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The UNCRC in the Supreme Court – the impact of SG v Secretary of State for Work and Pensions

Deirdre Fotttrell QC of 1 Garden Court Family Law Chambers considers the Supreme Court's latest deliberations on when and how the provisions of the UN Convention on the Rights of the Child are directly enforceable in English law.

Deirdre Fottrell QC, 1 Garden Court Family Law Chambers

Deirdre Fottrell QC of 1 Garden Court Family Law Chambers

In R (on the application of SG) and Others v Secretary of State for Work and Pensions [2015] UKSC 16 the Supreme Court revisited the issue of when, and how, the substantive provisions of the United Nations Convention on the Rights of the Child (UNCRC) are directly enforceable in English Law.  This note considers the Supreme Court judgment and examines its wider impact.

The UNCRC and 'best interests' in the UK courts
The UK ratified the United Nations Convention on the Rights of the Child in April 1990.  The Convention is one of the seven core human rights treaties passed by the United Nations General Assembly and uniquely it includes the full complement of rights offering protection of both civil and political rights and, economic, social and cultural rights.  The traditional categorisation of rights was based on the crude presumption that civil and political rights essentially imposed obligations of conduct whereas economic, social and cultural rights created obligations of result.  Such divisions of rights have been abandoned over the past 20 years but residual difficulties exist as to the justiciability and enforceability of economic and social rights.

The UNCRC includes 33 substantive rights and is much broader than the ECHR.    As with all of the core UN human rights treaties, the UNCRC has not been incorporated into domestic law.  Its application by the English courts potentially broadens the protection of rights beyond the limited parameters of the ECHR and could potentially allow for judicial scrutiny of decisions about allocation of resources to children. 

The question of whether the provisions of the UNCRC can be directly applied by the courts in this jurisdiction has been the subject of a number of judgments by the Supreme Court in recent years.  In each of these cases the focus has been on the application of Article 3(1) which provides:

"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."

In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, the Supreme Court followed the EtCHR in its use of Article 3 as an interpretive tool in judicial decision making and further accepted that it applied to any decision in respect of a child's right to family life under Article 8(1).  In the context of that particular case the combined reading of s.55 of the Citizenship, Borders and Immigration Act 2009 and s.11 of the Children Act 2004 were considered to impose an obligation on decision makers to treat the best interests of the child as a primary consideration.  Baroness Hale observed that the 'spirit if not the precise language' of Article 3(1) had been translated into English law.   Lord Kerr observed that while it was not a factor of 'limitless importance', it was a factor which 'must rank higher than any other'. 

In H (H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening); H (P) v Same (Same intervening); F-K v Polish Judicial Authority [2012] UKSC 25, [2013] 1 AC 338 the Supreme Court considered the extent to which the best interests of a child impacted on a decision to extradite a parent.  Lady Hale drew on ZH as authority for the use of Article 3 of the UNCRC directly in the English courts but explicitly in the context of determining whether there had been an interference with the Article 8 right to family life of a child.  Lady Hale stated at paragraph 15:

"however the matter is put therefore ZH (Tanzania) made it clear that in considering article 8 in any case in which the rights of the child are involved, the best interests of the child must be a primary consideration.  They may be outweighed by other countervailing factors but they are of primary importance."

At paragraph 98 of H (H) Lord Mance considered whether and how Article 3 should be applied and stated 'that such interests must always be at the forefront of any decision maker's mind, rather than that they need to be mentioned first in any formal chain of reasoning or that they rank higher than any other considerations.  A child's best interests must themselves be evaluated.  They may in some cases point only marginally in one, rather than in another direction.  They may be outweighed by other considerations pointing more strongly in another direction.'

At paragraph 155 of H (H) Lord Wilson noted that the rights of children under Article 8 need to be considered through the 'prism of article 3' and he noted that on analysis in a decision making process other factors may exceed the importance of the best interests of the child.  H (H) is therefore considered to impose an obligation on the legislator to give appropriate weight to the interests of children as a primary consideration in the overall balancing exercise.  However between the handing down of that decision and SG the UN Committee on the Rights of the Child published its General Comment on the effect of Article 3.

The parameters of Article 3(1)
In its General Comment No 14 (2013) the Committee on the Rights of the Child emphasised that best interests is a 'threefold concept' and applies as follows:

i. A substantive right to have his best interests assessed and taken as a primary consideration when different interests are being considered.

ii. A fundamental interpretative legal principle which requires that, where more than one interpretation is possible, that which served a child's best interest is to be preferred.

iii. A rule of procedure that a decision which affects a child will include an evaluation of the possible impact of it on the child.

The General Comments of the UN Committee are not binding on States parties and are considered soft law but they do have persuasive value as they constitute an authoritative restatement of the law by the body charged under the Convention itself with supervising States parties in their implementation of its provisions.  The ECtHR will often consider the parameters of substantive rights as set out in General Comments when issues arise as to the interface between other international treaties and Convention rights.

UKSC decision in SG
The central issue in the appeal was the question of whether the regulations which implemented the 'Benefits Cap' under the Welfare Reform Act 2012 had an unjustifiably discriminatory impact on women under Article 1 of Protocol 1 (AP1) and Article 14 of Human Rights Act 1998.    This aspect of the appeal was rejected by the Court because a majority of the Court concluded that the Regulations did not have the discriminatory impact on women as was claimed such as to breach Article 14 and AP1.     In the alternative it was argued by the appellants that the Secretary of State had imposed the benefits cap in a way which was contrary to the best interests obligations set out in Article 3(1) of the UN Convention on the Rights of the Child (UNCRC).

The appellants' case on the Article 3(1) obligation was set out at paragraph 78 by Lord Reed. It had been argued that the obligation under Article 3(1) was engaged because the decision to impose the cap affected the private and family lives of children under Article 8 of the ECHR.  The European Court of Human Rights has regard to the UNCRC when applying Article 8 in relation to children. It was then argued that the Secretary of State was also obliged to comply with Article 3(1) of the UNCRC but that he had failed to properly take it into account.

The appellants' argument raised a number of questions.  The first was the extent to which general legislation which limited welfare benefits could constitute an interference with respect for private and family life given that such an approach would 'enlarge' the ambit of Article 8 to embrace a range of economic and social rights.    The second question was that in so far as Article 8(1) could be subject to such a reading, Article 8(2) permitted such an interference if it was deemed necessary in a democratic society in the interest of the economic well being of the state.  The implication that Article 3(1) required the interests of the child to be a primary consideration had wider significance for legislation in respect of taxation and social security.  Lord Reed concluded that the argument in respect of both issues was not made out. 

However at paragraph 81 he identified 'a more closely reasoned argument' that the Article 3(1) obligation was part of the proportionality assessment under Article 14 of the ECHR when read with AP1.  Such an approach would require the Article 3(1) test as to best interests to be read as coterminous with the test that a difference in treatment was 'manifestly without reasonable foundation' which was otherwise applicable in such cases where the interests of children were not affected.

The answer to the appellants' argument depended to a significant extent on the degree to which the UKSC was satisfied that an unincorporated international treaty, which was consequently not part of the law of the United Kingdom, could impose such an obligation on the Secretary of State.  In ZH (Tanzania) v Secretary of State for the Home Department [ 2011]  UKSC 4 the Court has previously concluded that the 'spirit if not the precise language' had been translated into UK law in the particular context of s.11 (2) of the Children Act and section 55 of the Immigration Act 2009.  Lord Reed noted (at paragraph 83) that the UNCRC has been taken into account by the ECHR and considered that it was not in dispute that the HRA 1998 could be interpreted in light of other international treaties.  The appellants relied on a number of cases in which the ECtHR cases had broadened the interpretation of Convention Rights in reliance on the UNCRC (for example Neulinger v Switzerland [2010] 54 EHRR 1087 and X v Austria [2013]  57 EHRR 405). 

However those cases had in common that they were each concerned directly with the rights of children.  Thus Lord Reed considered that they were distinguishable from the circumstances in the cases before the Court because the central issue was the alleged discrimination between men and women in the enjoyment of their property rights under Article AP1.  Such a context was not in his view one in which the rights of the adults concerned were inseparable from the best interests of children.   

Lord Reed concluded that UKSC was not required to consider whether legislation of this nature should be considered 'action concerning children' within the meaning of Article 3(1).  Nor was it necessary for the Court to determine whether Article 3(1) required that such legislation would be in the best interests of all children affected by it or whether the Regulations fulfilled those requirements.  In reaching that conclusion he noted that the impact of reduction in benefits on a child living with a single father was the same as that for a child living with a single mother or both parents.  As such the link between Article 3(1) of the UNCRC and the discriminatory impact of the benefits cap on women under AP1, which was the central issue in the case, could not be made.

A different majority of the Court composed of Lords Carnwath and Kerr and Baroness Hale concluded that the State had failed to show how the Regulations complied with Article 3(1) of the UNCRC and in particular that children's interests received inadequate attention from the Secretary of State during the process of the formulation of the benefits cap.    Within that majority decision there was division between Lord Carnwath and the other two judges as to whether the consequences of that finding were legal or political.

Lord Carnwath considered that the application of Article 3(1) had to be confined to the requirement that the Secretary of State consider the nature of admittedly discriminatory effect of the scheme on lone parents and the effects on their children.  He considered whether the Secretary of State had not properly considered the impact of the scheme on children who would lose benefits for reasons which were not related to their own needs but which related solely to the circumstances of their parents and as such that there was a failure to demonstrate that the Regulations were compatible with his obligation to treat the best interests of children as a primary consideration.  However he joined the majority in dismissing the appeal and at paragraph 133 noted that the consequences of any review of the scheme arising from the judgment were political and not legal.

Baroness Hale rejected the argument of the Secretary of State that the application of the UNCRC was confined to informing the substantive content of Convention rights, but not the approach to proportionality and discrimination.  She considered that the best interests of the child were to be taken into consideration when determining whether discrimination is justified under Article 14 (para 222).  She concluded that it was the measure itself which had to be justified rather than the discrimination and as part of that process it was necessary to be satisfied that proper account was taken of the children affected by it. 

The most expansive consideration of the status of the unincorporated treaty was undertaken by Lord Kerr.  He considered that the approach to unincorporated treaties allowed for an exception in the case of human rights treaties drawing on comments of Lord Slynn in Lewis v AG of Jamaica [2000] UKPC 35, [2001] 2 AC 50 PC and Lord Steyn in Re McKerr [2004] UKHL 12, [2004] 1 WLR 807 at para 48. In both of the earlier cases it had been foreshadowed that human rights treaties could be considered directly enforceable because the consequences of not doing so impacted on individuals in a way which was qualitatively different from many other international obligations.  While recognizing that the idea of human rights treaties having special status was far reaching and unlikely to find favour in the courts of the UK (paragraph 253) he went on to set out his view at paragraph 254 that it was necessary to treat human rights treaties as falling outside of the dualist approach to international law without abandoning dualism per se.  At paragraph 257 he concluded that Article 3(1) was directly enforceable in the UK.

The decision of the Court is of some significance and could impact on the interpretation of children's rights across the political, legal and economic spectrum.  The reach of Article 3(1) of the UNCRC is broad and extends to children in all contexts a protection similar to that which is enshrined in the paramountcy principle in the Children Act 1989.    The potential exists within Article 3(1) of the UNCRC to expand the parameters of the state's obligation and in particular in respect to decisions which underpin social and economic policy.   While the Court was split as to the consequences of the failure of the State to evaluate properly the impact of the "Benefits cap" on children, there was agreement that Article 3 can be directly applied and that it creates an enforceable obligation on the state to take account of children's best interests as a primary consideration in any and all decisions.