004 Act, and therefore the common law rules of private international law have been superseded by this legislation. There was, however, a period of two years, three months and nine days, between 26 August 2003 and 5 December 2005, in which the appellant’s valid Canadian marriage was not recognised in English law as a civil partnership. 10 The President, at first instance, was clear that the rules of private international law must be applied in the ordinary manner, and as such, that to recognise this valid Canadian marriage as a marriage would be impossible due to the operation of the domicile rule in conjunction with section 11(c) of the 1973 Act, and that to extend private international law recognition of marriage to include samesex marriage would be contrary to public policy: see Vervaeke v Smith [1983] AC 145. Whilst I reluctantly agree that the rule regarding ante-nuptial domicile would indeed be a bar to recognition of the appellant’s marriage under the ordinary rules of private international law, I am far less certain that to do so would be contrary to public policy. Had this case arisen in the period before the 2004 Act came into force, there may well have been strong public policy reasons for setting aside the ordinary rules of private international law, as the effect of a failure to recognise this validly constituted marriage could have been construed as an infringement of the parties’ human rights. Human rights issues 11 The human rights issues in this case rest on the assertion by the appellant that to deny recognition of a validly constituted marriage between two people of the same sex is an infringement of their human rights under article 8 (the right to respect for private and family life), article 12 (the right to marry and to found a family) and article 14 (prohibition of discrimination) of the European Convention on Human Rights. At first instance, the President held that treating this valid Canadian marriage as a civil partnership does not constitute a violation of either article 8 or article 12 of the Convention. In respect of article 14 (the prohibition of discrimination) he held that article 14 was not engaged in relation to article 8, but was engaged in relation to article 12. Although there was differential treatment covered by article 14 in relation to article 12, he held that this was justified because the differential treatment of same- and different-sex couples in marriage “has a legitimate aim, is reasonable and proportionate, and falls within the margin of

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434 Rosie Harding appreciation accorded to Convention States”: [2007] 1 FLR 295, para 122. Article 12 12 In finding that there was no violation of article 12 of the Convention, the President relied on the reasoning of the European Court of Human Rights in Rees v United Kingdom (1986) 9 EHRR 56; Cossey v United Kingdom (1990) 13 EHRR 622 and Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163, all of which concerned transsexual rights. In each of these cases, the court was very clear that the article 12 right extended only to heterosexual marriage between one man and one woman. That is, the wording of article 12, “Men and women of marriageable age have the right to marry and to found a family, subject to the national laws governing exercise of that right”, refers to the right to “marry” in the traditional sense (namely a marriage between a man and a woman). It is interesting to note that the definition of the right to marry in the European Union’s European Charter of Fundamental Rights has dropped the reference to “men and women” and replaced it with “everyone”. It is probable that at some point in the future Strasbourg jurisprudence may take a similar course. However, it is clear that article 12 does not currently include the right of men and women of marriageable age to marry other men, or other women. Given the clarity and consistency within the Strasbourg Court’s consideration of the scope of article 12 in the series of transsexual cases, it would be impossible to find a breach of article 12 in the instant case. Article 8 13 The two aspects of article 8 which are relevant to this case are the right to respect for private and family life. Family life 14 In deciding that there was no violation of article 8 and that this claim fell outside the ambit of article 8 for the purposes of article 14, the President stated [2007] 1 FLR 295, para 71, that the position of same-sex couples under article 8 was “clear”: “While in English law a same-sex couple are capable of constituting a family, the concept of family life in the Convention is an autonomous one with a universal meaning across the Council of Europe which does not extend to include same-sex partnerships.” This statement of the law in relation to the “family life” limb of article 8 was drawn from the minority opinion of Lord Nicholls in M v Secretary of State for Work and Pensions [2006] 2 AC 27. The facts of M were that the new familial obligations of a woman who was required to pay child maintenance for her children (who lived with her ex-husband) were not taken into consideration when assessing her liability under the Child Support Act 1991. The reason for this was that her new family unit consisted of M and her female partner, who was also a non-resident parent, and their children. Until the Civil Partnership Act 2004 came into force in December 2005, same-sex partners were not recognised in the child support legislation, with the result that Ms M was required to pay more child maintenance than she would have done in the same situation if her new partner had been male. In his judgment, Lord Nicholls at para 24 stated that “the concept of family life in

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Wilkinson v Kitzinger—Judgment 435 article 8 is an ‘autonomous’ Convention concept having the same meaning in all contracting states”. Whilst there are a number of concepts within the Convention which have been described by the Strasbourg Court as “autonomous” concepts, such as “civil rights and obligations”, “criminal charge”, and “lawful detention”, there is no Strasbourg jurisprudence that suggests that “family life” for the purposes of article 8 is one of these concepts. Indeed, in a recent admissibility decision, Mata Estevez v Spain (Application No 56501/00) (unreported) given 10 May 2001, in which it considered same-sex relationships and the article 8 right to respect for family life, the Strasbourg Court reiterated that this was an area where contracting states “enjoy a wide margin of appreciation”. 15 The reasoning for allowing contracting states a “margin of appreciation” was most clearly spelt out in Handyside v United Kingdom (1979–80) 1 EHRR 737, where it was noted that the main responsibility for securing Convention rights lies with the contracting states. Indeed, article 1 of the Convention states that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in . . . this Convention”. The purpose of the “margin of appreciation”, therefore, is to allow for differences between the ways that contracting states deal with sensitive issues in their domestic law, particularly where they are concerned with the appropriate limitation of rights in articles 8–11. There is, however, no place for a “margin of appreciation” where UK courts are applying Convention rights to persons under their jurisdiction, because the “margin of appreciation” is a concept which applies to the level of scrutiny the international Court in Strasbourg gives to national courts and legislatures in sensitive areas. It is clear, therefore, that whether or not same-sex couples are considered to be members of each other’s family, and thus entitled to “respect for family life”, is currently a matter for national law. 16 Jurisprudence from the Strasbourg Court is, of course, instructive here and it is therefore important to consider the Strasbourg Court’s interpretation of “family life” under article 8. It is implicit in many of the Strasbourg judgments and decisions on the issue of “family life” that an unmarried different-sex couple (without children) enjoys “family life”. For example, in Kroon v Netherlands (1995) 19 EHRR 263, para 30, the court stated that: “The notion of ‘family life’ in Article 8 is not confined solely to marriagebased relationships and may encompass other de facto ‘family ties’ where parties are living together outside marriage . . . Although, as a rule, living together may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’.” In Velikova (AV) v Bulgaria (Application No 41488/98) (unreported) given 18 May 1999, it was held that: “The Court recalls that a couple who have lived together for many years constitute a ‘family’ for the purposes of article 8 of the Convention and are entitled to its protection notwithstanding the fact that their relationship exists outside marriage.”

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436 Rosie Harding It is clear, therefore, that the concept of “family life” is not restricted to the married family, nor is it restricted to a family with children, but rather is dependent on de facto “family ties”. 17 The Strasbourg Court has not yet explicitly recognised that a same-sex relationship such as that between the parties amounts to family life. The most recent case in which the applicability of “family life”’ to a same-sex couple was considered by the Strasbourg Court was Mata Estevez v Spain (Application No 56501/00) (unreported) given 10 May 2001, and in its decision, the court stated that: “The Court reiterates that, according to the established case-law of the Convention institutions, long-term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by article 8 of the Convention (see X and Y v the United Kingdom, application no 9369/81, Commission decision of 3 May 1983, Decisions and Reports (DR) 32, p 220, and S v the United Kingdom, application no 11716/85, Commission decision of 14 May 1986, DR 47, p 274). The Court considers that, despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the Contracting States, an area in which they still enjoy a wide margin of appreciation.” It is clear that the European Court of Human Rights did not take the opportunity presented by that case to revisit the decisions made in respect of same-sex couples in the early 1980s. The same cannot be said for the House of Lords, as the decisions in Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 and Ghaidan v GodinMendoza [2004] 2 AC 557 amply demonstrate. The first of these cases recognised a same-sex partner as a member of his deceased partner’s family for the purposes of the Rent Act 1977, and the second recognised a person in a similar situation as a “spouse” for the purposes of the same Act. These decisions highlight the fact that: “a belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z”: R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 per Bingham MR. 18 In Karner v Austria (2003) 38 EHRR 528, the Court declined to consider the scope of family life in relation to same-sex relationships, as the application was covered by the “home” branch of article 8. It is arguable, however, that the decision in Karner implicitly overrules the earlier decisions of the Commission in X and Y v United Kingdom (Application No 9369/81) (unreported) given on 3 May 1983 and S v United Kingdom (Application No 11716/85) (unreported) given on 14 May 1986, as in Karner, the Strasbourg Court stated at para 37 that “Just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification”, and continued at para 41 that: “in cases in which the margin of appreciation afforded to States is narrow, as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary in order to achieve that aim to exclude certain categories of people—in this instance persons living in a homosexual relationship.”

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Wilkinson v Kitzinger—Judgment 437 The effect of this reasoning is that where same-sex couples are specifically excluded from the scope of legal protections, this requires particulary strong justification and involves an intrinsically narrow margin of appreciation. To summarise, there has been recognition from the Strasbourg Court that unmarried different-sex couples are covered by the “family life” provisions of article 8 (Velikova (AV) v Bulgaria (Application No 41488/98) (unreported) given 18 May 1999), and that there must be particularly weighty justifications for differences based on sexual orientation (Karner v Austria (2003) 38 EHRR 528), but as yet no specific recognition of same-sex couples’ relationships as being protected by the “family life” aspect of article 8. 19 Importantly, section 2 of the Human Rights Act 1998 states that UK courts “must take into account” decisions of the European Court of Human Rights and the European Commission of Human Rights, not that UK courts are bound by or required to follow such decisions. There has been some debate as to whether domestic courts should take rights further than provided for by settled Strasbourg jurisprudence. A key authority in this regard has been Lord Bingham of Cornhill’s approach in R (Ullah) v Special Adjudicator [2004] 2 AC 323, where he said at para 20: “It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.” Ullah was not, however, concerned with a right which the Strasbourg courts had placed within the national margin of appreciation. The position in such cases must be determined by reference to the domestic law currently prevailing in the relevant state, as that is where the “margin of appreciation” is to be found. It follows, therefore, that the President erred in holding that the interpretation of “family life” for the purposes of article 8 was limited by decided Strasbourg jurisprudence. The definition and scope of “family life” for the purposes of article 8 is to be decided in accordance with domestic law. There is no doubt that in English law a same-sex couple is recognised as a family: see Fitzpatrick v Stirling Housing Association [2001] 1 AC 27. It is, therefore, wrong to state that whilst a same-sex couple is a family in English law, the same couple does not enjoy “family life” for the purpose of article 8. Private life 20 The Strasbourg Court in Niemietz v Germany (1993) 16 EHRR 97, para 29, stated that “respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings”, and has consistently given wide scope to the concept of private life. As such, same-sex relationships clearly fall within the sphere of life protected by this branch of article 8. Indeed, in Smith and Grady v United Kingdom (2000) 29 EHRR 493, para 90, the Strasbourg Court recognised that sexual orientation is “a most intimate aspect of an individual’s private life” for which “particularly serious reasons by way of justification [of discrimination] were required”.

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438 Rosie Harding 21 In his first instance decision, the President held [2007] 1 FLR 295, paras 85–87, that: “by declining to recognise a same-sex partnership as a marriage in legislation the purpose and the thrust of which is to enhance their rights, the state cannot be said improperly to intrude on or interfere with the private life, of a same-sex couple who are living in a close loving and monogamous relationship as is the position in this case. Nor has the state acted improperly within the sphere of any duty to afford respect to it. The primary proscription of Article 8 is against measures by the state which interfere with the respect to the private sphere (for example by criminalising or condemning consensual sexual conduct between two adults) . . . The ECtHR will not require Member States to establish particular forms of social and legal institution to recognise particular relationships, especially in areas of social controversy. As made clear in Johnston v Ireland, Article 8 does not impose a positive obligation to establish for unmarried couples a status analogous to that of married couples and, in particular, couples who, like the applicants in that case, ‘wished to marry but were legally incapable of marrying’. . . . [I]n determining whether or not there has been a breach of Article 8 or a failure to guarantee the requirement of respect for private and family life, the court is principally concerned with ‘de facto’ situations rather than ‘de jure’ categories, with practical and intrusive, rather than theoretical and non-intrusive, effects upon the private or family life of the complainant. Article 8 is about noninterference of the state with a person’s private life, family, and home.” 22 Further, the President went on to state in para 88 that: “Withholding of recognition of their married status does not criminalise, threaten, or prevent the observance by, such couples of an intimate, private life in the same way as a married heterosexual couple and indeed provides them, as so far European jurisprudence does not dictate, with all the material legal rights, advantages (and disadvantages) of those enjoyed by married couples. Not only does English law recognise and not interfere with the right of such couples to live in a very close, loving, and monogamous relationship; it accords them also the benefits of marriage in all but name.” Whilst this may be the case, counsel for the appellant also submitted that the “downgrading” of a valid marriage to a civil partnership constitutes an infringement of her right to respect for her private life. 23 This is a complex proposal, and one which is perhaps difficult for someone who has no experience of discrimination on the basis of sexual orientation (often referred to as homophobia) to comprehend. The appellant submits that having to describe her relationship as a “civil partnership”, rather than a “marriage” in official interactions forces her to “come out” as a lesbian whenever asked about her marital status, whether or not she feels comfortable doing so in that situation. Any interaction with banks, insurance companies, utility companies, car salespersons or other service providers, particularly where a credit reference check is required, requires disclosure of marital status. Often, the list of possible responses does not include “civil partnership”, at which point the person who is in a civil partnership is required to explain that “civil partnership” is more equivalent to “married” than

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Wilkinson v Kitzinger—Judgment 439 to “single”. At other times, “civil partnership” is a stand-alone category, which also requires the person claiming that status to disclose their sexual orientation to a stranger. 24 The appellant has not singled out a particular instance of this kind of interaction, but rather contends that the effect of creating a new relationship status for same-sex couples (civil partnership) places a burden on them which could have the effect of forcing them to disclose more information about their private life than they would prefer to do. As there is no specific instance which the appellant can identify in which this alleged invasion of her private life caused her distress or harm, it is difficult to find a breach of the “private life” element of article 8. This is not to say, however, that the appellant’s claim does not fall within the ambit of article 8 for the purposes of article 14. Article 14 25 Article 14 of the Convention is not a freestanding guarantee of nondiscrimination, rather a right which secures the enjoyment of the other rights and freedoms in the Convention without discrimination. In order for a breach of article 14 to be found, (i) the activity complained of must fall within the ambit of another Convention right; (ii) there must be differential treatment; (iii) the differential treatment must be in an analogous situation; and (iv) there must be no objective and reasonable justification for the difference in treatment: see Rasmussen v Denmark (1985) 7 EHRR 371; Wandsworth London Borough Council v Michalak [2003] 1 WLR 617. However, a breach of article 14 can be found whether or not there is a breach of another article: see Marckx v Belgium (1979–80) 2 EHRR 330. According to the Strasbourg jurisprudence, a difference in treatment will lack objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Article 14 in conjunction with articles 8 and 12 26 At first instance [2007] 1 FLR 295, para 107, the President held that article 14 was not engaged in relation to article 8 because: “the withholding of recognition of the relationship between the Petitioner and first Respondent does not impair the love, trust, mutual dependence and unconstrained social intercourse which are the essence of family life and the matter falls outside the ambit of Articles 8 and 14 combined.” In addition to the principle found in Marckx that there need not be a breach of a substantive Convention article, there is also long settled precedent from the Strasbourg Court that where a right is created in domestic law which falls within the scope of the Convention rights, it will be protected by article 14, irrespective of whether that right is itself required by the substantive Convention article in question. According to the court in Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (1979–80) 1 EHRR 252, para 9: “A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this

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440 Rosie Harding Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature.” As such, where a right is created in domestic law which falls within the ambit of one of the Convention articles, even if the article in question does not require such a right to be created (as is the case with the recognition of same-sex relationships and the right to respect for private and family life under article 8), if the domestic right is discriminatory it will still fall foul of article 14. 27 The President therefore erred by asserting that as there was no breach of article 8, then article 14 was not engaged. Clearly, the issue of the recognition of same-sex partnerships, and the form of that recognition, falls within the ambit of the article 8 rights to respect for private and family life. It is not questioned in this appeal that article 14 is engaged with respect to article 12, as the creation of civil partnership for same-sex couples brings the issue within the ambit of article 12. The appellants in this case have suffered a difference in treatment, on the basis of their sexual orientation, in relation to the form of recognition of their relationship. Were one of the parties to this valid Canadian marriage of the opposite sex, their marriage would be recognised as such in England and Wales. 28 Where article 14 is engaged, as it is here, in relation to both article 8 and article 12, a difference in treatment is discriminatory if it has no objective and reasonable justification. Such justification would require both that there be a “legitimate aim” supporting the discriminatory treatment, and that the discriminatory treatment be a “reasonable and proportionate” means of achieving that aim. 29 At first instance, after finding that article 14 was engaged in respect of article 12, the President went on at [2007] 1 FLR 295, paras 118–120, to explain that, in his view, the differential treatment of same- and different-sex couples in relation to marriage was not a violation of article 14, because: “It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or ‘nuclear family’) in which both maternal and paternal influences are available in respect of their nurture and upbringing. . . If marriage, is by longstanding definition and acceptance, a formal relationship between a man and a woman, primarily (though not exclusively) with the aim of producing and rearing children as I have described it, and if that is the institution contemplated and safeguarded by article 12, then to accord a same-sex relationship the title and status of marriage would be to fly in the face of the Convention as well as to fail to recognise physical reality.” This “justification” of discrimination is erroneously founded, both in relation to the common law development of marriage law in England and Wales, and in Strasbourg jurisprudence. It is settled law that procreation, or even the possibility of procreation, is not required for a marriage to be valid: see Baxter v Baxter [1948] AC 274. Given that the Convention is a living instrument, to be interpreted in the light of present-day conditions (Johnson and others v Ireland (1987) 9 EHRR 203), sufficient regard must be had to the changes in the treatment of, and attitudes

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Wilkinson v Kitzinger—Judgment 441 towards, lesbian, gay and bisexual individuals in recent years. Three Council of Europe member states currently allow for full marriage by same-sex couples (Belgium, the Netherlands and Spain); it is likely that more will follow suit. Indeed, many others have legislated for the registration of same-sex relationships through novel formal institutions other than marriage (registered partnership, domestic partnership, civil partnership, etc). 30 The real question raised by this case is not, therefore, whether marriage has historically been an institution limited to heterosexual couples, but rather whether the restriction of marriage to different-sex couples, and the creation of a “new” formal means of recognising same-sex relationships, has a legitimate aim, and is a reasonable and proportionate means of achieving that aim, today. The only aim put forward by the Lord Chancellor for restricting marriage to different-sex couples was that of supporting the “traditional” nuclear family. The Strasbourg Court has provided guidance on this point in Karner v Austria (2003) 38 EHRR 528, paras 40–41: “The court can accept that protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment. It remains to be ascertained whether, in the circumstances of the case, the principle of proportionality has been respected. The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it. In cases in which the margin of appreciation afforded to Member States is narrow as is the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the matter chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary to exclude persons living in a homosexual relationship from the scope of [the relevant provision] . . . in order to achieve that aim.” The key question, following the recognition in Karner v Austria that protection of the “traditional family” is a legitimate aim, is whether it is necessary and proportionate to exclude same-sex couples from the universally recognised and understood status of marriage in order to protect the “traditional family”. 31 In my view, it is neither necessary nor proportionate to create a new institution, identical for all practical purposes to civil marriage, in order to exclude same-sex couples from being able to use the word “marriage” to describe their relationships. Marriage is a word that is universally understood, and a legal relationship that is, under the rules of private international law, universally recognised. It is a word, and status, that should not be withheld from use by a particular group, particularly not on the basis of a characteristic such as sexual orientation, protected under article 14. Reliance on “tradition” as a justification for discriminatory treatment is insufficient, and only serves to reinforce and perpetuate discriminatory treatment. This problem was stated eloquently by Baroness Hale in M v Secretary of State for Work and Pensions [2006] 2 AC 91, paras 114–115: “Race discrimination was always wrong, long before the world woke up to that fact. Sex discrimination was always wrong, long before the world woke up to that fact. . . [I]t is one thing to use historical disadvantage and exclusion to

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442 Rosie Harding justify some compensatory treatment for the excluded group which is denied to others. . . It is another thing entirely to use historical disadvantage and exclusion to justify continued disadvantage and exclusion of the excluded group.” Thus, solely relying on the historically exclusionary “traditional” definition of marriage cannot meet the high standard required for the justification of a difference in treatment based on sexual orientation alone. 32 Additionally, again in the words of Baroness Hale, in Ghaidan v GodinMendoza [2004] 2 AC 557, 608: “The traditional family is not protected by granting it a benefit which is denied to people who cannot or will not become a traditional family. What is really meant by the ‘protection’ of the traditional family is the encouragement of people to form traditional families and the discouragement of people from forming others.” In the context of this case, withholding recognition of the parties’ relationship as a marriage may be construed as an attempt to discourage same-sex relationships. But since discrimination on the basis of sexual orientation is prohibited by article 14, discouraging same-sex relationships cannot be a legitimate aim. In the absence of justification, therefore, the failure to recognise the appellant’s valid Canadian marriage as a marriage constitutes a breach of her article 14 rights, taken in conjunction with both article 8 and article 12. Conclusion 33 As outlined at the beginning of my judgment, the operation of section 11(c) of the Matrimonial Causes Act 1973 and the overseas relationship recognition provisions of the Civil Partnership Act 2004 make it impossible to recognise the appellant’s marriage as a marriage under the principles of private international law. The only remedy available, therefore, is to use the court’s powers under either section 3 or section 4 of the Human Rights Act 1998, to read the relevant legislation in a way that is compatible with the relevant Convention rights, or to issue a declaration of incompatibility. As the particular legislative provisions implicated in this case are unequivocal, it is unfortunately impossible to utilise section 3 of the 1998 Act to provide a Convention compliant interpretation: see Bellinger v Bellinger [2003] 2 AC 467. I therefore make the declaration of incompatibility sought, that the Matrimonial Causes Act 1973, section 11(c), and the Civil Partnership Act 2004, section 1(1)(b) and Part 5, Chapter 2, are incompatible with the appellant’s rights under article 14 of the Convention, taken in conjunction with article 8 and article 12.

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26 Commentary on EM (Lebanon) v Secretary of State for the Home Department JUDY WALSH

Introduction While capital flows across the globe, people who cross borders are subject to harsh regimes, the effects of which are meant to be tempered by human rights guarantees.1 EM (Lebanon) v Secretary of State for the Home Department 2 is about the limits and potential of those guarantees. The case illustrates how gender-based discrimination is configured under the European Convention on Human Rights (ECHR) and exposes the contradiction between the paradigm of universal human rights and their territorial limits, encapsulated in the notion of State sovereignty. EM’s asylum claim was upheld by the House of Lords and its decision was welcomed as a promising one for female refugees.3 The human rights violation in question stemmed from the ‘private’ sphere of intimate relations, and so the House addressed to an extent one of the feminist critiques leveled at human rights discourse, that its focus is on ‘public’ sphere violations by States, which reflects a masculine bias. But it did so on terms that the feminist judgment seeks to redress. In line with ECHR cases on gender-based harms, the original judgment relegates sex discrimination to the margins.4 By contrast Karon Monaghan responds to the call issued by feminist scholars Chinkin and Charlesworth to place gender equality on the international human rights map.5

The Factual and Legal Issues A series of appeals in an asylum case culminated in the House of Lords decision in EM. EM left Lebanon with her son (AF) in order to evade the application of a legal provision that 1 R Barmaki, ‘Criminals/Refugees in the Age of Welfareless States: Zygmunt Bauman on Ethnicity, Asylum and the New “Criminal”’ (2009) 2 International Journal of Criminology and Sociological Theory 251. 2 EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 AC 1198. 3 See, eg, S Millns and K Brayson (2009) Women’s Rights, Transgender Rights and Homosexual Rights on the European Stage: Do These Marginalised Groups Find a ‘Voice’ in the ECtHR? A Comparative Report within the Framework of the JURISTRAS Project (nd) www.juristras.eliamep.gr. 4 See, eg, M Dembour, Who Believes in Human Rights? Reflections on the European Convention (Cambridge, Cambridge University Press, 2006), ch 7; I Radacic, ‘Gender Equality Jurisprudence of the European Court of Human Rights’ (2008) 19 European Journal of International Law 841. 5 H Charlesworth and C Chinkin, ‘The Gender of Jus Cogens’ (1993) 15 Human Rights Quarterly 63.

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444 Judy Walsh would result in the removal of the child from her care. Under the principles of Shari’a law applied to divorced couples in Lebanon, children are placed in the physical custody of their father or a male member of the father’s family upon reaching seven years of age. According to uncontested evidence, the Lebanese courts would automatically transfer custody without regard to the welfare and interests of the parties. EM would be granted visitation rights at best. EM’s application for asylum was grounded in the 1951 Refugee Convention, an international treaty that sets out criteria for determining refugee status and specifies the rights of those recognised as refugees. Refugee law, while ostensibly gender neutral, pivots on the concept of persecution by State agents and is critiqued for neglecting the particular harms encountered by women and girls.6 EM could not establish that her situation amounted to such persecution. However, with the advent of the Human Rights Act 1998 (HRA), the standards derived from the ECHR comprise a source of supplementary protection in the asylum context.7 In applying the HRA, UK courts must have regard to and ‘keep pace’ with the body of law developed by the European human rights institutions based in Strasbourg.8 The appeal in this case centred on article 8 of the ECHR, which provides for a right to respect for one’s private and family life, and the prohibition of discrimination under article 14. It was argued that in deporting EM and her son, the UK government would contravene both rights. Before the House of Lords the legal submissions focused on the appropriate formula to be applied in so-called ‘foreign cases’. In such cases the contention is that a person’s human rights will be violated, not within the UK as such, but in another territory, and the UK government should not expose the individual to those consequences by deporting them to that territory.9 The European Court of Human Rights has determined that responsibility for human rights violations generated by acts or omissions of other countries will only be triggered in exceptional circumstances. The relevant principles are relatively clear in relation to the most frequently invoked provision of the ECHR in foreign cases, the absolute prohibition on torture and inhuman and degrading treatment under article 3. A decision to deport or extradite a person may amount to a violation where there are substantial grounds for believing that the person faces a real risk of such treatment in the receiving country.10 But few judgments had dealt with the category of qualified rights before the House in this instance. Articles 8 and 14 are subject to express qualifications, which are, broadly speaking, related to the interests of society and the rights of other persons. An incursion on these rights can therefore be justified in some circumstances. Lord Hope drew a distinction between guarantees such as that provided for under article 3, which ‘as they are of fundamental importance, must always be rendered effective in practice’ and ‘the qualified rights of a civil and political nature which, on a purely pragmatic basis, the Contracting States 6 See further C Bohmer and A Schuman, Rejecting Refugees: Political Asylum in the 21st Century (London, Routledge, 2007), ch 6; J Freedman, ‘Women’s Right to Asylum: Protecting the Rights of Female Asylum Seekers in Europe?’ (2008) 9 Human Rights Review 413; N Oswin ‘Rights Spaces: An Exploration of Feminist Approaches to Refugee Law’ (2001) 3 International Feminist Journal of Politics 347. 7 The HRA imposes a duty on courts to interpret all laws in a Convention compliant manner and obliges public authorities to act compatibly with Convention rights. 8 R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 [20] (Lord Bingham). 9 More usually, art 8 is employed to argue that the act of removal itself would interfere with an applicant’s family or private life, eg by separating close family members. 10 Saadi v Italy (2009) 49 EHRR 30; Soering v United Kingdom (1989) 11 EHRR 439; Chahal v United Kingdom (1997) 23 EHRR 413.

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EM v Sec of State for the Home Dept—Commentary 445 cannot be required to guarantee for the rest of the world outside the umbrella of the Convention’.11

The House of Lords Decision Having reviewed relevant precedents, the House held that the applicable threshold for qualified rights is that of flagrant breach, gross violation or complete nullification.12 These phrases do not suggest different standards, but comprise a single test. Consequently, the Court of Appeal13 had erred in finding that the various terms employed in previous judgments suggested a sliding scale of infringements. The Court of Appeal had dismissed EM’s appeal from the decision of the Asylum and Immigration Tribunal on the basis that her family life would not be completely nullified since the Lebanese courts had power to grant visiting rights and on the evidence could be expected to exercise that discretion impartially. Applying the test as formulated to the facts, the House found that the return of the mother and son would contravene article 8. There was a flagrant denial of their rights since the family life of the mother and child as it was now lived would be destroyed; supervised access could not replace the relationship they currently enjoyed.14 Further, there had been no family life between the child and his father or paternal family. Significantly, AF was permitted to intervene in the proceedings and Baroness Hale suggested that the breach of his rights should be accorded greater weight than the violation of his mother’s rights. The very essence of the boy’s right to family life would be destroyed if he were separated from EM, damaging his development. This could not be justified since the reasons for its destruction were arbitrary and paid no regard to his interests.15 Only those arguments based on the family life limb of article 8 were successful before the House of Lords. Across the opinions of all five Law Lords there was no detailed consideration of article 14. As discussed further below, the feminist judgment purports to remedy that lacuna. The European Court of Human Rights has frequently reiterated that sex equality is a major objective of the Council of Europe and has stipulated that gender is a suspect ground under article 14. Consequently, strong justification must be advanced for any difference in treatment based on gender.16 Reliance can only be placed upon article 14 when the subject matter of the application falls within the ambit of another right protected under the Convention or its Protocols.17 However, a court may find that there has been unlawful discrimination even where the primary article has not been infringed.18 In other words, although EM could not have grounded her appeal solely in article 14, once a connection with the right to family life was established it was open to the House to find a violation of 11

Above n 2 at [13]. Applying R (Ullah) v Special Adjudicator, above n 8; Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702. The House also approved the formula adopted by the partially dissenting Judges Bonello, Bratza and Hedigan in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 494. 13 EM (Lebanon) v Secretary of State for the Home Department [2006] EWCA Civ 1531, [2007] 1 FLR 991. 14 Above n 2 at [40]–[41] (Lord Bingham). 15 ibid [46] (Baroness Hale). 16 See, eg, Burghartz v Switzerland (1994) 18 EHRR 101. 17 Botta v Italy (1998) 26 EHRR 241. 18 See, eg, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. 12

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446 Judy Walsh the discrimination prohibition alone, or in conjunction with the article 8 right. For instance in Hoffman v Austria,19 a violation of article 14 was established and the Strasbourg Court did not consider it necessary to also examine article 8. There were some parallels with EM in that the applicant lost custody of her son in a decision that attached considerable weight to her religious beliefs. The interference with her family life stemmed from discrimination on the ground of religion, and so article 14 was accorded prominence. The House of Lords had no difficulty in concluding that the Lebanese law in question would fall foul of the Convention in a domestic case,20 but found no violation of article 14 in this foreign case. Lord Bingham noted: Lebanon is not a party to the European Convention, and this court has no standing to enforce observance of other international instruments to which Lebanon is party. Its family law reflects a religious and cultural tradition which, in one form or another, is respected and observed throughout much of the world. This country has no general mandate to impose its own values on other countries who do not share them. I would therefore question whether it would avail the appellant to rely on the arbitrary and discriminatory character of the Lebanese custody regime had she not shown, as in my opinion she has, that return to Lebanon would flagrantly violate, or completely deny and nullify, her and AF’s right to respect for their family life together.21

In a similar vein, Lord Carswell concluded that the appellant could not rely on article 14 to contest deportation, explaining that the House of Lords was ‘not passing judgment on the law or institutions of any other state’.22 For Lord Brown it is certainly not the arbitrary and discriminatory character of the rule of Sharia law . . . which, uniquely thus far in the jurisprudence both of Strasbourg and the UK courts, qualifies this particular ‘foreign’ case as one for protection under Article 8.23

Baroness Hale pointed to the inextricable link between the discriminatory family law provision and the rupture of the appellant’s family life, but nonetheless grounded the UK government’s liability in article 8. It is not evident why establishing a violation of the discrimination prohibition entails an impermissible evaluation of another country’s laws, whereas a finding that article 8 has been infringed apparently does not. One is left with ‘the impression that in fact their Lordships have allowed the appeal because of the discriminatory nature of Lebanese family law, but have avoided saying as much because of the political sensitivity of the issue’.24 The judicial reticence to engage substantively with the application of the discrimination guarantee may in part be explained by the absence of robust European precedents. Where the Strasbourg Court has determined that the primary provision has been breached it generally does not go on to consider arguments based on article 14.25 This approach has been criticised in dissenting judgments and by human rights analysts. It evidences a ‘certain 19

Hoffman v Austria (1993) 17 EHRR 293. Above n 2 at [6] (Lord Hope), [42] (Lord Bingham). 21 ibid [42]. 22 ibid [52]. 23 ibid [60]. 24 A Pickup and A Gask ‘Case Comment: EM (Lebanon) v Secretary of State for the Home Department’ (2009) 1 European Human Rights Law Review 84, 90. 25 Chassagnou and Others v France (2000) 29 EHRR 615 represents the Court’s ‘modern approach’: a complaint of a violation of art 14 will only be undertaken where there is a clear inequality of treatment in the enjoyment of the substantive right in question which is a fundamental aspect of the case: C Ovey and R White, Jacobs and White, The European Convention on Human Rights, 4th edn (Oxford, Oxford University Press, 2006) 422. 20

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EM v Sec of State for the Home Dept—Commentary 447 judicial economy’,26 which has had detrimental effects on the evolution of discrimination case law. Gender-based claims concerning rape,27 abortion,28 and until 2009 ‘domestic’ violence,29 have been addressed as violations of substantive provisions but not as forms of inequality. As to the wider import of the decision, it was the first occasion on which a UK court found a flagrant violation of a qualified right in a so-called foreign case. However, the House emphasised that the facts were highly exceptional. Indeed, the factual matrix was stark in that the child had not seen his father since the day he was born, nor had there been contact with any of his father’s relatives. Further, there was evidence before the court to the effect that the appellant’s former spouse had subjected her to repeated violent assaults. Much then pivoted on the fact that the only family life enjoyed by the child would effectively come to an end if he and EM were deported. It seems the outcome would have been different had there been some form of relationship between AF and his father or paternal family. The House pointed out that women could not expect to rely on discriminatory laws as a basis for seeking asylum, without an accompanying flagrant violation of another Convention guarantee. The feminist judgment seeks to undo that closure.

The Feminist Judgment Monaghan concurs with the ultimate decision in EM but does so through a different route. Gender equality is the axial principle in her judgment. Inverting the primacy of articles 8 and 14 in the opinions of the House of Lords, she concludes that the expulsion of EM would give rise to a flagrant violation of article 14, read in conjunction with article 8. She rests this reading of the ECHR on a wider body of international human rights law. Carefully elaborating the standards set by bodies such as the Committee on the Elimination of all Forms of Discrimination Against Women and the United Nations General Assembly, Monaghan concludes that protection from gender discrimination now has the status of a peremptory norm of international law. This elevated status means that parties to the ECHR, and indeed all States, have undertaken to uphold the right globally. Reliance on peremptory international norms is a technique that has been employed in other discrimination cases,30 although as noted above, before the House of Lords in EM, discrimination receded into the background. But Monaghan also threads relevant feminist analyses through her judgment, using the writing of Catharine MacKinnon in particular to question the inherent gender bias of legal doctrine. Given the emphasis placed on gender equality, Monaghan engages substantively with the body of Shari’a law in question. The decision of the House of Lords resonates with the findings of Spijkerboer’s empirical study of gender and refugee status:

26 K Reid, A Practitioner’s Guide to the European Convention on Human Rights, 3rd edn (London, Sweet & Maxwell, 2008) 276. 27 MC v Bulgaria (2005) 40 EHRR 20. 28 Tysiàc v Poland (2007) 45 EHRR 42. 29 Bevacqua and S v Bulgaria (App no 71127/01) ECHR 12 June 2008. 30 See, eg, the opinion of Lord Steyn in the race discrimination case of R v Immigration Officer at Prague Airport and Another [2004] UKHL 55, [2005] 2 AC 1.

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448 Judy Walsh There is . . . a clear tendency in case law to see what women do and what is done to them as related to culture. Although there are cases in which this tendency is not followed, women’s refusal to obey formal or informal dress codes, marriage law, child custody rulings and the like is seen as a cultural issue. Similarly, the institutionalised discrimination of women . . . is often seen as a matter of the general situation in the country and thus of indigenous culture. And somehow, that which is cultural is considered as non-political.31

On the other hand, in a cluster of cases concerning religious dress, critical scholars have sought to expose the ideological underpinnings of European and UK jurisprudence. Judgments are said to ignore the complexities of the intersections of gender and Islamic identity, and to posit a set of truth claims about ‘civilized’ citizenship that regard human rights as markers of modernity associated (exclusively) with the West.32 Monaghan treads a delicate path between cultural imperialism and avoidance of critique by pointing out that discrimination against women is endemic and contested by Muslim men and women, and that Shari’a family law has been reformed in some countries in the interests of greater gender equality.33 By underscoring EM’s individual right to asylum, the feminist judgment avoids the tendency to construe women’s asylum claims as being contingent on their family status.34 At a symbolic level, Monaghan’s approach has the obvious merit of naming gender-based discrimination as the central feature of the case. Because the flagrant violation is located in article 14, Monaghan arguably extends EM’s value as a concrete precedent far beyond that set in the original judgment. But its potential impact is difficult to measure. Her reclamation of article 14 finds some resonance in the Strasbourg Court’s decision in Opuz v Turkey,35 delivered subsequent to EM. The Court found that domestic violence is a form of gender-based violence which amounts to discrimination against women, also deriving support for this stance from a range of human rights instruments. But it is not clear how the flagrant violation test would be applied in future foreign cases. The implication seems to be that article 14 would acquire a foothold in the event of direct or overt discrimination where ‘the most essential rights of women’36 are at stake. Would these essential rights include, for example, the proprietary interests and educational opportunities routinely denied to women and girls in many countries? And might her approach reinforce a hierarchy of grounds, with ‘gender’ joining ‘race’ at the apex of discrimination law? These are profound questions for courts that are implicated in and yet constitute a site for resisting the imperative to ‘crack down’ on asylum claims. The White Paper that preceded the HRA was entitled ‘Rights Brought Home’.37 In asserting a globally enforceable right to gender equality, Monaghan loosens somewhat the nexus between ‘home’ and geographic borders for female asylum seekers.

31

T Spijkerboer, Gender and Refugee Status (Aldershot, Ashgate, 2000) 131–32. See, eg, A Vakulenko ‘Islamic Headscarves and the European Convention on Human Rights: An Intersectional Perspective’ (2007) 16 Social & Legal Studies 183. 33 See, eg, N Tamanna, ‘Personal Status Laws in Morocco and Tunisia: A Comparative Exploration of the Possibilities for Equality-Enhancing Reform in Bangladesh’ (2008) 16 Feminist Legal Studies 323. 34 Spijkerboer, above n 31 at 103. 35 Opuz v Turkey (App no 33401/02) ECHR 9 June 2009. 36 EM (Lebanon) v Secretary of State for the Home Department, this volume [7]. 37 Secretary of State for the Home Department, ‘Rights Brought Home’ (Cm 3782, 1997). 32

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House of Lords

EM (Lebanon) v Secretary of State for the Home Department (AF (A Child) and others intervening) [2008] UKHL 64

BARONESS MONAGHAN 1 My Lords and My Lady, this case raises an important question concerning the obligations arising under the European Convention on Human Rights where complaint is made that returning a person to their home State will subject them to forms of inequality proscribed by the Convention. In particular, it requires the House to determine the extent to which the non-refoulement obligations implicit in the Convention prohibit the return of a woman to a jurisdiction where she will be subject to inequality in the enjoyment of rights guaranteed by the Convention and that inequality is ascribable to her gender. 2 Gender equality is a fundamental human right. It is also one that is universally recognised. That this is so is reflected in all the major regional and international human rights instruments and in the written Constitutions of most modern liberal democratic States. Article 26 of the International Covenant on Civil and Political Rights, for example, provides that: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 3 The United Nations has promulgated and enacted an entire Convention dedicated to the protection and promotion of gender equality: The International Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”). CEDAW was adopted by the United Nations General Assembly in 1979, entered into force in 1981 and is the most significant and comprehensive international instrument addressing women’s rights and the elimination of gender-based discrimination. The United Kingdom became a party in 1986. Article 2(a) of CEDAW requires States Parties to prohibit sexual discrimination by embodying “the principle of equality of men and women in their national constitutions or other appropriate legislation”. Under article 2(b), States are also obliged to eliminate all discrimination against women, and to adopt laws or other measures “including sanctions where appropriate, prohibiting all discrimination against women”. Article 16 of CEDAW provides that: “1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

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450 Karon Monaghan (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent; (c) The same rights and responsibilities during marriage and at its dissolution; (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount; (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights; (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount; (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation; (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.” 4 Article 16 is regarded by the Committee on the Elimination of Discrimination against Women (CEDAW’s supervisory organ) as a “core” provision: see “Report of the Committee on the Elimination of Discrimination against Women (Eighteenth and nineteenth sessions)” (1998) (A/53/38/Rev.1), Part 2, Chapter 1, para 6. Reservations may be entered by States Parties. However, article 28(2) of CEDAW adopts the impermissibility principle contained in the Vienna Convention on the Law of Treaties. It states that a reservation incompatible with the object and purpose of CEDAW shall not be permitted. Reservations which challenge the central principles of CEDAW are, then, contrary to the provisions of CEDAW and to general international law. Article 16, as a core provision, is one to which the impermissibility principle applies. Accordingly any reservations to it, whether lodged for national, traditional, religious or cultural reasons or otherwise, are impermissible and should be reviewed and modified or withdrawn: see “Report of the Committee on the Elimination of Discrimination against Women (Eighteenth and nineteenth sessions)” (1998) (A/53/38/Rev.1), Part 2, Chapter 1, para 17. Reservations to Article 16, in particular, “perpetuate the myth of women’s inferiority and reinforce the inequalities in the lives of millions of women throughout the world. They continue to be treated in both public and private life as inferior to men, and to suffer greater violations of their rights in every sphere of their lives”: see “Report of the Committee on the Elimination of Discrimination against Women (Eighteenth and nineteenth sessions)” (1998) (A/53/38/Rev.1), Part 2, Chapter 1, para 5. 5 CEDAW has been ratified by 185 States, that being over 95 per cent of the members of the United Nations (as at October 2008), and more than the 173 ratifications of the Convention on the Elimination of All Forms of Racial Discrimination. However, many States have submitted significant reservations to CEDAW, no

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EM v Sec of State for the Home Dept—Judgment 451 doubt reflecting the friction between the principle of gender equality and certain legal and cultural norms. Lebanon is one of those States that has ratified CEDAW, albeit with reservations. Those reservations include reservations to article 16(1)(c), (d), (f) and (g) (in the latter case to the extent that it applies to the right to choose a family name). The legal effectiveness of those reservations is doubtful in light of the Committee’s comments considered above. In any event, the recognition of equality as a fundamental and universal right has increased progressively in the period after the Second World War. The near universal ratification of CEDAW coupled with the widespread entrenchment of the fundamental right to gender equality in other international and regional human rights instruments demonstrates its increasing importance and heightened status. 6 Certain legal norms, described as jus cogens or peremptory norms, have assumed a status in international law such that no derogation from them is permitted in any circumstances. Article 53 of the Vienna Convention on the Law of Treaties provides that: “[A] peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” 7 As has been observed by Professors Charlesworth and Chinkin in “The Gender of Jus Cogens” (1993) 15 Human Rights Quarterly 63, 65, citing Professor Tribe’s American Constitutional Law (1978) 10, jus cogens norms might be said to play a similar role in the international legal order as constitutional guarantees of rights in domestic legal systems, so limiting the freedom of choice of States “in order to reap the rewards of acting in ways that would elude them under pressures of the moment”. Precisely what norms qualify as principles of jus cogens, however, remains controversial and, in particular, Professors Charlesworth and Chinkin in the same article at p 65 have suggested that “the concept of the jus cogens is not a properly universal one as its development has privileged the experiences of men over those of women”. Certainly by 1970, protection from race discrimination had achieved the status of a peremptory norm whereas protection from gender-based discrimination was not explicitly so described. Indeed, according to the International Court of Justice in the Barcelona Traction Case (Second Phase) [1970] ICJ 3, 32, obligations erga omnes (those being norms binding on all States) in contemporary international law, include “the principle and legal rules concerning the basic rights of the human person, including protection from . . . racial discrimination”. Ulrich Scheuner in “Conflict of Treaty Provisions with a Peremptory Norm of General International Law and its Consequences” (1967) 27 Zeitschrift Fur Auslandisches Offentliches Recht und Volkerrecht 520, 524 states that it is the “most essential” human rights that form part of the jus cogens. Women are, of course, human too, and the fundamental right to gender equality concerns the most basic rights of the woman human person. A gendered approach to the development of the doctrine of jus cogens would be quite counter to the purposes of the United Nations Charter, set out below, and the fundamental values that the doctrine of jus cogens seeks to protect. As such, in my judgment, the most essential rights of women to non-discrimination and equality can now be regarded as

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452 Karon Monaghan enjoying the same status, as a peremptory norm, as that afforded to other most basic rights, including the right to protection from racial discrimination. Just as the existence of so many prohibitions on racial discrimination in widely ratified international treaties and documents has provided the foundation for an international legal principle against race discrimination, so then the arguments for assuming the same is now true of gender discrimination are compelling. The United Nations Charter itself in article 1 proclaims that its purposes include “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”. The Charter refers in article 55 to gender equality as a foundational principle: “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: (a) higher standards of living, full employment, and conditions of economic and social progress and development; (b) solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” 8 By article 56 of the Charter, “All Members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in article 55”. In addition, the practice of the organs of the United Nations, including resolutions of the General Assembly (see, for example, A/RES/55/71 and A/RES/S-23/3 on “Further actions and initiatives to implement the Beijing Declaration and Platform for Action”), the Universal Declaration of Human Rights (articles 1, 2, 7 and 16, in particular), the International Covenant on Civil and Political Rights (articles 2, 3 and 26, in particular) and the International Covenant on Economic, Social and Cultural Rights (article 1, in particular) all provide substance to the argument that gender equality and nondiscrimination have now achieved the status of a norm of jus cogens, or a peremptory norm of international law: see Brownlie, Principles of Public International Law (7th ed, 2003) at pp 572–3. Further examples can be seen in the United Nations’ solemn “Declaration and Programme of Action following the World Conference on Human Rights” (1993) (A/CONF.157/23), Part 1, para 18, which emphasised the importance of women’s human rights so that: “[t]he human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community.” In Part II, Section 3, para 37 of this Declaration too, the General Assembly emphasised that the “equal status of women and the human rights of women should be integrated into the mainstream of United Nations system-wide activity” and that

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EM v Sec of State for the Home Dept—Judgment 453 “[t]hese issues should be regularly and systematically addressed throughout relevant United Nations bodies and mechanisms”. In particular, and as is of some importance to the facts of this case, Part II, Section 3, para 38 of the Declaration noted that the World Conference on Human Rights had stressed “the importance of working towards . . . the elimination of gender bias in the administration of justice and the eradication of any conflicts which may arise between the rights of women and the harmful effects of certain traditional or customary practices, cultural prejudices and religious extremism.” See too, “Report of the Sixth Meeting of Persons Chairing the Human Rights Treaty Bodies” (1995) (HRI/MC/1995/2), and Shaw, International Law (5th ed, 2003) at pp 302–3. 9 As any reader of social and political history will know, just as with racial equality, the right to gender equality has not always been universally guaranteed. Nor should it be said that Shari’a law, which is said to be in issue in this case, is uniquely gender discriminatory in content. The fact of gender inequality remains the single shared characteristic of many contemporary social structures, irrespective of a State’s political or religious complexion. Many examples of the law entrenching certain forms of gender discrimination can be found in legislative measures here as elsewhere. In my judgment, however, gender equality is, nevertheless, now to be regarded as a universal and fundamental human value and right that must be protected and promoted by all State organs including the courts of all jurisdictions. As Professor MacKinnon has said of the right to gender equality in Are Women Human? and other International Dialogues (2007) at p 10: “the fact that a norm is not lived up to or delivered upon with consistency does not mean that it is not a norm . . . [T]he rejection of sex discrimination is normatively vigorous if feebly implemented, displaying strong belief in legal obligation but weak state practice.” Given the existence of a robust legal norm, it is this House’s duty to give effect to it, irrespective of specific State practice. 10 In so far as this jurisdiction is concerned, rules or norms of customary international law (save those creating criminal acts) automatically become part of domestic law unless there is a conflict with statute: Trendtex Trading v Central Bank of Nigeria [1977] QB 529, 553. As the fundamental right to gender equality gives rise to obligations domestically (and in my judgment erga omnes, like race equality), this House is required to afford proper respect to it. In any event, and whether or not the obligation extends to the imposition of a non-refoulement obligation on the facts of this case (something I would be inclined to conclude in the affirmative but do not need to decide since it has not been argued), it is of relevance to the scope of the non-refoulement obligation under the European Convention on Human Rights, which I address below. 11 The issues arising in this case have been clearly identified. The appellant and her husband, both Muslims, married in Lebanon and in 1996 the appellant gave birth there to their child. Following the birth, the appellant and the child’s father separated and later divorced. Although the child was allowed to remain living with the appellant, Islamic law as it applies in Lebanon requires that in such

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454 Karon Monaghan circumstances, physical custody of the child would pass to the father, or a male relative of his, when the child reached the age of seven, with the mother thereafter having only the opportunity to visit the child under supervision. Under no circumstances would the child’s custody remain with the appellant. Before the child reached the age of seven, the appellant went into hiding with him and fled the country, arriving in the United Kingdom in 2004 where she claimed asylum. She also claimed that her removal would be contrary to article 8 and, in due course, article 14 of the Convention. So far the appellant’s claims have failed, with the Court of Appeal determining that the appellant’s ability to have some contact with her child after legal and physical custody had been transferred to the father on their return to Lebanon precluded any finding that her article 8 right, by itself or with article 14, would be completely denied. 12 The question then arises whether the non-refoulement obligations implicit in the Convention, relied on in this case, and properly understood preclude the return of the appellant in those circumstances having regard, in particular, to the gender discriminatory nature of the laws to which she will inevitably become subject on return. 13 As my noble and learned friend Lord Bingham of Cornhill observes in para 42 of his opinion, the family law system in Lebanon reflects religious and cultural traditions which, in one form or another, are respected and observed throughout much of the world. It is also true to say, as he says, that this country has no general mandate to impose its own values on other countries who do not share them. However, given that, in my judgment, the right to gender equality has the status of a peremptory norm erga omnes, all States have a duty to enforce it. This means that the fact that a State which is failing to accord legal equality to women is otherwise well functioning and internationally respected will not alleviate the responsibilities other States have in meeting their duty to conform to that norm, including their duty to enforce it. The fact that the impugned inequality may derive from preciously guarded and revered religious texts, as in the case of Shari’a family law as it is said to apply in Lebanon, does not affect a State’s duty to conform to its obligations in international law. Fundamental rights are known as such because they are fundamental. They do not depend for their existence and protection on political, social or religious sanction in particular States. Certain fundamental rights are given the status of peremptory norms in international law and they do not vary or alter according to the norms of any particular State. Indeed it is precisely because a State may not respect certain fundamental values that international law has developed a hierarchy of norms with those most essential afforded the status of rights and obligations erga omnes. There is no room in this area for adopting a relativist or tolerant approach to infringements of such fundamental rights, dependent upon the place in which such infringements occur. The religious underpinning that is assumed to exist for the laws in issue in this case does not affect their validity under international law. Nor does it make them uncontroversial in the eyes of Muslim men and women. It is not for this House to express a view, even less to rule upon, the status of Islamic personal laws, but it is apposite to note that there is not consensus in the Muslim world about their necessary content (Morocco and Tunisia, for example, have both sought to integrate more gender equal laws into their Islamic legal frameworks).

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EM v Sec of State for the Home Dept—Judgment 455 14 In any event, though certain fundamental rights are universal, that is not to say that they are static. They are not. They are evolutive. They will develop as our universal understanding develops. But that evolutive process is a universal one and, importantly, is a progressive one. The fact that one State or another chooses, or not, to guarantee these fundamental rights does not affect their applicability or their content. It might be said in this case otherwise that the appellant could have remained with her husband to avoid the discrimination to which she would thereafter be subject. It was her decision to divorce after her husband, as was accepted by the Asylum and Immigration Tribunal below, “subjected her to violence of the most extreme kind”: [2007] 1 FLR 991, para 2. Had she remained with her husband she would not have risked losing custody of her child in a patriarchal legal system she well knew and understood. To adopt such an approach to the determination of fundamental rights would be quite wrong. 15 It is important to mention here that there are other relevant Treaties containing gender equality guarantees in respect of the subject of those Treaties. The Convention on the Rights of the Child, article 2, for example, includes an equality guarantee and parents may enjoy, through their children, vicarious equality rights. But importantly, women are entitled to equality qua women. The respect for women’s dignity and autonomy does not derive solely from their status as, for example, members of diverse racial groups or as mothers, but as human beings. This is important to recall having regard to the way in which the issues arising in this case have been so far addressed. 16 It is in this context that the appellant’s claims under the Convention and the Human Rights Act 1998 must be considered. As to the Convention rights themselves, notwithstanding the apparent difficulties the courts below had with this issue, the relevant Convention jurisprudence is tolerably clear. The principle of non-refoulement in the Convention applies equally to all the rights guaranteed therein (including non-discrimination) save that the threshold for establishing a relevant anticipatory breach in cases other than those engaging the “first order” rights (articles 2 and 3) is significantly higher. The proper test is whether there is “a real risk” of a “flagrant” breach of a right guaranteed “which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed”: Mamatkulov and Askarov v Turkey (2005) 51 EHRR 494, 537–9. This is a single test and not, as the Court of Appeal appeared to assume, a dual test requiring either a “flagrant” breach or “a nullification, or destruction of the very essence, of the right guaranteed” (both expressions imposing the same high threshold). 17 The principal Convention rights engaged in this case are articles 14 and 8. Article 6 is also of relevance. Having regard to the issues in this case, the starting point must be article 14. Article 14 contains the Convention’s non-discrimination guarantee. It provides that: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 18 As is well known, article 14 is not freestanding in the way of many constitutional equality guarantees. Its application depends upon there being discrimination

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456 Karon Monaghan in the enjoyment of the “rights and freedoms set forth in the Convention”. This House has considered on more than one occasion the test for determining whether there has been a violation of article 14 read in conjunction with the other Convention rights. As set out by Baroness Hale in Ghaidan v Godin-Mendoza [2004] 2 AC 557 paras 133–4, (and see Wandsworth London Borough Council v Michalak [2003] 1 WLR 617 per Brooke LJ at para 20) this question can be conveniently addressed by reference to five questions (“the Michalak questions”), as follows: (a) Do the facts fall within the ambit of one or more of the Convention rights? (b) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (c) Were those others in an analogous situation? (d) Was the difference in treatment objectively justifiable? i.e. did it have a legitimate aim and bear a reasonable relationship of proportionality to that aim? (e) Was the difference in treatment based on one or more of the grounds proscribed—whether expressly or by inference—in article 14? 19 As this House has observed in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, the Michalak formulation, as it is commonly now described, is not without its difficulty: see Lord Nicholls, paras 2–3; Lord Hoffmann, paras 28–33; Lord Rodger, para 43; Lord Walker, paras 61–70; Lord Carswell, para 97. In Carson, this House preferred a less “technical” or “structured” approach (see Lord Nicholls, para 3 and Lord Walker, para 69), reflected in the observations of Lord Nicholls at para 3, as follows: “Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may be best directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.” 20 The Michalak framework is nevertheless a useful tool for analysing the issues that arise in an article 14 enquiry, as evidenced, for example, in its use by Lord Bingham in A v Secretary of State for the Home Department [2005] 2 AC 68, para 50. In any event, in my judgment, whether the Michalak framework or the more fluid approach of Lord Nicholls is adopted, the result in the instant case will be the same. For ease of formulation of the issues in this case I have used the Michalak questions, which I address in turn below. 21 As to the question whether the facts in this case fall within the ambit of one or more of the Convention rights, this requires some connection between the facts alleged and one or other of the other Convention rights. The degree of connection required has been explored by this House in M v Secretary of State for Work and

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EM v Sec of State for the Home Dept—Judgment 457 Pensions [2006] 2 AC 91. It is clear, and it is not disputed, that the situation in this case is closely connected to what Lord Bingham described in M, para 4, as the “core values” protected by article 8 (respect for “private and family life”), and that the appellant’s complaints fall within the scope of that article. In addition, although it was not argued before us, the facts in this case fall within the scope of article 6. Article 6 guarantees the right to “a fair trial” in the determination of a person’s “civil rights”. It was held in Olsson v Sweden (No 1) (1988) 11 EHRR 259 and W v United Kingdom (1987) 10 EHRR 29 that these “fair trial” rights cover disputes relating to the care of and access to children, and thus the facts in this case fall squarely within article 6. On any analysis therefore this case plainly engages article 14 and the right to equality as protected by it. 22 The question then arises whether the circumstances are such as to give rise to a difference in treatment as between the complainant and a comparator in an analogous situation, namely her husband. It is impossible to come to any other answer to this question than an affirmative one. There will be a difference in the way in which the appellant and her husband will be treated under law in Lebanon should she return. This is uncontroversial. Legal custody of the child resides with the father at all times and physical transfer of the child to the father will occur when the child reaches seven years of age automatically: the court has no discretion in the matter. That the appellant will be the subject of legally sanctioned gender discrimination, contrary to international norms, in her relationship with her child and in any custody dispute that will follow cannot be denied. Nor can there be any objective justification for that discrimination. In assessing whether such discrimination might be justified, regard must be had to the fact that gender, like race, is regarded as a “suspect class” so that discrimination on the basis of gender will be subject to close scrutiny and “very weighty reasons” will have to be advanced before a difference in treatment on the grounds of sex will be regarded as compatible with the Convention: Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, para 78. This takes account of the importance given to gender equality in international human rights law as described above and in particular, now, its status as a peremptory norm of international law. No serious arguments have been suggested objectively justifying the discrimination in this case and none could be. As I have indicated above, the fact that cultural and legal norms in Lebanon differ from those here (and indeed from other jurisdictions where Islamic law, though at variance with that as it is applied in Lebanon, applies), and indeed differ from internationally recognised values in certain respects (as is reflected by Lebanon’s reservations to CEDAW), is no basis for not affording proper respect to the fundamental right to gender equality. It is precisely because gender equality is so widely denied that the right to it should be preciously guarded and protected by the courts. As the evidence before the House in this case shows, the legal fact of gender-based discrimination in family law in Lebanon may very well constrain women from leaving violent and abusive marital relationships. That is no small matter. 23 The situation that this appellant would face in Lebanon would then, if subject to it in one of the Council of Europe States, violate article 14. But this is a “foreign” case. Lebanon is not a party to the Convention and this court has no standing to enforce observance of other international instruments to which Lebanon is

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458 Karon Monaghan party. As I have already observed, this House has no general mandate to impose its own legal norms or values on other countries who do not share them. This House does, however, have a duty to uphold the law, including the law as it derives from regional and international human rights norms. The Convention will preclude the appellant’s deportation to Lebanon if it can be shown that she is at real risk of a flagrant breach of her Convention rights such as to have them completely denied or nullified. As I have alluded to above, in my judgment, in this case the appellant’s right to gender equality in the enjoyment of her family life, including with her child, and in any legal proceedings that relate to her family life would necessarily be flagrantly breached were she to be returned to Lebanon. This is because, by simple fact of her womanhood, she would be automatically denied custody of her child. Just as deporting a black person to a foreign State which would by law automatically deny her custody of her child in favour of its white parent would be precluded by the Convention rights (and the peremptory norms of international law), so they preclude too the deportation of this appellant in circumstances where she will be automatically denied custody of her child on the basis of her sex. 24 I am therefore, in the result, in agreement with my noble and learned friends but the substance of my reasons is somewhat different. In particular, my noble and learned friends have determined that the appellant is able to pray in aid certain other rights to prevent her deportation, including the right to respect for family life simpliciter. I readily accept that the facts of this case would qualify as exceptional such as to justify the application of the principle of non-refoulement under article 8 of the Convention, because such is the relationship between mother and child in this case that their separation would, as my noble and learned friends have concluded, cause a flagrant violation of article 8. But to have decided the case on that basis would, in my view, have been to ignore the central feature of this case, namely that the wrong that would be done in Lebanon to this appellant would be most fundamentally to deny her equality because she is a woman. 25 I would therefore allow the appeal.

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INDEX abortion, 73, 279, 447 ‘abnormality of the mind’, 287, 293 abuse, v , 285 , 312, 321, 325, 347, 358, 384–85 child, 28, 114, 125–26, 132, domestic, see domestic violence mental, v, 121, 126 sexual, 128–29, 225, 284 substance, 124, victims of, 28 access education, 26, 332, 341, 448 fertility treatment, 25, 61, 83, 450 Ackner, Lord, 416, 431 activism, 18 academic, 8 feminist, 12, 294 judicial, 384 actual bodily harm, 11, 241–43, 247, 250, 253, 263, 265 administrative law,12, 21, 381, 384–85 Adler, Zsuzsanna, 214 adoption, 64, 84–85, 87, 91, 93, 98, 102, 213, 272, 428, 450 adultery, 253, 292, 295, 300, 302, 432 affirmative action, 422, 423 see also positive action Age Concern, 320–21, 326 agency, 22–23, 245, 270, 272, 286, 314, 334 collective, 8 ageing, 37, 312, 316, 320 Ahluwalia, Kiranjit, 275, 283, 289 –90, 292–93, 295, 300–01, 304 Alam, Fareena, 333 alcoholism, 118, 294–95, 298–99, 303, 306–07 ‘all-moneys’ charge, 166–67 Allen, Jonathan, 257, 269 Ali, Yasmin, 283 Alzheimer’s Society, 312, 320 Amato, Paul, 122 Andrews, Cathy, xiii, 184–86, 188–89 anti-essentialism, 41–42 Arden, Lady Justice, 67, 73, 80 Arnold, Sir John, 92, 94 Aristotle, 415 arsenic poisoning, 273, 278 Asen, Dr Eia, 86, 92 Ashenden, Samantha, xiii, 86, 88–89 assault, 143, 366 physical, 170–71, 174, 183, 242, 255–57, 261–63 sexual, 23, 28, 39, 207–08, 212, 214–15, 218, 222–23, 225, 227, 236, 252–53, 269, 279 Asylum and Immigration Tribunal, 445, 455 asylum claims, 448 Atkin, Lord Justice, 385, 390, 392, 398–99

Atkinson, Justice Roslyn, 48–49 Atkinson, Lord, 384–85, 387, 394–95, 399 Auchmuty, Rosemary, vii, xiii, 97, 151–53, 155 Australia, 30 High Court, 30, 111 Queensland Supreme Court, 49 autonomy, 7, 22, 27, 137, 144, 178, 286, 455 education, 329, 332, 335, 340–41 fertility treatment, 61, 64, 71, 73, 78 patient, 363, 367, 370 residential care, 230, 240, 315 sexual, 208, 210, 221, 252 Azam, Mohammed, 273–75, 278–80, 282, 284–85, 287–88 Bainham, Andrew, 99, 107, 376 Baird Textile Holdings, 11–12, 14, 21–22, 27, 37, 41, 184–86, 188–99, 201 Baird, Vera, 207–08, 210 Balcombe, Lord Justice, 115, 121, 176 Ballard, Roger, 283 Bankes, Lord Justice, 388, 390, 394–95, 398 Banking Code of Practice, 150 banks, 10, 21, 28, 150–51, 437 deregulation, 149 lending practices, 36, 151–53, 156–59 notice of undue influence, 150, 156–57, 163 see also undue influence Bano, Samia, xiii, 46, 273–74, 276–78 Barker, Nicola, xiii, 97, 349–51 Bartlett, Katherine, 35, 38, 61 battered women’s syndrome (BWS), 257, 291–93, 298, 303–04 battery, 170, 174, 183 Beale, Hugh, 188, 198–99 Begum, Shabina, 26, 329–45 Behrens, His Honour Judge, 160, 164 Bennett, Abigail, 100 Bennett, Justice, 330–31, 336 Beresford, Bryony, 375 Beresford, Sarah, 97, 99 Bernstein, Lisa, 198 best interests, 272, 342, 349 child patients, 28, 363, 365–66, 368, 370–71, 373–78 children, generally, 21, 85, 91–92, 97, 987, 107, 109, 113, 115–16, 118, 120–21, 124, 126–27, 130–32, 144 conjoined twins, 135–36, 140–41, 143–46 see also medical treatment; welfare, of child Beveridge, William, 323 bias feminist critique of, 21, 26, 187 in judgments, 6, 46, 227

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460 Index bias (cont.): judicial, 6, 30–33 masculine, 292, 295–96, 443 see also gender, bias Bibbings, Lois, vii, xiii, 232, 234, 293 Bingham of Cornhill, Lord, 31, 43, 55, 110, 115, 192, 220, 274, 290, 297, 305, 314, 316, 325–26, 331, 334, 337, 436–37, 444–46, 454, 456–57 Big Bang, 149 Birmingham City Council, 10, 12–13, 18–19, 21–23, 26–27, 29, 36–38, 41, 48, 311–13, 315–19, 321, 416, 422, 424 Black, Mrs Justice, 102, 179 Blackstone, Sir William, 172, 178 bodily harm, 25, 40, 131, 233, 241–43, 247, 250, 255, 258, 262–63, 265–66, 300 definition, 27, 255, 257–58, 260 bondage and discipline, dominance and submission, sadism, masochism (BDSM), 242, 248 Booth, Cherie, 333 Bowen, Lord Justice, 202 Bracewell, Mrs Justice, 55, 85, 99, 106, 108, 112 Brazier, Margaret, 83, 84 breach of the peace, 171, 175, 177–83 Bridge of Harwich, Lord, 416, 421–22 Bridgeman, Jo, xiii, 55, 100, 347, 364, 368–69 British Crime Survey, 128, 256, 269, 297 British Institute of Human Rights, 320–21 British Medical Association, xiii, xiiii, 373 Brooke, Lord Justice, 140–41, 329–30, 336–37, 456 Brown, Lord, 446 Brown, Sir Stephen, 373 Browne, Angela, 290 Browne, Kevin, 358 Browne-Wilkinson, Lord, 150, 155–59, 168, 415, 417, 421 Brownlie, Ian, 452 Buckmaster, Lord, 385, 387, 391, 397 business, 22, 28, 39, 41, 149–54, 156, 158–59, 161–62, 165–68, 178, 184, 186–93, 195–202, 280, 312–13, 384, 411, 417 deregulation, 149 interests of, 22, 41, 152, 155 transactions, 23, 152 Butler, Judith, 8 Butler-Sloss, Dame Elizabeth, 69, 109, 116–17, 125–26, 128, 130–33, 143, 355, 357, 366, 368, 377 Butterfield, Mr Justice, 273 Buxton, Lord Justice, 325 Califia, Pat, 252 Callman, Mr Justice, 85, 91 – 93 Campbell, David, 186, 188, 199, 200 Canada, 3, 13, 37, 151, 205–06, 209, 205, 215, 223, 225–26, 245, 292, 425, 430–31, 433, 440, 442 Charter of Rights and Freedoms, 3, 37 Supreme Court, 3, 30, 33, 222, 343 Women’s Court, 3, 37, 39 ‘capable of belief ’, 274, 276, 281, 283, 285, 287 capacity, tests of, 11, 27, 350, 352, 357, 359, 361–62 see also marriage, capacity, test of capitalism, 158, 230

care, 23, 27, 29, 40, 62–63, 74, 85–86, 88–89, 92–95, 101–02, 105–06, 108, 111–12, 128, 144–45, 206, 284, 301, 318, 349, 362, 415, 444, 457 commodification of, 312–13, 315 compulsory care-giving, 26, 36–37, 230–41 disabled children, of, 15, 48, 52–55, 363–78 duty of, 158, 166, 168, 232–33, 237, 260, 347 ethic of, see ethic of care providers, 19, 22, 36, 111, 113, 143, 166, 168, 312–13, 315–27 welfarism, 314–15 see also mother, care for disabled children; residential care Care Quality Commission, 315 Carr, Helen, xiii, 10, 316–18 Carson, Lord, 387 Carswell, Lord, 44, 55, 297, 305, 446, 456 causation, 11, 255–56, 258–59, 266–72 Chambers, Gerry, 212 charity, 311 – 313 Charlesworth, Hilary, 9, 443, 451 Chesterman, Justice, 136–37 Cheshire, Leonard, 311, 318, 325 children, 20, 25, 51, 62, 63, 71, 74, 83–94, 162, 175, 280–83, 286, 359, 428, 434, 450, 455, 457 abuse of, see abuse, child contact arrangements, see contact, with children disabled, 48, 284, 363–66, 368–71, 375, 377 domestic violence, 9, 12, 19–21, 27, 28, 114–33, 279–80 genetically related, 12, 36, 51, 64, 66, 75, 77, 79, 82–92 human rights of, 51, 135, 139, 275–76, 347, 435–36 religion, 144, 289, 444 see also religion residence, 9, 20, 37, 50, 96–14, 444 childcare, 52, 174–75 Children and Family Court Advisory and Support Service (Cafcass), 105, 129 Chinkin, Christine, 443, 451 civil partnership, 13, 28, 97–98, 103, 425–26, 429–30, 432–34, 438–42 see also, marriage, same-sex civil procedure rules, 190, 198 Climbié, Victoria, 233 Clyde, Lord, 208, 225, 304–05 Coleridge, Chief Justice, 220 Coleridge, Mr Justice, 84, 89–95 Collier, Richard, 19–20, 61–62 Collins, Dr, 286, 288–91 Collins, Hugh, 200, 426, 431 Committee on the Elimination of all Forms of Discrimination Against Women, 447 Commission for Social Care Inspection (CSCI), 317, 320, 326 common sense, 196, 206, 208–09, 221, 223, 333, 416 compensation, 193, 196–97, 402 conjoined twins, 12, 24, 37, 135, 137, 141, 145 best interests, 24, 37 incidence, 141 separation, 24, 136, 142–43 Connell, Justice, 376

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Index 461 Connelly, Peter (Baby Peter), 233 consent, 76–77, 231, 233, 241, 350 to actual bodily harm, 11 ‘effective consent’, 67–70, 72–73, 81–82 to fertility treatment, 36, 42, 59, 67–82, 84 to marry, 42, 346–347, 349, 353–54, 356–58 see also marriage to medical treatment, 62–63, 65, 87, 166–69, 353–54, 356–58, 362, 366 see also capacity, tests of; parents, consent to medical treatment refusal of, generally, 59–60, 66–70, 73, 76, 96, 144, 152, 372–77 to sexual activity, 9, 22, 206–17, 219, 241–54 undue influence, see undue influence to use of embryos, 28, 59–60, 62–63, 65, 67–82 Conservative Party, 383 conservatism, 32, 283 contact, with children, 12, 21, 88, 91–92, 454 assumption in favour of, 19, 102, 105, 110, 122 domestic violence, 12, 19, 21, 27, 37, 114–33 indirect, 118, 129–33 implacable hostility to, 115, 117 mother’s hostility to, 98, 115, 117, 123, 126 non-resident parent, 74, 96, 102–05, 108, 111–13, 121 separation, 20, 96–98, 102–05, 110, 113 supervised, 118, 129, 131–32 surrogacy, 25, 92–95 see also best interests, children generally; parenthood; welfare, of the child context, 62, 97–99, 114–15, 171, 189, 224, 233, 244, 248, 316, 321, 327, 344, 355–58, 382–84 reasoning from, 38, 41, 172–73, 195–96, 201, 244, 249, 251, 259, 265, 267–71, 332, 338–40, 352, 360–62, 415, 418 social, of domestic violence, 256–57 social, of lesbian parenting, 102–04, 107 social and biological, of early pregnancy, 38, 410 social, cultural and religious, of minority women, 27, 36, 46, 276, 282–84, 332, 335, 339 social and economic, of surety wives, 150, 154 statutory, of administrative decision-making, 394 thematic introductions to judgments, 51 contextualisation background evidence, 210 method of feminist judging, v, 14, 35, 38, 41, 52, 61, 188, 316, 405 see also feminist judging, contextualisation contextual material introduction of, 36–40 judicial notice of, 16 see also judicial notice, doctrine of contract, 11–12, 41 breach of, 185, 190, 200 care, see care, commodification of certainty, 125, 186, 194, 196–97, 199–200, 202 classical model, 201 damages, 159–60, 164–65, 185, 191, 312 estoppel, 14, 185, 190–91 express, 184, 186, 188, 194, 196, 199

intention to create legal relations, doctrine of, 186, 194 implied, 14, 22, 185–86, 188, 190–92, 194 marriage, 151–52, 352–53, 357 see also marriage spot, 193, 197, 201 supply, 184 surrogacy, see surrogacy, contracts, unenforceability of umbrella, 186, 190–94, 196–98, 200–01 contracting out, doctrine of, 27, 314, 330–32, 334, 338–41, 344 Coombes, Daniel, 99–100 Childlessness Overcome Through Surrogacy (COTS), 89 Council of Europe, 434, 441, 445, 457 Court of Appeal, 8, 10–11, 19–20, 24, 36–37, 46–49, 51–52, 59, 66–67, 69, 71, 73, 76, 79–81, 84–86, 88–89, 96, 100, 105, 108–09, 120, 134–36, 138–39, 153, 155, 157, 159–61, 163–65, 167, 170–72, 174, 176, 183, 185–86, 188, 191, 194, 196, 201, 207, 209, 213, 217, 221, 228–34, 241, 243–44, 247, 252, 255, 257–58, 262–63, 268–69, 271, 273–78, 281, 290, 300, 303, 312, 325, 331–33, 336–38, 348, 351, 356–57, 365, 367, 369, 376, 381, 385, 387, 390, 402, 404, 407, 415, 420–22, 428, 430, 445, 454–55 Cowell, His Honour Judge, 174 Craig, Leam, 358 credibility, 198 of abused woman, 46 of rape complainant, 211, 214–16, 219, 222 criminal appeals, 247 criminal justice system, 47, 53, 212–13, 228 criminalisation, 248, 264 Crown Prosecution Service (CPS), 171, 212, 255, 257, 269 culture, 7, 26, 92, 104, 133, 212, 275–76, 281, 283, 313, 316–18, 321, 325–26, 328, 332, 341–42, 448 custody disputes, 457 Daily Mail, 47 Daily Telegraph, 333 declaration of incompatibility, 60, 63, 66–67, 70, 78, 82, 207, 210, 226–27, 430, 432, 442 democracy, 102, 170, 332, 340, 342–43 Denbigh High School, 12–13, 18, 22, 24, 26–27, 36–39, 41, 329, 331, 333, 336–45 Denning, Lord, 50, 54, 179 Department for Work and Pensions, 320 Department for Education and Skills, 330, 334 Descartes, René, 265 Devlin, Lord, 299, 302 Dhaliwal, Gurjit, 11, 19, 22–23, 25–27, 36–39, 42, 255, 257, 261, 263–64, 266, 260, 270, 272 Dhaliwal, Harcharan, 37, 261–62, 266 Diduck, Alison, xiii, 55, 98, 100–02, 149 dignity, 18, 28, 144, 172, 289, 325–26, 455 bodily integrity, 24, 134, 137, 218, 227, 370 care, 316–18, 320–21 conjoinity, 24, 137, 141, elderly persons, 28, 316–18, 320–21

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462 Index dignity (cont): religious autonomy, 335 trespass to intimate space, 174, 178, 180–81, 394, 399 see also women, dignity of Diplock, Lord, 182, 300, 303 diminished responsibility, 274, 276, 281, 287–93, 304 Disability Rights Commission, 320 discretion, 289, 389 abuse of, 384–85, 389–90 administrative, 70, 335, 343, 384–85, 389–90 in judicial decision-making, 12, 27, 32, 51–52, 91, 93–94, 123–24, 205–06, 209, 216, 218, 220, 226, 274, 281, 421, 445, 457 see also judging, choice; judging, discretion discrimination, 12, 18, 22, 32, 59, 277, 350 age, 321 see also pension, State pension age direct, 15, 22, 392, 417, 421–23 disability, 403–05 ex-offenders, 362 gender, 232, 447, 452–53, 457 indirect, 81, 343, 417, 421 infertility, 60, 66, 79–80 learning difficulties, 359, 360, 362 less favourable treatment, 22, 401–02, 404, 415–16, 423–24 motivation, 434 pregnancy, 22, 27–28, 79–80, 402, 405 race, 343, 422, 441, 447, 451–52 religion, 343–44 reverse, 418, 421 see also affirmative action; positive action same-sex couples, 24, 103, 427, 435–37, 441 social, 101 sex, 11, 15, 18, 22, 27, 28, 341, 401–02, 415, 417–18, 420–21, 443, 453 sexual orientation, 436–42 see also infertility, discrimination on grounds of; sex discrimination; sexual orientation discrimination; workplace, discrimination divorce, 98, 114–15, 120, 122, 253, 280, 455 Dobash, Rebecca Emerson, 127, 256, 293 Dobash, Russell P, 127, 256, 293 Dobinson, Gwendoline, 37, 228–40 domestic abuse, 37, 116, 117–18, 223, 255, 258–61, 264, 266, 268–72, 293, 358–59 domestic homicide, 292, 297 domestic violence, 18–19, 23, 25–28, 35, 37, 116–18, 122, 127, 233, 248, 255–62, 264–80, 284, 286, 288, 290–95, 298, 358–59, 443, 445–47 asylum, 19, 448 contact with children, 19, 27, 114–133, 445–47 definition, 27, 117, 119 evidence of, 127 judicial response, 19 marriage, 118, 13, 220, 261, 266, 269, 279–80, 346–47, 354–55 mediation, 115, 122, 129 provocation, see provocation psychological harm, 25, 40, 253, 258, 262–65, 270–72

suicide, 37, 255–59, 261–62, 264, 268, 270–72, 287 see also battered women’s syndrome; children, domestic violence Donaldson of Lymington, Lord, 353 double effect, doctrine of, 135 Dowling, Emilia, 122 Dreger, Alice Domurat, 137, 141 Dugdale, Tony, 188, 198–99 Dunedin, Viscount, 430 Dunne, Gillian, 104 Eagles, John, 319 European Community law, 39 Edmund Davies, Mr Justice, 262 education, 26, 30, 39, 92, 228, 254, 290, 329, 332, 337, 339–44, 357, 392, 423, 450 judicial, 5 Edwards, Susan, xiii, 54, 273–74, 276, 294–95, 297, 331, 334 Eekelaar, John, 110, 122 elderly people, care for, 26 see also residential care Elias, Chief Justice Sian, 30 Ellenborough, Lord, 178 Elliot, DW, 211, 220 embryos, frozen, 36, 42, 51, 59–60, 79 empathy, 45, 60, 334 employees, 23–24, 171, 182, 197, 323, 381–83, 385, 387, 389, 390–91, 394, 398, 401 absenteeism, 20 illness 402, 409–10, 412, pregnancy, 20, 22, 27–28, 409–11, 422 see also pregnancy, reason for dismissal; unfair dismissal employer, 22, 339, 381, 384–85, 390–91, 394–95, 400, 403–12, 422, 424 see also model employer; unfair dismissal Employment Appeal Tribunal (EAT), 22, 401–12 Equal Treatment Bench Book, 32, 34–35 equality, 6, 24, 29, 32 Canadian Charter of Rights and Freedoms, 3, 37 education, 26, 329–30, 332, 336, 339–42, 344, formal, 15, 24, 74, 101, 104, 110, 152, 156 gender, 18, 27, 62, 73–74, 76, 158, 232, 252, 283, 332, 334, 341–42, 443, 447–49, 451–55, 457–58 judicial, 3, 6 –7, 10, 35, 37 lesbian and gay, 23, 98, 101–02, 104, 152, 156 see also law reform, lesbian and gay marriage, 156, 158 parenting, 73, 98, 101–04, 109 pay, see equal pay racial, 343, 453 religious dress, see religious dress, gender equality reproduction, 73–76, 80 sex, 15, 225, 243, 385, 445 social, 175 substantive, 3, 24–25, 28, 32, 35, 61, 74, 103, 418–419 women’s, 10, 38 Equal Opportunities Commission, 104, 405–06, 414, 416, 422, 424 equal pay, 9, 10, 28, 381–87, 390–91, 393–94, 398, 400

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Index 463 equity, 12, 19, 21, 29, 150–56, 162, 176, 397 estoppel, 14 commercial relationships, see contract, estoppels fertility treatment, 14, 67 Estey, Mr Justice, 177 Etherton, Lord Justice, 7, 33 ethic of care, 6, 21, 187, 317, 363, 368 ethnicity, 12, 26, 342, 443 European Charter of Fundamental Rights, 434 European Court of Human Rights, 4, 11, 47, 51, 60, 70, 224, 242, 258, 265–66, 272, 337–38, 341, 359, 361, 364–65, 367, 427–28, 434, 435–41, 443–46, 448 jurisprudence, 6, 18, 31, 233, 334, 337–39, 341, 428–29, 434–40, 443, 446, 448, 455 see also human rights European Court of Justice (ECJ), 4, 401, 417 Evans, Carolyn, 339 Evans, Natallie, 24, 36, 51, 59, 64–65, 75–76, 81 evidence, 12, 29 domestic violence, 25, 119, 127–28, 255, 266, 284–85 empirical, 6 expert, use and criticism of, 4, 14, 25, 55, 86, 92, 94, 103, 116, 121,133, 273, 347, 351, 355, 363, 365, 375–76 fresh, 21, 46, 274–77, 281, 289, 291 medical, 135, 143, 145, 278, 288–90, 376–78 probative value, 210, 225, 227 research, 35, 37, 115, 118, 121, 218 sexual character, see sexual character evidence sexual history, see sexual history evidence ‘social framework’, 37 see also judicial notice, doctrine of experience, women’s, 21, 61, 207 see also women, experiences of facts, use of, 10–11, 14–16, 31, 36–38, 40–42, 45–46, 48, 51–53, 61 see also judgment writing, storytelling fair trial, right to, 18, 24, 40, 206–07, 209, 213–15, 219, 224–27, 277, 457 false imprisonment, 170, 174 family, definition of, 437 families, 13, 47, 91, 98–99, 101, 103–04, 115, 129, 319, 342, 346, 367–68, 370 non-traditional, 13, 102 traditional, 427, 442 fathers, 19–20, 40, 61–62, 74, 84, 88, 90, 98–99, 101, 104, 107–08, 115, 120, 122, 132, 342 custody, 88–89, 98, 108, 123, 457 Shari’a law, 444 violence of, 19, 114, 116, 118, 123, 130–33 see also domestic violence fatherhood, 9, 19–20, 38, 61–63, 75, 104–08 biological, 99 fathers’ rights movement, 98 genetic, 25, 64, 76, 89, 115 ‘new’, 20, 61, 74 femininity, 7, 244 feminism, 6, 8, 20, 25, 30–33, 38, 97, 101, 186–87, 230, 245, 251, 335, 382, 386

second-wave, 9 divergence of views, 13 law reform, see law reform, feminist post-colonial, 334 western, 334 feminist judges, v, 6, 13, 31–32, 35, 42, 61 see also Elias, Chief Justice Sian; Gaudron, Justice Mary; Ginsburg, Justice Ruth Bader; Hale of Richmond, Baroness; L’Heureux-Dubé, Justice Claire; Neave, Justice Marcia; Wilson, Justice Bertha feminist judging, 6–7, 14, 17, 21, 28, 30–31, 35, 61 allegations of bias, 30–35, 40, 46, 48 as critique, 5–6, 8 authority, sources of and use of, 16 constraint, 15 contextualisation, v, 14, 35, 38, 41, 52, 61, 188, 316, 405 definition, 35 distinctiveness, 30–31, 35–43, 56 divergence of views, 42 feminist theory, use of, 23, 30–31, 42–43, 54, 56 legitimacy, 7, 30 obiter comments, 14–15, 34, 120 storytelling, 14, 28, 36, 45, 46 see also judgment writing, storytelling Feminist Judgments A (Children) (Conjoined Twins: Surgical Separation), Re, 12, 21, 24–26, 29, 36–38, 41–42, 54–55 Attorney– General for Jersey v Holley, 11, 14, 21, 24, 26–28, 38, 40, 42, 54 Baird Textile Holdings v Marks & Spencer Plc, 11, 14, 21–22, 27, 37, 41 EM (Lebanon) v Secretary of State for the Home Department, 12–13, 18–19, 26, 28, 37, 41–42, 48 Evans v Amicus Healthcare Ltd, 11–12, 14, 18, 22, 24–26, 28, 36, 38, 42, 51 G (Children) (Residence: Same–Sex Partner), Re, 12, 13, 20, 22, 25–26, 37–38, 41–42, 49–50, 55 James v Eastleigh Borough Council, 9, 11, 15, 22, 24, 26, 28, 37, 53 L (A Child) (Contact: Domestic Violence), Re, 12, 27, 37, 41 Mundon v Del Monte Foods Ltd, 9, 11, 15, 20, 22, 26–28, 38, 41 N (A Child), Re, 12, 14–15, 20, 25, 29 Porter v Commissioner of Police for the Metropolis, 11, 18, 20–21, 23–24, 27, 41, 52 R v A (No. 2), 11–12, 18, 26–28, 37, 39–40, 47, 53 R (Begum) v Governors of Denbigh High School, 12–13, 18, 22, 24, 26–27, 36–38, 41 R v Brown, 10–11, 22–23, 26, 37, 41–42 R v Dhaliwal, 11–12, 18, 22–23, 25–27, 36–38, 40–41, 53 R v Portsmouth Hospitals NHS Trust, ex parte Glass, 15, 19, 22, 25, 29, 36, 38, 48, 52, 55 R v Stone and Dobinson, 11, 21–23, 27, 29, 36, 46, 55 R v Zoora (Ghulam) Shah, 12, 14, 20–22, 26, 36, 38, 41, 46 Roberts v Hopwood, 12, 23–24, 26, 38, 40 Royal Bank of Scotland Plc v Etridge (No. 2) 10–12, 19, 22–24, 36, 38, 41, 54

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464 Index Feminist Judgments (cont): Sheffield City Council v E, 11, 13, 18, 22–23, 27, 29, 38, 41–42 Wilkinson v Kitzinger, 11–12, 18, 24, 26, 28, 38, 41 YL v Birmingham City Council and Others, 10, 12–13, 18, 21, 23, 26–27, 29, 36–38, 40, 48 Feminist Judgments Project, vii, 3, 30, 44, 46, 47, 56 aims, 3, 35, 45, 56 areas of law covered, 3–5, 11–13 comparators, 4, 45 impact, 27–28 methodology, 3–6, 10–11, 13–17, 28–29, 35, 45–46 see also feminist judging policy and political implications, 7–9 themes, 18–21 theoretical underpinnings, 5–7, 21–27 website, 29 workshops, 3–5 feminist knowledge, i, 38 feminist legislation, 17 feminist practical reasoning, 38, 41 feminist theory, 23, 26, 313, 314, 317 critique of liberal legalism, 21–27 public/private divide, 23, 311, 314 in writing feminist judgments, 42–43, 54, 56, 184 fertility treatment, 64–66, 72, 75–76, 78, 80–81, 83, 84, 107 access to, 75, 77, 80 ‘bright-line’ approach, 42, 70, 72–73, 75–76, 81 gender equality, 62, 73–74, 76 Fisher, Philip, 301 Flitcraft, Anne, 127, 256 forced marriage, see marriage, forced Foucault, Michel, 6, 25 Fox, Marie, xiii, 349–351 Fraser, Nancy, 26 free speech, 252 freedom of expression, 18, 24, 176, 181 Freud, Anna, 107 Fulford, Mr Justice, 262 Gabb, Jacqui, 104 Gaffney-Rhys, Ruth, 348–49 Gaudron, Justice Mary, 30 gender, vii, 6, 12, 18, 26, 34–35, 37, 38, 40–43, 46, 72, 74, 104, 231–32, 251, 273, 276, 281–83, 294, 297, 306, 320, 322, 329, 334, 341–42, 346, 414–15, 419, 432, 443–45, 447–49, 451–55, 458 bias, 35, 40–43, 48, 446, 453 differences, 6–7, 21, 32–33, 37 discrimination, see sex discrimination justice, 6, 43 legal construction of, 6–7 norms, 7–8, 20, 270, 282 transgression of, 18 violence, 273, 284 see also bias, gender; equality, gender General Medical Council, 357, 375 Germany, 70, 108, 132, 437 Gibson, Nicholas, 334 Ginsburg, Justice Ruth Bader, 30 Glaser, Dr Dania, 116–17, 121–22, 125, 127, 129–30

Glass, Carol, 36, 48, 52, 365, 367, 371 Glass, David, 52, 55, 363–64, 370 Goff of Chieveley, Lord, 267, 365, 416–18, 421–23, Goldstein, Joseph, 107 Gonthier, Justice, 225 good faith, 151, 190, 390, 424 Gorrell-Barnes, Gill, 122 government, 47, 72, 84, 103, 149, 158, 218, 256, 314–15, 320–21, 324, 382–84, 386, 393, 395, 397, 399, 401–02, 427, 444 Grear, Anna, xiii, 171–74 grievous bodily harm, 131, 241–42, 247, 250, 252, 254, 255, 262–63, 265, 300 Grace, Jessica, xiv, 213, 404 Gray, Kevin, 151, 172, 176, 181 Gray, Susan, 151, 172, 176, 181 Graycar, Regina, 29, 38 Griffiths, Lord, 416 gross negligence manslaughter, 260 The Guardian, 50, 60, 206, 233, 276, 333–35 guardian ad litem, 92, 112 Haldane, Lord, 396 Hale, Sir Matthew, 211 Hale of Richmond, Baroness Brenda, vi, viii, 6, 7, 10, 13, 30–33, 39, 47–48, 50, 93, 96, 97–102, 106, 109–10, 112–13, 115, 122–24, 211, 314, 316, 321–22, 325–26, 331, 334, 336, 341–42, 405, 427, 441–42, 445–46, 456 Halsbury, Earl of, 39, 392 Hannen, Sir James, 348, 354–55 harassment, 127–28, 217, 257, 265, 335 ‘hard’ cases, 31, 34 Harding, Rosie, xiii, 427–30 harm, 13, 27, 86, 92, 115–19, 123, 127–32, 182, 214, 231–33, 240, 241–43, 249–50, 252–54, 256–60, 264–67, 272, 287–88, 300, 346, 350, 414, 428, 439 psychological, 25, 40, 116, 123, 126, 130, 132, 214, 258, 262–65, 270–72, 362 psychiatric, 54, 262 Harris, Beryl, 159 Harris, John, 5, 71 Harris, Sharon, 213 Harris-Short, Sonia, xiii, 11, 51, 59–64 Hart, HLA, 5, 267 Hastings, Geraldine, xiv, 54, 137–39 Hastings, Patricia, 215 Hayes, Mary, 125 health care professionals, see medical treatment Heilbron Report, 214–16, 220, 222 Help the Aged, 312, 320–21 Henriques, Mr Justice, 262 Herbert, Alan Patrick 50–51 Herman, Didi, 26, 98 Herring, Jonathan, xiv, 99, 228, 233, 346–47, 351, 355 Hester, Marianne, 114, 116, 125–26, 128 High Court, 8, 11, 30, 37, 59, 62, 135, 185, 194, 330–31, 347, 368, 426 Australia, 30, 111 Chancery Division, 49 Family Division, 84, 140, 143, 351, 365, 377–78, 383, 430

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Index 465 inherent jurisdiction, 140, 347, 351, 366, 370, 378 Queens Bench Division, 185, 194, 365 Hizb ut Tahrir, 333 HM Crown Prosecution Inspectorate, 269 HM Inspectorate of Constabulary, 269 Hobhouse of Woodborough, Lord, 120, 153–54, 263–65 Hoffmann, Lord, 196, 297, 305, 446 Holley, Dennis, 294–97 home, 19, 70, 118, 153, 170, 228, 230, 240, 278–80, 282, 284, 286, 294, 306, 312, 318, 331, 348, 356, 448–49 family, 54, 85, 88–90, 92, 94, 96, 104–05, 108, 111–13, 127, 129, 150–53, 155, 157–59, 162, 164–68, 178, 228, 230, 240, 243, 248, 262, 269, 271, 278–80, 282, 286–87, 348–49, 356, 364, 372, 431, 436, 438 ownership, 149–51, 153, 157–59, 161–62, 164–68, 170, 172, 175, 177–78, 274, 278–80, 282, 285–86, 291 residential care, see residential care see also property, family home Home Office, 19, 114, 128, 209, 213, 214, 218, 256, 269, 273–74, 297 homophobia, 38, 98, 103, 438 homosexuality, 24, 97, 253, 411, 427, 436 homosexual sado-masochism, 241, 253–54 Honore, Tony, 267 honour, 10, 19, 275–76, 282–83, 289 Hope, Lord, 39, 44, 49–50, 69, 208, 218, 223, 444, 446 Horder, Jeremy, 258, 260, 301 Horton, Rachel, xiv, 404–07 Houellebecq, Michel, 134, 138 Hoyle, R Mark, 142 horizontality, doctrine of, 327 House of Lords, i, 6, 8, 10–11, 13, 22–23, 30, 32–33, 38, 49, 54, 59–60, 64, 99, 99, 101–02, 104, 128, 149–53, 155–57, 171, 174, 185, 189, 191, 205–08, 210–11, 220, 229, 240–42, 247, 255, 261, 293–94, 298, 302, 311–12, 315–16, 318, 320, 331–36, 381–82, 384, 387, 396, 402, 404, 414–16, 420, 428, 436, 443–47, 449 first woman appointed to, 30 Viscountess Rhondda, 396 see also Supreme Court, UK housing, 12, 225, 311, 315, 400, 436–37 Hubbard, Kim, 143 Human Fertilisation and Embryology Authority (HFEA), xiv, 65, 69, 70, 78–79, 83 human rights, xiv, 11–12, 18, 21, 23, 28, 32, 39, 42, 59–60, 113, 120, 136, 171–73, 175, 181, 205, 218, 233, 257–58, 277, 311–12, 316–18, 320–21, 323 –29, 332–35, 346–47, 356, 359, 361, 364–65, 367, 370, 386, 418, 426–30, 432–34, 436–37, 442, 447–48, 451–55, 457–58 European Charter of Fundamental Rights, 434 right to equality, 457 right to fair trial, 18, 24, 40, 206–09, 213–14, 219, 224–27, 277 right to freedom of religion, 23, 336–45

right to life, 18, 60, 144, 256, 271, 367, 370 right to marry, 13, 18, 361, 425–27, 433–34, 440 right to respect for private and family life, 59–60, 66, 70, 72, 78–79, 81–82, 102–06, 153, 177, 214, 225, 241–42, 271, 311–12, 315, 323–28 right to protection from torture, inhuman and degrading treatment, 265, 271, 347, 356, 359, 361–62, 443–44 see also international human rights; margin of appreciation Humphreys, Emma, 292, Hunt, Joan, 104, 110 Hunter, Caroline, xiv, 316–318 Hunter, Rosemary, xiv, 3, 6, 9, 18, 30, 32, 35–36, 38, 44–46, 52, 241, 351 Hutton, Lord, 208, 221 implacable hostility, 117–18, 123–24 see also contact, with children incompatibility, declaration/certificate of, 18, 60, 63, 66–67, 70, 78, 82, 207, 210, 226–27, 430, 432, 442 India, 4 individualism, 134, 140 industrial tribunal, 339, 407–09, 413 see also Employment Appeals Tribunal infertility, 38, 64, 75, 107 discrimination on grounds of, 66, 80 International Criminal Court, 224 international law, 12, 27, 37, 57, 450–51, 457–58 peremptory norms, 27, 447, 451–52, 454, 457–58 private, 426, 428–33, 441–43, 447 jus cogens, 443, 451–52 international human rights, 443, 447, 449, 457–58 right to equality, 443, 447 see also human rights intersectionality, 12, 25–26 Israel, surrogacy regulation, 87, 95 IVF treatment, see fertility treatment izzat, 275, 283 see also honour Jackson, Emily, xiv, 71, 83 James, Grace, xiv, 404 Jersey, 294, 297–98 Court of Appeal, 297–98, 307 jilbab, 26, 330–33, 335–37, 340, 342 Joint Committee on Human Rights, 38, 311, 320, 324, 326 joint judgments, see judgments, joint Johnson, Mr Justice, 135, 139–40, 144 Johnson, Martin, 106 Johnson, Rebecca, 33 Johnston, Howard, 59–62, 64–67, 69–74, 77–78, 81 Judge, Lord Justice, 175–76, 262 judges, v–vi, 3–8, 13–17, 21, 29, 31–32, 34–35, 37–40, 43–47, 49–50, 54, 64, 74, 83, 88, 110, 117–18, 120, 134–36, 138, 153, 158–59, 171, 188, 205–07, 222, 231, 238, 273, 275, 281, 313, 334, 363, 365–68, 370, 373, 376, 385, 393, 415, 445 accountability, 6, 384 activism, see judicial activism

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466 Index judges (cont.): appointment, 7, 206 disagreement between, 10, 11, 17, 55, 159 diversity, 6–8, 13, 30–31, 33, 38, 45 feminist, see feminist judges interaction between, 11, 55 personal philosophy, v, 31–33, 38, 46, 88, 206, 212, 417 politics of, 23, 33, 38, 88, 134, 208, 212, 334, 384, 417 women, see women, judges judging, 5–7, 30–35, 39, 42–47, 49, 112, 367 appellate decision-making, 3, 5–6, 20, 30, 32, 35, 135–36, 138, 273, 275–76 choice, 5–6, 14, 16, 31–32, 46, 49, 417 see also discretion, in judicial decision-making constraints, 3, 13–15, 31, 45, 50, 83, 281, 417 discretion, 5–6, 14, 27, 32, 51–52, 91, 93–94, 117, 131, 205, 208–10, 212, 216, 218, 219, 226, 253, 274, 281, 343, 421, 445, 457 see also discretion, in judicial decisionmaking feminist, see feminist judging judgments as texts, 16 concurring, 10, 33–34, 49–51 dissenting, 10–11, 18, 33–34, 37, 50–51, 54, 242, 276, 304–05, 396, 405, 417, 445–46 joint, 10, 33 leading, 11, 32–33, 49, 51–52, 96, 135 postscript, 49 summary (reverse Order 14), 50, 94, 143, 185, 190 types of, 9 judgment writing, 5–6, 13, 30, 34–35, 44–45 audience, 15, 47, 48, 50, 54 compared to academic writing, 8, 12, 15–16 FLAC, 49 ‘good’ judgments, 28–29, 44, 46, 53–56 persuasion, 28–29, 33, 45, 48–56 referencing, 16 setting the scene, 50–51 sources of authority, 16 storytelling, 29, 36, 44–46 structure, 33, 44, 46, 48–50, 53 style, 4,16–17, 28–29, 33, 44–46, 48–52 see also feminist judging judicial activism, 384 Judicial Appointments Commission (JAC), 7 judicial deference, 208, 218 judicial discretion, 27, 205–06, 218, 220, 226, 421 see also judging, discretion judicial diversity, 6–7, 13 judicial economising, 314 judicial knowledge, 38 judicial notice, doctrine of, 39, 43 common knowledge, 16, 39 local knowledge, 39, 43 judicial review, 15, 52, 330–31, 365, 369–70, 385 Judicial Studies Board, xiv, 32, 34, 44 jus cogens, principle of, 443, 451–52 see also international law, peremptory norms

justice, 6–7, 26, 34–35, 43, 50, 54, 60, 62, 210, 214–15, 225, 227, 251, 256, 275, 281, 283, 289–91, 296–97, 383–84, 397, 453 Justice for Women, 210, 292–93 Kaganas, Felicity, xiv, 87, 98, 114–17, 120 Karminski, Justice Seymour Edward, 354 Keith, Bruce, 382–83 Kelly, Joan, 110, 121 Kelly, Liz, 209, 211–12 Kennedy, Duncan, 5 Kennedy, Ian, 370 Kennedy, Lord Justice Paul, 273, 275, 278, 281, 284, 286 Kirby, Justice Michael, 111 Kittay, Eva Feder, 371 Kitzinger, Celia, 425–26, 430–31, 433 L’Heureux-Dubé, Justice Claire, 30, 33–34, 206, 215, 223 Labour Party, 383–84, 400 Lamb, Brian, 375 Laming, Lord, 233 Lane, Lord, 249–50 Langer, Chief Justice Pius, 325 Lansbury, George, 382, 383, 389–90 Latey, Mr Justice, 85, 120–21 Law Commission, 31, 38, 127, 264, 271, 294, 297, 302, 353, 357 law reform, 292 feminist, 8–9, 28, 63, lesbian and gay, 97–98 lawyers, see legal profession Layzell, Sarah, 375 learned helplessness, 293 see also battered women’s syndrome; domestic violence Lebanon, 24, 443–46, 451, 453–54, 457–58 Lees, Sue, 212–13, 217 legal discourse, 9, 35, 38, 45, 99, 312 legal profession, vi, 4, 6–7, 29, 31, 33, 37–38, 47, 61, 83, 99, 135–36, 199, 208–09, 229, 243, 276, 311 family lawyers, 114–15, 346 negligence of, see undue influence, negligence of solicitor legislature, see Parliament lesbian, 97–99, 245, 252–53 mothers, see motherhood, lesbian parents, see parenthood, lesbian relationships, 13, 96, 99–101, 425, 428, 483, 441 Levitt, Eugene, 249 Lewis, Richard, 198–99 Liberal Party, 383 liberalism, 32, 246 feminist critique of, 23, 243 legal, 9 Liberty, 320 liberty, 7, 31, 70, 75, 221, 224, 313, 339 Lind, Craig, 347 Linden, Robin Ruth, 246, 252 Lindsay, Mr Justice, 403–04 Lipsedge, Dr, 282, 286–89, 291 Lloyd, Lord Justice, 84, 89, 93–94

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Index 467 local authority, 311, 319–20, 326–27, 346–47, 361, 385 payment of employees, 386, 392–93 see also equal pay statutory duties of, 322, 393 see also state, protection of children and vulnerable adults Locke, John, 171 Longfellow, Henry Wadsworth, 55 loss of self-control, 54, 295, 299–02, 305–07 see also provocation Lovric, Jenny, 152 Lowry, Lord, 342, 416–17, 424 Macaulay, Stuart, 188, 198–200 Macdermott Lord, 145 Mackenzie, Robin, xiv, 242–45, 247 MacKinnon, Catharine, 251, 314, 447, 453 Maclean, Mavis, 110, 122 Macneil, Ian, 187–88, 199–200 see also relational contract theory Malaysia, 151 malicious prosecution, 170, 174 Malik, Maleiha, xiv, 336 Mance, Lord, 186, 191, 194, 202, 314, 317, 325–26 manslaughter, v, 53, 274, 292, 298, 302 unlawful act, 53, 255, 258–59, 262, 271–72 gross negligence, 228–29, 232, 234, 237, 239–40, 260 marital rape, see rape, marital masculinity, 7, 9, 41, 244 margin of appreciation, 341, 343, 427–28, 435–37, 441 markets, 12, 29, 84, 147, 149, 187, 189, 197–98, 200–01, 313, 318–19, 323, 385, 390–91, 394–95, 398–99, 405 market efficiency, 313 Marks & Spencer Plc, 11–12, 14, 21–22, 37, 41, 184–85, 189–93, 195–97, 199, 201 marriage, 9, 16, 27, 38, 85, 90, 107, 152, 156, 16, 220, 282, 346, 348, 381, 395, 448–50 arranged, 279–80, 286 consent to, 42, 346–47, 349–50 consortium, 348 capacity to marry, test of, 346–47, 349–61, 426 domestic violence, see domestic violence forced, 19, 346 foreign, 13, 286 overseas, 286, 425–27, 430–33, 440–42 polygamous, 426, 431–32 private international law, 426–28, 430–33, 441–42 right to marry, 13, 18, 361, 425–27, 433–34, 440 same-sex, 13, 24, 97, 107, 156, 425–34, 438, 440–42 transsexual, 432, 434 vulnerable adults, 19, 282, 346–47, 350–57, 359–61 see also civil partnership maternalism, 349–50 maternity leave, 401–03, 408 maternity rights, 405–06 Maugham, Viscount, 195 May, Lord Justice, 164, 174, 176, 179–82, 191, 217 McColgan, Aileen, xiv, 18, 205, 211, 215, 415, 419–20 McFarlane, Mr Justice, 84 McGlynn, Clare, xiv, 3, 6, 39, 44, 209–11, 351 McLachlin, Chief Justice Beverley, 51, 222

medical profession, 73 gatekeeping role, 25, 78, 264, 375 medical treatment, 73, 250, 267 adults, ability to consent to, 353–58 children, ability to consent to, 363, 369–70 disability, 364, 369, 373, 375–77 expert (clinical) opinions, 25, 363, 365, 375–76 paternalism, 137, 363 refusal of, 22, 143–44, 237, 268–69, 353–54, 357–58, 366, 372, 374, 377 withdrawal of, 143, 370–71, 373, 377–78 see also consent, medical treatment; parent, consent to medical treatment mental illness, 289, 358 mercy killing, 252 Michalak questions, 439, 456 Millbank, Jenni, 152 Millar, Ann, 212 Millet, Lord, 355 minimum wage, see equal pay Mirrlees-Black, Catriona, 128 model employer, 381, 384–85, 390–91, 394–95, 400 Monaghan, Karon, xiv, 425, 443, 447–49 Morison, Mr Justice, 191, 194 Morley, Rebecca, 114, 125 Morocco, 448, 454 Morris of Borth-y-Gest, Lord, 303 mortgages, 158, 182 lending practices, of banks and building societies, 158 non-commercial, 151–52, 157, 161 regulation of, 151 role of Parliament, 158 see also property, family home Morritt, Vice-Chancelllor, 164, 187 Moser, Charles, 249 mothers, 64, 73–75, 77, 89, 93, 99, 104–08, 135, 139, 257, 282, 316, 318–19, 321, 326, 331, 410, 423, 445, 454, 458 care for disabled children, 36, 48, 52, 363–66, 371–78 hostility to contact, 20, 116–18, 120, 124,126, 129–33 see also contact, implacable hostility misconduct, 25, 40, 106, 108–10, 112 motherhood, 13, 18, 37–38, 62, 74 biological, 20, 91, 93, 106 gendered expectations, 20, 62–63, 88, 99, 104–05, 111, 230 genetic, 70–71, 75–76, 81, 91, 93–94 gestation, 85–89, 91, 93–94, 106 heterosexual, 42, 83, 99, 101, 103–04, 107 infertility, 64, 75 legal¸ 84, 87, 90–91, 93 lesbian, 37, 87, 97–100, 104–08 social, 94, 104–05, 107 surrogate, 83–88 Mother Theresa, 318 Moulton, Lord Justice, 393 Mosoff, Judith, 346 Mulcahy, Linda, xiv, 184–89 Mullane, Cherylinn, 19, 294, 297, 305 Mullender, Audrey, 114, 125

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468 Index Munby, Mr Justice, 318, 347–62 Mundon, Susan, 9, 11–13, 15, 20, 22, 26–28, 38, 41, 401–05, 407–13 Munro, Vanessa, xv, 10, 53, 157, 210–11, 255–61 Mummery, Lord Justice, 167, 338 murder, 41, 136, 144, 250, 273–76, 278–79, 281, 291, 294, 297, 302 defences to, see diminished responsibility; necessity; provocation; self-defence mandatory life sentence, 41, 292 Musmanno, Justice, 54 Mustill, Lord, 242, 247, 249–50, 254 National Health Service (NHS), 15, 19–22, 25, 29, 26, 39, 48, 52, 69, 73, 322, 323, 356, 363–68, 387 Neale, Bren, 74, 98, 115 Neave, Justice Marcia, 6, 33, 38 necessity, as defence to murder, 136, 267 neo-liberalism, 23 Neuberger, Lord, 44–45, 47–48, 58, 313, 317, 325–26 Newark, FH, 44, 49, 53 New Labour, 314–15 New Zealand, 30, 151 Nicholls of Birkenhead, Lord, 96, 128, 149, 151, 153, 157, 159, 161, 165, 331, 336, 339–41, 434, 456 Nightingale, Florence, 318 Nolan, Bethany and Alyssa, 136–37 non-molestation order, 255 non-refoulement, principle of, 449, 453–55, 458 Norrie, Alan, vii, 229–31 Norrie, Kenneth, 99 Northern Ireland, 7, 31, 44, 344 Nourse, Lord Justice, 167 novus actus interveniens, 267–70 see also causation obligations contractual, 153, 184–85, 189–90, 192–96, 201 commercial, 192–96, 199 O’Brien guidelines, 150, 155–56 O’Donovan, Katherine, 98, 115, 355, 367 Official Solicitor, 143, 363, 365, 372, 376, 378 omissions, criminal liability for, 27, 228–30, 233, 237–38, 240 Operation Spanner, 250 paedophilia, 347 Pakistan, 275, 278–80, 284, 286 parent, 71–72, 81, 91, 94–97, 133, 143, 285, 334 consent to medical treatment, 143–45, 368–69, 373–74, 377–78 co-parents, 99, 101, 104–08 non-parent, 108 non-resident, 110–13, 115, 118–22, 124–28, 130–31, 434 opposite-sex, 25, 103–04, 107 same-sex, 101–04 violent, 116–17, 120, 126–27, 129–30 parental order, see surrogacy, parental order Parental Alienation Syndrome (PAS) 117–18, 123, 132 parental responsibility, 93, 99–100, 102–03, 105, 109, 131, 143, 366, 368, 371, 377–78

parenthood , 20, 37, 71, 74, 83, 110 adoption order, 84, 85, 87, 91, 93, 98 biological, 20, 38, 75, 93, 97, 99–101, 104, 106–07, 113 heterosexual norm, 42, 62, 104, 108 fact of, 106 genetic, 13, 25, 40, 59, 61–62, 64, 72, 75, 78, 82, 89–91, 93–94, 99, 106–07, 115 legal, 107–08 lesbian, 42, 99, 101–02, 104 ‘natural’, 99 parental status, 21 psychological, 71, 99 residence orders, 84, 87, 95–98, 100, 105, 109–13, 117, 132 same-sex, 101–04 social, 91, 100 step, 104 parenting, 27, 29, 40, 61, 92, 94, 98, 100–01, 125, 162, 405 gendered reality, 62, 74–75, 98, 101–102 post-separation, 20, 37, 110–12, 114, 118–19, 122, 124, 126 same-sex, 42, 98, 101–04 Parliament, 6, 34, 69, 72, 78–79, 89, 95, 97, 158, 170, 210, 216, 218–19, 222, 226–27, 240, 300, 314, 316, 336, 359, 395, 398, 400, 409, 411–12, 421, 432 Patel, Pragna, xiv, 46, 273–74 paternalism, 22, 137, 150, 360, 363 see also maternalism; medical treatment, paternalism Paterson, Alan, 32, 34 Pateman, Carol, 23, 251 pension, 235, 240 gender inequality, 419 state pension age, 320, 414–16, 419 Penzance, Lord, 16, 432 Pill, Lord Justice, 167 Piper, Christine, ixv, 114–15 Pliny the Elder, 142 pluralism, 332, 346, 341–45 police, 20, 41, 52, 171–72, 174–75, 177, 181–83, 229, 235–36, 240–41, 249–50, 267, 280, 324, 364–65, 372, 374, 383 interview with defendant, 231, 236, 273 reporting domestic violence to, 127–28, 255, 261, 266, 269, 272 reporting rape to, 47, 212–13, 284 responses to domestic violence reports, 257, 270, 272 responses to rape complaints, 47, 205, 212 political parties, 341 see also Conservative party; Labour party; Liberal party; New Labour Poor law, 322, 382, 393 Poplar Borough Council, 311, 381–84, 387–90, 393, 400 Poplarism, 382–83 Porter, Rita, 11–12, 18, 20–21, 23–24, 41, 52, 170–77, 180–83 positive action, 8, 418 see also affirmative action; discrimination, reverse

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Index 469 Posner, Richard, 46 Potter, Sir Mark, 100, 426–28, 430 poverty, 26, 267, 281, 290, 320, 382, 400, 418 Practice Directions, 117 precedent, 11, 32, 53, 136, 176, 228, 232, 294, 254, 392, 417, 439, 448 pregnancy, 21, 38, 59, 61–62, 66, 73–74, 84, 139 discrimination, 401–13, 417 reason for dismissal, 20, 22, 27–28, 401–13 surrogate, 87–89 see also surrogacy privacy, 23–24, 151, 153–54, 172, 178, 214, 225, 227, 243, 248, 327, 404, 428 private life, 444, 451 right to respect for, 59, 66–67, 70–73, 79, 214, 224–25, 241, 248, 251, 350, 367, 427–28, 437–39 see also human rights privatisation, 23, 173–74, 180, 314, 321 Privy Council, 10, 14, 195, 294–95, 297, 303 Pro-Life Alliance, 136 property, 21, 29, 79, 143, 151, 182, 229, 235, 277, 284, 362, 449–50, 455 eviction, 275, 280, 285, 313, 321, 327 family home, 54, 89, 105, 127, 151–52, 157–58, 161–63, 165–67, 178, 269, 271, 346, 348 see also home ownership, 54, 170–73, 285 private, 12, 23–24, 157, 166, 170–73, 176, 179 public, 171, 179 public/private distinction, 23, 171–72 quasi-public space, 24, 27, 172, 176, 178 rental, 164 residential care, see residential care prostitution, 94, 280, 289 provocation, v, 14, 27–28, 40, 182, 274, 276, 292, 297–99 infidelity, 292, 294–96, 302, 305–06 loss of self control, 42, 54, 292–95, 298–307 objective test, v, 13, 301, 306 reasonable person, 21, 27, 274, 294–95, 297–307 subjective test, 295, 298–99 Pryor, Jan, 115, 122 public authority, 70, 313, 315, 327, 333, 370, 381, 390–91, 394–95 definition of, 27, 311, 320, 324 statutory powers of, 325–27, 344, 361, 365, 392 see also local authority public policy, 19, 72, 136, 242–43, 247–48, 250–54, 268, 306, 426, 433 public/private dichotomy, 23, 41, 311, 314 see also feminist theory, critique of liberal legalism Pugin, Augustus Wellby Northmore, 318 queer theory, 99 Rackley, Erika, xv, 3, 7, 33, 44, 211, 351 Radford, Lorraine, 114, 116, 125–26, 128 Raleigh, V Sonio, 270 rape, 207, 211, 284, 447 conviction rate, 9, 213 marital, 220, 258

‘rape shield’, 23, 205–06, 208–10 reporting to police, 47, 212–13, 284 police responses, 47, 204, 212 sexual history evidence,12, 27–28, 40, 47, 207, 209, 211–18, 220, 223, 225 trials, 37, 53, 209–18 Rape Crisis, 207, 210, 213, 221 reasonableness, 18, 21, 172–74, 176, 179, 181, 344, 368, 411, 412 reasonable access, doctrine of, 172, 176–78, 181, 183, 344 reasonable behaviour, 173, 181 reasonable explanation, 21, 190, 274, 276, 281, 289–90 reasonable man, 21, 293, 298, 300, 302–03, 305 ‘recognition’ and ‘redistribution’, state responsibility for, 26, 332, 341 REFUGE, 264 Reid, Lord, 48 Reid, Karen, 447 Regan, Linda, 212 relational contract theory, 184, 186–87, 201 see also Macneil, Ian religion, 12, 26, 79, 277, 329, 449, 452, 455 Archbishop of Westminster, 136 Christianity, 32, 275, 338 equality, 24, 330–34, 446 Islam, 133, 275, 331, 330–34, 336–38, 341–45 Judaism, 168, 371, 373 Roman Catholicism, 135, 144–45 women, 275 religious dress, 26, 330–37, 340–48, 448 access to education, 330–36 , 341 gender equality, 332, 341–42 uniform policy, 13, 26, 329–34, 336–37, 345 reproduction, 12, 60, 63, 73–74, 87, 104 freedom, right to, 73, 76, 80 residence orders, see parenthood, residence orders residential care, 19, 22, 311–15, 318–24, 326–27 restitution, 185 Rhondda, Viscountess, 396 Richards, Justice Stephen, 273 rights, v, 3 competing, v to equality and non-discrimination, 457 to fair trial, 18, 24, 40, 206–09, 213–14, 219, 224–27, 277 to freedom of religion, 23, 336–45 to freedom from torture, inhuman and degrading treatment, 265, 271, 347, 356, 359, 361–62, 443–44 to life,18, 60, 144, 256, 271, 367, 370 to respect for private life, 11, 59–60, 66, 70, 72, 78–79, 81–82, 102–06, 153, 177, 214, 225, 241–42, 271, 311–12, 315, 323–28 see also human rights; international human rights Rivers, Julian, 334 Robert Walker, Lord Justice, 135–37, 140–41, 144, 456 Robertson, Carol, 319 Rodger, Lord, 44, 46, 53–55, 456 Rodgers, Bryan, 115, 122 Rose, Lord Justice, 50, 221, 223

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470 Index Royal College of Nursing, 373 Royal College of Paediatric and Child Health, 375 refugees, 443–44 see also women, refugees Russell, Lord Justice, 54, 243 Russell of Killowen, Lord, 393 Sado-masochistic sexual activities, 13, 37, 37, 41–42, 241–54 see also consent, sexual activity St Mary’s Hospital, Portsmouth, 364, 369 same-sex relationships, 35, 103, 425, 427–28, 430, 432, 435–37, 440–42 Samuels, Harriet, vii, xv, 10, 381, 385, 387 sanctity of life, 135 Sankey, Mr Justice, 389 Scarman, Lord, 158, 356, 367 Scheuner, Ulrich, 451 Schuller, Regina, 215 Scotland, 4, 10–12, 19–20, 22–24, 36, 38, 41, 54, 99, 149–52, 155, 159–60, 164, 205, 214, 217 Scott Baker, Mr Justice, 52, 300, 365, 369, 375 Scottish Executive, 212 Scott of Foscote, Lord, 96, 108, 159–60, 323, 340 Scrutton, Lord Justice, 45, 385, 390 Sedley, Lord Justice, 67, 79–80, 174, 176, 181 self-defence, 135, 138, 267, 276, 292, 294 Sevenhuijsen, Selma, 317 sex discrimination, 11, 15, 22, 27–28, 341, 401–02, 415, 417–18, 420–21, 443, 448–49, 451, 453, 457 sexual behaviour, 206, 209–10, 218–19 sexual character evidence, 214, 217 sexual history evidence, 12, 27–28, 39, 47, 205–06, 208–10, 212–23, 225–27 sexual orientation discrimination, 428, 436, 437–42 sexual violence, 42, 274, 346 see also domestic violence; rape Shari’a law, 444, 447, 453, 457 see also religion, Islam Shah, Sangeeta, xv, 10, 256, 258–61 Shah, Zoora, 12, 14, 19, 21–22, 26, 36, 38, 41, 46, 273–91 shalwar kameeze, 329–30, 336, 340 see also religious dress, uniform policy Shaw, Malcolm, 453 Sheffield City Council, 11, 13–14, 18–19, 22–23, 27, 29, 38, 41–42, 346–47, 351 Sheldon, Sally, xv, 7, 19–20, 59, 61–62, 76, 136 Shubsachs, Dr, 286–88, 291 Silbers, Justice Stephen Robert, 319 silence, 46, 98, 269, 275, 277, 280, 284, 289 Simon of Glaisdale, Lord, 303 Simon, Viscount, 300, 303 Singleton, Lord Justice, 353 ‘slow burn’, 293, 300 see also provocation Slynn of Hadley, Lord, 208, 221, 224, 242, 247, 250, 254, 305, 408 Smart, Carol, 6, 8–9, 20, 23, 25, 38, 74, 98, 110, 115 socialism, 384 Solicitors Journal, 99–100 Solnit, Albert, 107

Southall Black Sisters, 271, 273–74, 278, 283, 286, 289–90, 292–93 South Africa, 4, 37, 151, 418 Constitutional Court, 317, 427 Smith, Jeremy C, 220 Smith, Joan, 33 Southern Cross, 312–16, 318–19, 323–26 sperm donors, 84 anonymous , 96, 98, 105 known, 99 Spijkerboer, Thomas, 448 Stark, Evan, 127, 256 state, 23, 26–27, 29, 32, 36, 57, 71–72, 77, 138, 177, 180, 214, 224, 244, 253, 334, 341–42, 346–47, 366, 414–16, 419–23, 429, 437–38, 444, 446, 449, 453–55, 458 protection of children and vulnerable adults, 231–32, 238, 240, 242, 261, 271, 314–17, 320–27, 350, 355, 359–60 see also welfare state statutory interpretation, 11–12, 15, 39, 208 ‘always speaking’, 265, 322, 325 transformative interpretation, 325 see also transformative constitutionalism Steyn, Lord, 39, 207–08, 218, 219, 221–22, 305, 361, 447 Stone, Fanny, 36, 228–29, 231–40 Stone, John, 37, 228–29, 231–40 Strasbourg Court, see European Court of Human Rights Stringer, Ian, 358 Stuart-Smith, Lord Justice, 157, 163, 268 Sturge, Dr Caroline, 103, 116, 121–23, 125, 127, 129–30 suicide, 37, 244, 252, 255–59, 261–62, 264, 268, 270–72 see also causation; domestic violence Sumner, Lord, 385, 387, 394 Supreme Court Canada, 3, 30, 33, 37, 39, 222, 225, 343 Pennsylvania, 54 Queensland, 49, 136 South Africa, 325 United Kingdom, 8, 30, 33, 47–48 see also House of Lords United States, 17, 30, 179, 422 ‘surety wife’, 150, 152, 157, 159 see also undue influence surrogacy, 20, 25, 89 commercial, 83, 90 contracts, unenforceability of, 83, 87, 91, 93, 95 misconduct, of surrogate, 40, 84–85, 89–90 parental order, 83–84, 87, 90 regulation, 28, 83–84, 87, 91–95 Tapper, Colin, 221 taveez, 275, 280 Taylor, Lord, 290, 300, 304 Temkin, Jennifer, 209–10, 216 Templeman Lord, 241, 244, 249, 358 Thankerton, Lord, 195 Thatcher, Margaret, 314 Thomas, Colin, 7 Thornton, Sara, 291–92, 295

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Index 471 Thorpe, Lord Justice, 51, 67, 79–80, 89, 91, 94, 99, 104–05, 107–08, 110–11, 116–17, 120–22, 124–27, 129, 132–33, 357–58 The Times, 31, 228, 273, 333 Tindal, Chief Justice, 300 Tomlin, Lord, 198 Toulson, Lord Justice, 89, 94 trade unions, 381, 383–84 transformative constitutionalism, 38, 316–17, 325 Treaty of Versailles, 386, 396 trespass, to land, 11, 172, 174–75 definition, 177 licence to enter, 176 private sphere, 172, 177–78 see also property, private right of exclusion, 177–78, 181–82 self-help, 174, 183 Tribe, Laurence, 451 Tuckey, Lord Justice, 164 Tunisia, 448, 454 Twain, Mark, 48 ultra vires, 392 undue influence, 23, 149, 158–59, 168 actual, 150, 152, 160, 165–67 constructive notice, 153, 156–57, 160, 163–64, 169 equitable doctrine, 11, 153 ‘manifest disadvantage’, 154, 161–62 negligence, of solicitor, 150–52, 156 presumption of, 150, 155–56, 159 unfair dismissal, 28, 402, 404, 408, 410–12 see also pregnancy, reason for dismissal United Nations, 370 General Assembly, 447, 449, 452 Principles on Older People, 38, 317, 320–21, 347 Ungerson, Clare, 320 United States of America, 3, 17, 30, 33, 37, 142, 176, 179, 198, 211, 205, 215, 256, 417, 422–23, 426 unjust enrichment, 185 Vakulenko, Anastasia, 334, 448 Victim Support, 213 violence, 97, 241–42, 244–45, 247–54, 343–44 against vulnerable adults, 29, 350–51, 355, 357–58, 373–74 against women, 18–21, 23, 25–28, 34–35, 37–42, 53, 110, 114–18, 124–33, 152, 177, 181–82, 218, 255–62, 269–71, 273–74, 279–80, 283–94, 297, 303–06, 346, 447–48, 455 see also domestic violence; sado-masochistic sexual activities; sexual violence votes for women, 383 vulnerability, 22, 29, 177, 259, 269, 272, 279 adults, with learning difficulties and/or mental ill health, 348, 360 fertility treatment, 60, 81, 84 lesbian co-parent, 101 elderly persons, 314, 316, 319, 327 see also elderly persons, care for surety wife, see ‘surety wife’ Waite, Lord Justice, 144, 179 Wakefield, His Honour Judge, 166, 168

Walby, Sylvia, 256, 269–70 Wald, Judge Patricia, 54 Wall, Lord Justice, 51, 62, 65–67, 69, 73, 77, 79–80, 100, 109, 115–16, 121, 126, 175 Waller, Lord Justice, 120 Wallerstein, Judith, 110, 121 Ward, Lord Justice, 54, 117–18, 135–37, 140–41, 143–44 Warnock, Mary, 72 Warrington, Jill, 319 Weeks, Jeffrey, 97 welfare, of child, 84, 86, 91, 96–97, 100, 106–07, 110–11, 120, 124, 145, 366 checklist, 55, 94, 103, 110, 112, 116–18, 124, 132 see also best interests, of child welfare state, 231, 233, 314, 316, 322, 326 Welsh Assembly, 321 Werner, Judge William, 178 West, Robin, 251 Whitesmith, Lucy, 99–100 Wightman, John, xv, 184, 200 Wigmore, John Henry, 211, 221 Wilberforce, Lord, 158 Wilde, Oscar, 97 Wilkinson, Sue, 425–26, 431, 433 Williams, Glanville, 211 Wilson, Lord Justice Nicholas, 123–25 Wilson, Justice Bertha, 7, 31 women aldermen, 382, 387 Asian, 273, 282–83, 286, 290 asylum claims, see asylum claims dignity of, 227, 289, 455 equality of, 10, 38 see also equality, sex experiences of, v, 214 gendered expectations of, 20, 230 human rights of, 452 judges, v, 6–8, 21 minority, 27, 36, 38, 340–42 mothers, see mothers; motherhood Muslim, 333–34, 341–42 see also religion, Islam; Shari’a law property rights, 172–73, 362 refugees, 443–44 suffrage, see votes for women ‘surety wives’, see ‘surety wife’ wives, 23, 28, 36, 54, 149–59, 161, 165, 167–68, 243, 259, 266, 288, 292, 300–02, 316, 318–19, 348–49, 354, 363, 414, 416, 420–22, 426, 450 workplace, in the, 12, 401, 405, 408, 411 Women’s Aid, 290 Women’s Court of Canada (WCC), 3, 37, 39 women’s movement, 9, 383–84 Woodcraft, Elizabeth, 98–99 Woolf, Lord, 52, 322, 325, 365, 370, 377 workplace discrimination, 12 pregnancy, reason for dismissal, 405, 408, 411 women, 401 Wrenbury, Lord, 387, 396 wrongful arrest, 170, 174

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