2013 11 Children

Sunday 1 December 2013

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FZ (DRC) v Secretary of State for the Home Department [2013] UKSC 74 (Lady Hale, Lords, Kerr, Reed, Toulson, Hodge): This case is an appeal against the dismissal of his judicial review application of the Secretary of State's decision that he did not qualify for asylum or humanitarian protection. He and his wife had a poor immigration history. He had a history of absconding. They applied for state benefits after claiming to be desttitue. It later emerged that they had received credit from unidentified sources. They had three children, born in 2004, 2007, 2011. The appellant argued that the Secretary of State's decision failed to take account of the best interests of the children as a primary consideration, relying on ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. The Supreme Court restated the principles in ZH (Tanzania), namely (i) the best interests of a child were an integral part of the proportionality assessment under article 8; (ii) in making that assessment, the child's best interests had to be a primary consideration, although not always the only primary consideration; and the child's best interests did not of themselves have the status of the paramount consideration; (iii) although the best interests of a child could be outweighed by the cumulative effect of other considerations, no other consideration could be treated as inherently more significant; (iv) while different judges might approach the question of a child's best interests in different ways, it was important to ask oneself the right questions in an orderly manner to avoid the risk that the child's best interests might be undervalued when other important considrations were in play; (v) it was important to have a clear idea of a child's circumstances and of what was in his or her best interests before one asked oneself whether those interests were outweighed by the force of other considerations; (vi) to that end, there was no substitute for a careful examination of all relevant factors when the interests of a child were involved in an article 8 assessment; (vii) a child should not be blamed for matters for which he or she was not responsible, such as the conduct of a parent. The Court stated further that (i) the decision-maker was required to assess the proportionality of the interference with private and family life in the particular circumstances in which the decision was made; (ii) the evaluative exercise in assessing the proportionality of a measure under article 8 excluded any "hard-edged or bright-line rule to be applied to the generality of cases." (iii) the decision-maker had to evaluate the child's best interests and in some cases they might point only marginally in one, rather than another direction. (iv) there might be circumstances in which the weight of another primary consideration could tip the balance and make the interference proportionate even where it had very severe consequences for children. In the present appeal, the Supreme Court dismissed the appeal. The children in this case were not British citizens unlike in ZH (Tanzania). Click here for judgment.

R (MK) v LB of Barking and Dagenham [2013] EWHC 3486 (Admin) (HHJ Bidder QC): This judicial review raised a point as to the interplay between the section 17 Children Act 1989 duty and the general powers under section 1 Localism Act 2011. The Claimant is a Nigerian national who had overstayed in the UK. She lived on a portable mattress in a flat with her aunt and two cousins. Her aunt and cousins were provided with accommodation and support by the local authority under section 17, Children Act 1989. The local authority's needs assessments concluded that the Claimant should not be accommodated with the family as they had neither the power or duty to do so as MK was neither a child nor a relevant child. MK brought a claim in judicial review on the basis that if she were not accommodated with the family she would be destitute and homeless and that would breach her rights under articles 3 and 8, ECHR. She challenged the local authority's decision by contending that they had the power to accommodate and support under section 17(3), Children Act 1989 coupled with sectino 17(6) or in the alternative under section 1, Localism Act 2011. The claim was dismissed on the basis that (i) it was reasonable for the local authority to conclude in its assessment that it was not necessary for the promotion and safeguarding of the children's welfare to provide MK with accommodation together with the family. (ii) Section 17(3) was not a means to get around a clear legislative scheme intended by Parliament to exclude those with no immigration status to access mainstream support. (iii) section 1 of the Localism Act 2011 provided no further additional powers. (Judgment not available yet on Bailii).

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