The paper compares European Court of Human Rights (ECtHR) and uk court judgments on cross-border nationality cases concerning children and wholly domestic family law cases regarding children (without the cross-border element). It identifies different legal standards that apply to the well-being of children such as the best interests principle and the welfare principle and maps how successful these standards are in bringing in the views of children. It appears that cross-border nationality cases are unable to consider the interests of children as seriously as the wholly domestic family law cases. The domestic court approach of welfare brings in children’s views more effectively than nationality cases in domestic courts or at the ECtHR. It would benefit children if a rigorous best interests determination is carried out in nationality proceedings and a welfare approach is adopted consistent with family law cases.
ArthurR. (2010) “Protecting the best interests of the child: A comparative analysis of the youth justice systems in Ireland, England and Scotland”The International Journal of Children’s Rights18(2) 217–231.
GlenP. (2012) “The removability of non-citizen parents and the best interests of citizen children: How to balance competing imperatives in the context of removal proceedings”Berkeley Journal of International Law301–34.
HaugliT. and ShinkarevaE. (2012) “The best interests of the child versus public safety interests: State interference into family life and separation of parents and children in connection with expulsion/deportation in Norwegian and Russian law”International Journal of Law Policy and the Family26(3) 351–377.
McNameeS.JamesA. and JamesA. (2005) “Family law and the construction of childhood in England and Wales” in GoddardJ.McNameeS.JamesA. and JamesA. (eds.) The Politics of Childhood (pp. 226–244). London: Palgrave Macmillan.