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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Coulibaly v Coulibaly & Ors (Alleged incompatibility of the Children Act 1989 with the ECHR) (Rev 1)  EWHC 936 (Fam) (09 March 2018)
Cite as:  EWHC 936 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| OLIVIA COULIBALY
|- and -
|(1) GOLO COULIBALY
(2) MARK VERITY (For the child by his guardian)
(3) THE LORD CHANCELLOR
(Alleged incompatibility of the Children Act 1989 with the ECHR)
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
Mr Neil Sheldon appeared for the Third Respondent, The Lord Chancellor
Crown Copyright ©
MR JUSTICE HOLMAN:
"4. Declaration of incompatibility.
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(5) In this section 'court' means –
(e) in England and Wales…, the High Court…"
"ARTICLE 3 – Prohibition of torture.
No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Article 5 provides as follows:
"ARTICLE 5 – Right to liberty and security.
1. 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 –
There are then set out in paragraphs (a) to (f) various circumstances in which the arrest or detention of a person may be permissible within the scope of Article 5. Article 6 provides as follows:
"ARTICLE 6 – Right to a fair trial.
1. 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…"
Article 8 provides as follows:
"ARTICLE 8 – Right to respect for private and family life.
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 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 of others."
Article 9 provides as follows:
"ARTICLE 9 – Freedom of thought, conscience and religion.
1. 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.
2. 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 provides as follows:
"ARTICLE 10 – Freedom of expression
1. 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…"