The Human Rights Act 1998
Below are the Articles contained within the Human Rights Act which set our your human rights. It may look as if we´ve missed a couple out, but there are no articles 1, 13 or 15.
Rather than the full text of the Human Rights Act, we´re including the articles alone.
Know your rights... they´re yours! However, when different people´s rights come into conflict, be aware that in family law, the child´s welfare should be
the court´s paramount consideration.
Warning to Litigants in Person
Section 3(1) of the Human Rights Act 1998 reads as follows: "So far as it is possible to do so, primary legislation and subordinate legislation
must be read and given effect in a way which is compatible with the Convention rights". This means that other legislation in the UK should be
(note, not must be) compatible with the Human Rights Act (and note also the words ´as far as is possible´... and think of the legal wrangling that
can go on arguing that point!).
There are occasions when the court determines that a piece of legislation
is incompatible with the Human Rights Act/European Convention on Human Rights. On those occasions, the
court should issue a declaration of incompatibility under section 4 of the Human Rights Act 1998.
Human Rights legislation is a minefield in its own right. If you are involved in a family law case, we recommend you build your arguments in support of your child´s welfare... why the child
needs a relationship with you (rather than YOUR rights to family life)... the child´s right to a relationship with you... but more than this, what this practically means! Your love, your support for their
education, your bedtime stories and your taking them swimming! Leave the court in no doubt as to what family life means for your child, and there is a greater chance of a judge seeing the need to protect those rights!
Don´t walk into court demanding your right to family life be respected... only to face the allegation that you´re self centered and not thinking of your child´s needs! (Not an uncommon response from the courts and Cafcass in such circumstances).
CAUTION If you are a litigant-in-person attempting to use the Human Rights Act in the Family Court, invariably this is a bad idea for the reasons
set out above, and another that it takes up limited court time on complex arguments reducing time to put forward the stronger child welfare points.
Please take advice if you want to use human rights arguments in your case, and then think twice, and be aware of the Family Procedure Rules which govern this
(read our own note ´Human Rights and Family Court Rules´ below).
Human Rights and Family Court Rules
If you intend to raise issues relating to human rights in your arguments before the court, it is important to be aware of rule 29.5 within the Family Procedure Rules 2010:
- In this rule -
"the 1998 Act" means the Human Rights Act 1998;
"Convention right" has the same meaning as in the 1998 Act; and
"declaration of incompatibility" means a declaration of incompatibility under section 4 of the 1998 Act(1).
- A party who seeks to rely on any provision of or right arising under the 1998 Act or seeks a remedy available under that Act must inform the court in that party’s
application or otherwise in writing specifying -
- the Convention right which it is alleged has been infringed and details of the alleged infringement; and
- the relief sought and whether this includes a declaration of incompatibility.
- The High Court may not make a declaration of incompatibility unless 21 days’ notice, or such other period of notice as the court
directs, has been given to the Crown.
- Where notice has been given to the Crown,
a Minister, or other person permitted by the
1998 Act, will be joined as a party on giving
notice to the court.
- Where a claim is made under section 7(1) of
the 1998 Act (claim that public authority
acted unlawfully) in respect of a judicial
- that claim must be set out in the
application form or the appeal notice;
- notice must be given to the Crown.
- Where paragraph (4) applies and the
appropriate person (as defined in section
9(5) of the 1998 Act) has not applied within
21 days, or such other period as the court
directs, beginning with the date on which the
notice to be joined as a party was served,
the court may join the appropriate person as
- On any application concerning a committal
order, if the court ordering the release of the
person concludes that that person’s
Convention rights have been infringed by
the making of the order to which the
application or appeal relates, the judgment
or order should so state, but if the court
does not do so, that failure will not prevent
another court from deciding the matter.
- Where by reason of a rule, practice direction
or court order the Crown is permitted or
- to make a witness statement;
- to swear an affidavit(GL);
- to verify a document by a statement of
- to discharge any other procedural
obligation, that function will be performed
by an appropriate officer acting on behalf
of the Crown, and the court may if
necessary nominate an appropriate
(Practice Direction 29A (Human Rights –
Joining the Crown) makes provision for the
notices mentioned in this rule.)
Conflicting Rights... An Argument
In court, when human rights conflict, there are a number of matters which should be considered:
- The child´s welfare MUST be the paramount consideration.
- The child´s right to family life and a meaningful relationship with both parents.
- The parents´ right to family life;
Should doesn´t always happen, so it may be worth reminding the court of the words of Mr Justice Mostyn
in a recent judgment made in the High Court in the case AR (Children: Relocation)  EWHC
1346 Fam (download full
judgment as a pdf):
´If one were to draw up a hierarchy of human rights protected by the Convention I would have thought that very
near to the top would be the right of a child, while he or she is growing up, to have a meaningful participation
by both of his parents in his upbringing. Although this is (strangely) not explicitly spelt out in the text it must
be implicit in the notion of the right to a family life.´
Mostyn J is citing the UN Convention on the Rights of the Child.
Do remember thought, that while human rights are a consideration, any decision of
the court should be based on what it finds to be in the child´s best
interests, in consideration of the welfare of the child.
Part I The Convention Rights and Freedoms
Article 2 Right to life
- Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
- Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
- in defence of any person from unlawful violence;
- in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
- in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 3 Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 4 Prohibition of slavery and forced labour
- No one shall be held in slavery or servitude.
- No one shall be required to perform forced or compulsory labour.
- For the purpose of this Article the term "forced or compulsory labour" shall not include:
- any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during
conditional release from such detention;
- any service of a military character or, in case of conscientious objectors in countries where
they are recognised, service exacted instead of compulsory military service;
- any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
- any work or service which forms part of normal civic obligations.
Article 5 Right to liberty and security
- Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
- the lawful detention of a person after conviction by a competent court;
- the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
- the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
- the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
- the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
- the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
- Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
- Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
- Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
- Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable
right to compensation.
Article 6 Right to a fair trial
- In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public
may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice.
- Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
- Everyone charged with a criminal offence has the following minimum rights:
- to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
- to have adequate time and facilities for the preparation of his defence;
- to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
- to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Article 7 No punishment without law
- No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national
or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the
criminal offence was committed.
- This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed,
was criminal according to the general principles of law recognised by civilised nations.
Article 8 Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- 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 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
Article 9 Freedom of thought, conscience and religion
- Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and
freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching,
practice and observance.
- Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a
democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the
rights and freedoms of others.
Article 10 Freedom of expression
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing
of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority
and impartiality of the judiciary.
Article 11 Freedom of assembly and association
- Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to
join trade unions for the protection of his interests.
- No restrictions shall be placed on the exercise of these rights other than such
as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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.
This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces,
of the police or of the administration of the State.
Article 12 Right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Article 14 Prohibition of discrimination
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.
Article 16 Restrictions on political activity of aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political
activity of aliens.
Article 17 Prohibition of abuse of rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity
or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater
extent than is provided for in the Convention.
Article 18 Limitation on use of restrictions on rights
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than
those for which they have been prescribed.
Part II The First Protocol
ARTICLE 1 PROTECTION OF PROPERTY
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No oneshall be deprived of his possessions except in the public interest and subject to the conditionsprovided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforcesuch laws as it deems necessary to control the use of property in accordance with the generalinterest or to secure the payment of taxes or other contributions or penalties.
ARTICLE 2 RIGHT TO EDUCATION
No person shall be denied the right to education. In the exercise of any functions which itassumes in relation to education and to teaching, the State shall respect the right of parents toensure such education and teaching in conformity with their own religious and philosophical convictions.
ARTICLE 3 RIGHT TO FREE ELECTIONS
The High Contracting Parties undertake to hold free elections at reasonable intervals by secretballot, under conditions which will ensure the free expression of the opinion of the people inthe choice of the legislature.
Oh... and if you´re wondering which of the European Convention on Human Rights were not included in our own legislation (e.g. Articles 1, 13 and 15 of Part I), here they are, but please note, they are excluded from the Human Rights Act 1998.
ARTICLE 1 Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of this
ARTICLE 13 Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention
are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by
persons acting in an official capacity.
ARTICLE 15 Derogation in time of emergency
- In time of war or other public emergency threatening the life
of the nation any High Contracting Party may take measures derogating
from its obligations under this Convention to the extent
strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with its other obligations under
- No derogation from Article 2, except in respect of deaths resulting
from lawful acts of war, or from Articles 3, 4 (paragraph 1)
and 7 shall be made under this provision.
- Any High Contracting Party availing itself of this right of derogation
shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons
therefor. It shall also inform the Secretary General of the Council of
Europe when such measures have ceased to operate and the provisions
of the Convention are again being fully executed.
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Michael Robinson © 2014
Family law information for parents whose children are resident in England and Wales
Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland.
The Custody Minefield