Child's best interests a priority when eviction is considered, rules Judge

By MARC WILLERS, CHRIS JOHNSON and SIMON RUSTON

• District Judge did not take proper account of newborn baby's interest during eviction proceedings in Surrey
• Pregnancy was referred to as a "health problem"
• Parents' appealed decision
• “Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them", says Her Honour Judge Raeside

Mr and Mrs E were squatting on a vacant pitch on a Surrey County Council site. The Council threatened eviction action. Mrs E was pregnant and, shortly before possession proceedings were commenced, she gave birth to a son. District Judge George made a possession order. Mr and Mrs E appealed against that decision on the basis that the best interests of the child had not been taken into account. Her Honour Judge Raeside allowed their appeal, and sent the matter back to District Judge George.

The case provides an excellent summary of the current legal position on this issue.

HHJ Raeside stated:

‘13. ….ZH (Tanzania) v Home Sec [2011] UKSC4 makes it clear that international law (in particular, the UNCRC) placed a binding obligation upon public bodies to discharge their functions having regard to the need to safeguard and promote the welfare of children; and that in doing so, the authorities were required “to treat the best interests of the child as a primary consideration, by identifying what those best interests required and then assessing whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed a child’s best interests”.

14. In that case Baroness Hale said the following: “Provided that the tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first.” (page 180 D).

15.  Lord Kerr of Tonaghmore said (para 46) “Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.”

……

17. In the Collins case [ Collins v SSCLG [2013] EWCA Civ 1193] the Court of Appeal quoted with approval from the decision of Hickinbottom J in Stevens v Sec of State for Communities [2013] EWHC 792 (Admin) at 69:

“From these authorities, in respect of the approach of a planning decision-maker, the following propositions can be derived.  

i) Given the scope of planning decisions and the nature of the right to respect for family and private life, planning decision-making will often engage article 8. In those circumstances, relevant article 8 rights will be a material consideration which the decision-maker must take into account.

ii) Where the article 8 rights are those of children, they must be seen in the context of article 3 of the UNCRC, which requires a child's best interests to be a primary consideration.

iii) This requires the decision-maker, first, to identify what the child's best interests are. In a planning context, they are likely to be consistent with those of his parent or other carer who is involved in the planning decision-making process; and, unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child's best interests, and properly represent and evidence the potential adverse impact of any decision upon that child's best interests.

iv) Once identified, although a primary consideration, the best interests of the child are not determinative of the planning issue. Nor does respect for the best interests of a relevant child mean that the planning exercise necessarily involves merely assessing whether the public interest in ensuring planning controls is maintained outweighs the best interests of the child. Most planning cases will have too many competing rights and interests, and will be too factually complex, to allow such an exercise.

v) However, no other consideration must be regarded as more important or given greater weight than the best interests of any child, merely by virtue of its inherent nature apart from the context of the individual case. Further, the best interests of any child must be kept at the forefront of the decision-maker's mind as he examines all material considerations and performs the exercise of planning judgment on the basis of them; and, when considering any decision he might make (and, of course, the eventual decision he does make), he needs to assess whether the adverse impact of such a decision on the interests of the child is proportionate.

vi) Whether the decision-maker has properly performed this exercise is a question of substance, not form. However, if an inspector on an appeal sets out his reasoning with regard to any child's interests in play, even briefly, that will be helpful not only to those involved in the application but also to the court in any later challenge, in understanding how the decision-maker reached the decision that the adverse impact to the interests of the child to which the decision gives rise is proportionate. It will be particularly helpful if the reasoning shows that the inspector has brought his mind to bear upon the adverse impact of the decision he has reached on the best interests of the child, and has concluded that that impact is in all the circumstances proportionate.”

18. In the Collins case Richards LJ also considered the question of the impact of Section 11 of the Children Act 2004. He held (at para 14) that it did not apply to the Secretary of State in considering planning matters, but that it did apply to Local Authorities and he said this:-

“I do not think that section 11 would add materially to the analysis in any event…The statutory guidance under section 11 underlines the breadth of the general requirement to safeguard and promote the welfare of children…but it contains nothing specific in relation to planning functions.”

……

19. In Zoumbas v Secretary of State the Supreme Court considered the exercise that has to be undertaken when the best interests of children are being looked at by public bodies (in that case, extradition). Lord Hodge said the following:-“

1. 1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;

(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;

(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;

(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;

(5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;

(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and

(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.

These principles arise from the United Kingdom's international obligations under the United Nations Convention on the Rights of the Child, and in particular 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.’ ”

Lord Hodge continued (at Paragraph 13):

“We would seek to add to the seven principles the following comments. First, the decision-maker is required to assess the proportionality of the interference with private and family life in the particular circumstances in which the decision is made. The evaluative exercise in assessing the proportionality of a measure under article 8 ECHR excludes any ‘hard-edged or bright-line rule to be applied to the generality of cases’: EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159, per Lord Bingham at para 12. Secondly, as Lord Mance pointed out in H(H) (at para 98) the decision-maker must evaluate the child's best interests and in some cases they may point only marginally in one, rather than another, direction. Thirdly, as the case of H(H) shows in the context of extradition, there may be circumstances in which the weight of another primary consideration can tip the balance and make the interference proportionate even where it has very severe consequences for children…”’

HHJ Raeside then applied the law to the facts of the case:

‘21. …It is accepted by Mr Cottle [counsel for Mr and Mrs E] that the child’s human rights were not engaged until his birth in September 2012. The Local Authority therefore had an obligation to consider the child’s interests either at that point or (as Mr Cottle accepted) the LA could carry out an assessment of his best interests pre-birth (in anticipation of his birth). Those interests would need to be re-evaluated if anything occurred out of the ordinary following his birth (for example, any unforeseen health or social needs)….

24…. In making a recommendation to recover possession, [District Judge George] records the following:-

“I have taken into account their current health problems; including in particular pregnancy and depression, but do not believe these provide any reason to give this couple precedence over other applicants….”’

HHJ Raeside concluded:

‘27. In my view the Appellants have clearly established that the Local Authority has failed to place the child’s needs in primary place in their decision making process. The report discusses the pregnancy as a “health problem” but nowhere is there any mention of the child itself; of the child’s likely needs, of the impact on the child if possession proceedings were commenced, or if an eviction order was made. One would expect to see some sort of analysis of the welfare needs of the child and its parents balanced with the need for the LA to run a fair system of allocation of places, remembering at all times that the child’s needs are the primary consideration.

28. I recognise that the authorities state that in most cases the needs of a child can be adequately represented by consideration of the needs of the parent. But the authorities go on to give clear guidance about the role that the child’s best interests must have in the decision making process. Looking at the papers I do not get the impression that any thought at all was given to the needs of the child or his welfare. This is particularly marked given that the child was not yet born, and the LA were having to anticipate the child’s needs. One would expect some mention of that fact.

29….. In those circumstances, the possession order must be set aside with the matter to be listed urgently before DJ George for further directions. I anticipate that the Local Authority will give further thought and consideration to its decision, and may exercise its decision making functions anew.’

Albeit only at county court level, this is a very important and instructive judgment which stresses  that  local authorities must take proper account of the best interests of the child when assessing potential eviction action (as well as in other circumstances, such as in planning cases). It will prove exceptionally useful as a summary of the law for those working on behalf of Gypsies and Travellers and can be put before local authorities, planning inspectors and the courts to ensure that they take into account the best interests of the children as a primary consideration. 

Eastwood v Surrey County Council Case No. 2RH00537, Surrey County Court 12 February 2014, HHJ Raeside.

The barrister for Mr and Mrs E was Stephen Cottle of Garden Court Chambers and the solicitor was Parminder Sanghera of CLP.

 

Chris Johnson (chrisjohnson@communitylawpartnership.co.uk)

Travellers Advice Team (TAT) at Community Law Partnership (CLP)

TAT operates a national Helpline for Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm

CLP’s website is at http://www.communitylawpartnership.co.uk/

Marc Willers QC, Garden Court Chambers (marcw@gclaw.co.uk)

Garden Court Chambers has a specialist Romani Gypsy and Traveller Team. Its website is at www.gardencourtchambers.co.uk

Dr Simon Ruston, Ruston Planning Limited, Independent Planning Consultant specialising in Gypsy and Traveller work

Simon can be contacted at simon@rustonplanning.co.uk or on 07967 308752/0117 325 0350