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World's Children's Day 2020

A summary of key developments over the last 12 months in children’s rights in UK Law

Established in 1954, Children’s Day is celebrated on 20th November each year. The purpose is to promote international togetherness, awareness amongst children worldwide and improving children’s welfare. Since 1990, World Children’s Day also marks the anniversary of the date that the UN General Assembly adopted both the Declaration and the Convention on children’s rights.

The impetus behind the day, and the Convention, is to provide a better world for children.

When deciding any important decision in relation to a child, the courts in England and Wales will always have regard to what is in the best interest of the child, and the child’s welfare will always be the courts paramount consideration.
2020 has seen some key developments in UK law relating to children and we have provided a brief overview here:-

The granting of parental orders in relation to a child born of a surrogate in circumstances involving the death of an intended parent.

A Parental Order transfers parentage from a surrogate mother to the intended parent/parents following an agreed surrogate arrangement. In the case of Re X [2020] EWFC 39 the resulting embryo was of the intended parent’s sperm and with the surrogate’s egg. Tragically, however, the intended parent and sperm donor died several months into the surrogate’s pregnancy. One of the criterion for a parental order under statute is that “two applicants” are required to make the application. Clearly however, after one of the intended parents died, meeting this criteria this was no longer possible.

Despite this difficulty, a few months after the birth of the child (the rules provide that no application can be made for six weeks following the birth of the child), the intended mother proceeded with her application for the parental order.

Although the criteria for the application were not met, the court found that the Article 8 (right to a private life) and Article 14 (the right to non-discrimination) of the European Convention of Human Rights were engaged on the basis that the child had the right to recognition of her identity as the child of her deceased father and thereafter made the Parental Order

Increased recognition by the courts of the importance of child’s bond with their siblings

The case of LC (A Child – Placement Order) [2020] EWCA Civ 787 involved care orders for three young children who had been referred to social services as a result of the mother’s mental health, as well as allegations of domestic abuse against the father. In July 2018, the parents agreed to the three children being accommodated by the local authority under s.20 of the Children Act 1989. Each of the children were put into foster care. At the Final Hearing, the local authority applied for the two older children (aged 8 and 7) to be placed into long term foster care, and for the youngest child (aged 2) to be put for adoption. The parents of the children opposed the applications and asked the court to return the children into their care. The Judge ( Children’s Guardian ) was in general support of the care orders being made but opposed the application for a placement order for the youngest child. The Judge thought the siblings should be kept together especially given their shared “unusual” heritage. The recorder considered that the children would “benefit enormously from having each other within the placement. That is not only because they have shared experiences in their lives and can be there to support each other and understand each other with the context of those shared experiences, but these children also have unusual mixed heritage, that being Indian/Hungarian. Their culture and their heritage are very important to them” [paragraph 22].

Following several court hearings, the care orders were granted in respect of all three children but the Court refused the application for a placement order with regard to youngest child.

The local authority appealed the Judge’s decision and the case reached the Court of Appeal in June 2020. The Court of Appeal agreed that the local authority’s placement order in respect of the youngest child was correct to be refused and was satisfied that the Judge at first instance had “carried out a fair and balanced analysis and her decision [could not] be described as wrong” [paragraph 49]. This was decided on the basis that the stability offered by the care arrangement would not compensate for the importance of the child maintaining a strong bond with her biological parents and siblings.

This case is significant in that is comes shortly after the Supreme Court’s consideration of the role of siblings in: XY(AP) [2020] UKSC 26. Here, the Supreme Court drew a distinction between the rights of family members based on their direct involvement in the upbringing of a child. At paragraph 46, Lady Hale observed that the Article 8 rights of “parents and other people who have a significant involvement in the upbringing of the child … [are] qualitatively different from the interference with the article 8 rights of siblings, which normally will be concerned with maintaining their relationship with the referred child.”

In acknowledging the importance of a child’s and their siblings maintaining a relationship through contact, the Court found that there needs to be a bespoke enquiry about the child’s relationship with his or her siblings whenever the court are required to address the possibility of making a compulsory supervision order. This will undoubtedly also have some importance in private law proceedings where the court are required to make orders concerning children from different relationships or where siblings spend different periods of time with each of their parents.

Clarification regarding the interplay between orders made under the Hague Convention and asylum applications

In the case of K (A Child) (Stay of Return Order: Asylum Application) (Contact to a Parent in Self-Isolation) [2020] EWHC 2394 (Fam) a father applied for a stay of enforcement in respect of an order which had been made under the Hague Child Abduction Convention 1980, which required the child to be returned to his mother in Russia. The mother resided in Russia but did not have a relationship with the child. The Father, who was in the UK filed an asylum application on behalf of the child in an attempt to avoid the consequences of the return order.

Deferring to the Secretary of State for the Home Department in respect of the issue, the Judge determined that the question of an asylum’s legitimacy is a matter for the Home Secretary. The Court held that there are to be no exceptions to the general rule that an asylum seeker is not to be returned until the asylum application had been refused and the appeal process exhausted. This is on the basis that non-refoulement (which is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in danger of persecution) is absolutely prohibited (in principle at least) as expressed in article 33(1) of the Geneva Convention 1951.

The Court, therefore, rejected the argument that it is the ‘right’ of a parent to decide where their child reside and that such rights cannot override the right of the child to be protected from persecution under the Geneva Convention [paragraph 22]. Importantly, the court held this position is the same even if the court forms a view that the asylum application is being used as a tactical instrument to delay the return of a child.

Therefore, an undetermined asylum application made by a child or on a child’s behalf prevents enforcement of a return order made under the Hague Convention. This is a welcome reinforcement of the principle of non-refoulement in customary international law, in relation to the protection of children’s rights.

It should, however, be noted that the Court of Appeal sought to further clarify the interplay between immigration law and the law pertaining to child abduction under the Hague Convention in G (A Child: Child Abduction) [2020] EWCA 1185, which was determined just a few days after the K (A child) judgment. In G it was held that a child can be returned under the Hague Convention when she is a dependent in an asylum claim and does not have an independent asylum claim. In those instances, without an independent application, there will be no absolute ban on determining or making a return order under the Hague Convention.

Whilst this last case example may not be viewed quite as positively as the decision made in K (A child) in terms of bolstering child’s rights, it is note-worthy in the sense that it brings further clarity to the complicated intersection between immigration law and the international children’s law relating to child abduction.

This brief review of 2020 legal developments in the law pertaining to children demonstrates that (in spite of a global pandemic) positive and important advancements continue to be made in relation to children’s rights.