Best Interests of Child in UK Law

There is in our view a fourth point of principle that can be inferred from the Supreme Court's judgments in ZH (Tanzania). As the use by Baroness Hale and Lord Hope of the adjective “overall” makes clear, the consideration of the best interests of the child involves a weighing up of various factors.

The need to keep in mind the “overall” factors making up the best interests of the child consideration must not be downplayed. Failure to do so may give rise to an error of law although, as AJ (India) makes clear, what matters is not so much the form of the inquiry but rather whether there has been substantive consideration of the best interests of the child.

Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case.

In my view the Court of Appeal reached the right conclusion on the issue arising in the present cases. Ultimately the factor which persuades me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled 'conflict of interest'. A doctor is obliged to act in the best interests of his patient.

The assessment of the best interests of the child will involve a consideration of several different factors, many of which were identified at paragraphs 29 and 30 of Lady Hale's judgment. It seems to me inevitable that, when the Tribunal comes to make the final assessment of proportionality, it will be appropriate to afford different weight to different factors depending upon the effect of removal of the individual upon them.

As it is now so well established in authority, I can summarise the jurisprudence very briefly for the purpose of the present case. In relation to each stage, recognition or enforcement is mandatory unless the ground or test for non-recognition or non-enforcement applies.

Under section 2, Enforcement, of Brussels II, however, the duty of, and discretion in, the court are different. There can be no review as to substance and only the limited discretion under Article 24(2). The duty is to make the foreign judgment happen and there is only such discretion as fulfilment of that duty requires. I agree with Mr Everall that the court has some discretion "to phase in", if and to the extent that phasing in will eventually best make the foreign judgment happen.