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Supreme Court

The government had breached its obligation to treat children’s best interests as a primary consideration under Article 3(1) of the UN Convention on the Rights of the Child (UNCRC). The Supreme Court confirmed that ECHR rights must be interpreted in ‘harmony’ with international human rights law.

Details

Cameron’s father, Mr Mathieson, challenged the regulations governing Disability Living Allowance (DLA) that mean that a child (aged under 16) stops receiving DLA after their 84th day of admission as an inpatient in an NHS hospital. The Supreme Court ruled that these regulations are discriminatory against disabled children (in breach of article 14 of the European Convention on Human Rights).

The Supreme Court confirmed the requirement to read the ECHR in harmony with the principles of international law (see Neulinger v Switzerland and Lord Wilson in Mathieson at para 44) and found that the government was in breach of its international law obligation to treat disabled children’s best interests as a primary consideration.1 The policy of stopping DLA payments after a prolonged hospital stay was based on the assumption that the child’s needs would be met by the hospital. The Secretary of State had failed to evaluate the impact of this policy on the children concerned.  In particular, he had not considered the importance of parental participation in the care of a child in hospital.

Following R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16 (known as the ‘Benefit Cap’ case) these cases have wide-ranging significance for children’s rights because they confirm that the UNCRC is binding in domestic law where a European Convention right is engaged.2

This case also contains a helpful summary of the definition of ‘best interests’3:

“The first aspect of the concept is the child’s substantive right to have his best interests assessed as a primary consideration whenever a decision is made concerning him. The second is an interpretative principle that, where a legal provision is open to more than one interpretation, that which more effectively serves his best interests should be adopted. The third is a “rule of procedure”, described as follows:

“Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned … Furthermore, the justification of a decision must show that the right has been explicitly taken into account …’” [para 39]

Commentary

This case is an important reminder for youth justice practitioners that the United Nations Convention on the Rights of the Child (UNCRC) is binding if a European Convention right, such as the right to a fair trial, is engaged.

This post originally features on the Youth Justice Legal Centre Blog and can be viewed here.

 

  1. Article 3(1) United Nation Convention on the Rights of the Child states that the best interests of the child are a primary consideration for all public bodies, including courts.
  2. ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, Lady Hale at para 21 quoted with approval the observation of the Grand Chamber of the ECtHR in Neulinger v Switzerland (2010) 28 BHRC 706, para 131, that “the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law”.
  3. Also see R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, at paras 105-106