My Lords, I also speak to Amendments 40, 42, 43 and 45, supported by the noble Lord, Lord Roberts of Llandudno, and the right reverend Prelate the Bishop of St Albans. These amendments are about the best interests of the child. Time and again, your Lordships’ House has promoted and defended the best interests of children, and I hope that it will do so again in the context of this Bill.
Amendment 33 is designed to ensure that the best interests of children are explicit in this part of the Bill so that they are properly prioritised and comprehensively considered by a court or tribunal; and so that it is clear to all decision-makers that the best interests of children affected by these decisions need to taken into account as a primary consideration. Amendments 40, 42 and 43 remove the concept of a “qualifying child”, so as to make clear in the legislation that all children’s best interests must be given proper consideration and weight. In addition, Amendment 43 alters the test in exception 2, concerning deportation of foreign criminals, where there is a genuine and subsisting relationship with a qualifying partner or child so that the effect on family members would have to be “disproportionate” rather than “unduly harsh”. “Unduly harsh” is, I understand, an alien test in the context of considering what is best for a child, whereas “disproportionate” is known and well understood with reference to the balancing act involved in considering interference with family life in EHCR case law. I cannot help but wonder what would constitute a “duly harsh” effect on a blameless child.
These amendments have been suggested by the Refugee Children’s Consortium. I am grateful to it for its briefing. Amendment 33 has also been endorsed by the Joint Committee for Human Rights, of which I am a member, in its second legislative scrutiny report on the Bill. The JCHR’s concern was mainly with the question of “best interests”, and that will be the focus of my remarks, too.
As noble Lords will be aware, the injunction to establish the best interests of children and ensure that they are a primary consideration in all decisions affecting them derives from the UN Convention on the Rights of the Child, its general comments and judgments in both the European Court of Human Rights and the UK Supreme Court. Clause 14 fails to make this injunction explicit and does not reflect established case law on children’s best interests. In particular, it fails to highlight the importance that must first be accorded to understanding the best interests of the child, and their weight, before going on to consider any other countervailing public interest factors.
I emphasise that this is not an argument that children’s best interests are some kind of a trump card. I repeat: it is not arguing that they are a trump card that overrides these countervailing public interest factors, only that they must be a primary consideration in the assessment of each individual case. What these means was spelt out in the landmark Supreme Court judgments, ZH (Tanzania) and HH. In the ZH judgment, it was noted that in making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations.
In HH, Lord Justice Kerr—the noble and learned Lord, Lord Kerr—stated that best interests,
“must always be at the forefront of any decision-maker’s mind … This calls for a sequencing of, first, consideration of the importance to be attached to the children’s rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether [the government’s action] justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children’s interests”.
Amendment 33 does no more than make that explicit. It is a principle that the Government accept, as they made clear both in the Public Bill Committee and in their correspondence with the JCHR about the relationship between this legislation and the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, to have,
“regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.
The Committee welcomed that, but despite the Government’s reassurances, it considers that the Bill should be amended to,
“remove any scope for doubt about the effect of the Bill on the s. 55 children duty, by requiring the best interests of the child to be taken into account as a primary consideration”.
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In reaching that conclusion the Committee drew attention to a recent UN High Commissioner for Refugees audit of Home Office decision-making, which found that in many family asylum cases the analysis of children’s best interests was piecemeal and not always specific to the child’s individual characteristics or situation. Among other things, the audit found that within Home Office procedures there is no formal and systematic collection or recording of the information necessary for a quality best-interest consideration, that an analysis of the child’s safety was rarely undertaken, and that confusion has arisen in relation to the new family
Immigration Rules. That does not install confidence in how seriously and effectively children’s best interests are being considered in practice, even under existing legislation. Can the Minister say what consideration has been given to the implications of this audit for the Bill, and what action is being taken in response to it?
Another insight into the inadequacy of Clause 14 as it stands comes from the former Home Office Minister Sarah Teather, now a colleague on the JCHR. On Report in the Commons, she expressed her frustration that its wording,
“undermines the work we did to end child detention and put in place in the Home Office a practice of considering the best interests of children”.
She found it deeply and profoundly confusing, not least as it,
“appears to imply that certain children are somehow invisible”.—[Official Report, Commons, 30/1/14; col. 1075.]
The charge of invisibility is also relevant to the question of what constitutes public interests, which lies at the heart of Clause 14. As it stands, the clause fails to recognise that promoting and protecting the interests of children, which is rightly no longer seen as by public policy as a purely private matter, is in itself a public good—a point just made by the noble Baroness, Lady Hamwee—and therefore of public interest. In HH, the Supreme Court held that there is,
“a strong public interest in ensuring that children are properly brought up”.
Does the Minister agree with that sentiment, and if so, would he also agree that the kind of amendment proposed would dispel any impression that children’s interests are being treated as no more than personal and private interests?
Finally, Amendments 40, 42 and 45 remove the category of qualifying child, which excludes from consideration any child who is not a British citizen or who has not lived in the UK for a continuous period of at least seven years, which of course includes any child aged under seven. The JCHR asked how that is compatible with the obligation in the UN Convention on the Rights of the Child to have regard to the best interests of the child as a primary consideration. It asked whether the Section 55 duty would still apply to children who do not fall within the definition of a qualifying child. In their response, the Government confirmed that they would, and that is very welcome. They also confirmed that they would update guidance to front-line officials without addressing the specific point that concerned the committee—that is, the need for such guidance to provide an explanation of how the Bill’s provisions concerning the public interest considerations relevant in cases concerning Article 8 of the ECHR are to be read alongside the Section 55 children duty. I would be grateful if the Minister could give that assurance now and if he could repeat, so it is on the Hansard record, first, that the Section 55 duty will apply to children who do not fall within the qualifying child definition and, secondly, that as confirmed in the Minister’s very helpful response to issues raised by other noble Lords at Second Reading, there will still be a requirement to consider the best interests of a child in the UK in all cases.
These amendments, of course, go further. I want to question why the distinction between qualifying and non-qualifying is being made at all. I emphasise again that I speak here as a non-lawyer. In response to the JCHR, the Government justified it on the grounds that children aged under seven would not have developed attachments beyond the parent and the home such as to make it unreasonable to expect the child to leave the UK, citing justification E-A Nigeria, although there the court was referring to children from birth to only four, not seven. In the Public Bill Committee, the Minister said that a child who,
“has reached the age of seven … will have moved beyond simply having his or her needs met by the parents”.—[Official Report, Commons, Immigration Bill Committee, 5/11/13; col. 216.]
Surely, that could apply to a child aged five or six, too. It is a long time ago since I was that kind of age, and the same would apply to other noble Lords. I remember very little from my childhood, but one thing that I do remember is that I was absolutely devastated when my best friend moved away. I had no control over it; she was like a sister to me—I was an only child. What happens to only children who have made serious attachments to other children in their neighbourhood? That matters a lot. I can still remember the sense of pain that I had as the removal van drove away from two doors down. Noble Lords should not underestimate what it means to a child to lose that kind of attachment, however young the child. Could the Minister explain the rationale behind the cut-off at seven? I know that it mirrors an earlier concession, but that is not sufficient justification.
Furthermore, the Government’s position ignores the complexity of cases where, for example, parents may be separated and children often face the impossible choice between leaving behind one parent in the UK and being split from the deported parent for the rest of their childhood. More generally, BID’s study of children separated from parents for the purposes of immigration control painted a picture of children suffering nightmares and insomnia, crying frequently and losing weight—and this included some younger children.
To return to the simple question of the best interests of the child, as I have said, I do not believe that there is any disagreement here on the basic principles involved. The amendment would help to provide a clarity and consistency that the Government have themselves stated that they wish to achieve with Clause 14 in a letter to the JCHR, and I think elsewhere. I hope that the Minister will be willing to take away the amendment and come back at Report with a government amendment that would help to satisfy their critics that they genuinely want to ensure that primary consideration is given to the best interests of children. I beg to move.