QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|SECRETRY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Mr B Rawat (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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MR JUSTICE GREEN:
B. The Grounds of Challenge: the relevance of the rights of the child
C. Relevant Legal Considerations: the extent to which the interests of the child are paramount
"25. Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as 'a primary consideration'. Of course, despite the looseness with which these terms are sometimes used, 'a primary consideration' is not the same as 'the primary consideration', still less as 'the paramount consideration'. Miss Joanna Dodson QC, to whom we are grateful for representing the separate interests of the children in this case, boldly argued that immigration and removal decisions might be covered by section 1(1) of the Children Act 1989:
'When a court determines any question with respect to –
(a) the upbringing of a child; or
(b) the administration of a child's property or the application of any income arising from it
The child's welfare shall be the court's paramount consideration.'
However, questions with respect to the upbringing of a child must be distinguished from other decisions which may affect them. The UNHCR, in its Guidelines on Determining the Best Interests of the Child (May 2008), explains the matter neatly, at para 1.1:
'The term 'best interests' broadly describes the well-being of a child... The CRC neither offers a precise definition, nor explicitly outlines common factors of the best interests of the child, but stipulates that:
the best interests must be the determining factor for specific actions, notably adoption (Article 21) and separation of a child from parents against their will (Article 9);
the best interests must be a primary (but not the sole) consideration for all other actions affecting children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies (Article 3).'"
"26. This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia."
"46. It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result."
A similar conclusion was arrived at by Lord Hope.
MR RAWAT: Does your Lordship have a copy of the summary assessment put in? There is an application for costs.
MR JUSTICE GREEN: Yes, I have it.
MR RAWAT: I understand the claimant is not in receipt of legal aid.
MR JUSTICE GREEN: Yes. The sum sought is?
MR RAWAT: My Lord, it is on page 2. The amount comes to £13,265.34.
MR JUSTICE GREEN: Yes. And what has generated the bulk of those costs?
MR RAWAT: The bulk of the costs, my Lord, would be down to the work that was done in relation to advising in relation to a further decision letter, 28th.
MR JUSTICE GREEN: So it is the fact that there was a series of additional letters?
MR RAWAT: Yes.
MR JUSTICE GREEN: Yes.
MR RAWAT: The letter of September 2012 accompanied the summary grounds of defence and then the second more recent letter was followed very swiftly by the detailed grounds.
MR JUSTICE GREEN: Yes. Yes, Mr Read, in relation to costs and indeed anything else?
MR READ: Indeed, my Lord. I am not able to advance an argument against costs.
MR JUSTICE GREEN: What about the sum involved? It is quite substantial.
MR READ: Indeed. I cannot come to a view of a positive view that my client would be able to find the sum. It would seem to counsel that it would be a rather hopeful sum to be asking for, a matter of blood from a stone. If she is likely to be leaving the United Kingdom, it is even less likely to be found, my Lord. So I am not sure to what effect a costs order would be.
MR JUSTICE GREEN: Yes. Is there anything you wish to say about specific items?
MR READ: No.
MR JUSTICE GREEN: No. I will say this, Mr Read, that when I read the papers, I did not think it was a strong application. I do not know what advice your instructing solicitors gave to the client or the extent to which or the level of fees that they have extracted from her.
MR READ: My Lord.
MR JUSTICE GREEN: Had they been here, I might have questioned them as to the value of the advice that they have given her to pursue this, which ultimately leads to, and which will lead to, an order for costs. It will be a matter for them and their relationship with their client as to how they deal with this. I am going to make an order for costs in favour of the defendant for £10,000.