2 The best interests of children
18. One of the core principles of the UNCRC is that
the best interests of children should be properly considered.
Article 3 of the Convention requires that 'in all actions concerning
children and young people, whether taken 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'.
19. The concept is developed further in the work
of the UN Committee on the Rights of the Child. General Comment
No. 5 calls for the systematic consideration of the interests
of children in relation to all decisions and actions that affect
them. General Comment
No 6 stresses the importance of a proper determination of the
best interests of a child in order to guide decisions that "fundamentally
impact on the unaccompanied or separated child's life".
We also note in this respect that the UN Committee is soon to
publish General Comment No. 14, which will provide further guidance
on the best interests principle.
20. The importance of giving due consideration to
the needs of the child is also set out in domestic legislation.
As we noted in our introduction, relevant public authorities are
under legal obligations to safeguard children and promote their
welfare under both Section 11 of the Children Act 2004 and Section
55 of the Borders, Citizenship and Immigration Act 2009.
21. It is clear from these sources that the best
interests of a child must be at the forefront of the minds of
all those making decisions regarding the welfare of unaccompanied
migrant children during the asylum and immigration process. This
was made clear by the Supreme Court in the case of ZH Tanzania
v Secretary of State for the Home Department.
Lord Kerr of Tonaghmore indicated that a child's best interest
"is not merely one consideration that weighs in the balance
alongside other competing factors. Where the best interests of
the child clearly favour a certain course, that course should
be followed unless countervailing reasons of considerable force
displace them [...] the primacy of this consideration needs to
be made clear in emphatic terms."
22. The Government stated in its written evidence
that it took the responsibility to uphold best interests "very
seriously" throughout the asylum and immigration process,
starting with proper consideration of any asylum or humanitarian
protection claims made. If refused, the next steps were considered
in the light of an assessment of the child's best interests, with
the child playing a "central role" in the process. According
to the Government, best interests are assessed based upon available
evidence, balancing the likely conditions the child is likely
to face upon return and the child's experiences in the United
Kingdom against "other relevant considerations".
It noted such decisions were made in line with the UNCRC
and domestic obligations, and highlighted that children were given
access to support and representation during the process.
23. Despite this, a significant number of organisations
questioned whether the best interests of unaccompanied children
were in fact being systematically assessed and upheld throughout
the asylum and immigration process.
Sarah-Jane Savage, Senior Protection Associate at the UN High
Commissioner for Refugees (UNHCR), did not consider that best
interests were being considered "as well as they could be".
The Refugee Children's Consortium was concerned that best interests
were considered only as part of a pro forma exercise, rather
than in a substantive determination.
24. Many of those who gave evidence considered that
problems in assessing best interests arose because immigration
concerns too often took priority.
The UNHCR said that "the current practice of the UK is only
to consider the best interests through an immigration prism, rather
than as a process where the decision maker is required to weigh
and balance all the relevant factors of a child's case"
The Coram Children's Legal Centre noted that, despite clear
legislation, guidance and case law, "asylum-seeking and migrant
children's rights remain subsidiary to the government's restrictive
interpretation that the public interest rests solely in maintaining
effective immigration control."
Dr Maggie Atkinson, the Children's Commissioner for England, accepted
that "the law is there" to enable best interests to
be considered, but questioned "whether or not it is actually
Reflecting this concern, Keith Towler, the Children's Commissioner
for Wales, wanted to ensure that the focus was on "practical
implementation that is followed up by inspection and monitoring."
25. By contrast the Coram Children's Legal Centre
wanted to see a root-and-branch review of how best interests are
considered, to drive forward fundamental change.
To that end, Helen Johnson, Operations Manager of the Children's
Section at the Refugee Council, considered it inappropriate that
immigration authorities were making determinations in this sphere,
and argued for a child's best interests to be determined by independent
Yesim Devici, Director of the Dost Centre for Young Refugees
and Migrants (Dost), agreed that a "holistic needs-assessment
process" was needed.
Dragan Nastic, Domestic Policy and Research Officer at UNICEF
UK, pointed to the multi-disciplinary approach in Finland as a
best practice example of how such a system could be constructed
26. The UNHCR thought that the adjudication of best
interests in fact required a formal procedure: a Best Interests
It said that the existing process was insufficiently systematic
and that this had negative consequences for decision-making. The
UNHCR considered that a BID, with procedural safeguards and formal
representation for children, and involving a wide range of decision-makers,
would lead to more sustainable solutions; it is producing guidance
to flesh out the concept. The UK Children's Commissioners, who
supported the establishment of a formal process, urged the Government
to pay heed to that guidance when it arrived. They were especially
keen for a wider range of expertise to be employed when decisions
27. Mark Harper MP, the Minister for Immigration,
did not consider that there were any systemic issues negatively
affecting the present process. He noted that those involvedincluding
local authorities, independent advocates and legal representativeshad
not identified any major issues.
Indeed, he thought that the fact that leave was routinely granted
until the cusp of adulthood for those children not granted asylum
or humanitarian protection (see paragraph 108) "demonstrates
that we put their best interests first, as that is not what we
do with adults. I do not quite know what it is that we are not
doing that people think we would be doing if, in their view, we
were putting the interests of the child first."
As to a BID, the Government was wary of the potential administrative
impact, stating that "any guidance must complement [the UK's]
established processes", and not add "unnecessary delays
and costs into the system".
28. On the balance of evidence we received, we are
not persuaded that best interests are being considered adequately
at present. Immigration concerns are too often being given too
much weight, which must change. Forthcoming guidance on best interests
from the UN Committee on the Rights of the Child and from the
UNHCR in relation to Best Interests Determinations, will provide
timely opportunities to properly assess the framework in this
29. The UN Committee on the Rights of the Child has
long called for States to ensure that best interests are a primary
objective of decision-making. One way to achieve this might be
via a formal Best Interests Determination, and it may be that
such a process is necessary. However, we should only put children
through additional bureaucratic processes where this improves
the support they receive, and the quality of decisions that are
made. It might be a better course to work to improve the existing
system. We accordingly urge the Government to evaluate the case
for a BID in the United Kingdom, in consultation with the devolved
administrations. We would support any system that puts the best
interests of children at its heart and which draws upon all appropriate
expertise to do so.
30. In the meantime, the Government must ensure that
it receives expert advice on how to ensure that those who interact
with, and make decisions about, unaccompanied migrant children
properly take their best interests into consideration. This advice
should be provided independently.
31. We recommend that the Government's guidance
to those safeguarding and making decisions about the future of
unaccompanied migrant children should reassert the primary need
to uphold the welfare and wellbeing of those children throughout
their time in the United Kingdom, and to consider properly their
best interests during the asylum and immigration process. Guidance
should also call for consultation and cooperation with external
experts who are able to provide assistance.
32. We recommend that the Government establish
an independent advisory group, composed of experts from voluntary
organisations, academia and practice, to provide guidance to Ministers
about how to consider the best interests of unaccompanied migrant
children most effectively. Its framework for scrutiny should be
based on the UNCRC and applicable domestic duties, to ensure that
the group's work is child-focused.
33. Finally, we recommend that the Government
should evaluate the case for the establishment of a formal Best
Interests Determination process. This evaluation should analyse
the potential benefits of a new and formal process against the
alternative of seeking to make improvements to the existing decision-making
model. We would be content with either model, provided that the
result is a system that brings the best interests of unaccompanied
migrant children to the fore.
6 UN Committee on the Rights of the Child, General
Comment No. 5, General measures of implementation of the Convention
on the Rights of the Child, 2003 Back
UN Committee on the Rights of the Child, General Comment No. 6,
Treatment of unaccompanied and separated children outside their
country of origin, 2005. Back
 UKSC 4 Back
Ibid, paragraph 46 Back
HM Government Back
Refugee Children's Consortium, Children's Society, Refugee Council,
Barnardo's, Charlotte Nuboer-Cope, Royal Holloway and Tavistock
Centre (Sue Clayton, Anna Gupta, Jessica Walsh and Gillian Hughes),
Coram Children's Legal Centre, Centre on Migration Policy and
Society at Oxford University (COMPAS) Back
Refugee Children's Consortium. See also Migrant Legal Project,
Immigration Law Practitioners Association (ILPA) Back
ILPA, Refugee Children's Consortium, Children's Society, Barnardo's,
COMPAS, Coram Children's Legal Centre, ECPAT, UNICEF, NSPCC, Q52
Coram Children's Legal Centre. See also NSPCC Back
Coram Children's Legal Centre Back
Q9. See also Dr Christine Mounge, Q14 (UNHCR) Back
UNHCR. See also UNICEF. Back
HMG supplementary submission Back