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On appeal from: [2009] EWCA Civ 691

A mother appealed to the Supreme Court on the ground that her removal from the UK would constitute a disproportionate interference with her right under ECHR, art 8. The over-arching issue before the Court was the weight to be given to the best interests of children who were affected by the decision.

The Court unanimously allowed the appeal. In making the proportionality assessment under ECHR, art 8, the best interests of the child must be a primary consideration. The best interests of the child broadly meant the well-being of the child. A consideration of where best interests lay involved asking whether it was reasonable to expect the child to live in another country. An important part of discovering the best interests of the child was to discover the child’s own views. Although nationality was not a “trump card” it was of particular importance in assessing the best interests of any child. “Best interests” can be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother’s appalling immigration history and the precariousness of her position when family life was created – but the children were not to be blamed for that.

For judgment, please download: [2011] UKSC 4
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII