2011 02 Children

Tuesday 1 March 2011

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Case Law

R (FZ) v LB of Croydon [2011] EWCA Civ 59 (Sir Anthony May (Presiden of the QB); Smith LJ and Aikens LJ): Guideline case from the Court of Appeal on the correct approach to be taken by local authorities and the court to resolve a dispute over age of an unaccompanied asylum seeking child. The correct question the Court must ask at the permission stage is whether the material before the Court, taken at its highest, support the putative child's claimed age. If so, permission should be granted subject to normal considerations such as delay, whether the claim is academic, etc. Judgment also deals with issue of transfer from the Administrative Court to the Upper Tribunal (Immigration and Asylum Chamber) following the grant of jurisdiction to the Upper Tribunal via the First-Tier Tribunal and Upper Tribunal (Chambers) Order 2010 (SI/2010/2655)

Jan Luba Q.C. and Shu Shin Luh of Garden Court Chambers represented the Claimant child. Click here for the judgment.

See further information about the case in the Practice Notes section of the website

Other matters:

The Committee on the Rights of the Child issued General Comment No 13 on 17th February 2011 addressing the issue of Article 19 (Right of the Child to freedom from all forms of violence). Click here to see the comment. The Committee provides a very wide definition of violence - see Section IV of the General Comment. In particular, it stresses that violence is not just physical violence against the child, but includes psychological / mental violence against the child; between children (bullying, harassment); self-harming (emotional and physical), that is the child's own infliction of harm on him / herself; child abuse, etc. The General Comment reminds states to ensure that judicial systems and legislative mechanisms are in place to protect the child against all kinds of violence.

Following the Supreme Court's judgment in ZH (Tanzania) v SSHD [2011] UKSC 4 (see Migrants Update February 2011), it is clear that the UNCRC and the rights it affords children is directly applicable in domestic law. The General Comment is worth a read and can be useful in framing the way practitioners ought to think about what constitutes violence against the child in ways that are beyond the conventional and well-established categories, such child abuse and corporal punishment. That violence includes violence inflicted by the child on himself / herself and bullying by one child against another is particularly important to note.

The UNCRC Complaints Mechanism met the approval of the member-states on 17th February 2011. This marks an important step toward ensuring that children have the same rights to complain about state violation directly to the Committee of the Rights of the Child as adults do currently via CEDAW and CERT. However, the process and the outcome has been subject to criticisms as well. Read more on the Child RIghts Information Network for a summary f the final drafting meeting.

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