Participation of children in cases which affect them
In the second of a series of linked posts discussing rules of precedent, David Burrows considers to what extent a Supreme Court decision be said to be “per incuriam” (ie made without regard to existing law) for failing to take into account the views of children involved? … Continue reading
This is the second of a series of linked posts, introduced by the first one, Can the Supreme Court depart from its previous decisions?
To what extent are decision makers bound by children law?
To what extent are public body decision makers – such as civil servants, courts or administrative tribunals – bound to take account of the views of children affected by their decisions? And if they are bound to permit more mature children to have a say in the extent to which decisions affect them, how can this be done, especially in the context of court or tribunal proceedings?
This question recurs from a recent Supreme Court case, CAO v Secretary of State for the Home Department [2024] UKSC 32, [2024] 3 WLR 847 (23 October 2024) (“CAO”) which – on its face – related to asylum proceedings but where, on one reading, it seems that the court has taken no account of the views of two children (aged 16 and 12) where United Nations Convention on the Rights of the Child 1989 (UNCRC) says they shall; and where lower courts and tribunals involved in the case should have heard from the children to the extent that they regarded themselves as bound by UNCRC. Have decision makers misunderstood, or overlooked, provisions of UNCRC and of linked common law (eg Gillick, considered below)?
I shall be referring to UNCRC fairly widely in what follows. UK has ratified it. The difficulty in law is that that only takes us so far. In his book on The Rights of the Child (Family Law, 2011) Alistair MacDonald QC (now MacDonald J) said of UNCRC that the ‘central message’ of his book (at para 3.2) – and the point needs still to be made, I think, fourteen years later – is that UNCRC can be relied on before UK courts and other decision-making bodies. This, he says, is so even though the Convention ‘has not been formally incorporated into domestic law’. To that extent UNCRC can therefore be contrasted with European Convention on Human Rights 1950 and the Hague Convention (on the Civil Aspects of International Child Abduction) 1980, both of which by statute have been made part of UK law.
CAO: UNCRC and Borders Citizenship and Immigration Act 2009, s 55
The applicant in CAO was a Nigerian mother. Soon after her arrival in Northern Ireland (NI) CAO applied for asylum for herself and her two children (a son aged 16 and a daughter aged12, those being their ages in 2018, when their mother applied). To what extent did the following principles of law apply to er, and – especially – to her children?
(1) Common law and Gillick
There is a variety of common law which impacts on how the courts – and by no means only the family courts, as will be explained – look at children and decision making which concerns them. The leading case on a child’s maturity and their views remains – nearly forty years later – Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 (17 October 1986). Gillick is touched on later in this post, but it is not mentioned by the Court in CAO. The principles it enshrines in UK law are replicated in Children Act 1989 (CA 1989) and it is a case which is frequently relied on by judges still today.
(2) United Nations Convention on the Rights of the Child 1989
As relevant here, UNCRC 1989 Art 3.1 includes:
“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.”
Specifically, to CAO and to the participation of children in proceedings which concern them, Art 12.1 of UNCRC 1989 imposes on any public body decision maker (including a court) the following duty (touched on here and considered further in Part 4):
“1. States Parties [which includes the United Kingdom] shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
Both the Northern Ireland Court of Appeal (CAO v Secretary of State for the Home Department [2023] NICA 14 (23 February 2023) at [17]) and Supreme Court refer only to UNCRC Art 3.1. Neither make reference to Art 12.1. In Smith v Secretary of State for Work and Pensions [2006] UKHL 35, [2006] 1 WLR 2024, [2007] 1 FLR 166 (12 July 2006) Lady Hale mentioned, at [78] that
“our domestic legislation has to be construed so far as possible so as to comply with the international obligations which we have undertaken.” And she continued that “If two interpretations of rules are possible, the interpretation chosen should be that which better complies with the commitment to the welfare of children which this country has made by ratifying [UNCRC]”.
(3) Borders, Citizenship and Immigration Act 2009
Borders, Citizenship and Immigration Act 2009 (BCIA 2009) s 55 applies in relation to the welfare of children involved in an asylum and extradition applications in the UK:
“55 Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that [any function of the Secretary of State in relation to immigration, asylum or nationality] are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom….
(3) A person exercising any [such] 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)…”
Facts of CAO
CAO turned largely on the operation of the Secretary of State’s published guidance under BCIA 2009 s 55(3). Lord Sales wrote the judgement of the Supreme Court with Dame Siobhan Keegan LCJ of NI. (References to “Lord Sales” in what follows must please also be treated as applying also to his joint author.)
The appellant Home Secretary’s appeal against a decision of the NI Court of Appeal was allowed by the Supreme Court. The net result was that the Supreme Court upheld a First Tier Tribunal (FTT) asylum decision, which FTT decision had been supported by the Upper Tribunal on appeal by the mother asylum applicant (CAO).
The series of appeals was by a Nigerian mother, in relation to her asylum application for herself and her two children (a son aged 16 and a daughter aged12). The basis for the mother’s application to the Home Office was that she said she had experienced serious domestic violence at the hands of her husband in Nigeria, both before and after their separation in 2013. She feared she would be exposed to this again if she were to return to Nigeria. Further, she believed that her husband’s family expected their daughter to undergo female genital mutilation (FGM). The FTT held that there was sufficient protection for the mother and her daughter on both counts in Nigeria. The FTT had found “that there were inconsistencies in the respondent’s evidence which undermined her credibility” (see Supreme Court at [19]) and that, in any event, the FTT had taken the view that the family “could relocate in Nigeria to avoid any risk of FGM and it would be reasonable to expect them to do so” (see [21]).
CAO went through five sets of decision makers (civil servants, two administrative tribunals and eight appellate judges) without any evidence that any of the decision makers had taken account of UNCRC, especially of Art 12.1 and of the opinions on children’s rights balanced against parental responsibility of Lords Fraser, Scarman and Bridge in Gillick (above).
Administrative law and children law: Guidance under BCIA 2009 s 55(3)
The judgment in CAO operates on two levels:
- The administrative and procedural aspects of an asylum application in relation to CAO and her family who had arrived in the United Kingdom on 25 September 2018. In November 2018 CAO applied for asylum for herself and her children.
- The rights of those two children in law – for there is no doubt that in UK common law, in statute and specifically in Northern Ireland (NI) law, they have rights. How should any courts or tribunals deal with them?
I sense that the lawyers – judges and advocates before the court – treated CAO as one related to administrative law as if the welfare of the children and their participation in decision-making about their futures was subsidiary. This approach recalls the words of Lady Hale (in relation to another administrative law case) in R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2006] 1 AC 42, [2005] 2 FLR 1249 (14 July 2005) where she started her opinion (in a minority of one) as follows:
“[49] My Lords, this is another case… which has been presented to us largely as a case about adults’ rights when in reality it is a case about children’s rights. It concerns the obligation to maintain one’s children and the corresponding right of those children to obtain the benefit of that obligation….”
Kehoe was about the right – or not: ‘not’ said the majority – of a mother herself to pursue claims for her children’s child support under Child Support Act 1991 rather than having to wait for the Child Support Agency. CAO was treated, as I read it, as an administrative law case, where the children’s UNCRC rights were overlooked at all levels of decision maker. It was their extradition as well as that of their mother which was in issue.
Children (Northern Ireland) Order 1995
It is appropriate for me to enter a disclaimer, at this stage. I have no more than a passing familiarity with law in Northern Ireland (NI) (where it differs from English law). However, in relation to NI children law, in early 1998 and as an English solicitor advocate, I was asked by barristers in Northern Ireland to go to Belfast to talk about the Children Act 1989 and its operation alongside their Children (Northern Ireland) Order 1995 (“the 1995 Order”). I had been teaching practicing lawyers on CA 1989 for much of the eight years previous to that. The 1995 Order legislates for NI in terms parallel to CA 1989.
Lord Sales mentions the 1995 Order in passing (see [4]); but concentrates his assessment of children’s views late on in the judgment (see [93]) by reference only to the English CA 1989. No mention is made of statutory, convention or common law rights or any other participation rights of children in this case save in relation to BCIA 2009 s 55. The NI Court of Appeal adopt the same approach as Lord Sales to the 1995 Order acknowledging it only as follows:
“[17] … The first clear expression of this international law obligation [in UNRC Art 3.1] in domestic law is found in f the Children Act 2004 and, in the jurisdiction of Northern Ireland, Article 3 of the Children (NI) Order 1995, which provides that the welfare of the child shall be the court’s “paramount consideration” in certain defined circumstances.”
The 1995 Order Art 3 says (as relevant here):
“Child’s welfare to be paramount consideration
3.—(1) Where 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.
(3) In the circumstances mentioned in paragraph (4), a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);…”
Children participation in proceedings: UNCRC Art 12.1
Art 3 applies to private proceedings (ie Art 7 under the Order) as it does to local authority care cases (1995 Order Part V). What CA 1989 does not do is to define “court”. Art 164 of the 1995 Order says: “(1) In this Order ‘the court’ means the High Court, a county court or a court of summary jurisdiction.” My knowledge of NI law does not extend to whether this definition could embrace administrative tribunals. What I do know is that Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 r 5 (and Tribunal Procedure (Upper Tribunal) Rules 2008 say much the same thing) is that an answer to the Supreme Court and its reluctance to enable children to participate (per UNCRC 1989 Art 12.1) in such proceedings as CAO might be by reference to rule 5 of the procedure rules:
“Case management powers
5.—(1) Subject to the provisions of the 2007 Act [ie Tribunals, Courts and Enforcement Act 2007] and any other enactment, the Tribunal may regulate its own procedure.
(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.
(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may—…
(e)deal with an issue in the proceedings as a preliminary issue;…”
Child participation: a “fundamental principle”
If the issue of participation of a child (see eg Ryder and Briggs LJJ in In re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (27 January 2016): “Re D [2016]”) and hearing their views were to be treated as a preliminary issue under r 5 then UNCRC 1989 Art 12.1 would be complied with at the level where the real decision making issue is dealt with. In Re D [2016] the Court of Appeal considered an eight-year-old Romanian boy whose views had not been considered by the Romanian courts: that is to say “… without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition is sought”.
Ryder LJ said of “fundamental principles” in this context (italics added):
“[41] A principle that is of “universal application” consistent with our international obligations under [UNCRC Art 12] is on its face a fundamental principle. I regard this court as bound by their Lordships’ decision Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2007] 1 FLR 961 [touched on in CAO at [94]: Re D [2006]] and in any event, it is high time that this court laid to rest the canard that summary and/or autonomously interpreted processes, whether Hague Convention 1980 or BIIR, can in some way avoid the application of a fundamental procedural protection. In every case, the court is required to ensure that the child is given the opportunity to be heard. That means asking the questions, “whether and if so how is the child to be heard”. There are a range of answers, many of which were foreshadowed in Re D. It is not the answer that is key to the question before this court but the fact that the question must be asked.”
I hope most lawyers would agree that the Supreme Court in any case concerned with children to whom UNCRC applied, would be a court to which Ryder LJ’s “canard” and and Alistair MacDonald’s para 3.2 (above) applies. Briggs LJ agreed with Ryder LJ (at [106]), that “… In failing to give any consideration to the question whether and if so how David should be given the opportunity to be heard [the Romanian court] violated a fundamental principle of procedure…”. These judges were treating themselves as “bound” by what Lady Hale had said at [57]-[62] in Re D [2006] (para [57] is cited later).
This case is not mentioned in CAO, still less is it disapproved of. Most courts, and – it is to be hoped, tribunals and other decision makers – would regard themselves as being able to rely on UNCRC and by what Ryder LJ says in the italicised passage above.
Guidance to UK Border Agency
The judgment in CAO [2024] 3 WLR 847 at [9] quotes from statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children (“the Guidance”) , and in the present context in particular from paras 2.6 and 2.7 which are headed “Making arrangements to safeguard and promote welfare in the UK Border Agency” and as relevant here say (italics added):
“(ii) ‘The UK Border Agency acknowledges the status and importance of the following: the [ECHR]’ (para 2.6).
(iii) Para 2.7 stated: ‘The UK Border Agency must also act according to the following principles:
- Every child matters even if they are someone subject to immigration control.
- In accordance with the [UNCRC] the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children…
- Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree. In instances where parents and carers are present they will have primary responsibility for the children’s concerns’.”
Lord Sales only summarises (ii) above and excludes the reference in the original to UNCRC. Para 2.6 of the guidance actually says (italics added):
“2.6 The UK Border Agency acknowledges the status and importance of the following: the European Convention for the Protection of Human Rights and Fundamental Freedoms [1950]… and [UNCRC]. The UK Border Agency must fulfil the requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies.”
United Nations Convention on the Rights of the Child 1989
The third point in para 2.7 is a reference to UNCRC Art 12.1. The Guidance expresses the requirement only to take into account “wishes and feelings of children” as being required. By contrast UNCRC imposes a positive duty – a much higher responsibility – on Home Office decision makers. A reader of the Guidance is entitled to ask whether this passage is within the powers (intra vires) the drafter of that passage.
The Supreme Court was bound not only by ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166; [2011] 1 FLR 2170 (1 February 2011) which it treated in CAO as obiter; but also the Court’s own later H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338 (20 June 2012) (which is not mentioned at all by Lord Sales). In H(H) the earlier ZH was extensively explained by a seven judge Supreme Court.
In Gillick (above) Lord Scarman’s opinion and on the subject of the divergence of child’s rights from those of their parents includes (at [1986] 1 AC 112, 186 and [1986] 1 FLR 224, 251):
“The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision…”
Lord Sales encourages decision makers to follow the Guidance where it permits decision makers (at whatever level) to follow a parent’s views, not those of an individual child is contrary to UK law (as now reproduced in CA 1989 s 3(1) which defines the duties and responsibilities which a parent has in relation to a child, the subject of Gillick). A representative for both children should have been entitled to ask for each of them that they have separate representation; or at least that their Art 12.1 views be heard.
Best interests of children
The Court considered the requirement that the best interests of a child be treated as a ‘primary consideration’ at [49]-[51] and in relation to ZH; but Lord Sales does not take account of the full review of ZH a year later in H(H). Both cases, read together, explain how children’s welfare and their best interests should be treated in the balancing of the rights of individuals, children and, in particular, as to the requirement of extradition treaty obligations to other states. The later case approves the former.
The Court’s main concessions to children law outside the immigration, extradition and deportation fields included a brief reference to the Children Act (CA) 1989 s 1 (see [93]: but not to the 1995 Order). The Court referred to what Lord Sales describes as “contested court proceedings between warring parents” (ie Hague Convention cases, as he sees it). He sees this area of litigation as representing such that:
“[94] … There is a presumption that a child should be heard unless it is inappropriate to do so following from [Re D [2007] 1 AC 619 (below)]. Of course, this is to ensure that a child’s views are presented to a court independent of the abducting parent. However, we are not dealing with the type of contested court proceedings between warring parents which form the subject matter in [Re D [2006]] and related child abduction cases…”
If it is truly Lord Sales’s belief that it is only Hague Convention proceedings which require a court to be able to consider “a child’s views… independent of an abducting parents” it is to be hoped that this post respectfully clarifies the error which may be represented in that belief. Lord Sales does not say to what aspect of Re D [2006] he was referring but that case included Lady Hale’s often quoted words which only go to emphasise that it is not only in proceedings between “warring parents” that the need to consider children’s views arises (by the time of Lady Hales’s comments D was eight):
“[57] … There is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.”
The Supreme Court do not seem to have been referred to any jurisprudence in relation to children’s rights to participate in proceedings, a subject to which Alistair MacDonald in The Rights of the Child (above) devotes nearly 100 pages (Chapter 6: pp 297-392) (this authoritative book is not mentioned by Lord Sales).
I propose to return to the topic of listening to children’s views and communicating with them in a later post.
David Burrows
25 March 2025
Featured image: children, photo by Juan Manuel Perez via Pexels.