Children’s Rights Are Not Passports Against Deportation

“Makhlouf stressed that Berrehab v Netherlands (1988) 11 EHRR 322, Ferrari v Romania [2015] 2 FLR 303 and Sylvester v Austria (2003) 37 EHRR 17 respectively indicated that (i) despite potentially significant loss of contact, the absent or invisible parent’s family life with the child does not end with divorce and separation (ii) lengthy and deliberate denial of contact by the custodial parent cannot be used to deny the absent parent’s ongoing article 8 rights and (iii) effective respect for family life meant that the passage of time alone was not determinative of future family relations between parent and child. Equally, low tolerance for causing parental alienation also exists in domestic courts because of the child’s entitlement to evolve with the participation of both parents.

Makhlouf claimed that the family care system required robust case management unless it wants to be held responsible for violating the child’s article 8 rights by not allowing a relationship to develop with both parents. He submitted that the loss of a possible future relationship with him potentially resulted in a deprivation of a sense of cultural identity in his children. The situation exacted a scrupulous assessment by reference to fresh social welfare reports, especially because his son’s mother Charlene McManus was no longer averse to facilitating contact with him.

It was equally clear that the United Nations Committee on the Rights of the Children (CRC) demanded in General Comment no 14 (2013) – on article 3(1) of the Convention on the Rights of the Child – that focus must be provided to the holistic development of the child concentrating on full and effective enjoyment of the rights recognised in the Convention. A rights-based approach must prevail and decisions must be tailored to fit the specific needs of the child in question. Legislators, judges and other authorities are obliged to make specific inquiry as to the particular circumstances of an individual child and take action accordingly.”

United Kingdom Immigration Law Blog

Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] UKSC 59 (16 November 2016)

Makhlouf entered the UK in 1997 as the spouse of settled person and was granted indefinite leave to remain in 1999. He was the father of two children born out of two separate relationships. His first child Sarah-Jayne was born out of his marriage to Ruth Henderson, a British citizen. They separated, but never divorced, because she claimed he was violent. Makhlouf pleaded not guilty to causing intentional GBH under section 18 of the OAPA 1861. But as seen in the last post he pleaded guilty – at the earliest opportunity – to the lesser GBH offence under section 20 and received 39 months’ imprisonment in 2005. While drunk, he attacked two people over a dispute related to a gambling game. He accused his victims of being loyalist paramilitaries who had not…

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