The ‘Best Interest of the Child’ principle is the cornerstone of children’s rights; however, the Courts are less willing to uphold this when it comes to cases concerning migrant children. The recent decision of the United Kingdom’s (UK) Court of Appeal in Secretary of State for the Home Department v EK (‘EK‘), is one of these cases which gives insufficient weight to the ‘Best Interest’ principle compared to policy concerns.

The case of EK considered whether to order interim measures after children (one of which was EK) became separated from their parents when entering the UK illegally via a small boat. Their parents remained in France. The Court of Appeal held that the parents did not need to be reunited with their children in the UK.

This decision is problematic for two reasons: first, the Court did not sufficiently consider the rights of the children; and secondly, the Court put too much emphasis on unsubstantiated policy concerns.

First, the Convention on the Rights of the Child enshrines the ‘Best Interest Principle’. This is incorporated into UK law through section 55 of the Borders, Citizenship and Immigration Act 2009. In the immigration context, this has been interpreted to be a ‘primary consideration’ (ZH (Tanzania), para 11). The case of EK considered the evidence provided by multiple child social-care workers and psychiatrists, who noted the severe distress the children had suffered (paras 25, 29 and 44). This stemmed from the dramatic experience of being separated from their parents, the fear that their parents had been killed, and the harm caused by prolonged separation. It was clear to the first instance judge that the evidence pointed to reunification (para 29).

Despite Underhill LJ (in EK) recognising this, the Court relied on the fact that the children were now in a stable foster family to justify the lack of necessity for reunification. The Court considered this without evaluating the consequences of remaining in a foster family, such as making later reunification (potentially in a foreign country) even more unsettling for the children. It shows that the Court did not truly consider the weighty expert evidence of the children’s welfare when making the decision (para 61).

Secondly, there was a lack of emphasis on welfare due to competing policy concerns. The UK Government was concerned about the effect it might have on the actions of small boat enterprises, taking migrants across the English Channel. The Court placed substantial weight on these policy concerns (para 54), even though the concerns over the effects on smuggling were only unsubstantiated suspicions. This is problematic, considering the decision was only for interim measures to reunite the family, which would have less impact on the conduct of small boats than the conclusive decision. Following ZH (Tanzania), the Court should not give more weight to any other one consideration than the best interests of the child. Given the evidence, this has clearly not been followed in EK.

By allowing the fundamental rights of children to be overruled so easily by other policy considerations, the Court has set a dangerous precedent. In other contexts, the rights of children have higher importance. The Children Act 1989, section 1(1) makes the welfare of the child the ‘paramount consideration’ and the ‘sole’ consideration of the Court (following Lord MacDermott in J v C). This has been used to justify blood transfusions for children in instances where this medically necessary intervention goes against their religious beliefs (Re(E)), and contact with family even where this may ostracise the children from their social group (Re(M)). This shows that the welfare of the child should overrule other policy considerations, and contact with family is of the upmost importance to welfare. It is questionable why this principle is not upheld to the same degree when considering migrant children, especially considering the universality of human rights (according to the UN).

It could be argued that due to the highly politicised subject of immigration, the Court is trying to avoid making political decisions. However, as Rozakis has argued, it is the Court’s role to protect fundamental rights even if this is unpopular. Instead, by placing emphasis on policy considerations, the Court is in fact making a political decision instead of enforcing the clear, justiciable legal rights.

Moving forward, the Court should further scrutinise policy considerations and ask why migrant children are less deserving of a strong application of the ‘Best Interest’ principle to protect their fundamental rights.