‘There is something you are missing; What about the children?’: Separating the rights of children from those of their caregivers

Abstract

On the 25th of June 2009, Sachs J delivered a lecture at the National Gallery of Scotland in Edinburgh. Mainly, the lecture dealt with his majority judgment in S v M (Centre for Child Law as amicus curiae). In an interview subsequent to the lecture, Sachs J revealed that he drafted at first a remissive response to the application for leave to appeal against the Supreme Court of Appeal’s refusal to hear her oral argument, as well as the sentence imposed by the High Court. He was of the opinion that her application did not raise a constitutional question. He was further of the opinion that she had not made out a case, wanted to avoid going to jail and had no prospects of success. In the interview he revealed that it was a female colleague who insisted that the case be heard, and who argued that the human rights of the Applicant’s children were not being adequately considered as separate from those of their mother.