Best interests at heart

The Supreme Court has handed down a major judgment on the protection of children’s rights. Manjit Gill QC and David Nicholson analyse a ruling that could have implications for a wide range of fields.

As the only case at Supreme Court level providing guidance specifically on the duty to protect the best interests of the child with reference to the importance to be placed on the child’s British nationality, the judgment in ZH (Tanzania) v SSHD [2011] UKSC 4 (1 Feb 2011) is of particular relevance for immigration lawyers, family lawyers and social services departments. However, the reasoning may also have implications for the approach to be adopted in other fields (e.g. criminal cases, decisions to detain mentally unwell persons) where the issue of separation of children from a parent is being considered.

The single appellant was the Tanzanian mother with her two British children, born of a British father in the United Kingdom, being joined in as interveners. The principal issue concerned the weight to be attached to the best interests of a child when a parent or parents are to be removed from the UK and, more specifically, the importance to be attached to rights flowing from British citizenship when considering whether or not the Tanzanian mother, who had no rights to remain in the UK, should be removed. The parents were not living together but the father regularly visited the children and therefore played a meaningful role in their lives. He was an alcoholic suffering from HIV and could not reasonably be expected to visit the children if they were forced to go with the mother.

Shortly before the hearing, the Secretary of State accepted that on the facts, the Asylum and Immigration Tribunal had been wrong to dismiss the mother’s appeal under Article 8 ECHR and that the Court of Appeal had erred in upholding the Tribunal’s determination. The Court however decided to hear the case in order to give guidance on the issues.

The leading judgment was given by Lady Hale. The Court considered the duty flowing from the United Nations Convention on the Rights of the Child 1989 article 3, that the best interests of child shall be a primary consideration in all decision-making. It held that in certain types of decisions which directly affect a child’s upbringing, the protection of the child’s best interests would be the determining factor. However, in the case of other decisions which indirectly affect a child, such as decisions where the parent or parents are to live, the best interests of the child is a primary consideration. (Such decisions include decisions to detain or imprison).

The Court assessed how the child’s best interests should be evaluated in the context of separated families. It also considered section 55 of the Borders, Citizenship and Immigration Act 2009 which seeks to implement the article 3 duty, various General Comments of the United Nations Committee on the Rights of the Child, and various decisions of international courts.

The Court held that decision makers, and the Courts charged with considering appeals against their decisions, should apply the principle that in such cases the starting point is that the children’s best interests must be a primary consideration. The next question would be whether their best interests are outweighed by the strength of any other considerations, including the demands of immigration control.

The Court held that where the children were British nationals, that factor was a very significant and weighty factor which had an “intrinsic” and “particular importance” in the assessment of the children’s best interests. It was therefore necessary to take into account that the children stood to lose the UK’s protection and its support, socially, culturally and medically, and in many other ways. It was necessary to take into account the resultant social and linguistic disruption of their childhood, the loss of their homeland, the loss of educational opportunities available to them in the UK, and the resultant isolation from the normal contacts of children with their father and their father’s family. Lord Kerr noted that to diminish a child’s right to assert his or her nationality will not normally be in his or her best interests and that if a child is a British citizen, this has an independent value which must be weighed in the scales.

The Court also noted that the Court of Appeal had wrongly endorsed the Asylum and Immigration Tribunal’s decision to assess the reasonableness of the children living in Tanzania with their mother in the light of the fact that the mother’s immigration history was appalling and that the children had been conceived by her in the knowledge that her immigration status in the UK was precarious. The Court held that this should not have diminished the children’s interests when they could not be blamed for the mother’s activity. As Lord Hope put it: “It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible.” This principle, of not visiting the sins of the parent on the child, may well have importance for other fields.

On the facts, the Court held, despite the mother’s appalling immigration history, that the best interests of the children were such that there could only be one outcome and the Tribunal ought to have allowed the mother’s appeal against the Secretary of State’s decision to remove her.

The Court also emphasised the importance of the guidance of the UN Committee on the Rights of the Child in General Comment No 12 (2009) on the Right of the Child to be Heard.

The court’s decision calls on decision-makers to ensure that, wherever necessary, children's voices are heard at an early stage of the decision-making process, if necessary through separate representation. Decision-makers must be at least prepared to consider hearing directly from a child who wishes to express a view and is old enough to do so.

The case is a very significant milestone in the protection of children's rights generally. It requires decision-makers and courts to recognise the particular benefits that flow from the possession by a child of British Citizenship. It is also likely to inject a more rigorous approach to the taking into account of the best interests of the child wherever decisions are made which may indirectly lead to the separation of a child from a parent, including decisions to imprison or detain as well as to expel or to remove from the country. This is likely to have an impact on sentencing decisions, decisions of social services departments, extradition, immigration, and other forms of detention such as the detention of the mentally unwell. In all such cases the best interests of any children involved must be taken into account as a primary consideration of very significant weight. The court's reasoning adopts the approach that the sins of parents are not to be visited on children.

This does not mean that parents who abuse immigration control can never be removed, nor does it mean that parents who commit crimes can never be imprisoned or detained if this is likely to be against the child's best interests. However, the Supreme Court has set the bar at a high level and, in this particular case, it held that, even though the mother's immigration history was appalling, the best interests of her children required that she should not be removed from this country.

Manjit S Gill QC and Edward Nicholson are barristers at No5 Chambers, London (www.no5.com).