The Best Interests of the Child in the Expulsion and First-entry Jurisprudence of the European Court of Human Rights: How Principled is the Court’s Use of the Principle?

In: European Journal of Migration and Law
View More View Less
  • 1 School of Law, National University of Ireland Galway, University Road, Galway, Ireland

The principle of the best interests of the child is regularly referred to by the European Court of Human Rights in its jurisprudence involving children. However, the principle is notoriously problematic, and nowhere more so than in the immigration context where the state’s sovereign interests are keenly at stake. This article critically examines the expulsion and first-entry jurisprudence of the European Court of Human Rights under Article 8 of the European Convention on Human Rights, interrogating whether a ‘principled’ approach is adopted to the best interests principle. It is argued that a principled approach is one which sees the best interests principle interpreted in the light of its parent document, the un Convention on the Rights of the Child, as interpreted by the un Committee on the Rights of the Child. It is demonstrated that despite widespread recourse to the best interests principle, the European Court of Human Rights fails to adopt a rights-based approach when identifying the best interests of the child and does not always give sufficient weight to the best interests of the child when balancing the interests of the state against those of the individual. The analysis also reveals a way for the Court to develop a more principled approach to the best interests principle.

  • 3

    G. van Bueren (1998), The International Law on the Rights of the Child, The Hague: Martinus Nijhoff, p. 46 (emphasis added).

  • 38

    On this phenomenon, see De Hart, supra note 9.

  • 47

    Spijkerboer, supra note 16 and S. van Walsum, ‘Against All Odds: How Single and Divorced Migrant Mothers were Eventually able to Claim their Right to Respect for Family life’, 11 European Journal of Migration and Law (2009) 295–311.

  • 54

    See De Hart, supra note 9 and Van Walsum, supra note 47.

  • 67

    See further, J. Doek (2006), A Commentary on the United Nations Convention on the Rights of the Child, Article 8, The Right to Preservation of Identity and Article 9, The Right Not to be Separated from his or her Parents, Leiden: Martinus Nijhoff.

  • 76

    General Comment No. 12 (2009), The right of the child to be heard, un Doc. crc/c/gc/12, para. 74.

  • 78

    See L. Thornton (2014), ‘The European Convention on Human Rights: A Socio-Economic Rights Charter?’ in: S. Egan, L. Thornton and J. Walsh (eds), Ireland and the European Convention on Human Rights: 60 Years and Beyond, Dublin: Bloomsbury Professional, pp. 227–256.

  • 79

    General Comment No. 14, supra note 61, para. 4.

  • 82

    General Comment No. 7 (2005), Implementing child rights in early childhood, crc/c/gc/7/Rev. 1, para. 20.

  • 109

    General Comment No. 6 (2005), Treatment of unaccompanied and separated children outside their country of origin, u.n. Doc crc/gc/2005/6, para. 86 (emphasis added).

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 424 276 37
Full Text Views 546 125 17
PDF Downloads 233 126 14