Court/Judicial body: Privy Council (London)
Date: June 29, 2004 CRC
Provisions: Article 3: Best interests of the child Article 9: Separation from parents
Other international provisions:European Convention for the Protection of Human Rights and Fundamental Freedoms: Article 8 (Right to respect for private and family life)
Domestic provisions:Constitution of Trinidad and Tobago: Section 4(c) (Right to respect for private and family life)
Background: A Nigerian man resident in Trinidad was arrested and ordered deported for remaining in the country illegally after his work permit expired, despite the fact that he had children who were citizens of Trinidad and would remain there. He appealed the decision and sought to stay on the island with his family. Separation of families. The Court addressed whether and to what extent a child’s rights and interests must be considered in deportation proceedings involving one or both of their parents. Resolution: While the rights and interests of a child do not forbid the state from deporting a parent, they must be considered in reaching a decision to deport. The decision-maker must balance the reasons for deportation against the impact that it would have on other family members.
Court reasoning: While children are not technically involved in parental deportation proceedings, the outcome of those proceedings would clearly affect their lives dramatically. Thus, children’s rights and interests must be considered in those proceedings and in fact any other proceeding that involves them, whether directly or indirectly. Excerpts Citing CRC and Other Relevant Human Rights “[I]t is important that the rights and interests of children are taken seriously by all which are party to the UN Convention on the Rights of the Child. It is all too easy to lose sight of those rights and interests in proceedings which are mainly concerned with the rights and interests of adults.” … “The Convention itself has not been incorporated into the domestic law of Trinidad and Tobago, although its spirit is reflected in numerous specific laws relating to children. That is also the position in Australia and Nelson JA in the Court of Appeal drew attention to the well-known decision of the High Court of Australia, Minister for Immigration and Ethnic Affairs v Teoh (1994) 128 ALR 353. This concerned the decision to deport a Malaysian citizen who had married an Australian and had three children by her but had also been convicted of some serious drug dealing. The majority held that Australia’s accession to the Convention gave rise to a legitimate expectation that administrative decision-makers would act in accordance with the Convention and treat the best interests of the children of a potential deportee as a primary consideration. If the official proposed to act in a way which did not accord with that principle, procedural fairness required him to give the children notice and an adequate opportunity of presenting their case.” … “[T]he rights enshrined in the UN Convention are not absolute rights. The children’s interests may have to give way to other more weighty considerations. Among these must be the right of the State of Trinidad and Tobago to expel non-citizens who no longer have a right to remain. Article 9 of the Convention draws a distinction between the compulsory separation of a child from her parents, which must be subject to judicial review and necessary in her best interests, and the separation of a parent from his child, for example by detention, imprisonment, exile, deportation or death. But the High Court of Australia was concerned with the procedural fairness of the decision. The children’s legitimate expectations did not give rise to a right to have their interests treated as the paramount consideration at all times. They did give rise to an expectation that, if their interests were not to be treated as a primary consideration in a matter directly affecting their welfare, the family had to be warned and given an opportunity to make representations. If this is the position reached in Australia, where there is no constitutional guarantee of the right to respect for private and family life, one would expect it also to be the position in Trinidad and Tobago, where there is.”
Notes: Only those portions of the opinion relevant to children’s rights are summarised. Note that, with respect to the child at issue in this case, the court found that she was not harmed by the state’s actions. Therefore, much of the discussion of children’s rights in the opinion should be viewed as influential but not binding on future courts.
CRIN comments: CRIN believes that the reasoning in this decision is consistent with the CRC. Children’s rights and interests must be considered in all proceedings that involve them either directly or indirectly. However, this must be taken a step further when immigration decisions might result in the separation of a child from his or her parents – in those circumstances, courts and governments must make every effort to ensure that families remain together under CRC Article 9.
Citation:  UKPC 49;  1 A.C. 538
Link to full judgement: http://www.bailii.org/uk/cases/UKPC/2004/49.html