Practitioners will of course be familiar with Article 8 and the right to respect for family life, which touches on everything in the jurisdiction of the Family Court.
The formula settled upon to reflect consideration of Article 8 in judgments has tended to focus on necessity and proportionality, with an occasional reference to there being no lesser measure available to protect a child’s rights.
The Immigration and Asylum Tribunal has been at the forefront of the development of a more detailed assessment of Article 8 in the context of the removal of foreign nationals to their country of origin. The classic tests were set out by the House of Lords in R (Razgar) v Secretary of State for the Home Department 2004 UKHL 27:
In a case where removal is resisted in reliance on article 8, these questions are likely to be:
- Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life?
- If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
- If so, is such interference in accordance with the law?
- If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being 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 so, is such interference proportionate to the legitimate public end sought to be achieved?
In Hashim Ali v Secretary of State for the Home Department 2016 UKSC 60, the Supreme Court had reason to consider the Article 8 tests again in the context of the deportation of foreign criminals, the Immigration Rules and Article 8.
What may be of interest to family practitioners is the recasting of the Article 8 test. The Supreme Court did not refer to the classic formulation in Razgar but said this:
The Supreme Court considered paragraph 74 of Bank Mellat v Her Majesty’s Treasury (No. 2)  UKSC 39 which sets out the proper approach to assessing proportionality. In immigration cases, this approach is likely to qualify the Tribunal’s approach to the last two Razgar questions.
- The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine
- whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
- whether the measure is rationally connected to the objective,
- whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
- whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
The first three of these are the criteria listed by Lord Clyde in De Freitas, and the fourth reflects the additional observation made in Huang. I have formulated the fourth criterion in greater detail than Lord Sumption, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.
For the family practitioner, the changes, if they are changes, to the recasting of the Article 8 tests may lead to little change in the content of judgments. Outcomes may not be significantly affected. However, the change in language is of some importance and is undoubtedly relevant to ancillary procedural issues in the Family Court, for example the sharing of confidential information between agencies. Although outside the scope of this note, practitioners may wish to consult John Fotheringham’s article in Family Law November 2016 1342 on the Named Person Service and the Supreme Court’s decision in The Christian Institute and others v The Lord Advocate 2016 UKSC 51 for an example of the application of the test.