Children’s best interests

‘Best interests of a child’ is a guiding principle in matters relating to children. The concept derives from Article 3(1) of the United Nations Convention on the Rights of the Child 1989 (‘UNCRC’), which states 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.’

 It must, for example, apply during a hearing for contact in a family court or be considered when deciding what accommodation is suitable for a care leaver. The concept is an umbrella provision prescribing the approach to be taken in all actions taken by a government concerning children.

The Convention does not offer a precise definition of best interests, or an explicit list of factors relevant to best interests. A child’s best interests are likely to change depending on the situation. However, the UNCRC does state that ‘best interests’, broadly speaking, refer to a child’s general well-being, which should include the views of the child, the need for a safe environment, family and close relationships, and development and identity needs.

As with all international conventions, the rights and duties in the Convention must be set out in domestic law in order to be legally binding in UK Courts. As such, a child cannot challenge a decision in court by relying or referring only to the UNCRC. The applicability of the UNCRC in UK law, policy and practice is indirect via treaty obligations, domestic case law, domestic policies that expressly contain Convention duties, and case law of the European Court of Human Rights which refers to children’s rights.

Some laws, for example the Children Act 1989, make explicit reference to the best interests of children and therefore require decision-makers, tribunals and courts to consider this when reaching decisions.

Section 55 of the Borders, Citizenship and Immigration Act 2009 contains a mandatory duty on the Home Office and others making immigration decisions to safeguard and promote the welfare of children in the UK as they carry out their functions. The scope of the duty is broad, meaning that any immigration decision taken within the UK should include a consideration of this duty.

The Home Office has issued statutory guidance to accompany the duty under section 55. The guidance sets out what the Home Office considers in relation to safeguarding and promoting the welfare of children through: inter-agency cooperation, training, responsibility, and information sharing.

The Home Office also makes clear in its guidance that although the section 55 duty does not encompass children outside of the UK, overseas staff must ‘adhere to the spirit of the duty and make enquiries if a child may be in need of protection or presents welfare needs that require attention… Overseas staff dealing with entry clearance and visas should be trained on the importance of the need to safeguard and promote a child’s welfare.’

The Home Office will normally include a section in most of its guidance and instructions outlining the need for staff to comply with section 55. In its guidance, the Home Office considers the best interests duty to be synonymous with the requirement to safeguard and promote the welfare of children. For example, there is detailed guidance on the best interests of the child in the family and private life guidance and asylum policy instruction on discretionary leave.

If you are a social worker, key worker, or other professional working with migrant children, then you may be under a duty to act in a child’s best interests under the Children Act 1989. It is important to be aware of the obligations of the Home Office in relation to a child’s best interests in all immigration and asylum decisions that are made. If the Home Office does not consider a child’s best interests, or fails to have regard to the need to safeguard and promote the welfare of the child, its actions may be unlawful and subject to legal challenge.

The Home Office decision maker will need to assess a child’s best interests at all stages of decision-making. It is important to note that the duty under section 55 covers all decisions made by the Home Office, whether this is a decision on adequate housing and support, interviews, or obtaining information.

The Home Office policy ‘Processing an Asylum Application from a Child’ contains a best interests ‘pro forma’ for local authorities to complete and send to the Home Office. However, it is not always best used in practice and the Home Office should gather information from other agencies and practitioners working with the child.

In order to come to a view the decision maker may need to draw on information from other sources such as the local authority or school. Social workers, teachers and other professionals need to be aware of their possible involvement in the decision-making process. It is also important for key workers, support workers, teachers and others who work with a child to provide information and supporting evidence of what they feel is in the child’s best interests.