Posted: 10 December 2013

The right to private and family life protects vulnerable children too

In recognition of Human Rights Day, we're re-publishing Lucy's blog on how the right to family life protects vulnerable children. This piece was originally published on 4 October. 

This week Home Secretary Theresa May spoke at the Conservative party conference about a sweeping new immigration bill. In her speech, she paid particular attention to Article 8 of the Human Rights Act, the 'right to respect for private and family life'.

This right is often interpreted by politicians and the media in a negative light being seen solely for the protection of offenders and foreign nationals. In reality, the right to family life is extremely important for protecting all of us, including some of the most vulnerable in our society such as children, young people and families whether they are British or not. This fact often goes unreported.

Why is Article 8 important for children? 

Article 8 helps protect a child from state intrusion into their private and family life and encompasses the social ties they have formed with the family and community in which they are living.

We know from our extensive research on children's well-being that family has the biggest impact on children's happiness. We found that loving relationships are ten times more powerful than family structure in increasing well-being. Stability is also important. Almost a quarter (23%) of children who have moved home more than once over the past 12 months have low levels of well-being. 

However, the right to family and private life is not an absolute right which means that other considerations like the need to control immigration and public safety can override it and often do. 

Nevertheless, a landmark judgement in 2011 ruled that a non-British mother with British children should not be removed from the country. In making this decision, the judge expressly considered the children’s family life. The judge concluded that the mother’s removal would sever a genuine and vital relationship between parent and child. The case also highlighted that children’s best interests should not only be a primary consideration but should be considered first before going on to look at other factors. In addition, children should not be held responsible for the acts of their parents. 

Theresa May however, has stated she wants to restrict the use of Article 8 by passing legislation through parliament which a judge cannot overrule in a court. She said: 'We're going to . . . use primary legislation to make sure judges interpret the "right to family life" properly'.

Whilst the bill is debated there is an opportunity to ensure children’s best interests are truly at the heart of decision-making and that children are not negatively impacted by any changes in legislation.  

Why Article 8 matters for the children we support? 

We work with some of the most disadvantaged and marginalised children in our society. These include many children and young people who are caught up in the immigration and asylum process. There are an estimated 120,000 undocumented migrant children living in the UK – this means any child who does not have a legal status in this country.

The majority of these children were born here or have spent their formative years in the UK. It’s the only home they know and they may not even remember the country they came from or speak the language. Some of these children were abandoned in this country by their carers while others were trafficked here for exploitation and abuse. Many may have started to recover from their experiences and are even in education or are part of a loving foster family. Their right to a private and family life can therefore be a crucial element in resolving their immigration cases.

The Home Office has a duty to safeguard and promote the welfare of children including those who have no legal status in the UK. This means making sure that children’s best interests are central to decisions made about them. 

The bill is expected to be published next week and we will be working hard to ensure that the government considers children's rights during this process.


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By Lucy Gregg - Policy team

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