Key points
- The best interests of the child must always be a primary consideration
- However, they will not necessarily be determinative of the planning issue
The United Nations Convention on the Rights of the Child (UNCRC) was adopted and opened for signature and ratification at the end of 1989. Nations that ratify it are bound to it by international law. It was ratified by the United Kingdom in 1991. Article 3.1 of the UNCRC provides as follows:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Article 3.1 was considered by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 All ER 783. There, 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.
UNCRC in planning context
In Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin); [2013] 2 EGLR 145, the secretary of state made a clear concession that the principle in ZH (Tanzania) applies also in the planning context. This is now the judicially accepted position.
In Dear v Secretary of State for Communities and Local Government [2015] EWHC 29 (Admin) the claimant, a gypsy, sought to quash the decision of the secretary of state on a recovered appeal, refusing to grant her retrospective planning permission for the use of land in the green belt for keeping horses, and as a residential caravan site. It was accepted that the proposed development was inappropriate development.
Paragraph 87 of the National Planning Policy Framework (“NPPF”) provides, as did earlier policy, that inappropriate development is, by definition, harmful to the green belt, and should not be approved except in “very special circumstances”. Paragraph 88 requires that “substantial weight” should be given to any harm to the green belt. It then states that “very special circumstances” will not exist unless the potential harm to the green belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.
Article 3(1) of the UNCRC was engaged because the claimant lived with her children, two of whom were of school age. It was accepted by the secretary of state and his inspector that if planning permission were not granted, the claimant and her family were likely to end up moving around, effectively living by the roadside, with inevitable disruption to the family and to the education of one of her children (the other received home tuition).
Weighing the interests
One of the claimant’s grounds of challenge was that the secretary of state had erred in law in that he had treated the harm to the green belt as inherently more weighty than the best interests of the children living on the land, in breach – inter alia – of Article 3(1) of the UNCRC. Counsel on her behalf submitted that, for the best interests of the children to be treated as a primary consideration, they must be given the same weight at the outset as the NPPF guidance gives to harm to the green belt. In other words, each should be given substantial weight. Thereafter, in any balancing exercise, that weight should not be adjusted downward.
The court dismissed that ground, together with all other grounds. Applying ZH (Tanzania), the best interests of the claimant’s children had to be a primary consideration, but that was not the same as being the primary consideration. In his decision letter, the secretary of state had concluded that the best interests of the children were a primary consideration, and so he had applied the correct test.
However, in Stevens, Hickinbottom J had made it clear that thereafter an evaluation may alter once the individual circumstances of those interests, and other factors, were considered and assessed. The decision maker was bound to adjust the relative weighting to that which, in his judgment, the circumstances of the case required. On examination of all the material factors, the importance of one consideration may reduce (or, of course, increase) compared with another.
It was not sensible to require a decision maker to stick formulaically with the designation he was required to start with. The matter was one of substance rather than form. This applied equally to weight that policy documents require to be afforded to particular planning public factors, and to the weight that Article 3(1) of the UNCRC requires as a matter of policy to be given to the best interests of the child.
Adjusting the weighting
In the present case, the court held that the secretary of state had in his final conclusion adopted the reasoning of his inspector, and given modest weight to the family’s personal circumstances. This he was entitled to do. It was settled law that, provided the decision maker ascribes the correct weight at the outset, in carrying out any adjustment to the weighting when considering the individual circumstances of the case he was entitled to reduce the weight on one side of the balance, or increase the weight on the other. The effect is the same.
John Martin is a planning law consultant
