Overview: Family Law

Abstract

The Supreme Court decided four family law cases in the 2010–11 legal year, three of which expounded on the ‘child's best interest' principle and its relationship with Article 8 of the European Convention on Human Rights (ECHR),1 being the respect for private and family life. The fourth case concerned the weight to be accorded to an ante-nuptial agreement in deciding matters of ancillary relief upon the breakdown of a marriage. In ZH (Tanzania) v Secretary of State for the Home Department2 and Re E (Children)3 the Court examined the interrelationship between Article 8 of the ECHR and the ‘child's best interest' principle. In ZH, the Court allowed the appeal of a decision upholding the finding by the Asylum and Immigration Tribunal that a mother's British children could be expected to follow her when she was deported to Tanzania because they were conceived in the knowledge that the mother's immigration status was precarious. The Court found that the best interest of a child, broadly meaning their well-being, had to be a primary consideration when assessing whether their mother's removal would be considered disproportionate under Article 8 of the ECHR. The Court found the removal to be disproportionate, particularly since the effect of the mother's removal was inevitably that the children, who were British nationals, would also have to leave.4 In Re E (Children), a British mother challenged a decision providing for the return of her children, from a Norwegian father, to Norway in execution of the 1980 Hague Convention on Civil Aspects of Child Abduction.5 She based her claim on the following:6