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Best interests of children: new Supreme Court case

Best interests of children: new Supreme Court case

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.

Free Movement

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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