The government had breached its obligation to treat children’s best interests as a primary consideration under Article 3(1) of the UN Convention on the Rights of the Child (UNCRC). The Supreme Court confirmed that European Convention rights must be interpreted in ‘harmony’ with international human rights law.
Following R (SG) v Secretary of State for Work and Pensions  UKSC 16 (known as the ‘Benefit Cap’ case) these cases have wide-ranging significance for children’s rights because they confirm that the UNCRC is binding in domestic law where a European Convention right is engaged.2
This case also contains a helpful summary of the definition of ‘best interests’3:
“The first aspect of the concept is the child’s substantive right to have his best interests assessed as a primary consideration whenever a decision is made concerning him. The second is an interpretative principle that, where a legal provision is open to more than one interpretation, that which more effectively serves his best interests should be adopted. The third is a “rule of procedure”, described as follows:
“Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned … Furthermore, the justification of a decision must show that the right has been explicitly taken into account …’” [para 39]
This case is an important reminder for youth justice practitioners that the United Nations Convention on the Rights of the Child (UNCRC) is binding if a European Convention right, such as the right to a fair trial, is engaged.
- Article 3(1) United Nation Convention on the Rights of the Child states that the best interests of the child are a primary consideration for all public bodies, including courts. (back)
- ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4, Lady Hale at para 21 quoted with approval the observation of the Grand Chamber of the ECtHR in Neulinger v Switzerland (2010) 28 BHRC 706, para 131, that “the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law”. (back)
- Also see R (SG) v Secretary of State for Work and Pensions  UKSC 16, at paras 105-106 (back)