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”. Section 11 of the Children Act 2004 gives effect to this by providing that local authorities (together with other specified bodies) must make arrangements for ensuring their functions are discharged having regard to the need to safeguard and promote the welfare of children.
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.
Now, in Collins v Secretary of State for Communities and Local Government [2012] EWHC 2760 (Admin) an alleged failure to comply with this duty founded the principal ground of challenge to decisions of the Secretary of State to refuse planning and enforcement notice appeals recovered by him in a case involving a large group of Irish travellers that included some forty children. The group had occupied a parcel of land, the lawful use of which was agricultural and equestrian, as a residential caravan site.
The court dismissed the challenge, holding that while the Secretary of State may have failed explicitly to identify the best interests of the children as being a primary consideration this was not a material issue. The question was whether, as a matter of substance, that was his approach. This accorded with the views stated in Sheridan. Reading the inspector’s report and the Secretary of State’s decision letter together, the claimant’s submission that the Secretary of State had failed to treat the best interest of the children as a primary consideration could not be maintained.
John Martin
