History > 2006 > UK > High Court (I)

Terror law an affront to justice - judge

Control orders breach human rights

Thursday April 13, 2006
Guardian
Vikram Dodd and Carlene Bailey

A high court judge branded the government's system of control orders against terrorism suspects "an affront to justice" yesterday and ruled that they breached human rights laws.

The ruling by Mr Justice Sullivan came after a challenge to the first control order issued against a British Muslim man, alleged by the security services and the home secretary to have been planning to travel to Iraq to fight UK and US forces.

At least 11 control orders have been issued, allowing the government to restrict the liberty and movement of people it claims endanger public safety because of their involvement in terrorism but who can not be tried in the courts.

The judge said the anti-terrorism measures were "conspicuously unfair" and dismissed supposed safeguards of suspects' rights as a "thin veneer of legality". He had to say "loud and clear" that the laws were unfair otherwise "the court would be failing in its duty."

But he said the laws passed had been drafted in a way that prevented the courts overturning control orders.

In this case, the judge said, Charles Clarke had made his decision to issue the order based on "one-sided information", but he was "unable to envisage the circumstances" allowing the court to quash the home secretary's decision. As a result, the judge said, he would have to leave the order in place, even though he ruled that it contravened human rights law.

The ruling gives hope to two Muslim men who will go to the high court next month to challenge control orders they are subject to. They are relying on broadly similar arguments to the ones Mr Justice Sullivan found so convincing.

The judgment led government critics to point out that twice in two years the courts have found that anti-terrorism laws breached human rights. It also came on the eve of new laws coming into effect designed to tackle the threat of Islamist violence.

The Home Office rejected the court's ruling and vowed to appeal. "The ruling will not limit the operation of the act," the Home Office said in a statement. "We will not be revoking either the control order which was the subject of this review, nor any of the other control orders currently in force on the back of this judgement.

"Nor will the judgment prevent the secretary of state from making control orders on suspected terrorists where he considers it necessary to do so in the interests of national security in future."

The independent reviewer of the government's anti-terrorism laws, Lord Carlile, said if the appeal was not successful ministers would have to consider amending the law.

He told the BBC: "I hope we will not get another piece of rushed legislation. I think this really does need mature reflection."

Muddassar Arani, solicitor for the Briton, who is of Arab heritage, said: "This was the first British Muslim subject to a control order and he's being treated as a second-class citizen.

"It is clear the home secretary is acting as the judge, jury and prosecutor."

The man, a student originally from South Yorkshire, was stopped by counter-terrorism officials on March 1 2005 trying fly to the Middle East from Manchester airport, and then again the next day at Heathrow. He says he was travelling to Syria for a holiday, but security services say he was planning to fight in Iraq.

In September 2005 Charles Clarke signed a control order against him, revoking his passport, banning him from buying plane tickets, and banning him from airports and train terminals from where he could travel abroad.

The judge said the system was unfair because the man could not know the evidence, which was so sensitive it had to be kept secret from the accused.

A special advocate could not properly represent him, because the secret evidence could not be discussed with the client. The judge said: "If, as in this case, the substantial part of the case against him is not disclosed to the individual in question, it is difficult to see how the very essence of the right [of access to the court] is not impaired."

Mr Justice Sullivan said the court cannot review whether the facts exist to support the home secretary's suspicions and therefore "the overall procedure is manifestly ineffective and unfair".

This meant the Briton's right to access to a court, guaranteed by the European convention on human rights, was denied and the judge ruled the control order system was "incompatible" with human rights law.

Mr Justice Sullivan concluded: "Controlees' rights ... are being determined not by an independent court ... but by executive decision making untrammelled by any prospect of effective judicial supervision." Closing the case and addressing lawyers for the Muslim man, Mr Justice Sullivan made clear his frustration at the control order system: "If you erect a structure where people in the position of your client, to be frank, don't have a chance, the secretary of state is always going to win."

The system of control orders replaced the "Belmarsh system", whereby foreign nationals suspected of terrorist involvement could be detained without charge or trial.

Lawyers for the Briton say counter-terrorism officials racially abused him after he was first stopped travelling.

The government was granted leave to appeal, but last night they faced a torrent of criticism from Conservatives, Liberal Democrats and civil liberties campaigners.

Shami Chakrabarti, director of Liberty, said: "Fundamental human rights, such as the right to a fair trial, are what distinguish democrats from terrorists and dictators. The government's policy is in tatters - we hope that this time they are listening."

The judiciary dealt a second blow to Mr Clarke yesterday by finding he was wrong to try to refuse a British passport to an Australian national held in Guantánamo Bay by the US. David Hicks qualifies for a British passport, but the court of appeal rejected a challenge by the home secretary to an earlier court decision that he must grant citizenship.

    Terror law an affront to justice - judge, G, 13.4.2006, http://www.guardian.co.uk/terrorism/story/0,,1752773,00.html

Charles claims victory

in Hong Kong diary case

· High court rules Mail on Sunday wrong to publish
· Prince must go to court to stop further revelations

Saturday March 18, 2006
The Guardian
Stephen Bates

Prince Charles's advisers were claiming victory last night in his legal battle with Associated Newspapers, publishers of the Mail on Sunday, after a high court judgment that his copyright and confidentiality had been infringed when the newspaper published extracts from his private 1997 journal about the handover of Hong Kong.

Officials, led by the prince's private secretary, Sir Michael Peat, could barely contain their jubilation at the outcome of the case after three days of highly public hearings last month. They had embarked on the strategy despite the risk that, had the judge ruled against them, the prince might have had to appear in the witness box during a full trial.

Summoning journalists to a triumphal briefing at Clarence House, Sir Michael said: "The last thing we wanted to do was to take legal proceedings against Associated Newspapers, but we have won on all the important points of principle ... It was a matter of principle over a stolen document being made public."

In the course of the hearing into the case three weeks ago, the prince had endured the public humiliation of a witness statement by his former press secretary Mark Bolland on behalf of the newspaper, stating that Charles saw himself as a political "dissident" because of the views he expressed in letters to ministers.

The high court had been asked to decide whether the prince's claims that his copyright had been infringed and his confidence breached should be heard in front of a jury at a full trial or could be dealt with summarily by the judge.

Yesterday, the judgment concluded that there was no need for a trial. Handing down a 193-paragraph judgment, Mr Justice Blackburne dismissed the newspaper's arguments that in publishing extracts from the prince's journal last November it was legitimately publicising his views on matters of public importance and demonstrating the heir to the throne's interference in political affairs.

The 3,000-word journal, handwritten by the prince on his way back from the Hong Kong handover nearly nine years ago under the heading "The Great Chinese Takeaway", was one of eight such reports written after foreign trips in the 1990s that were passed to the newspaper by a disaffected former secretary in the prince's office. Copies of the journals had been circulated privately to the prince's friends.

The newspaper's report had highlighted his view of the Chinese leadership as "appalling old waxworks" and included mild criticisms of government ministers, though not the prince's flattering assessment of Tony Blair.

In a small gesture towards the newspaper the judge ruled that he could not make a decision on the remaining seven, so far unpublished, journals.

Although the judgment concluded that arguments over whether they could be published must go forward to trial, the prince's lawyers insisted that, after the ruling on the Hong Kong journal, similar findings in the case of the other journals - which are presumably less newsworthy - would be a formality. The newspaper has given an undertaking not to publish them until after any appeal.

Mr Justice Blackburne was scathing about the newspaper's public interest defence: "There is nothing in the articles to suggest that his conduct is being assessed and a judgment made about it ... The most that is said in the articles is that 'the memoirs ... provide a fascinating insight into how (the claimant) discreetly contributes to the formation of foreign policy.' The conclusion from all of this can only be that the contribution that the ... journal makes to any public debate ... is at best minimal."

The historian and royal biographer Robert Lacey said last night: "The outcome of the hearing is a curious success for the prince, against the odds. There were a few eyebrows raised about the risk he was taking but he has been vindicated. He seems to have confirmed the principle that what was meant to be private remains private.

"The phone-ins cannot find anyone to speak out against him today and in support of the newspapers. Prince Charles appears to be carving out this creaky role in national life and people seem to be growing fond of his outbursts and gaffes."

In a statement, Associated Newspapers said it was "disappointed" by the judge's refusal to allow a full hearing: "We believe our report and this legal action both raise very serious questions about the constitutional role of the heir to the throne and the freedom of the press. It cannot be legitimate for the prince to claim the right to engage in political controversy and at the same time deny the public the right to know that he is doing so."

Sir Michael insisted that the prince's journals would be placed in the royal archive, though not made available until after his death. He said: "History is best served cold in many ways. Journalism hot, history cold."

Straight sets to Clarence House - at a price

Robert Thomson, editor of the Times

"I don't think this is one of the landmark cases of our time. It is of public interest because of the involvement of Prince Charles. Whether he should have brought the action in the first place, thus making public further details he claimed were private, is a separate issue. But I don't think there is any less freedom of the press today than there was yesterday."

Max Hastings, author and journalist for the Daily Mail and the Guardian

"I would have had enormous sympathy if this case had involved the Queen, because she has always gone to great pains to ensure that her private opinions remain so. But Prince Charles decided a long time ago to exploit publicity when it suited his interests. His views have been widely broadcast and he has chosen to selectively leak information to the press. He's tried to be this semi-public, semi-private figure, dancing between the two as it suits him, and I don't think it washes."

David Engel, partner and media specialist, Addleshaw Goddard

"It's a straight sets victory for Clarence House. It's not fair to describe it as a bad day for freedom of the press. It's simply saying publication of a private journal of the Prince of Wales is not genuinely in the public interest. Even though the heir to the throne is in the public eye, he's still entitled to his own zone of privacy. This ruling reflects the current legal position: just because someone is a public figure, it doesn't automatically mean his or her private life is fair game for the media."

Max Clifford, PR adviser

"It might give him a bit more protection, but it weakens his position. He wants to have influence, but he doesn't want to be open about it. It's not going to endear him to Fleet Street. He's gone from being terrible to being OK in the eyes of the press over the past five or six years. This could undermine that - he may have won the battle but he's losing the war. Having a better working relationship with the press is more important. The problem is that he's surrounded by sycophants and the world's changed."

· Interviews by Owen Gibson

    Charles claims victory in Hong Kong diary case, G, 18.3.2006, http://media.guardian.co.uk/site/story/0,,1733785,00.html

Judge backs parents in refusing withdrawal of baby's life support

· NHS doctors are refused request to stop ventilator
· 18-month-old in 'almost relentless discomfort'

Thursday March 16, 2006
Guardian
Clare Dyer, legal editor

The parents of a terminally ill 18-month-old boy yesterday won a landmark ruling when a high court judge stopped doctors withdrawing life support. Mr Justice Holman refused to give the NHS trust caring for the boy a declaration that it would be lawful and in his best interests to take him off the ventilator that is keeping him alive.

The case is the first in which the court has been asked to sanction the withdrawal of treatment from a child assumed to have normal brain function and awareness.

The parents of the boy, referred to only by his initials MB, were in court to hear the judge praise them for their devotion to their son, who has become progressively paralysed with the most severe form of spinal muscular atrophy, a fatal degenerative disease.

Mr Justice Holman said he was "not persuaded, even taking into account predicted future deterioration, that it is currently in the best interests of MB to discontinue ventilation with the inevitable result that he will immediately die".

However, he said the boy should not be subjected to procedures requiring positive infliction of pain - cardiopulmonary resuscitation or electrocardiograph monitoring related to it, intravenous antibiotics or blood sampling. If these were required, it would mean MB was moving naturally towards death. "If that point is reached, it would be in his best interests to withhold those procedures even though he would probably die."

The judge said he accepted that MB's life was "helpless and sad" with "almost relentless discomfort, periods of distress and relatively short episodes of pain". But he had to proceed on the basis that MB had the cognition of a normal 18-month-old, that he continued to have a relationship with his family and to gain pleasure from touch, sight and sound.

Those benefits were "precious and real" and were the only benefits the child was "destined to gain from his life".

The judge heard from the parents, who have a five-year-old son and four-year-old daughter from the mother's previous relationship, that MB enjoyed having his brother and sister sing to him and play "round and round the garden", watching videos and listening to music CDs.

MB's body is almost completely immobile, although he can move his eyes and there is a "possible slight but barely perceptible movement of his eyebrows, corners of his mouth, thumb and toes or feet", the judge said.

He cannot cry, breathe or swallow and is kept alive by artificial ventilation through a pipe in his nose and artificial feeding through a tube into his stomach. All his doctors and the guardian appointed to represent the child's interest in court argued that the burdens of his existence outweighed the benefits. He cannot cough or clear his own secretions, and undergoes suctioning from his mouth, nose and throat several times a day.

The judge told MB's 29-year-old father and 22-year-old mother, who come from the north of England: "I hope you'll go away thinking that the balance I have struck is right for your son."

The parents' solicitors, Alexander Harris, said the couple felt "vindicated" by the judgment, but wanted a full assessment of their son's quality of life if doctors decided later to withhold the treatments the judge said would not be in his best interests.

The NHS trust said it would "consider the details of the ruling and how best to care for MB in the light of this decision, continuing to act in his best interests". The Royal College of Paediatrics and Child Health said that it accepted the judgment as a help in clarifying what should be done in "incredibly rare and difficult cases".

    Judge backs parents in refusing withdrawal of baby's life support, G, 16.3.2006, http://society.guardian.co.uk/health/news/0,,1731699,00.html

Prince was proud to be a dissident, aide claims

February 22, 2006
The Times
By Andrew Pierce

Prince saw political confrontation as vital part of his role, High Court is told

THE Prince of Wales was plunged into a constitutional row last night when the High Court was told that he deliberately flouted the convention that senior members of the Royal Family should steer clear of political controversy.

It was claimed that the Prince thought of himself as a “dissident” who, despite warnings from his senior advisers and ministers, regarded his role as working against the political consensus of the day.

The revelations are contained in a High Court witness statement by Mark Bolland, 39, a former deputy private secretary at Clarence House, which the Prince tried and failed to have heard in secret.

Mr Bolland said that ministers were so worried about the Prince straying into the political arena that they regularly telephoned him to complain.

The statement by Mr Bolland, who for seven years was one of the Prince’s most trusted aides, provided an extraordinary insight into the way the heir to the throne conducts his affairs. He was giving evidence for The Mail on Sunday, which is fighting the Prince’s confidentiality action.

Mr Bolland said that the Prince had ignored advice not to take on a campaigning role. His stance was in sharp conflict with other members of the Royal Family, who never became involved in, or expressed views on, political matters.

“This aspect of the Prince’s role has been created by him and has not, so far as I am aware, been endorsed either by the Queen or by Parliament,” Mr Bolland said.

The statement said that Mr Bolland was instructed by the Prince to publicise his decision to boycott an official banquet hosted by the Chinese President for the Queen in 1999 because of his hostility to the Beijing regime. Clarence House has denied the allegation.

Mr Bolland said that he and the Prince watched the coverage on Newsnight on BBC Two, which showed a mock-up of the Prince with a placard bearing the question: is this the only person allowed to protest? Mr Bolland said: “The Prince of Wales was delighted with the coverage. It certainly made the point he wanted to convey.”

Despite the best efforts of advisers, the Prince had not tried to avoid politically contentious issues, if he felt strongly about them. “In fact, he would readily embrace the political aspects of any contentious issue he was interested in and this is an aspect of his role which the Prince saw as particularly important.

“The Prince’s very definite aim in all this activity, as he explained to me, was to influence opinion. He saw that as part of the job of the heir apparent. He often referred to himself as a “dissident” working against the prevailing political consensus.”

Mr Bolland said that the Prince’s private office was “chaotic” and his private letters were placed in day files and seen by everyone there. “I remember on many occasions seeing in these day files letters which for example denounced the elected leaders of other countries in extreme terms and other such highly politically sensitive correspondence.”

He added: “We all used to try and stop the Prince writing these political letters, and, given that they were being written, also tried at least to stop them being circulated round the office because of the obvious risk of embarrassing leaks.”

When Sir Stephen Lamport took over as private secretary in 1996, Mr Bolland said that they had tried to “dampen down” the Prince’s tendency to make public his views and thoughts on sensitive issues on subjects ranging from genetically modified foods to education.

Of the Chinese state visit, he said: “The Prince chose not to attend the return state banquet at the Chinese Embassy but to attend instead a private dinner at his home with Camilla Parker Bowles and close friends. He did this as a deliberate snub to the Chinese because he did not approve of the Chinese regime.”

The Prince was aware of the importance of the state visit but “wanted to make a public stand against the Chinese. We tried to persuade him to attend, but to no avail.”

The Prince is asking Mr Justice Blackburne at the High Court to rule that The Mail on Sunday breached his confidentiality and copyright when it published extracts from his diaries in which he referred to Chinese diplomats as “appalling old waxworks”. The case was adjourned until today.

    Prince was proud to be a dissident, aide claims, T, 22.2.2006, http://www.timesonline.co.uk/article/0,,2-2052266,00.html

3.45pm update

City bankers lose extradition appeal

Tuesday February 21, 2006
Guardian Unlimited
Mark Tran

Three British bankers today face extradition to the US over fraud charges in connection with the Enron scandal after losing a high court battle.

The former NatWest executives David Bermingham, Gary Mulgrew and Giles Darby failed in their appeal to challenge the legality of the extradition orders made by a Bow Street district judge and confirmed by the home secretary, Charles Clarke.

Mr Bermingham said the British government had failed in its first duty, which he said was to protect its citizens, and the three were being used as "political currency" to "curry favour" with another government.

"This case is going to have a profound impact, not just on us, but many, many people, some who are already in the system," he said.

He added: "I can honestly say for the first time in my life today: I'm ashamed to be British."

The case has sparked widespread anger among the British business community over the perceived unfairness of the government's 2003 Extradition Act.

Mr Bermingham's MP, Boris Johnson, said there was "a serious imbalance and asymmetry" in the UK's extradition arrangements with the US.

He told BBC Radio 4's World at One: "They [the US] can, under the 2003 Extradition Act, Hoover over to America, as if by some electromagnetic power, people against whom they are not obliged to produce any prima facie evidence - whereas we have absolutely no such corresponding right to extradite to Britain suspects that we want to."

The three men, all British citizens, are accused of defrauding Greenwich NatWest, a subsidiary of British parent company NatWest, of some $7.3m (£4.2m).

US prosecutors allege that the men advised NatWest in 2000 to sell part of an Enron business it owned for less than the stake it was worth. They then left NatWest, bought into the firm themselves and sold it for a much higher price, pocketing about $2.7m each in the process.

The deal was allegedly carried out with the help of top Enron executives, including the former chief financial officer Andrew Fastow.

Lawyers for the NatWest trio fought the extradition on two fronts. They argued, first, that the Serious Fraud Office, not the US, should investigate the case and that any trial should take place in the UK. Second, they said the offences were not extradition offences and that putting them on trial in the US would be unjust and incompatible with European and UK human rights law.

But Lord Justice Laws and Mr Justice Ouseley dismissed both challenges.

The employers' organisation, the CBI, has accused the government and the US of abusing anti-terrorism legislation to extradite British executives to America.

Under the 2003 law, the US does not need to put a prima facie case before a judge in a British court, and is instead able to extradite suspects to America and keep them on remand before a trial. By contrast, US citizens cannot yet be extradited to Britain in a similar way.

The Home Office, however, pointed out that no one could be extradited unless sufficient information to justify arrest pending extradition was presented to a judge.

The US government argued that, even though a company incorporated in the UK was the target of the alleged illegal conduct, part of the fraud occurred in the US.

US lawyers described the alleged offence as a classic transnational crime, with some of the conduct occuring in the UK, some in the US and some in the Cayman Islands tax haven.

Mr Bermingham has said of today's case: "The stakes could not be higher. If we lose, the Trojan horse will have been safely delivered into the City. In matters of criminal justice, we would have become the 51st state of America."

Several other high-profile cases were awaiting today's decision, although the case could yet go to the House of Lords.

Enron collapsed in 2001 after it emerged that it had inflated its profits and filed false accounts to hide debts.

Enron's founder, Kenneth Lay, and the former chief executive Jeffrey Skilling are currently on trial in Houston, Texas, charged with several counts of fraud and conspiracy. If convicted, they could spend the rest of their lives in jail.

    City bankers lose extradition appeal, G, 21.2.2006, http://business.guardian.co.uk/story/0,,1714631,00.html

Music industry hails high court ruling against filesharing

Saturday January 28, 2006
The Guardian
Owen Gibson, media correspondent

A high court ruling has forced two men to stop sharing pirated songs on the internet, with a judge warning that ignorance of the law is no defence. The men were ordered to pay thousands of pounds in damages and costs after refusing to settle their civil cases with the trade body the British Phonographic Industry. Cases against three other people are pending.

The case, the first of its kind to be heard in a British court, was hailed by the industry as the clearest warning yet to those still using peer-to-peer networks to share pirated tracks on the web. "We have long said that unauthorised filesharing is damaging the music industry and stealing the future of artists and the people who invest in them," said the BPI chairman, Peter Jamieson. "Here is clear confirmation of what we also said - that unauthorised filesharing is illegal."

The first defendant, from Kings Lynn in Norfolk, argued the BPI had no direct evidence of any infringement. His defence was rejected and he was ordered to pay £5,000 immediately, with his total bill likely to top £13,500.

A Brighton postman's argument that he was unaware that what he was doing was illegal and that he did not seek to gain financially was dismissed by Mr Justice Lawrence Collins who said: "Ignorance is not a defence." He was ordered to make a immediate payment of £1,500, pending a decision on costs and damages.

The majority of the 139 cases launched against illegal filesharers since October 2004 have been settled before reaching court, with those accused paying fines of up to £6,500 and promising to stop sharing songs over the internet.

Those on the receiving end of the latest tranche of 51 cases, launched in December, have until the end of the month to settle. A number have had to settle on behalf of their children, despite being unaware that they were breaking the law.

The BPI general counsel, Roz Groome, said the rulings were "a massive step forward in the music industry's bid to fight illegal filesharing". Global record sales have slumped by a fifth in recent years as internet piracy took hold. And despite a backlash from record companies, recent figures show that the number of people illegally downloading music around the world has stubbornly remained static.

The BPI estimated that domestic record labels have lost out on sales of more than £650m in the past two years alone. But it believes that a combination of tough court action, the availability of more legal tracks and the education of consumers, will defeat the pirates.

The popularity of digital music players such as the iPod and the growth of broadband have led to a surge in legal downloads. The UK is the fastest growing download market in Europe, with sales quadrupling to 25 million in the past year.

    Music industry hails high court ruling against filesharing, G, 28.1.2006, http://technology.guardian.co.uk/news/story/0,,1696939,00.html

2pm update

Mother loses abortion 'right to know' case

Staff and agencies
Guardian Unlimited
Wednesday January 25, 2006

The mother of two teenage daughters today lost her high court battle for parents' "right to know" whether girls under the age of 16 were being advised on obtaining an abortion.

The legal defeat for Sue Axon, a divorced mother from Baguley, in Wythenshawe, Manchester, was being viewed as a test case with potential implications for parents across the country.

Ms Axon had argued that the current guidelines allowing teenage girls confidential family planning advice increased the likelihood of them having underage sex and then an abortion, which she opposes.

However, the high court in London today rejected the 52-year-old's challenge that parents had a right to know about the advice their daughters receive.

Mr Justice Silber ruled that Ms Axon, who has five children - or any other parent - had no right to know unless the child decided otherwise.

He said he would not change the law as Ms Axon's lawyers had requested. Lawyers for the health secretary, Patricia Hewitt, had fought the legal challenge.

The judge added that to force a girl to tell her parents "may lead her to make a decision that she later regrets or seek the assistance of an unofficial abortionist".

Outside court, Ms Axon - who will not be seeking leave to appeal - said she was disappointed, but did not regret bringing the case.

"I hope these proceedings will help parents and children to recognise the trauma of abortion and to talk openly about sexual matters," she said.

She added the judge had underlined that abortion can have severe medical and psychological consequences for the person concerned.

During a recent hearing, she had said she had been prompted to make the legal challenge after a termination she had 20 years ago resulted in "guilt, shame and depression for many years".

Lawyers for Ms Axon, who had launched the proceedings more than a year ago, had emphasised that her teenage daughters, 16-year-old Joy and Amber, 13, had not sought abortions and that she was bringing the case "as a matter of principle".

They later said her 16-year-old was pregnant and expecting in March, and that this showed the case was of "more than hypothetical interest" to Ms Axon.

"Having endured the trauma of abortion, I brought the case to ensure that medical professionals would not carry out an abortion on one of my daughters without first informing me," Ms Axon said.

However, the Department of Health and the Family Planning Association (FPA), which campaigned against Ms Axon's appeal, welcomed the ruling.

Anne Weyman, the FPA chief executive, said any change in the rules would deter young girls from seeking help on sexual health matters.

"Confidentiality is the single most important factor in a young person's decision to visit a health service," she said.

"Compulsory parental notification of their visit would have been a disaster, leading to young people staying away from services and risking unplanned pregnancy or sexually transmitted infections."

Ms Axon had attempted to challenge the legality of Department of Health guidance on the provision of advice and treatment to under-16s on contraception and sexual and reproductive health, issued in July 2004.

The guidance stated that although doctors should try to persuade children to tell their parents or another family member, terminations could take place without parental consent or knowledge if the child was mature and intelligent enough to understand the implications.

The main consideration is that the confidentiality of under-16s must be respected if they wish to terminate a pregnancy.

Ms Axon said the advice "undermined" her role as a parent and infringed her parental rights under the European convention on human rights.

The court today had to decide whether the current guidance was lawful. Ruling that it was, Mr Justice Silber said: "Everybody involved in this case is agreed that a young person should be encouraged to involve his or her parents on any decision on sexual matters."

However, he added that there were unfortunate situations in which a young person needed advice when they were not prepared to inform their parents.

If Ms Axon's case had been successful, it would have overturned the ruling in the 1986 case of Victoria Gillick, a Catholic parent who lost her attempt to prevent doctors giving contraception to her daughters.

Mr Justice Silber said the Gillick case and other arguments led him to support the July 2004 guidelines.

Speaking after the ruling, the public health minister Caroline Flint said: "This judgment confirms that our guidance is fully in line with the law."

She said it was "a very difficult issue" and that healthcare professionals should always try to persuade a young person to involve their parents.

"In the cases where this is not possible, every effort should be made to help them find another adult to provide support - for example another family member or a specialist youth worker," she added.

    Mother loses abortion 'right to know' case, G, 23.1.2006, http://society.guardian.co.uk/children/story/0,,1692999,00.html

High court to rule on parental consent for abortions

· Mother wants right to confidentiality abolished
· Change could stop young people seeking advice

Wednesday January 25, 2006
Polly Curtis
The Guardian

The high court will today decide whether girls under the age of 16 should be allowed to terminate a pregnancy without their parents' consent.

Sue Axon, 52, a single mother of five from Manchester, took the government to court last year in a judicial review challenging guidance giving teenagers the right to contraception and abortions without their parents' knowledge.

Ms Axon says parents should have the automatic right to know when their child is seeking a termination except where there is evidence they might be abusive.

During the hearing in November, lawyers for the health secretary, Patricia Hewitt, argued that guidance guaranteeing confidentiality to young people, except where they are considered to be at risk of abuse, was crucial. Without it, attempts to reduce the number of teenage pregnancies and tackle sexually transmitted infections would be compromised because teenagers would be put off seeking help.

Ms Axon told the Guardian that her argument centred on the fact that children could not get other serious medical treatment without their parents' knowledge. "A dentist can't take a tooth out without parents' knowledge, a schoolteacher can't give a plaster, you can't get a tongue pierced but you can get an abortion. How crazy is that?" she said.

After reading about Melissa Smith, a 14-year-old from Wakefield who had an abortion arranged by a school outreach worker without her mother's knowledge in 2004, Ms Axon investigated the guidance in her daughters' school and found the same could happen there. She contacted a solicitor and applied for legal aid.

Ms Axon said that an abortion she had at the age of 30, after which she suffered medical complications and depression, motivated her to take the case so far. "I wouldn't want my children to go through that without support from me," she said.

It emerged during the court case in November that her daughter, then 15, was pregnant.

"I set out to protect my own daughters. You can't change human nature and, of course, teenagers will still have sex, but they shouldn't be allowed radical medical treatment without my knowing," she said.

Ms Axon said current guidance provided a cover for abuse. "As it stands, this guidance just protects abusive parents and paedophiles. They can continue to abuse and no one finds out," she said.

But the government and campaigners argue thatconfidentiality is crucial. Susie Daniel, London chief executive for Brook, which offers confidential advice to teenagers, said: "We would have an uphill battle to persuade young people that we are still a safe place to get advice if the law changes. Confidentiality is key to working with young people."

A spokeswoman for the Department of Health said it stood by its guidance and declined to comment further before the judgment.

FAQ: The law

Can under-16s get contraception and abortions without their parents' knowledge?

Yes. Department of Health guidance makes clear that the young person's right to treatment overrides their parents' right to know. The exception is when an advice worker, nurse or doctor suspects the child is being abused, in which case they are compelled to tell the police.

How long has confidentiality been in place?

A case brought by Victoria Gillick in the early 1980s led to the legal establishment of the right to confidentiality in accessing contraception for under-16s. There are provisos: the practitioner must be convinced that the teenager understands their decision and that attempts were made to persuade them to tell their parents. The DoH guidance issued in 2004, which Sue Axon is challenging, says the practitioner should also try to get the young person to tell another responsible adult if not their parent.

If Ms Axon wins, what will change?

Ms Axon wants parents to be told automatically when their child is requesting an abortion, except where professionals are convinced that the child's safety would be compromised by abusive parents. It would override the 2004 guidance.

'I won't ever tell my mum about it'

Case study: Stephanie, 14, Brixton

I was pregnant last year, I had an abortion. When I found out I started asking my mum questions to see how she would react if I told her and she got suspicious. She just said that she would chuck me out of the house if I did that. I didn't say anything after that.

I kind of wanted to tell her. Then if I needed someone to talk to I could talk to her. But I don't think it's my mum's business to know about my sex life.

I won't ever tell my mum about it now. She would get more mad at me now for not telling her at the time.

I wouldn't have come to a clinic if they contacted my parents. That's the most important thing about getting that support. When I came to the clinic they spoke to me and tried to find out whether I was being pressured by my boyfriend.

If they wanted to tell my mum I would still have sex, but I wouldn't go to a doctor. I would try to get a friend to get contraception for me. I don't know what I would have done when I was pregnant.

    High court to rule on parental consent for abortions, G, 23.1.2006, http://society.guardian.co.uk/health/news/0,,1692576,00.html