Having Regard to the UN Convention on the Rights of the Child
John Eekelaar 31st October 2016

The Third Report of the Joint Committee on Human Rights for the Session 2016-7 has recommended the inclusion of a clause in the Children and Social Work Bill which would oblige a public authority exercising its functions relating to safeguarding and the welfare of children to have due regard to the UN Convention on the Rights of the Child.

It could be said that such a clause would do no more than confirm what is already required, at least as far as Article 3 of the UNCRC (‘in all actions concerning children … the best interests of the child shall be a primary consideration’) is concerned, via the European Convention on Human Rights, when a European Convention right is engaged (see the extensive discussion in R (on the Application of SG and others) v Secretary of State for Work and Pensions [2015] UKSC 16). In AZ v Secretary of State for Communities and Local Government [2012] EWHC 3660 and Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 it was held that ‘it was incumbent on planning officials  to identify what were the best interests of the children affected and then give those interests a primary consideration’.

Opponents of casting this duty in statutory form might give two reasons to be hesitant about requiring consideration of the ‘best interests’ of children across the board for all (public) decisions that may affect them. One is that it expects extensive investigation to discover what is best for children, which could inhibit achievement of desired policy goals. But it need not do that if the distinction between decisions directly and indirectly about children is sharply made (ZH (Tanzania v Secretary of State for the Home Department). Decision-makers must first characterise which type of decision is involved. If the decision is characterised as a decision ‘directly’ about a child, the focus of the decision should be on what is the best outcome for the child(ren) concerned, viewed holistically, and the children’s interests should be given primacy over ‘other’ equivalent competing interests. If characterised as affecting the child indirectly, the focus should be on achieving the best result regarding the issue in hand; the children’s interests, although still ‘a’ primary consideration, are not ‘the’ primary consideration. The best interests of the child(ren) could sway the outcome of the decision if they were  affected seriously enough. In both cases the outcome would need to be subjected to the proportionality test regarding its impact on ECHR rights.

The other concern could be that it is unrealistic to expect all public decision-makers to have regard to the wide range of rights, especially social rights, set out in the Convention.  But these will seldom be relevant at the administrative level. They could, however, often be relevant at Ministerial level, especially when legislation is prepared. Since the UK ratified the Convention as long ago as 1991, Ministers should have regard to them anyway, but, as the Committee’s report observes, even the government accepts that the process for having regard to those rights could be improved. Since Scottish and Welsh Ministers have statutory duties to do this, delaying the introduction of such duties in England looks less like prudence and more like traditional governmental suspicion of human-rights based obligations. In any event, the amendment should cover all Ministerial acts within the jurisdiction of the UK government and Parliament, and not only those pertaining to England.

Finally, there is one respect in which a new duty on public authorities might be challenging, that is, with respect to children’s ‘participation’ rights in Article 12. But some would say this is not before time in the journey towards embracing children more fully as citizens of the society they inhabit.

Author profile

John Eekelaar (LL.B. (London) 1963; B.C.L. (Oxon) 1965; M.A. (Oxon) 1967, held a Rhodes Scholarship from 1963-5, and was awarded the Vinerian Scholarship in 1965. He was called to the Bar in 1968 at the Inner Temple. He was a Tutorial Fellow at Pembroke College from 1965 to 2005; he held a CUF Lecturership from 1966-91, and was Reader in Law until 2005. He was elected to a Fellowship of the British Academy in July 2001. He retired from teaching in 2005. From 2005 to 2009 he was Academic Director at Pembroke College. He continues research as Co-Director of the Oxford Centre for Family Law and Policy (OXFLAP).

Citations

John Eekelaar, “Having Regard to the UN Convention on the Rights of the Child” (OxHRH Blog,  31 October 2016), <http://ohrh.law.ox.ac.uk/having-regard-to-the-un-convention-on-the-rights-of-the-child/> [Date of access]

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