BH in the UK Supreme Court: Weighing the best interests of the child

February 4, 2013

By Rebecca M.M. Wallace (Professor of International Human Rights and Justice, Robert Gordon University, Aberdeen, UK) and Karen Wylie (Research Assistant, Robert Gordon University, Aberdeen, UK)

The principle of the best interests of the child is enshrined in international law by Article 3 of the 1989 UN Convention on the Rights of the Child (UNCRC). Similarly the right to family life is protected by Article 8 of the European Convention on Human Rights (ECHR). In June 2012, in the case of BH (AP) (Appellant) and another v The Lord Advocate and another (Respondents) (Scotland) KAS or H (AP) (Appellant) v The Lord Advocate and another (Respondents) (Scotland) Trinity Term [2012] UKSC 24, On appeal from: [2011] HCJAC 77 (hereafter referred to as BH), the UK Supreme Court had to consider the weight to be given to these principles in the context of the extradition of a couple to the US and the effect this would have on their children.

Very briefly, the charges against the couple, Mr and Mrs H, were conspiracy and unlawful importation into the US of chemicals used to manufacture methamphetamine in the knowledge of, or having even cause to believe, that they would be used for that purpose. Mrs H is the mother of six children whose ages ranged, at the time of the case, from 14 to one year. Mr H is the father of the four youngest children. The Supreme Court acknowledged that the children’s interests would be interfered with, at least to some degree, by the extradition of either parent, and if both parents were to be extradited the effect on the family life of the children would be “huge”. The issue confronting the Supreme Court was the weight to be given to the children’s best interests, and whether on considering these best interests, the extradition of both parents, or either of them, would be proportionate. In assessing the parents’ case the Court relied heavily on a previous case, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011), in which the weight to be given to the best interests of a child who faced the removal of one of his parents from the UK, was discussed at length.

The essence of the parents’ case in BH was that their extradition would be incompatible with their Convention rights within the meaning of the Human Rights Act 1998, as their extradition would interfere with the exercise of their right to respect for their private and family life contrary to Article 8 of the ECHR. The couple invoked the argument that the public interest in giving effect to the extradition request was outweighed by the consequences that this would have for the best interests of their children.

Obviously in considerations of the best interests of children and the right to family life, the facts specific to a case have to be carefully assessed and the best interests of the child must be placed in its proper context. That demands that there be a clear idea as to the nature of the children’s circumstances and what is in their best interests. Only then can the question be addressed as to whether these are outweighed by the force of any other considerations. As per this requirement the Court in BH examined the family history in great detail, and indeed there were several complicating factors. The gravest of these were sexual abuse charges which were brought against Mr H by his daughter from a previous relationship and by the daughter of a neighbour. Furthermore the Court also considered the infrequency of visits the children made, through their own reluctance, to Mr H when he was in custody during the legal process and the effect this had on their relationships. On the other hand the Court also took into account the presence of a maternal grandmother and network of family and friends who were able to take care of the children in the event of the parents’ absence, as well as the support offered by the local authorities.

The Supreme Court focussed on the Art.8 rights as raised in the case. Initially it was acknowledged that one of the greatest punishments of incarceration is separation from children. The obvious corollary is that the children of those who are in prison are also punished. The Supreme Court invoked evidence to suggest that incarceration of a parent, if done at a crucial stage of a child’s development, may be prejudicial to the well-being and development of the child and this damage may well be irreparable. The Court concurred this is more likely when a parent is extradited for trial and faces probable detention in another country. Here then, the best interests of the child needs serious consideration. Where there is a question of a child remaining in the care or being separated from his or her parent Article 9 of the UNCRC draws a distinction between separation of children from their parents for reasons connected with their upbringing, and separation of parents from their children for deportation, detention or imprisonment. However, even in the latter category of decisions, the best interests of the child must be a primary consideration.

The Court acknowledged that realistically the parents, if extradited to the US, would be detained until and throughout their trial. Contact with their children would be available via mail and telephone calls, although dependent upon the detainee having sufficient sums to meet the cost of such contact. Direct face-to-face contact would not be possible. It was expected the trial would probably last some two to four weeks, and given the seriousness of the offence allegations against the parents, if convicted they would receive very long sentences. Ultimately, the factual matrix as presented to the Supreme Court suggested that Mr and Mrs H faced the prospect of being kept apart from their children, and their children from them, and perhaps from each other if care arrangements did not allow for the siblings to stay together, for a very long time.

How then did the Court find a balance between the seriousness of the parents’ offences and the weight to be given to the best interests of the children? The Court initially addressed the case of Mr H and decided categorically that the argument his extradition would be contrary to the children’s best interests was very weak. This conclusion was reached against the background of the allegations against him of sexual abuse, his irregular contact with the children and their reluctance to maintain relationships with him.

Turning to the case of Mrs H the Court recognised the children’s separation from her would have a profound impact upon them. The Court accepted that more compelling the interests of the children, the more important it will be for the alternatives to extradition, if there are any, to be carefully examined and brought into balance to see if they carry any weight. The Court went to lengths to stress that this did not diminish the importance to be given to treaty obligations as assumed by the UK, but it is rather to recognise that in cases involving the separation of parents from young children there is another powerful factor which is likely to make the scales more finely balanced than they would be if the children were not involved. Ultimately though the Court concluded that the best interests of the children, even when weighed together with Mrs H’s own Article 8 right to respect for her family life with them, was not sufficient to overcome the overwhelming public interest in giving effect to the extradition request.

In the end then what this case demonstrates is that it remains the case that in every instance the issue of the best interests of the child cannot be applied as a mechanical, objective exercise, but rather each case has to be decided on a case-by-case basis taking account of all prevailing relevant circumstances of the children seen in the context of the public interest. It is evident that there may be, as in this case, tragic consequences in which the victims will be not just those extradited but also their children and indeed there will be ramifications for the extended family. The impact on the children may be profound and permanent. However having given the best interests argument cognisance as a primary consideration this will not, as a norm, outweigh other compelling factors so as to tip the balance in favour of non-interference with an Article 8 right. In the case of BH a court has, once again, demonstrated that the principle of the best interests of a child be a primary consideration, but not necessarily the primary consideration. However, it remains a difficult balancing act which, if judged incorrectly, could have severe ramifications for those involved not least the child.

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