The Best Interests of the Child

On the 10^th November 2012, the 31^st Amendment to Bunreacht na hEireann was approved. The new Article 42A in relation to Children’s Rights provides:

ARTICLE 42A – CHILDREN.

1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4 1° Provision shall be made by law that in the resolution of all proceedings -

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child

What does this mean?

Article 42A.1 The Government and State is obliged to ensure, as far as practicable, that the rights of ALL children are protected and vindicated. The main effect is to recognise and affirm rights of children and place them on the same plane as the general personal rights of citizens. Citizen children would have held the personal rights of citizens in any event. There is a difference between “all children” and “citizens”. However, in practice the courts have never limited the rights protected by Article 40.3 to citizens, so this distinction is of no practical effect. Essentially, Article 42A.1 is intended to signal a clear intention to protect the individual rights of all children, regardless of marital status.

Article 42A.2. 1° - The State may intervene and try to supply the place of the parents, if the parents fail in their duty towards the child. The emphasis has been shifted so that the State’s obligation to protect and vindicate children’s rights is a constant duty owed to children, and not a mere default duty This intervention must have due regard for the child’s rights and will only be allowed in exceptional cases. The biggest change here is that the State can intervene where the parents have failed in their duty towards their children, whether in fact, those parents are married to each other, or not. Previously this failure was in relation to moral and social duties, whilst now the wording refers to failure in their duties to such extent that the safety or welfare of any of their children is likely to be prejudicially affected. Under this approach, parents would be taken to have failed in their duty if they did something (or failed to do something) which was likely to affect prejudicially the safety or welfare of their child consequently leading to State Intervention. It is clear this establishes a different standard for intervention. It could imply that conscientious parental choices, based on moral or religious or philosophical commitments, might be overridden by the State where they are thought to prejudicially affect children’s safety OR welfare. Any intervention by the State must involve the use of proportionate means, which must be set out in legislation.

                 

Article 42A.2. 2° - A major change relates to the issue of adoption. Previously there was no law permitting married parents to voluntarily place a child for adoption. The law now provides, at a constitutional level, for the adoption of any child, whether that child be a child of a married, or unmarried, couple. The proposed amendment provides for adoption where the parents have failed in their duty towards the child for a specified period of time, and where the best interests of the child so require. The draft legislation published with the provision allowed for a period of three years, however this could be decreased or increased in the future.

Article 42A.3 - This represents a firm move away from the original rationale underpinning Irish adoption law: that adoption was designed to give children born outside marriage the opportunity of a life within a marital family. Previously voluntary placement for adoption was permissible only where the child was born outside of marriage or orphaned. In respect of a child born to parents who were married to each other at the time of the child’s birth, unless both parents are deceased, the child could only be adopted in the exceptionally limited circumstances envisaged by Sections 53 and 54 of the Adoption Act 2010;  any child – marital or non-marital – could be adopted where the parents have failed in their duty towards the child for at least one continuous year, and where this failure is likely to continue without interruption until the child is 18. The failure must amount to an abandonment of all parental rights in respect of the child. Such an adoption, moreover, could only proceed with High Court approval, and having due regard to the parents’ and child’s constitutional rights. Art.42A(3) offers children born inside marriage who are in long-term foster care, offering them the prospect of a more regularised and secure position through adoption. Significantly, the amendment departs markedly from the traditional view that the function of adoption is to provide a marital home for non-marital children, recognising that some children born within marriage may also be best served by adoption

Article 42A.4 1° - applies to proceedings initiated by the State and proceedings not necessarily initiated by the State. This section introduces a best interests test into the constitutional text for the first time. In all court proceedings, where significant decisions are being made in relation to a child, the paramount consideration is the best interests of the child. There is nothing to suggest that legislation enacted on foot of Article 42A.4.1 will be any different in status to legislation already in place. Note that legislation already requires that the best interests of the child are a paramount consideration in family law proceedings. For instance, section 3 of the Guardianship of Infants Act 1964 requires that in any proceedings regarding ‘the custody, guardianship or upbringing of an infant’, the welfare of that child will be the paramount consideration. In section 19 of the Adoption Act 2010, the courts and the Adoption Authority are bound to consider the welfare of the child as ‘the first and paramount consideration’. In section 24 of the Child Care Act 1991, the courts are required in any proceedings concerning the care and protection of a child to regard the welfare of the child as the first and paramount consideration. It is only in this latter case where an argument might be made as to the added value of Article 42A.4.1 in that section 24 of the 1991 Act refers to the parallel duty on the courts to have regard to the rights and duties of the parents, under the constitution or otherwise, in such proceedings.

Article 42A.2 2° - The amendment provides that where practicable, the views of the child himself, or herself, should be obtained and due weight given to those, having regard to the age and maturity of the child. It is the case that the views of the child are often taken into account in Court proceedings however the reformed article will put this on a Constitutional footing. This best interests test can only come into operation when the threshold for state intervention has been passed.This represents a very cautious and limited attempt to incorporate Article 12 of the United Nations Convention on the Rights of the Child into Irish domestic law. Indeed, Article 12 of the Convention is much broader in scope, not only recognising the right of the child to be heard directly and indirectly in all judicial and administrative proceedings (Article 12(2)) but, more generally, it recognises the obligation on the State to assure to all children the right to express their opinions freely in all matters concerning them once they are capable of forming views. In contrast, Article 42.A.4.2 fails to make reference to any other area of a child’s life other than child and family law proceedings.

                 

The Constitution must be interpreted harmoniously, and article 42A will be read in light of other constitutional provisions, namely the unaltered article 41. The Family will still be regarded as the “natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law,” with a State commitment to protecting it in its “constitution and authority”.

Brophy Solicitors

7.12.12

Best interests of the child considered – UK Court of Appeal

Case Study: SS (Sri Lanka) v Secretary of State for the Home Department (Court of Appeal UK)

The Applicant is a Sri Lankan woman of Tamil ethnicity. Her husband worked as a counsellor for Tamil victims of rape and abuse perpetrated by the  Sri Lankan authorities.  The Applicant claimed that her home was raided by the army on 17^th December 2010.  She was raped during the raid and her husband was abducted. After receiving  hospital treatment, she fled to the United Kingdom with her two children, and they claimed asylum in January 2011.

The Applicant’s initial claim for asylum was refused, and was unsuccessful on appeal.   Since the attack she suffered post traumatic stress disorder and depression, as well as increased anxiety, inability to concentrate, and flashbacks of the incident. She was also discovered to be suffering from advanced breast cancer.

Where  the first Tribunal has made an error in law, the judge can in certain cases allow a second appeal which was permitted in this case. Firstly, the judge held  that the original appeals trial judge had hastily dismissed the medical evidence presented in respect of  the Applicant’s poor mental and physical health. Secondly,  the Tribunal failed to consider the best interests of the children, as was necessary following the judgement in the case ZH (Tanzania v Secretary of State for the Home Department) [2011] UKSC 4, [2011] 2 A.C. 166.

The Court in this case needed to balance the interests of the children in allowing the Applicant to remain in the State with the evidence pointing towards her removal. They allowed that the previous Tribunal’s failure to consider the interests of the children constituted an error of law, but that had the previous tribunal considered the interests of the children, the outcome would have remained the same.

The Court considered whether the Applicant’s  removal from the State would violate her rights under Article 8 of the European Convention of Human Rights. It was held that there would be no violation of Article 8, because the children would leave the State and travel back to Sri Lanka with their mother, hence preserving their family unit.

The Court also found that the interests of the children would not be harmed upon their removal to Sri Lanka. They had not established roots in the State nor had they formed any semblance of a stable private life and so their social circumstances would not be affected. Their mother was in poor health, which could pose problems, but there is no evidence that the Applicant could not receive equivalent medical treatment upon her return to Sri Lanka. Although the Tribunal was held to have unfairly discounted medical evidence, the Court held that a more careful consideration of the medical evidence would not have changed the ultimate decision of the Court.

The safety of the Applicant is ultimately linked to that of her children.  After the attack, her husband was abducted by the army, and she has had no further contact with him. Since her husband’s activities were the catalyst for the attack, the Court concluded  that she and her children were  in no further danger if they return to Sri Lanka.

The appeal was ultimately dismissed because the core of the previous opinion had not changed. If the Applicant was removed to Sri Lanka, she and her children would face no significant danger. Since the violence she encountered was a direct result of the activities of her husband, and he is no longer an active member of her life, upon her return to Sri Lanka, she would be able to maintain her family life and obtain adequate medical treatment.

Brophy Solicitors

http://www.bailii.org/ew/cases/EWCA/Civ/2012/945.html

THE BEST INTEREST OF THE CHILD PRINCIPLE

RECENT UK CASE LAW ON THE BEST INTEREST OF THE CHILD PRINCIPLE

In assessing a right of residence for the parent/guardian of a child, the “Best Interests of the Child” principle is of core importance in reaching a fair and proportionate decision.  The "best interests of the child" broadly means the well being of the child. A consideration of where these best interests lie will involve the decision maker assessing whether it is reasonable to expect the child to live in another country.

In a sequence of cases before the Irish High Court involving deportations of parents of Irish citizen children, (see case of Alli and Isobor and the Minster for Justice), the “Best Interests of the Child” principle became overshadowed by a different legal principle, which one could call the “legitimate aims and obligations of the State” principle.  Theses cases set a precedent that an Irish citizen child’s rights to family life is not breached by a deportation order against the child’s parent unless there is “insurmountable obstacles” preventing the family moving to the home country of the parents and carrying on their family life there.

The UK Supreme Court have set a very different threshold for the assessment of such cases in focussing first and foremost on the best interests of the child, whatever the nationality of that child. The case of ZH (Tanzania)[1] (concerning the removal of a non-British parent of a UK citizen child) held that the over-arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK.

Lady Hale in the above case provided the leading judgment:

‘In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first.”

Following ZH (Tanzania), the obvious question became how far can the “Best Interest of the Child ” principle be extended? Could it be argued that it is always in the best interest of a child to remain in a relatively wealthy and socially protected State such as the UK/Ireland, by way of comparison to the State of nationality of the child? Could the “Best Interest of the Child ” principle be successfully applied therefore to children of non EEA nationality seeking to remain in the UK/Ireland on the grounds of  better standard of living perhaps?

In the case of  E-A (Article 8 – best interests of child) Nigeria, judgement issued on the 22^nd July 2011, Mr Justice Blake, (President of the Upper Tribunal, Immigration and Asylum Chamber) shed light of these queries while assessing the rights of a family of Nigerian citizens to remain in the UK pursuant to Article 8 of the European Convention of Human Rights. The family were residing in the UK on the basis of student/ dependant temporary permission, and arguments were made on behalf of the children that it was in their best interest to remain in the UK rather than be returned to Nigeria.  It was interesting to see how Mr Justice Blake interpreted the Supreme Court’s case of ZH (Tanzania) in light of the facts before him, ultimately finding that neither Article 8 or the “Best Interest of the Child ” principle was infringed by returning the family to Nigeria. The following are the principles points highlighted in the judgment;

(i)              The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it is in the best interests of a child to live with and be brought up by his or her parents, then the child’s removal with his parents does not involve any separation of family life.

(ii)            Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case

(iii)          During a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian.  Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well being.

(iv)               Those who have their families with them during a period of study in the UK must do so in the light of the expectation of return.

(v)                The Supreme Court in ZH (Tanzania) [2011] UKSC 4 was not ruling that the ability of a young child to readily adapt to life in a new country was an irrelevant factor, rather that the adaptability of the child in each case must be assessed and is not a conclusive consideration on its own.

We hope to see the Irish Immigration process moving in similar line to the UK, that is to make the “Best Interest of the Child ” principle a matter or primary consideration is cases involving the residence rights of children and their parents, what ever the nationality of the child. 

31.8.11

Brophy Solicitors

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[1] ZH (Tanzania)  (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2011] UKSC