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Best interests of children: new Supreme Court case

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The Supreme Court has today handed down judgment in a major case on the best interests of children generally and the best interests of British Citizen children specifically.

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 finally addresses the weight to be given to the right to a British Citizen child to grow up int he country of his or her nationality. In short: a lot. The best interests of children are a primary consideration and although they will not always determine the outcome of a case, no other factor should be given more weight. Lady Hale gives the leading judgment with which the other judges all agree. Lord Kerr’s judgment is perhaps the most explicit:

It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.

The court is also very clear on the point that the sins of the parent must not be visited on the child. The mother in this particular case had behaved very badly indeed in immigration law terms, but that was of no relevance in determining what should happen to the children. To remove the mother would effectively exile the children from their home country. The court held that this was unacceptable.

Perhaps now, finally, UKBA and the immigration tribunal will start taking the rights of children seriously.

Finally, a special mention to Joanna Dodson QC for the intervener in the case, she being a fellow tenant at Renaissance Chambers.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.
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Comments

11 Responses

  1. I agree that this is a landmark judgment and one which equally importantly, in terms of Article 3 CRC best interests, also makes explicit that the SSHD and the courts have an obligation to ensure that the rights under Article 12 CRC that the child’s views, wishes and feelings are heard and taken into account. Early, child sensitive, legal representation and child-focused procedures now have to be implemented across all relevant government departments, particularly the Home Office and Ministry of Justice and given emphasis in their safeguarding duties, so that the principle of best interests is given its full and proper weight in accordance with this judgment.

  2. Indeed a good judgement.What really surprise me all sensible judgement regarding childern,artcile8 and other came in last two years.Not to mention Baku,ckikwamba,WV,KB(KOsovo) came in this period.I wonder what court where doing in last 20 years.Very few(equall to zero) good decision.

    At least justice is prevailing now.Not socalled justice where you say a mother or father to leave your childern behind in Uk and enjoy yours private life in yours home country.

    I have seen where parent of 2 or 3 childern are asked to leave and this would not be breach of their private life.

    Stvert

  3. I found a lawyer’s website stating ECHR applications were being efficiently handled within 2 to 6 months by UKBA.

    It appears not yet to be universally true for all applications, but an ECHR application by a friend took only 6 weeks.

    I think the DP5/96 withdrawal by Woolas is resulting in a backlash by the courts & judges in ECHR cases involving children.

    1. I agree with the judgment though do have some concern about some parents (and it pains me to say it as a man but it will invariably be men) who will now see having children as a get out of jail free card/ licence to commit crime without the risk of being deported.

      On a separate point I doubt the DP5/96 had anything to do with this judgment. That was/ is a relatively new policy and prior to its introduction the courts clearly didn’t appear to feel the need to act on the point.

      On balance I think Section 55 is probably more generous than the DP5/96 policy in any case.

    2. In my view this judgment important for women not men.I.e If a mother who has not leave and asked to leave with his British Son,has a good chance for getting visa.As normally women has residency of childern so good for them.

      Stvery

  4. Would this case have got to the Supreme Court had legal aid been cut for both the stage of making an application to the Home Office and any appeals against refusal where arguments are based on the right to family and private life under Article 8 where the person faces removal/deportation as ILPA suggest?

    1. The piece is idealogical and legalistic, lacking in practicality and foresight.

      Exiling British children, and potentially also separating their parents, the long term effects to children (including disaffection to UK) could be enormous.

      If, in 20 years time, this child returns as a disaffected young adult and commits a terrorist act, I think more people would question the wisdom of exiling British children.

    2. I’m completely confused by the link between the ‘exiling’ (which isn’t the right word as they are always entitled to come and go to the UK as they please) of a child and a terrorist act.

      Do you have any evidence which demonstrates a link between the two?

      Or have you simply misunderstood the meaning of the word terrorism which isn’t an easy concept to define?