R (Anufrijeva) v. LB of Southwark

From Swarb.co.uk

References: Gazette 20-Nov-2003, Times 17-Oct-2003, [2003] EWCA Civ 1406, [2003] 3 FCR 673, [2004] QB 1124, [2004] 2 WLR 603, [2004] HLR 22, [2004] HRLR 1, 15 BHRC 526, [2004] 1 FLR 8, (2003) 6 CCL Rep 415, [2004] Fam Law 12, [2004] UKHRR 1, [2004] BLGR 184
Links: Bailii
Coram: The Lord Chief Justice Of England And Wales, The Master Of The Rolls, And Lord Justice Auld
Ratio: The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the claimant?
Held: A finding that a Convention right has been infringed, including a right under Article 5, does not necessarily result in an award of damages. The discretionary exercise of deciding whether to award compensation under the HRA is not to be compared to the approach adopted where damages are claimed for breach of an obligation under civil law. The level of awards by the Ombudsman were a better guide. A claim for damages under the HRA for maladministration is likely to cost substantially more to try than the amount of any damages that are likely to be awarded, and procedures should be followed to ensure that costs were not wasted.
Statutes: European Convention on Human Rights 8
This case cites:

  • Cited – London Borough of Harrow v Qazi HL (Bailii, House of Lords, [2003] UKHL 43, Times 01-Aug-03, [2003] 3 WLR 792, Gazette 02-Oct-03, [2004] 1 AC 983, [2004] L & TR 9, [2003] 4 All ER 461, [2003] 3 EGLR 109, [2003] Fam Law 875, [2003] 2 FLR 973, [2004] 1 P & CR 19, [2003] HLR 75, [2003] HRLR 40, [2003] 3 FCR 43, [2003] UKHRR 974, [2003] NPC 101)
    The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
  • Cited – Pretty v The United Kingdom ECHR (2346/02, (2002) 35 EHRR 1, Worldlii, [2002] ECHR 427, Bailii, (2002) 66 BMLR 147, 12 BHRC 149, [2002] Fam Law 588, [2002] 2 FCR 97, [2002] All ER (D) 286 (Apr), [2002] 2 FLR 45)
    The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
  • Cited – Abdulaziz etc v The United Kingdom ECHR (9214/80, 9473/81, 9474/80, (1985) 7 EHRR 471, Bailii, [1985] ECHR 7)
    Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
    Held: The refusals of permission had . .
  • Cited – Glaser v The United Kingdom ECHR (32346/96, (2001) 33 EHRR I, [2001] 1 FLR 153, Bailii, [2000] ECHR 418, Bailii, [2000] ECHR 419)
    ‘The essential object of Article 8 is to protect individuals against arbitrary interference by public authorities. There may however be positive obligations inherent in an effective ‘respect’ for family life. These obligations may involve the . .
  • Cited – Nuray Sen v Turkey ECHR (41478/98, (2003) 36 EHRR 7, Bailii, [2003] ECHR 297, Bailii, [2003] ECHR 297)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-3 ; Non-pecuniary damage – financial award ; Costs and expenses partial award
    A State is under an obligation to admit relatives of settled . .
  • Cited – Gul v Switzerland ECHR (23218/94, (1996) 22 EHRR 93, Bailii, ECHR, , Bailii, Bailii, Bailii, [1996] ECHR 5)
    A Turkish father, who had been permitted on humanitarian grounds to reside with his wife in Switzerland, failed to establish that, by refusing to allow their seven-year-old son to join them in Switzerland, the state had interfered with respect for . .
  • Cited – Bellinger v Bellinger HL (House of Lords, [2003] UKHL 21, Times 11-Apr-03, Bailii, [2003] 2 AC 467, [2003] 2 All ER 593, [2003] Fam Law 485, 14 BHRC 127, [2003] 2 WLR 1174, 72 BMLR 147, [2003] 2 FCR 1, [2003] HRLR 22, [2003] 1 FLR 1043, [2003] UKHRR 679, [2003] ACD 74)
    The parties had gone through a form of marriage, but Mrs Bellinger had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was . .
  • Cited – Lopez Ostra v Spain ECHR ((1994) 20 EHRR 277, 16798/90, Bailii, ECHR, , Bailii, Bailii, [1994] ECHR 46)
    A waste treatment plant was built close to the applicant’s home in an urban location and the plant released fumes and smells which caused health problems to local residents.
    Held: A duty exists to take reasonable and appropriate measures to . .
  • Cited – Chapman v United Kingdom; similar ECHR (Times 30-Jan-01, 27238/95, (2001) 33 EHRR 18, Bailii, [2001] ECHR 43, (2001) 33 EHRR 479, (2001) 33 EHRR 399, Bailii)
    The question arose as to the refusal of planning permission and the service of an enforcement notice against Mrs Chapman who wished to place her caravan on a plot of land in the Green Belt. The refusal of planning permission and the enforcement . .
  • Cited – Thames Water Utilities Limited v Peter Marcic CA (Times 14-Feb-02, Bailii, Gazette 21-Mar-02, [2002] EWCA Civ 65, [2002] QB 929, [2002] 2 All ER 55)
    The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to . .
  • Cited – Andersson and Kullman v Sweden ECHR ((1986) 46 DR 251)
    The Comission found inadmissible an allegation that Sweden had infringed Article 8 by not providing financial assistance to a mother to allow her to stay at home to look after her children, rather than placing them in a creche and going out to work. . .
  • Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA (Bailii, [2003] EWCA Civ 797, Times 28-Jun-03, [2003] 3 All ER 577)
    The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
  • Cited – Botta v Italy ECHR (21439/93, Bailii, [1998] ECHR 12, ECHR, , Bailii, [1996] ECHR 83)
    The claimant, who was disabled, said that his Article 8 rights were infringed because, in breach of Italian law, there were no facilities to enable him to get to the sea when he went on holiday.
    Held: ‘Private life . . includes a person’s . .
  • Cited – Zehnalova and Zehnal v Czech Republic ECHR (Unreported, 14 May 2002)
    The applicants were husband and wife and the wife was physically handicapped. They complained that their Article 8 rights were infringed because, in breach of Czech law, the authorities had failed to install facilities that would enable her to gain . .
  • Cited – Marzari v Italy ECHR ((1999) 28 EHRR CD 175)
    The applicant suffered from metabolic myopathy and was 100 per cent disabled. He was allocated an apartment which he considered inadequate. He ceased paying rent for it, demanding that certain works be carried out to make it suitable for him to live . .
  • Cited – O’Rourke v United Kingdom ECHR (39022/97, Bailii, [2001] ECHR 889)
    The applicant was a sex offender who on release from prison had found temporary accommodation from which he had been evicted for pestering female residents. He ignored advice to go to a night shelter whilst a decision on permanent re-housing was . .
  • Cited – Regina (on the Application of Q & others) v Secretary of State for the Home Department CA (Bailii, Times 19-Mar-03, [2003] EWCA Civ 364, Gazette 29-May-03, [2003] 2 All ER 905, [2003] HRLR 21, [2004] QB 36, [2003] UKHRR 607, [2003] 3 WLR 365, (2003) 6 CCL Rep 136, (2003) 6 CCL Rep 136, [2003] ACD 46)
    The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
    Held: The way in which the section had been operated, by denying consideration and all benefits . .
  • Cited – Morris v London Borough of Newham Admn ([2002] EWHC 1262 Admin)
    The claimant complained that the defendant authority had failed to provide her and her family with suitable accommodation pursuant to its duty under section 193. Breach of duty was conceded. The relief sought by the claimant included damages for . .
  • Cited – Regina (Bernard and Another) v Enfield Borough Council Admn (Times 08-Nov-02, Gazette 12-Dec-02, [2002] EWHC 2282 Admin, [2003] HLR 27, [2003] HRLR 111)
    The claimants were husband and wife. They had six children. The wife was severely disabled and confined to a wheelchair. The defendant Council provided the family with a small house but in breach, as they ultimately accepted, of section 21(1) (a) of . .
  • Cited – Regina (on the Application of J) v London Borough of Enfield and Another Admn (Bailii, Times 18-Apr-02, [2002] EWHC 432 (Admin), [2002] 5 CCLR 434, [2002] 2 FLR 1)
    The mother and child were destitute, and sought to oblige the local authority to provide accommodation and support.
    Held: The duty to a child under the section could not be extended to include a duty to accommodate and support the child and . .
  • Cited – H v The United Kingdom ECHR ([1987] 10 EHRR 95, 9580/81, Bailii, [1988] ECHR 9, Bailii, [1987] ECHR 14, ECHR, , Bailii, [1988] ECHR 9, Bailii, [1987] ECHR 14)
    Hudoc Violation of Art. 6-1; Violation of Art. 8; Just satisfaction reserved
    Hudoc Judgment (Just satisfaction) Costs and expenses – struck out of the list (friendly . .
  • Cited – Askar v United Kingdom ECHR (26373/95,
    The Commission held inadmissible a complaint of substantial delay in granting permission for the family of a refugee to join him in this country, observing: ‘The Commission recalls that delay in proceedings concerning matters of ‘family life’ may . .
  • Cited – Smith and Grady v The United Kingdom ECHR (Gazette 10-Nov-99, Times 11-Oct-99, (1999) 29 EHRR 493, (1999) IRLR 734, (2001) 31 EHRR 620, [2000] 29 EHRR 549, Worldlii, Worldlii, [2000] ECHR 383, 33986/96, Bailii, [1999] ECHR 72, Bailii, [1999] ECHR 180, 33985/96)
    The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
  • Cited – Lustig-Prean and Beckett v The United Kingdom ECHR (31417/96, 32377/96, (2000) 29 EHRR 548, (2001) 31 EHRR 601, Bailii, [1999] ECHR 71, Bailii, [2000] ECHR 381)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; No separate issue under Art. 14+8; Just satisfaction reserved
    Hudoc Judgment (Just satisfaction) . .
  • Cited – Silver And Others v The United Kingdom ECHR (6205/73, [1983] 6 EHHR 62, [1983] 5 EHRR 347, Bailii, [1983] ECHR 5, Bailii, [1983] ECHR 11, 7052/75, ECHR, ECHR, 5947/72)
    There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were . .
  • Cited – Aksoy v Turkey ECHR (21987/93, [1997] 23 EHHR 533, Bailii, [1996] ECHR 68, ECHR, , Bailii)
    In the context of Kurdish separatist terrorism which had claimed almost 8000 lives, the court accepted a derogation from the Convention because of a state of emergency. However the applicant had been detained, tortured and finally released without . .
  • Cited – Halford v The United Kingdom ECHR (Times 03-Jul-97, 20605/92, [1997] 24 EHRR 523, Bailii, [1997] ECHR 32, ECHR, , Bailii)
    The interception of the telephone calls of an employee in a private exchange was a breach of her right of privacy. She had a reasonable expectation of privacy. The police force’s surveillances of the applicant’s telephone (to obtain information . .
  • Cited – KB and Others, Regina (on the Applications of) v Mental Health Review Tribunal Admn (Bailii, [2002] EWHC 639 (Admin), [2003] EWHC 193 (Admn), [2004] 1 QB 936)
    Damages were claimed by three mental health patients whose rights under Article 5(4) had been infringed because of inordinate delay in processing their claims to mental health review tribunals.
    Held: Article 5.5 did not make an award of . .
  • Cited – Kopp v Switzerland ECHR ([1998] HRCD 356, 23224/94, [1998] 27 EHHR 93, Worldlii, [1998] ECHR 18, [1989] ECHR 10842/84,, Bailii, (1999) 27 EHRR 91)
    WCHR Switzerland – monitoring of a law firm’s telephone lines on orders of the Federal Public Prosecutor (sections 66(1 bis) and 77 of the Federal Criminal Procedure Act – ‘the FCPA’)
    A lawyer’s home . .
  • Cited – Bensaid v The United Kingdom ECHR (44599/98, (2001) 33 EHRR 205, (2001) 33 EHRR 10, [2001] ECHR 82, Bailii, [2001] INLR 325, 11 BHRC 297)
    The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .

(This list may be incomplete)
This case is cited by:

  • Cited – P, Regina (on the Application of) v Secretary of State for the Home Department Admn (Bailii, [2003] EWHC 2953 (Admin), Times 29-Dec-03)
    The applicant was a discretionary life prisoner compulsorily detained in a mental hospital. His tariff had now expired. If not detained under the 1983 Act he would now be entitled to a review. He argued that there should be a joint hearing.
  • Cited – The First Secretary of State, Grant Doe, Gregory Yates, Paul Eames v Chichester District Council CA (Bailii, [2004] EWCA Civ 1248, Times 14-Oct-04)
    The appellants challenged a decision to grant planning consent for a private gipsy with mobile homes. The issue was whether the council in refusing permission and in issuing enforcement proceedings, had infringed the applicants human rights. The . .
  • Cited – Van Colle and Another v Chief Constable of the Hertfordshire Police CA (Times 10-May-07, Bailii, [2007] EWCA Civ 325, [2007] 3 All ER 122, [2007] 1 WLR 1821, [2007] PIQR Q7, [2007] 2 FCR 469, [2007] UKHRR 869, [2007] HRLR 25, [2007] Inquest LR 69, [2007] 2 Cr App R 32, (2007) 151 SJLB 576)
    The deceased had acted as a witness in an intended prosecution. He had sought protection after being threatened. No effective protection was provided, and he was murdered. The chief constable appealed a finding of liability.
    Held: The . .
  • Cited – Home Office v Mohammed and Others CA (Bailii, [2011] EWCA Civ 351)
    The claimants sought damages saying that after a decision had been made that they should receive indefinite leave to remain in 2001 (latest), the leave was not issued until 2007 (earliest) thus causing them severe losses. The defendant now appealed . .

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