Children have Rights which are Distinct from Other People’s Rights
January 25, 2017
Children have Rights which are Distinct from Other People’s Rights
Makhlouf v Secretary of State for the Home Department
Supreme Court of the United Kingdom
 UKSC 59 on appeal from  NICA 86
Neuberger.P, Hale.DP, Kerr. J, Wilson J, Reed. J, Hughes. J & Thomas J
November 16, 2016
Reported by Linda Awuor & Kakai Toili
Family law –children – rights and welfare of children – right to parental care – parental responsibility –best interests of children – whether it was in the best interests for children to have their father who had been convicted of various criminal offences to be deported – Borders, Citizenship and Immigration Act 2009(United Kingdom), section 55, Human Rights Act 1998 (United Kingdom) section 6, United Nations Convention on the Rights of the Child, article 3 (1)
The Appellant was born in Tunisia. In 1996 he married a United Kingdom citizen and they had a daughter, born in Northern Ireland, in 1997. Shortly after the birth, the Appellant joined them in Northern Ireland on a spousal visa. A year later he was granted indefinite leave to remain. He separated from his wife in 1999. In 2006 he had a son with a new partner but the relationship broke down shortly after the birth of the son. In 2008 the Family Court ordered that he could only have indirect contact with his daughter and that he had to obtain the leave of the Court before making any further applications for contact. The Appellant had not had any contact with his son since 2010.
In 2005 the Appellant was convicted of two counts of assault occasioning grievous bodily harm, for which he received concurrent sentences of 39 months and nine months imprisonment. Between 2008 and 2010 he was convicted and sentenced for a series of further offences including breach of a non-molestation order, disorderly behavior and assaulting a police officer. Following a further incident in 2011 he was convicted of disorderly behavior, attempted criminal damage and resisting a police officer for which he received three concurrent sentences of five months imprisonment.
In 2012 the Home Secretary sought the Appellant’s deportation on account of his convictions. Following inquiries regarding the Appellant’s family circumstances, a deportation order was issued. The Appellant appealed claiming that his deportation would breach his and his children’s right to respect for private and family life under article 8 of the European Convention on Human Rights and that the Secretary of State had failed to take sufficient account of the best interests of his children. His appeals to the First-tier Tribunal, Upper Tribunal and Court of Appeal were dismissed thus the Appellant filed an appeal to the Court.
(i) Whether it was in the best interests of children under section 55 of the Borders, Citizenship and Immigration Act, 2009 (United Kingdom) on the duty regarding the welfare of children to have their formerly convicted father deported.
Relevant Provisions of the Law:
Borders, Citizenship and Immigration Act, 2009 (United Kingdom)
Section 55 – Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that—
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c) any general customs function of the Secretary of State;
(d) any customs function conferred on a designated customs official.
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).
(4) The Director of Border Revenue must make arrangements for ensuring that—
(a) the Director’s functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services provided by another person pursuant to arrangements made by the Director in the discharge of such a function are provided having regard to that need.
(5) A person exercising a function of the Director of Border Revenue must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (4).
(6) In this section—
“children” means persons who are under the age of 18;
“customs function”, “designated customs official” and “general customs
function” have the meanings given by Part 1.
(7) A reference in an enactment (other than this Act) to the Immigration Acts includes a reference to this section.
(8) Section 21 of the UK Borders Act 2007 (c. 30) (children) ceases to have effect.
Human Rights Act, 1998 (United Kingdom)
Section 6 – Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
United Nations Convention on the Rights of the Child
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Held by majority:
- Where a decision was taken out on the deportation of a foreign criminal who had children residing in the United Kingdom, separate consideration of their best interests was obviously required especially if they did not converge with those of the parent to be deported. In the case of a child with a dual ethnic background, that factor required to be closely examined. The child’s interests had to rank as a primary consideration.
- All the evidence provided led unmistakably to the conclusion that the Appellant did not enjoy any relationship with either of his children and that they had led lives which were wholly untouched by the circumstance that he was their father. The possibility of such a relationship to have developed was a factor to be considered.
- The question of the risk of the Appellant’s re-offending was one of the factors to have been considered but his criminal behavior after the offences in 2005 did not augur well in that assessment, these were associated with disputes about contact with his children but, at the least, they spoke to his propensity to indulge in offending behavior if he failed to get his way.
- The Secretary of State was not obliged to have made further inquiries in relation to the Appellant and his children beyond those which had already taken place. The children did not require the disruption of further investigation in circumstances where a court with appropriate jurisdiction had made important decisions in relation to their welfare.
Lady Hale concurring:
- Where children would be affected by a deportation or removal decision, their best interests had to be treated as a primary consideration, and considered separately from those of the adults involved and from the public interest.
- The duty to treat the children’s best interests as a primary consideration stemmed from two sources in domestic law. First, section 55 of the Borders, Citizenship and Immigration Act 2009 on the duty regarding the welfare of children required the Secretary of State to make arrangements for ensuring that her own functions in relation to immigration, asylum and nationality, and those of her immigration officers, were discharged having had regard to the need to have safeguarded and promoted the welfare of children who were in the United Kingdom. The aim was to reflect in United Kingdom law the effect of article 3 (1) of the United Nations Convention on the rights of the child, which required that in all actions concerning children, including those by administrative bodies, the best interests of the child should have been a primary consideration.
- There was a second source of the obligation, in section 6(1) of the Human Rights Act 1998 on acts of public authorities., which required public authorities to have acted compatibly with the rights contained in the European Convention on Human Rights, including the right to respect for family life contained in article 8 which had been interpreted by the European Court of Human Rights to include the duty in article 3(1) of the United Nations Convention on the rights of the child. Children had to be recognised as rights-holders in their own right and not just as adjuncts to other people’s rights. But that did not mean that their rights were inevitably a passport to another person’s rights.
- The Appellant was treating the children as a passport to his own rights, rather than as rights-holders in their own right. His daughter was nearly 15 when the deportation order was made and was then nearly 19. Her parents separated before she was two years old. Her contact with him ended when she was five. Legal proceedings when she was ten ended in an order for indirect contact only and a further order that her father should not have been able to make further applications about her upbringing without the permission of the Court. It could be assumed, therefore, that there were good reasons for not requiring the mother to have allowed direct contact between father and daughter.
- Without a very good reason to the contrary, the Secretary of State was entitled to treat the orders of the family courts as reflecting what was indeed in the best interests of the children concerned. After all, a family court deciding the future of a child had to make the welfare of the child, not only a primary consideration, but its paramount consideration.
- Family courts were supposed to have known about the best interests of children and they had appropriate investigative resources to have made their own independent enquiries should they have needed to do so. The idea that the Secretary of State should have made her own investigation of matters which had already been investigated by the family courts was not only completely unrealistic, it was contrary to the understanding that the uncertainty and anxiety generated by repeated investigations and disputes about their future was usually bad for children. It was good for children, especially children of mixed ethnicity, to have had a relationship with both their parents.
- It was good for the children to have peace and stability. If the Appellant’s daughter wished to establish a closer relationship with her father, she would have been able to do that for herself, and it would have made little difference to their indirect contact whether he was in the United Kingdom or in Tunisia.
- The Secretary of State’s officials deserved credit for the patience and perseverance with which they conducted their inquiries into the Appellant’s family circumstances. There was nothing which should have prompted them to make further enquiries as to the best interests of the children. There was nothing at all to suggest that the best interests of the children required that their father should have remained in the United Kingdom. Of course there could be cases where fuller inquiries were warranted or where the best interests of children did outweigh the public interest in deportation or removal. That was emphatically not one of them.
Relevance to the Kenyan Position
The Constitution of Kenya, 2010 under article 45 (1) provides that the family is the natural and fundamental unit of the society and the necessary basis of social order, and shall enjoy the recognition and protection of the state.
Article 53 (1) (e) of the Constitution provides that every child has the right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child whether they are married to each other or not. Article 53 (2) goes on to state that a child’s best interests are of paramount importance in every matter concerning the child.
The Children Act Cap 141Laws of Kenya under section 4 (2) provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Section 4 (3) of the said Act goes on to state that all judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by the Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to: safeguard and promote the rights and welfare of the child, conserve and promote the welfare of the child, secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.
Section 6 of the Act on a child’s right to parental care provides that a child shall have a right to live with and to be cared for by his parents and that, where the Court or the Director determines in accordance with the law that it is in the best interests of the child to separate him from his parent, the best alternative care available shall be provided for the child. It further states that where a child is separated from his family without the leave of the court, the Government shall provide assistance for reunification of the child with his family.
Kenyan courts have handled various cases touching on whether deportation of a parent would affect the children rights and whether it would be in the best interests of children.
In Sheila Amalemba & another v Attorney General & 4 others  the 2nd Petitioner who was facing deportation for having been in Kenya illegally argued that the order for his deportation was contrary to article 45 of the Constitution of Kenya as it would break a family unit and also that the Petitioners children would suffer neglect as his children’s constitutional right to parental care, love and protection would be violated contrary to article 53 of the Constitution. While dismissing the Petition the Court stated that the Petitioners’ family had not been denied the necessary recognition and protection envisaged under Article 45 (1) of the Constitution and that the Court was unable to discern how the children would not have been provided for if the 2nd Petitioner was deported. The Court further held that general statements to the effect that rights have been violated were not enough and that there was need for a more cogent substantiation.
This case will be of great help to Kenyan Courts faced with a similar challenge to handle it more effectively and to expand the jurisprudence on this area of law.