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Chapter 3 | National Legal Framework
and to the acquisition and possession of citizenship, as
it may deem necessary from time to time.
Despite this reservation, the Court of Appeal has
referred to and relied on the Convention on the
Rights of the Child in cases where it was asserted
that a child’s rights under the European Convention
on Human Rights have been breached. In the recent
case of ID & Others v. The Home Office 18 (a case
involving the detention of children with their parents
in an immigration removal centre) Lord Justice
Brooke relied on Article 37(b) of the Convention on
the Rights of the Child and held that he was under
a duty to interpret the European Convention on
Human Rights in the light of other obligations in
international law, including treaty obligations. 19
The UN Committee on the Rights of the Child
has characterized the broad nature of the reservation
as one of its principal subjects of concern regarding
the U.K.’s compliance with the Convention. It has
questioned the compatibility of the reservation with
the aims and purpose of the Convention itself, 20
finding it to be in direct contradiction to Article 2
which states that the Convention should apply to
all children without discrimination of any kind and
irrespective of their race, national, or ethnic origin.
In 2002, the Committee recommended that the circumstances
of children be addressed in the ongoing
reform of the immigration and asylum systems to
bring them into line with the principles and provisions
of the Convention. 21 This had not been done
by May 2006.
The Children Act 1989 places a number of
duties on local authorities to protect and provide
support to children in need in the U.K. and these
duties are owed to all children present in the U.K.
irrespective of their immigration status or nationality.
The Act does not impose any duties on the
Immigration Service or the Immigration and Nationality
Directorate but it plays an important part in
defining unaccompanied or separated children’s
right to accommodation and financial support whilst
their applications for asylum are being determined.
It is also relevant if any child protection concerns,
for example in relation to child trafficking, arise
whilst an unaccompanied or separated child is in
the U.K. Section 1 of the 1989 Act imposes a more
stringent duty than that of the Convention on the
Rights of the Child, because it requires the child’s
welfare to be the paramount (and not merely a primary)
consideration when a decision is made in a
family court in relation to an unaccompanied or
separated child’s welfare. However, section 1 of the
Act does not apply to decisions made by the Immigration
and Nationality Directorate in relation to
unaccompanied or separated children.
Unaccompanied or separated children are also
excluded from new protective measures introduced by
the Children Act 2004. Section 11 of that Act imposes
a duty on public bodies who come into contact
with any child to “ensure that their functions [are]
discharged having regard to the need to safeguard
and promote the welfare of [that child].” However,
the Immigration Service, the Immigration and
Nationality Directorate, and Immigration Removal
Centres are excluded from this duty. The Government
successfully opposed amendments to the Children
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