Buckland v. The United Kingdom (Application no. 40060/08) 

Ms Buckland argued that the fact that she was not able to challenge the making of a possession order amounted to a violation of her rights under Article 8 of the European Convention on Human Rights. The European Court of Human Rights held that there was no mechanism for her to challenge the making of the possession order, this was not a proportionate interference with her right to respect for her home and thus was a violation of her rights under Article 8. 

Facts:  

Ms Buckland lived on the Cae Garw caravan site in Port Talbot, Wales with her two children. They all identified as Gypsies. The site they lived upon was owned by Neath Port Talbot County Borough Council. On 30th December 2004, the Gypsy Council, who managed the site on behalf of the County Borough Council, issued Ms Buckland a notice of termination of the licence, which was to expire on 6th February 2005. Similar notices of termination were given to her parents, who were also living on the site.  

On 2nd August 2005, the Council applied to the Court for a claim for possession against Ms Buckland and members of her family living on the site. The Council claimed that they had caused substantial nuisance in the site to the detriment of others living there. On 25th July 2006, the County Court considered the preliminary issue of whether Ms Buckland could challenge the decision the making of a possession order. It was found that she could only challenge the domestic law itself or apply for leave for judicial review on the circumstances of her case. Ms Buckland instead applied for a temporary suspension of the possession order, which the court granted on the basis that she had not engaged in poor behaviour on the site. The court did find that her son had engaged in such behaviour, and as such granted the possession order which was suspended on the basis that her son leave the site.  

On 18th April 2007, Ms Buckland appealed the possession order to the Court of Appeal. She was still resident at the site at this time. Her appeal was dismissed. The Court of Appeal agreed with the County Court that a public law defence was not available to Ms. Buckland. She had also argued that this lack of an appeal mechanism was incompatible with her rights under Article 8. The court accepted that as a part of a minority, “special consideration should be given to their needs and different lifestyle”. However, it was held that the extent of the procedural safeguards in place to protect the Article 8 rights of such minorities was a matter for national authorities to determine. The Mobile Homes Act 1983 was to be amended by a bill introduced in November 2007, allowing a defendant to challenge the reasonableness of making a possession order in court. The court considered this to be a sufficient degree of protection for Article 8 rights. Ms Buckland applied to appeal to the House of Lords but was refused.  

Ms Buckland left the site in May 2008 and moved to alternative accommodation on land owned by her brother. This land had minimal residential facilities, such as one toilet for ten people and one sink with cold running water in a shed with no lighting. 

Issues: 

Ms Buckland argued that the Court of Appeal’s decision to allow the possession order was in breach of her right to respect for her home and her family life, as protected under Article 8 of the Convention.  

Admissibility

The United Kingdom argued that Ms Buckland had stated that she intended to leave the site when her parents left, as they had not contested the possession order. Thus, they contended, she was not affected by the possession order or the suspension of the order. The United Kingdom claimed that Ms Buckland was challenging the domestic law on a theoretical basis and was not in fact a victim as necessary to make such a challenge under Article 34 of the Convention. 

Ms Buckland stated that she had received legal advice that there was no way in which to challenge a possession order. She had not decided to leave the site of her own free will, but because her parents were forced to leave, and that this was a breach of their rights under Article 8 and 14 (principle of non-discrimination) of the Convention also. She also submitted that she had stayed on the site until May 2008, when she was threatened with eviction, and this showed her unwillingness to leave the site. The case was held to be admissible. 

Merits  

Ms Buckland claimed that there had been an interference with her right to respect for her home under Article 8. The United Kingdom accepted that a possession order would usually amount to such an interference but in light of her intention to leave the site with her parents and the suspension order in place until that time, no interference arose in these circumstances.  

Ms Buckland further argued that the ability to apply for suspension of the protection order provided insufficient protection of her Article 8 rights. She also referred to the Mobile Homes Act 198, which restricts the eviction of persons living in caravans from “protected sites”. Protected sites were defined as land authorised for long-term residence, yet excluded any site owned by a local authority for the purpose of providing accommodation for Gypsies. The Housing and Regeneration Act 2008 amended this definition to include such sites, but this had not yet entered into force in Wales. 

It was also argued that the decision to grant a possession order was disproportionate in the circumstances in light of her own behaviour and the obligation on the State to facilitate her traditional way of life.  

The United Kingdom contended that the possession order pursued the aims of protecting the local authority’s interests as owner of the site and protecting the rights of other occupiers of the site.  

In assessing the necessity of the interference, the Government argued that Ms Buckland had the right to apply for a suspension of the possession order, and being granted such an order, the entitlement to argue for a further period of suspension. The United Kingdom also claimed that the ability to suspend the possession order was sufficient to satisfy the requirements of Article 8. 

The United Kingdom further submitted that the making of the possession order was proportionate in the circumstances, on the basis of the findings of misconduct on the part of Ms Buckland’s son.  

Reasoning: 

In terms of the admissibility of the case, the Court accepted that Ms Buckland had previously stated that she intended to leave the site when her parents did. The Court, however, emphasised the fact that she did not leave the site until May 2008, after the suspension period had expired. It was concluded that Ms Buckland was in fact affected by the making of the possession order and could challenge the decision of the Court of Appeal as a breach of her rights under Article 8 of the Convention. 

The Court considered the case Doherty and others v Birmingham City Council, which was decided in the House of Lords after Ms Buckland’s appeal had been dismissed. Similarly, to Ms Buckland’s case, it involved the eviction of Gypsies from a local authority caravan site. Lord Hope held that it would be permissible to argue that the domestic law itself was incompatible with the Convention as the protections afforded were not sufficient. In another subsequent case Manchester City Council v Pinnock, which concerned possession proceedings, the Supreme Court found that in order for domestic law to be compatible with Article 8, it would be necessary for the court to have the power to assess the proportionality of making a possession order. The Supreme Court stated that this may require statutory amendment of the law to be in line with Article 8 of the Convention.  

The Court was satisfied that there was an interference with Ms Buckland’s right to respect for her home. It was stated that the question to be decided was whether the interference was “necessary in a democratic society” in pursuit of a legitimate aim as required under Article 8(2) ECHR. For this test to be satisfied, the interference must be proportionate to the aim. The Court noted that procedural safeguards available, such as entitlements to appeal and review decisions, are material in deciding the proportionality of the interference. The Court emphasised that losing a home is the most extreme form of interference with Article 8 rights. It was stated that any person at risk of an interference of this kind should be entitled to have the proportionality of the decision considered by an independent body in light of Article 8. Ms Buckland sought to challenge the making of the possession order but was unable to base this on her personal circumstances.  

The Court found that the possibility of suspension was inadequate to provide the necessary procedural guarantees to protect Article 8 rights. Suspension does not remove the threat of eviction. The Court did not think it sufficient that an individual may be able to stay in their home by virtue of repeated applications to extend suspension orders and stated that this would not be compatible with Article 8.  

It was also noted that the County Court judge found that a suspension order would be justified in Ms Buckland’s case, and that the suspension order was granted for the full period sought. 

Conclusion: 

The Court concluded that the fact that it was not possible for Ms Buckland to challenge the decision of the possession order on the basis of disproportionality in the domestic courts amounted to a violation of her right to private and family life under Article 8 of the Convention. The Court also found that the procedural safeguards necessary for Article 8 in the consideration of proportionality of the interference were not observed in this case.  

Ms Buckland had also argued that the making of the possession order constituted a violation of her rights under Article 14 as well as Article 8. Article 14 states that a person shall enjoy the rights and freedoms set out in the Convention without discrimination. The Court, on finding there had been a violation of Article 8, did not find it necessary to examine the complaint under Article 14 separately. 

The Court held that the United Kingdom was to pay Ms Buckland €4000 for damages and another €4000 for legal fees.