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Children’s best interests after ZH (Tanzania)


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The host of the UK Human Rights Blog, 1 Crown Office Row, is a chambers that claims “23 Attorney-General’s Panel counsel in 2010”. Sadly, the 2nd February article Analysis: Children’s “best interests” and the problem of balance is a rather negative and sadly dismissive perspective on the subject of children’s rights.

Whilst the academic jury is still out on whether best interests is so universally accepted as to amount to jus cogens, the near total ratification of the Children’s Convention by all bar Somalia and the USA, certainly gives Article 3 of the Children’s Convention a very heavy weight and important ranking in international human rights law, as the Supreme Court in ZH (Tanzania) have now endorsed.

As well as being a rather negative response, Rosalind English’s analysis is, with respect, just wrong. ZH does not establish a hierarchy in the unimpeachable sense that is implied in her article. Kerr L at para 46 clearly describes the importance of best interests but does not say it is a trump card as is asserted. An assessment of a child’s best interests must be a necessary preliminary step when taking any decision affecting a child and be accorded a very significant weight.

When states formulated Article 3 of the Convention they decided that children’s best interests should be “A” primary consideration not “The”. Primary clearly has its ordinary meaning and significance and indeed the SSHD argued this in court in ZH. On any ordinary construction primary must mean first. By then qualifying it with the indefinite article it can only mean that it is to be treated as “primus inter pares”, first amongst equals and not just another general consideration to hold in the Article 8 balance.

The widely respected Professor Alston concluded, on an analysis of the travaux preparatoires to the Convention that

“whenever other interests are to tip the balance away from a decision in the child’s best interests, the burden of proof will rest on those seeking to follow that approach to show that no other acceptable alternative exists” (Alston, 1994, p. 9).

That is in effect the approach adopted by the Supreme Court in ZH, no more, no less. This is a proper reflection of the intention of States including the UK, when drafting and later ratifying the treaty.

What ZH does is to re-iterate at the highest domestic court level what a long line of international academics, case-law, UN and EU committees and other expert guidance has all said: that the CRC’s core principles of non-discrimination, best interests, survival and development and the right to be heard serve to inform the content of all our international and domestic human rights obligations.

It is after all, the UK’s self-imposed limitation on its own sovereignty, having accepted those duties on ratification of the UNCRC (albeit it with fingers-crossed) and which is also expressed in our Lisbon treaty obligations as an EU member state. The UN Committee on the Right’s of the Child’s own expert view, in CRC General Comment Number 5 on the general implementation of the Children’s Convention, emphasises the interdependence and indivisibility of all human rights.

The fact that the UK maintained a general reservation to the Convention on matters of immigration control until December 2008 has severely distorted and inhibited the development and legally correct approach to children’s rights in our domestic policies. The case law in our immigration tribunals on Article 8 in particular has had to develop until recently under that shadow.

Now that the reservation has been removed, we must take it that the UK government intended to implement rights for migrant children in the fullest way possible. The Supreme Court helps government to understand what that entails, it does not inhibit it. The UK Border Agency, already obliged to comply with its safeguarding duties under s.55 of the Borders, Citizenship and Immigration Act 2009 must now swiftly move to bring all its policies and just as importantly, its practice into line with the Supreme Court’s guidance in ZH.

Its amplification of the weight to be given to best interests and its relationship with the right of the child to be heard, has implications for all children caught within the decision making of the UKBA, dependant and unaccompanied children alike.

This post was contributed by Syd Bolton of the Refugee Children’s Rights Project.

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Syd Bolton

Syd Bolton is a lawyer specialising in working for children and refugee rights. He is currently not in practice in the UK.


6 Responses

  1. IMHO, the immigration system made 2/3* serious errors of judgement when handling the cases concerning ZH.

    1. The DP5/96 application refusal. Why?
    2. The wrong use of the proportionality argument.
    *3. A lack of compassion given that the childrens’ father was HIV +.

    Now that S.55 has arrived, DLR should have been issued to resolve this case earlier than it was.

    As far I can tell, the only mystery remaining is why the DP5/96 refusal wasn’t appealled, or if it was, why that failed as well.

    1. Under DP5/96, the presumption to not pursue removal where a child had been here more than 7 years, could be outweighed “where removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground; (or) where either of the parents has a history of criminal behaviour or deception.”

      I refer you to Para 2 of ZH: “She made three unsuccessful claims for asylum, one in her own identity and two in false identities.” It was her own appalling abuse of the system which had got her in the situation she was in.

      I think up to the very recent point where the Supreme Court have decided that our S.55 duty trumps all else (before you start, I know it is a lot more nuanced than that) this case had been properly dealt with by UKBA and Judiciary alike.

      On a slightly different note, my thoughts on the case. As a parent of 3, I have often sat in court and thought how I would feel if it was one of my children being taken away from the home and school and friends they know to live in an essentially foreign country. Or indeed how they would feel if there Mum was suddenly sent away for a few months to get entry clearance abroad. Thankfully, women from Dudley have the right of abode so we will never have to face such a situation.

      I don’t underestimate the stress the exercise of immigration control can bring to a family and I fully empathise with those children. I don’t disagree that the best interests of these children should be a very significant factor in weighing up questions of proportionality.

      I just wish that it would be recognised more often that the cause of such stress is generally, as in this case, the poor behaviour of the parents and not the actions of this supposedly monolithic uncaring inhuman government department. UKBA is made up of thousands of (relatively) poorly paid staff, from across the political spectrum, many of whom are parents too and do regret the consequences of some of our decisions for individual families.

    2. “Under DP5/96, the presumption to not pursue removal..”
      ..and hence regularise.
      Refusing, & also not pursuing removal is a “dereliction of duty” according to some, including FM.

      ZH had no history of criminal behaviour outside of immigration law as far as we can tell.

      Leaving the mother unable to work, and hence unable to support her two British children, especially when their father has HIV, would cause child poverty.

      Hopefully as a parent you are able to now see the need for S.55 in the UKBA.

      Nothing in your reply relates to the 3 serious errors of judgement as far as I can tell.

    3. I agree with a lot of what you say. Domestic law fundamentally changed with the removal of the reservation to UN Convention on the Rights of the Child and the section 55 duty. UKBA as an institution, which I’m afraid is inevitably how lawyers and the public alike perceive a government department, is yet to grasp what has happened and adjust processes and thinking in line with the new duty. I don’t know who told Ministers that removing the immigration reservation to the UNCRC would mean business as normal, but they were very, very wrong.

      I think a lot of the problem comes from case hardening. Civil servants at UKBA and immigration judges spend all their time dealing with immigration control issues and come to think that immigration law is imperatively important. It isn’t. It is just a bunch of artificial and often arbitrary rules that tell real, ordinary people that they cannot live their messy, human lives. There are more important things than immigration controls, basically. Families and children for starters.

  2. I agree totally with your analysis SB. What is shocking is that it has taken the Supreme Court so long to arrive at this point. With the withdrawal of the concession relating to families with children who have lived in the UK for 7 years or more (reason given by the UKBA being that it was all covered under the HRA anyway) decisions have come out thick and fast from the UKBA saying these children “can easily adapt” if removed.

    What is even more shocking is that the UKBA is still not considering Section 55 of the BIA after spending so much money producing “Guidance” to its staff. It is sad to read a four page refusal letter with not a mention of Section 55! The courts will be kept very busy and so will the lawyers!!!

    1. I couldn’t agree about the failure to have regard to section 55. There is a need for a MASSIVE change of attitude and approach at UKBA.