Analysis: Children’s “best interests” and the problem of balance
2 February 2011
ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4 (1 February 2011) – Read judgment
This case (see yesterday’s summary) is illustrative of two misconceptions about rights that we are all in thrall to from time to time.
One is that there is a fundamental hierarchy of human rights which allows certain interests to prevail over others in all situations; the other is that this hierarchy is determined by considerations that are morally and politically neutral. A prime example of this kind of principle is the idea of the “overriding rights of the child”, a consideration with a perfectly orthodox role in family law, but one whose application to human rights as a whole is questionable.
The child’s ‘best interests’ may indeed be, in Lord Kerr’s words, “a universal theme of various international and domestic instruments” but theme is all it is; it essentially lacks content. Invoking it in care proceedings or a specific custody dispute is not problematic because the fact-specific circumstances of those cases points the adjudicator in a particular direction. But in the context of the instant case the concept of “best interests” is essentially directionless.
For a start, “best” is never defined. The United Nations Committee on the Rights of a Child refuses to offer a precise definition, nor is it even prepared explicitly to outline the common factors of the best interests of the child. That is because the concept, undefined as it is, has no inbuilt constraints and that makes it politically and rhetorically a whole lot more useful than the rights enumerated in the Convention, circumscribed as they are. The fact is that packing an agenda in the vocabulary that everyone honours – for who would tilt at a child’s best interests – undermines the very bulwark erected by the law against individual preferences and prejudice.
This case demonstrates exactly how this happens.
The Tribunal Decision
The Tribunal went about this appeal applying the normal rules about Article 8 family life versus Article 8(2) economic interests of the country (migration control) (Appeal Number IA/01284/2008). They found that, on balance, removing the mother would be in accordance with the law for the purpose of protecting the rights and freedoms of others.
The Court of Appeal
Before the Court of Appeal it was argued that the British citizenship of the children was a “trump card” preventing the removal of their mother. This was rejected as inconsistent with the authorities, and in particular with the principle that there is no “hard-edged or bright-line rule”, EB (Kosovo) v Secretary of State for the Home Department  UKHL 41,  1 AC 1159. The Court of Appeal upheld the decision below.
The Supreme Court
The Supreme Court concluded that the Court of Appeal had fallen into error in endorsing the Tribunal’s approach that the fate of the children could be determined in the light of the fact that they were conceived in the knowledge that the mother’s immigration status was precarious.
The Strasbourg court has laid out a number of factors which should be taken into account when determining the proportionality or otherwise of the removal of an alien. In Üner v The Netherlands (2007) 45 EHRR 14 one of these factors is
(vi) the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life.
It was acknowledged that the appellant in this case had had her two children knowing that her immigration status was precarious. The Tribunal had even commented that having her second child was “demonstrably irresponsible” (para 5.8). Otherwise, her claim to family life were not particularly persuasive, since she had been separated from the father of the children for a number of years.
It is difficult to see why the deliberate choice of someone subject to immigration control to have children can be allowed to create a right to family life associated with remaining in this country when all other factors necessary for an Article 8 claim are lacking. Indeed Lady Hale even says that the equivalent of factor (vi) for a spouse is whether family life was established knowing of the precariousness of the immigration situation.
Nevertheless the Supreme Court was unanimous in its view that this could not be a determining factor when the welfare of children was at stake.
There is an obvious tension between the need to maintain a proper and efficient system of immigration control and the principle that, where children are involved, the best interests of the children must be a primary consideration
The trouble is the very tension (which is the stuff of adjudication) is done away with at a stroke when the “best interests” principle is allowed to prevail.
It is said time and time again, in Strasbourg as well as domestic courts, that Article 8 (the right to private and family life) does not entail a general obligation for a state to respect immigrants’ choice of the country of their residence. When family rights are invoked, it is stressed, the state’s obligations to authorise family reunion in its territory will depend very much on the individual circumstances of the case. There is no hard and fast rule.
But if this judgment is followed to its logical conclusion, it would seem that there will never be a case where removal of an alien will be allowed if there are children in the picture, because the children’s interests will always trump the other factors which the removing authorities are required to take in to account. Or, to put it another way, it is impossible to imagine any judge or tribunal reaching a view (that remains untouched by appeal) that it is in the best interests of a child to be removed from a Convention signatory country, or that the economic interests of the latter should ever prevail over the best interests of the child ( see for example Rodrigues da Silva, Hoogkamer v Netherlands (2007) 44 EHRR 34).
To be fair, the Court of Appeal was not prepared to go as far as the United Nations Committee on the Rights of A Child by insisting that only “rights-based” considerations could override the bests interests of a child, and that general migration control could never be one of these considerations. Lady Hale observed that this was a difficult distinction when applied to Article 8(2), each of which legitimate aims
may involve individual as well as community interests…it is not easy to see why the protection of the economic well-being of the country is not also protecting the rights of other individuals.
Having thus refused to confer a superior moral status on children’s interests however Lady Hale goes on to acknowledge that, in reality, the general economic well-being is a weak consideration compared with that of an individual with an articulated specific claim, a name, a personal history and identifiable circumstances:
In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration… In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother’s appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her.
So in other words a determination that takes into account the usual principles of Article 8 jurisprudence amounts to a verdict on the children which “blames” them for their parents bad behaviour. The objection to this line of reasoning is that it evacuates the balancing act of any content by first taking away the usual factors by which we measure whether one case is deserving and the other not and then substituting for these measures a mechanical test – the question: “is this in the child’s best interests”? It cannot be the intention of the assembled jurisprudence on Article 8 and immigration law that the complexity of all the questions involved should be so reduced.
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The looseness of the term “best interest” is reflected in the fact that family courts can place children in situations described in http://anyachaika.wordpress.com. Is there any case law in the UK relating to this practice? I know there have been many legal challenges in the US.
This was a really interesting article to read, I learned a great deal from it. With all modesty, I’m not sure though that I would agree with the authoress on the points she makes in relation to ‘best interests’ being directionless in the context of this case or that the lack of a ‘best interests’ definition is an exclusive problem to the human rights field and therefore one to be shunned as a focus point in certain cases involving children outside of the family law remit and indeed the issue regarding interpreting themes substantively, which is part and parcel of judicial reasoning.
Family law continues to work away at certain definitions like ‘welfare’ (yes, there is a checklist but it is basic, some would argue even too basic but it is designed to leave room for flexibility) and ‘significant risk’ which continues to confound and frustrate, but this has never been a reason to shy away from evolving the sector’s legislation for the greater good.
I agree that there are practical realities in the case such as the mother’s possible motives for having children pending her status being evaluated (the implicit suggestion here being that she became pregnant perhaps with a view to increasing her chances of staying in the UK – but I’m not sure this was proved in the case)and the possibility that by putting the welfare of the children in these sorts of cases first that it might create an economic difficulty by way of a floodgate of some kind and yet noble values are not just ornamental mantras – they are, if followed earnestly, stepping stones to a democratic and economically functional society. And of course a just one.
Nevertheless, I did not find the judgment to be absolute; there were nuances to the decision as the authoress also highlights and judicial discretion still works so that every case will turn on its own facts. Something in this case made Lady Hale choose to extend her application of the law in a way which gave significant weight to the children’s best interests and I daresay with good reason. To date, Lady Hale is one of the few judges who are truly alive to both life and law in the court room. Perhaps that may seem ironic in light of the criticism laid down in this article.
The authoress says “packing an agenda in the vocabulary that everyone honours – for who would tilt at a child’s best interests – undermines the very bulwark erected by the law against individual preferences and prejudice”, but does it, really? And don’t all cases culminate, in any event, in someone’s individual interests or preferences being protected? In the case of family and the noble value we place upon it, I’m not at all convinced that that should ever be a bad thing.
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