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