Article 3.1 of the United Nations Convention on the Rights of the Child requires all relevant authorities to treat “the best interests of the child” as a “primary consideration”.
This provision was considered by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, a case concerned with an immigration decision. Baroness Hale held that it obliged an authority, in any relevant case, to consider the best interests of the child first. However, she went on to state that, provided the authority did not treat any other consideration as inherently more significant than the best interests of the child, it could still conclude that the strength of other considerations outweighed them.
This led the court in R (on the application of Sheridan) v Basildon District Council [2011] EWHC 2938 (Admin) to conclude that there was a duty on the local planning authority in that case, when considering whether to enforce planning control, to have regard to the best interests of the children involved as a primary consideration. The court has subsequently followed that approach while recognising that the best interests of the child, once identified, will not necessarily be determinative of the planning issues.
In Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin), the claimant – a gypsy with young children – sought to quash the decision of an inspector on appeal to refuse retrospective planning permission for the use of agricultural land in the Green Belt as a caravan site. Her main ground of challenge was that the inspector had erred in her approach to the best interests of the claimant’s children. While according substantial weight to the potential harm to the Green Belt, she had given only moderate weight to the best interests of those children.
The court dismissed the claim. While she did not use the phrase “best interests”, when the inspector’s decision letter was read as a whole it was clear that the inspector had in substance identified the best interests of the children. She did not afford any other consideration inherently more weight. Her conclusion that the interference with the children’s interest was proportionate fell well within her margin of discretion.
John Martin
