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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
Author: Ciara Smyth1
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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.

Abstract

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.

1 Introduction

The principle of the best interests of the child derives, in international law, from Article 3(1) of the un Convention on the Rights of the Child (crc) which provides: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. Although the European Convention on Human Rights (echr) makes no reference to the principle, having preceded the crc by over thirty years, the European Court of Human Rights (ECtHR) has developed the practice of canvassing the best interests of the child in its interpretation of substantive Convention rights when the application involves a child. Thus, in the parental child abduction case of Neulinger and Shuruk v Switzerland, the Grand Chamber of the Court held that ‘there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount.’1 This statement reflects the fact that the principle of the best interests of the child has moved beyond the confines of treaty law and acquired the status of a general principle of international law.2

However, the status of the principle should not obscure the fact that it is notoriously problematic. It is no exaggeration to say that it is one of the most amorphous and least understood of legal concepts. It has been variously described as ‘only a principle of interpretation’3 (as opposed to a right or duty), an ‘open concept with no definite content’,4 and even ‘a vehicle for the furtherance of the interests or ideologies of others, not of the interests of children’.5 These ambiguities are nowhere more apparent than in the immigration context, where the best interests principle has frequently been hijacked to serve absolutist agendas. Thus, one can observe in state practice a resistance to the concept of best interests in the immigration context, since the child may not have a right to what is in his/her best interests. In other words, whether or not it is in the child’s best interests to enter or remain in the host country is independent of the question of whether the child has a substantive right to do so. From this perspective, doing what is in a child’s best interests is perceived to involve a lowering or softening of standards. Accordingly, the best interests of the child is apt to being outweighed by the state’s interest in immigration control. Or more insidiously, the best interests of the child is interpreted as coinciding with the state’s interest in immigration control. On the other hand, an ethnocentric view is sometimes discernible in legal argumentation – the view that any child, whatever his/her provenance, identity, personal experience or circumstances, would be better off in Western Europe, or that being a child dispenses with the need for immigration control. The immigration context, therefore, constitutes a particularly intense forum in which contestations about the best interests principle are played out.

This article focuses on the immigration and, specifically, the expulsion and first-entry jurisprudence of the ECtHR under Article 8. The question for resolution is whether the Court adopts a principled approach to the principle of the best interests of the child in these cases. It is argued that a principled approach is one which sees the best interests principle interpreted in the light of its parent document, the crc. The crc, in turn, should be interpreted in the teleological manner usually employed when interpreting an international convention and by reference to the jurisprudence of the crc’s monitoring body, the Committee on the Rights of the Child.6 Such an approach is fully consistent with the ECtHR’s growing practice of seeking interpretive guidance from general principles of international law and from other international human rights treaties and bodies.7 In order to answer the research question, some 30 key cases involving children are presented and analysed along two main lines of inquiry: first, how the Court identifies the interests of the child or children involved; and second, how much weight the Court assigns to the best interests of the child in balancing the competing interests of the state and the applicant(s). It is apposite, however, to begin by briefly introducing the Court’s Article 8 expulsion and first-entry jurisprudence and by noting the extent to which the Court has recourse to the best interests principle in that context.

2 Expulsion, First Entry and Recourse to the Best Interests Principle

The right to family life in Article 8 has generated a large amount of immigration jurisprudence despite the enduring legacy of the first case in 1985 – Abdulaziz, Cabales and Balkandali v the uk – in which the Court held that states have a sovereign right to control immigration and that Article 8 does not confer on immigrants a right to choose their place of residence.8 Nevertheless, the Court in that case accepted that Article 8 may be engaged by immigration decisions if there are ‘obstacles’ to enjoying family life elsewhere. A distinction was typically made in the jurisprudence and the literature between negative and positive obligation cases.9 The former are typically expulsion cases, where the expulsion of a family member from the host state following a criminal conviction or for immigration offences is claimed to constitute an interference with existing family life there (which often includes children). The latter are typically first-entry cases, where it is claimed that the host state is under a positive obligation to facilitate family reunification between a family member already in the host state and family members left behind (often children). However, a positive obligation can also arise in expulsion cases where the applicant is residing irregularly in the host state. In such cases, the issue for resolution is whether the state is under a positive obligation to regularise the applicant’s status in order that he/she can remain with his/her family members there (often children). In any event, in an early immigration case the Court declared that the boundaries between the State’s positive and negative obligations did ‘not lend themselves to precise definition’, that the applicable principles were ‘similar’, that both types of case involved ascertaining whether a ‘fair balance’ had been struck between competing interests, and that ‘in both contexts the State enjoys a certain margin of appreciation’.10 Indeed, in some cases, the Court has abandoned the distinction altogether, holding it unnecessary to determine whether the case is a negative or positive obligation case.11 Accordingly, the analysis conducted in this article does not turn on this distinction although it is useful to retain a differentiation between expulsion cases (whether of settled or irregular immigrants) and first-entry cases.

The Court first referred to the principle of the best interests of the child in its Article 8 immigration jurisprudence in 2006 in Rodrigues Da Silva and Hoogkamer v the Netherlands, a case that will be discussed later.12 Even prior to this case, however, in most cases involving children the Court generally gave some consideration to the impact on the children of the impugned decision. And in actual fact, there was no major change in the child-specific factors that the Court took into consideration pre- and post-2006 when it began to use the language of ‘best interests’.13 Therefore, the question of whether the Court has recourse to the best interests principle is not solely a function of whether the Court makes explicit reference to the principle. Consequently, this research is not limited to the post-2006 case-load but encompasses earlier cases too.14 Moreover, it is important to note that pre- and post-2006 there has been a handful of admissibility decisions and judgments involving children in which the Court has failed to consider one or more of the children in the family in its analysis.15 Nevertheless, it must be stated that such cases are the exception rather than the norm and that in the vast majority of cases involving children the Court does consider, to varying degrees, the situation of the children involved.

3 Identification of the Interests of the Child

This section examines how the Court identifies the various interests of the child. The first subsection sets out the practice of the Court and the second sub-section evaluates the Court’s practice in light of the normative requirements of the best interests principle.

3.1 The Practice of the Court

In both first-entry and expulsion cases, the Court generally considers the following factors in evaluating, expressly or impliedly, whether the impugned measure would be contrary to the best interests of the child: the extent of the child or children’s ties with the country of origin and the host country; the ages of the child or children involved; and the existence of an effective family bond. However, as will be seen, the issue of country ties is generally reduced to a question of adaptability, which is dealt with here under the rubric of ‘age’.

3.1.1 Age

The age of the child, whether young or old, has a variable impact on the Court’s reasoning, depending on context, although as commentators have pointed out previously, the Court is not entirely consistent, nor, indeed, explicit, on the moment at which it counts the child’s age (i.e. whether at the initiation of domestic proceedings, the conclusion of domestic proceedings or when the case comes before the ECtHR).16

3.1.1.1 Expulsion Cases

In expulsion cases, young children are generally considered adaptable and therefore amenable to moving to the country of origin with the expelled parent(s) to enjoy family life there. Thus, in Amara v the Netherlands, where the children were four and one years old at the time when their father’s application for a residence permit was definitively rejected, the Court held that they were ‘of a young and adaptable age’.17 In Üner v the Netherlands, despite the fact that the children were Netherlands nationals who had been born and always lived in the Netherlands, it was considered that they could adapt to living in Turkey due to their ages (six and one and a half years of age at the time the exclusion order against their father became final).18 In Omoregie v Norway, a child who was born during the father’s asylum application and one year of age at the time of expulsion, was considered adaptable.19 In Kissiwa Koffi v Switzerland, the Court inferred from the child’s young age (one year at the time of the mother’s expulsion) that he could integrate into the society of Cote d’Ivoire, notwithstanding his Swiss nationality.20 In Bajsultanov v Austria, the Court also focused on the children’s ages – five and two at the time of the final decision to revoke their father’s asylum status – in upholding the expulsion decision.21 And, finally, in Josef v Belgium, the Court noted that although the children were born in Belgium, where they had always lived and where the older children had gone to school, their young age – six, four and one and a half at the time of the ECtHR judgment – meant that they would be able to adapt to family life in Nigeria.22

There are also some anomalies in the case-law that buck the trend of conflating (young) age with adaptability. Thus, in Sezen v the Netherlands, the Court focused on the fact that the children were born in the Netherlands and had always lived in its cultural and linguistic environment and effectively ignored the children’s ages – eight and two at the time of the final exclusion order against their father – in concluding that to follow him to Turkey would mean a ‘radical upheaval’ for them.23 Likewise, in the first- entry case of Sen v the Netherlands, the existence of siblings in the host country was a decisive factor in favour of authorising the entry of their older sister, despite the fact that they were only one and five years of age respectively at the time of the final domestic decision.24

If younger children are generally considered to be adaptable, the converse proposition, that older children cannot easily adapt, does not necessarily hold true. Thus, in Palanci v Switzerland, the Court considered that the children, who had been born and lived all their lives in Switzerland, ‘were still of an age where they would be able to adapt to their new environment without serious difficulties’.25 The children were twelve, ten and seven at the time of the final domestic decision. In Paposhvilli v Belgium, children of fourteen and six who had settled immigration status in Belgium, where they were born, lived and schooled, were considered adaptable.26 In Kaplan v Norway, a nine year old child who was born in Norway was considered to be ‘at an adaptable age’, although ultimately the Court held that her father’s expulsion to Turkey would not be in her best interests for health reasons.27 Similarly, in Jeunesse v the Netherlands, although the Court ultimately concluded that there were insurmountable obstacles to a family of four Netherlands nationals plus a Surinamese national relocating to Suriname to be with the latter, it appeared to suggest that the ‘relatively young age’ of the children did not, per se, pose an obstacle to their settling in Suriname.28 The oldest of the three children was 14 at the time of the ECtHR judgment. By contrast, in Antwi and Others v Norway, the Court found, in respect of a ten year old girl who had lived all her life in Norway, spoke only Norwegian and had very limited links with her parents’ country of origin, that ‘[i]t would most probably be difficult for her to adapt to life in Ghana’.29 Nevertheless the Court did not give significant weight to her difficulties in its assessment – something that will be analysed in a later section.

In expulsion cases where the possibility of going to live in the country of origin with the expelled parent is foreclosed because the parents are separated or divorced and access has been awarded to the other parent, young age is an advantage. This is because the Court considers it particularly important for young children to maintain regular contact with both parents. These cases will be discussed extensively later, the present analysis focusing solely on the age issue. In Rodrigues Da Silva and Hoogkamer v the Netherlands, the Court held that the refusal of a residence permit to a mother who had been residing irregularly in the Netherlands and had very close ties to her Netherlands daughter ‘would in effect break those ties as it would be impossible for them to maintain regular contact. This would be all the more serious given that [the child] was only three years old at the time of the final decision and needed to remain in contact with her mother.’30 Similarly, in Nunez v Norway, where a mother was faced with expulsion and a two-year re-entry ban, the Court found a violation of Article 8, noting that ‘the children would in all likelihood be separated from their mother practically for two years, a very long period for children of the ages in question.’31 The children were aged six and seven at the time of the Supreme Court decision upholding the impugned measures.

In sum, in expulsion cases young children are generally, although not always, considered to be adaptable and therefore amenable to returning to the country of origin with the parent(s); however, contrary to what might be expected, older children are also considered to be adaptable. In cases where the parents are separated or divorced and the parent susceptible to expulsion has lost custody of the child, the child’s young age is a decided advantage to the parent’s claim.

3.1.1.2 First-Entry Cases

In some first-entry cases advanced age is regarded as a liability. This is because older children are considered not to be in need of parental care to the same extent as younger children. Thus, in Chandra v the Netherlands, the fact that the two older children had reached the age of majority and the two younger children were fifteen and thirteen at the time of the final rejection of their application to reside with their mother in the Netherlands meant that there were ‘presumably not as much in need of care as younger children’.32 The Court repeated this observation in i.m. v the Netherlands in respect of a child who had been left behind in Cape Verde when her mother emigrated to the Netherlands and who was twelve when her application for a residence permit was definitively rejected.33 In Berisha v Switzerland, the Court also reiterated this point, commenting that it could not see why the older of the two children in question, who were 19 and 17 at the time of the ECtHR judgment, could not be supported at a distance.34 The Court did not make this point in relation to the youngest child, who was just 10, suggesting, rather, that the parents could travel to or stay with her in the country of origin.

However, these cases can be contrasted with Sen v the Netherlands, which also involved a separated child who had reached the age of twelve when her application for a residence permit in the Netherlands was definitively rejected.35 Here, the Court held that her ‘young age’ underscored the need for her to be integrated into the family unit of her parents. Tuquablo Tekle v the Netherlands is another anomalous case in this regard.36 The applicant’s daughter had been left behind in Eritrea in the care of her grandmother when her mother fled for Europe as an asylum seeker. The daughter had reached the age of majority by the time her application for a residence permit in the Netherlands was definitively rejected. However, the Court held that her age ‘rather than making her less dependent on her mother – made it even more pertinent for her to be allowed to join her family in the Netherlands’.37 This was because she was at risk of being ‘married off’ by her grandmother, in accordance with Eritrean custom. This aspect of the judgment has been criticised because of the implicit cultural supremacy at work and the unspoken invitation to applicants to ‘orientalise’ the situation in the country of origin.38 Nevertheless, the judgment does see the Court look behind the issue of age to assess vulnerability.

Therefore, in some, but not all, first-entry cases the older child is presumed to be less in need of parental care and is therefore less likely to be admitted for family reunification purposes.

3.1.2 Effective Family Bond

In addition to age, the Court scrutinises the effectiveness of the family bond – the extent to which there are genuine bonds of attachment – to determine the impact of a new or continued separation on family life.

3.1.2.1. Expulsion Cases

In expulsion cases, the Court is inconsistent on the question of whether separation prior to expulsion weakens or strengthens the Article 8 claim. In a number of cases, the fact that the applicant parent was not living with the family in the period preceding the expulsion due to imprisonment and/or separation, was held against him/her; the ensuing separation caused by expulsion being presented as continuation of a status quo attributable and opposable to the parent. Thus, in Üner v the Netherlands, the family relationship prior to the imposition of an expulsion and exclusion order was characterised by two periods of separation – one caused by the parents’ relationship difficulties and one caused by a period of imprisonment, leading the Court to conclude that if the applicant’s partner were to decide to stay in the Netherlands with the children, ‘the disruption of their family life would not have the same impact as it would if they had been living together as a family for a much longer time.’39 Similarly, in Paposhvilli v Belgium, the applicant had been in prison for theft and violent crime before his application to have his status regularised was refused.40 His wife and two children had unlimited right to remain in Belgium. The Court found no violation of Article 8 because the wife had the choice of following her husband to their country of origin with the children or remaining in Belgium with the children; and if she opted for the latter, she would clearly be able to support and meet the needs of the children because she had already done so when her husband was in prison.

By contrast, in Sezen v the Netherlands, in which the applicant had been imprisoned and then briefly separated from his wife, before being served with an expulsion and ten-year exclusion order, the Court arrived at the opposite conclusion, stating that:

[T]he present case does not concern a divorced father with an access arrangement, but a functioning family unit where the parents and children are living together. The Court has previously held that domestic measures which prevent family members from living together constitute an interference with the right protected by Article 8 of the Convention and that to split up a family is an interference of a very serious order.41

One might conclude, then, that a divorced parent with an access arrangement would have a weaker claim than a parent who is still part of ‘a functioning family unit’. But this is not necessarily the case. In Udeh v Switzerland, despite the fact that the Nigerian father had spent over three years in prison followed by various spells of pre-deportation detention, that he had subsequently got divorced, that the custody of the children were awarded to their Swiss mother, leaving him with limited access rights (one afternoon at least every two weeks), the Court took the view that ‘it is in the daughters’ best interests to grow up with both parents and, as the latter are now divorced, the only way for regular contact to be maintained between the first applicant and his two children is to authorise him to remain in Switzerland.’42 The Court went so far as to hold that even if the expulsion measure were suspended to enable him to periodically visit his daughters in Switzerland, ‘the temporary measures could by no means be regarded as replacing the applicant’s right to enjoy their right to live together, which constitutes one of the fundamental aspects of the right to respect for family life’ – a remarkable finding considering that the family had not been living together.43

In fact, Udeh is the latest in a line of cases in which divorce or separation operated to constrain the Court from upholding an expulsion measure against a parent who had lost custody of the child under domestic family law but who still enjoyed access rights. In the previous two cases, Rodrigues Da Silva and Hoogkamer v the Netherlands, and Nunez v Norway, both previously mentioned, it was the mother who was threatened with expulsion.44 In Nunez, for example, the applicant had been married and had two children with a settled immigrant in Norway. Her ex-husband had been granted custody of the children because her immigration status was precarious and it was deemed to be in the children’s best interests to continue to live in Norway. Nevertheless, it was the applicant who looked after the children on a daily basis. She argued that her expulsion constituted a violation of Article 8. In this case, as, indeed, in Rodrigues Da Silva and Hoogkamer, the Court was constrained by the best interests findings of the domestic family law court and by the fact that it could hardly expect a divorcé to follow his ex-partner/wife to her country of origin to enable her to enjoy family life with their child there.

However, this line of cases can be contrasted with Kissiwa Koffi v Switzerland, in which the Court held that the applicant’s husband, a naturalised Swiss originally from Cote d’Ivoire, could return to his country of origin to join his expelled wife, taking their son with him.45 Although this would mean leaving behind in Switzerland his two children from a previous relationship, the Court held that:

[i]l pourrait entretenir un certain contact avec ses deux enfants, issus d’un premier mariage, et remplir ses devoirs de prise en charge même s’il s’installe en Côte d’Ivoire; par ailleurs, il ne paraît pas qu’il soit investi du droit de garde de ses enfants.46

To conclude, it is difficult to draw any firm conclusions about what impact the child’s ties to and dependency on the parent has on the Court’s decision-making in expulsion cases. A period of separation prior to expulsion due to imprisonment or relationship problems is liable to weaken the case, although there is at least one exception to this. However, where parents are separated or divorced, and the parent who is to be expelled has lost custody of the child(ren), the Court is liable to conclude that the minimal contact that will ensue will not be enough to satisfy the requirements of Article 8. But there is also an exception to this, although in the relevant case the parent at issue was not the applicant.

3.1.2.2 First-Entry Cases

In first-entry cases, commentators have noted how the Court often blames the parents for leaving the child behind when they emigrated, using the thinness of the family life that they have endured during separation as a reason to suggest continuation of the status quo or return to the country of origin to enjoy family life.47 Thus, in Gül v Switzerland, the fact that Mr. Gül ‘caused the separation’ from his son by opting to emigrate to Switzerland without him (albeit as an asylum seeker) was used to place the responsibility for the separation firmly on the applicant, minimising any responsibility on the host state to facilitate family reunification.48 In Ahmut v the Netherlands, the Court held that ‘[t]he fact of the applicants’ living apart is the result of [the father’s] conscious decision to settle in the Netherlands’ and that the father ‘is not prevented from maintaining the degree of family life which he himself has opted for when moving to the Netherlands in the first place’.49 In Chandra v the Netherlands, the Court noted the mother ‘chose to leave Indonesia and settled with a Netherlands national, leaving her four children behind’ and that it wasn’t until four years later that she applied for permission for her children to join her in the Netherlands, by which point it was too late, as far as the Court was concerned, for an arguable Article 8 claim.50 Ebrahim and Ehrahim v the Netherlands is another case in point. Here, the first applicant had been sent back to his native Lebanon to live with his grandmother by his mother and step-father when he was thirteen because the latter found his behaviour to be too Westernised.51 Three years later, he applied unsuccessfully for a Netherlands residence permit. In finding the application inadmissible, the Court opined that the separation ‘was the result of a conscious decision taken by the second applicant and her husband to send the first applicant back to Lebanon’, and that ‘the refusal by the Netherlands’ authorities to admit the first applicant did not prevent the applicants from maintaining the degree of family life they had prior to 1997’.52 Finally, in i.m. v the Netherlands the Court, in declaring the case inadmissible, focused on the voluntary decision of a mother to leave behind her daughter ‘who was only 20 months old at the time and completely dependent on others’, noting also that ‘it was only after six and a half years that the applicant took steps to take up the care and daily responsibility for her daughter’.53

These cases, which focus on a dereliction of parental, often motherly, duty, have attracted criticism from a feminist perspective.54 Incidentally, the logic of dereliction has also been applied in the expulsion context. In Kissiwa Koffi v Switzerland, previously discussed, the Court upheld the expulsion and indefinite exclusion of a woman from Cote d’Ivoire who had been imprisoned for smuggling cocaine while legally residing in Switzerland.55 The woman’s naturalised Swiss husband and Swiss son were living in Switzerland but the clear inference was that the expulsion and exclusion would not unduly interfere with family life because she was a ‘bad’ mother anyway, having left a child from a previous relationship behind in Cote d’Ivoire when she emigrated to Switzerland, notwithstanding that that child had nothing to do with the Article 8 application:

Il convient également de rappeler que la requérante, lorsq’elle a quitté le Côte d’Ivoire, a laissé derrière elle un enfant hors marriage, qui est depuis lors pris en charge par des amis. Elle a dès lors délibérément accepté de couper les liens avec celui-ci. En outre, elle n’allègue pas devant la Cour qu’elle ait tenté des measures en vue de le faire venir en Suisse.56

Again, however, there are anomalies in the Court’s jurisprudence. In Sen v the Netherlands, the decision of the parents to leave their daughter behind in Turkey when they emigrated to the Netherlands was not held against them; rather, the Court reprimanded the Netherlands government for forcing the parents to choose between abandoning the position they had acquired in the Netherlands as settled immigrants and leaving their daughter in Turkey.57 Accordingly, the Court found that the domestic decision to refuse the daughter a residence permit was disproportionate. Similarly, in Tuquablo Tekle v the Netherlands, the Court rejected the state’s characterisation of the case as one in which the mother chose to leave her daughter behind when she emigrated.58 The Court remarked that ‘it is questionable to what extent it can be maintained in the present case, as the Government did, that Mrs Tuquablo Tekle left [her daughter] behind of “her own free will” bearing in mind that she fled Eritrea in the course of a civil war to seek asylum abroad following the death of her husband.’59 Most recently, in Berisha v Switzerland, the Court held in respect of parents who had left their three children behind in Kosovo that ‘parents who leave children behind while they settle abroad cannot be assumed to have irrevocably decided that those children are to remain in the country of origin permanently and to have abandoned any idea of a future family reunification.’60

In sum, in first-entry cases, there is a long line of cases in which the parent is blamed for leaving the child behind when he/she emigrated. The parent is then presented with the option of continuing the level of contact he/she ‘chose’ or renouncing his/her settled immigration status to be with the child in the country of origin. However, there are a number of cases in which the Court reprimanded the state for imposing such a Faustian choice on the parent.

3.2 Evaluation of the Practice of the Court

The Court takes a diversity of factors into account – country ties, age, effective family bond – in identifying, explicitly or implicitly, the best interests of the child. Considering a diversity of factors is, in principle, a good thing.61 However, as will be clear by now, what the Court infers from these factors varies significantly from case to case, and for every line of apparently established jurisprudence there is an exception. This inconsistency in the jurisprudence hints that the Court’s approach to identifying and analysing the best interests of the child is not entirely principled. However, in order to address this issue more scientifically, it is necessary to sketch the contours of a principled approach.

3.2.1 A Principled Approach

An Article 8 expulsion case, not previously discussed, provides a good illustration of a principled approach to the best interests principle. In Maslov v Austria, unlike the cases considered hitherto, it was the child himself who was subject to expulsion and exclusion for offences committed while a minor.62 Noting that ‘the obligation to have regard to the best interests of the child is enshrined in Article 3 of the United Nations Convention on the Rights of the Child’, the Court went on to hold that:

[. . .] where expulsion measures against a juvenile offender are concerned, the obligation to take the best interests of the child into account includes an obligation to facilitate his or her integration. In this connection the Court notes that Article 40 of the Convention on the Rights of the Child makes reintegration an aim to be pursued by the juvenile justice system. In the Court’s view this aim will not be achieved by severing family or social ties through expulsion, which must remain a means of last resort in the case of a juvenile offender.63

In effect what the Court did in this case was to identify the best interests of the child through the lens of relevant rights of the child. As both the best interests concept and the concept of child rights are extraneous to the echr, the Court had to source both concepts in their ‘parent’ document, the crc. In linking the best interests of the child to a relevant substantive right of the child, the Court acknowledged the need for a schematic approach to interpreting the crc. Such an approach is favoured by the Committee on the Rights of the Child, which has stated in its jurisprudence that ‘[A]s regards Article 3 Paragraph 1 of the Convention, the Committee emphasizes that the Convention is indivisible and its articles are interdependent and that the best interests of the child is a general principle of relevance to the implementation of the whole Convention [and vice versa].’64 Thus, the rights of the child that are relevant to a particular context function as general signposts for identifying what is in the best interests of the child in that context. Furthermore, the rights of the child that are relevant to a particular context circumscribe what can be said to be in the best interests of the child in that context (since otherwise it could be in the child’s best interests to have his/her rights violated, which is clearly anathema). This latter point is something that has been reiterated by the Committee on the Rights of the Child on numerous occasions and implicitly accepted by the ECtHR in Maslov.65 Hence, the principle of the best interests of the child is something of a Trojan horse: once relied on in the interpretation of other conventions, such as the echr, it serves to bring the full gamut of relevant rights in the crc to bear in both an enabling and a constraining way. Accordingly, the task of identifying the interests of the child in the Article 8 expulsion and first-entry context becomes one of identifying relevant rights of the child.

3.2.1.1 Family Unity as the Point of Departure

Hence, a good starting point is to consider how the right to family life is dealt with in the crc. A similar right to Article 8 echr is established in Article 16 of the crc, which prohibits arbitrary or unlawful interference with the child’s privacy, family home or correspondence. However, this is only one of a host of rights in the crc either directly or indirectly relating to the concept of family unity, broadly understood.66 Thus, Article 7(1) crc provides that the child, as far as possible, has the right to know and be cared for by his/her parents. Article 8(1) establishes the right of the child to preserve his or her identity, including family relations, without unlawful interference. Article 9 prohibits the separation of the child from his/her parents against their will, unless it is determined that separation is necessary for the best interests of the child. Two illustrative examples are provided of when separation may be necessary for the best interests of the child: child abuse and custody arrangements when the parents are living separately. These examples indicate that the reasons for separation are limited to those relating to the relationship between and personal circumstances of the child and his/her parents. Consequently, extraneous considerations relating to the interests of the State or the rights of others are immaterial.67 Article 9 further establishes the right of the child who is separated from one or both parents to maintain personal relations and direct contact with them, unless contrary to the child’s best interests. Articles 10(1) provides that ‘applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner.’68 Article 18(1) obliges states to ‘use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.’ Finally, Article 22(2) establishes a right to family reunification for separated asylum seeking and refugee children.

It is clear from this plethora of rights that family unity is established as a kind of meta-norm in the crc. This is based on the fact that, in view of the inevitable dependence of the child on his/her parents, many of the rights in the Convention must be realized by or through the parents, albeit with the assistance of the State.69 In this regard, family unity is a gateway right for the child and, contrarily, a child who is deprived of family unity risks having a host of other rights unmet.

It follows, in the context of the ECtHR, that family unity should be the Court’s default position.70 Accordingly, the question the Court should be asking is not whether family unity is in the best interests of the child – this should be taken as given. Rather the question the Court should be asking is whether it is in the best interests of the child to remain or reunite with his/her family member(s) here or there. The factors that the Court should consider in answering this question are considered below. Suffice for now to note that the Court appears sometimes to ask the wrong question, namely, whether it is in the child’s best interests to be with his/her family at all. In order to illustrate this, Table 1 gives an overview of the main lines of the Court’s jurisprudence (anomalies smoothed out):

table 1
Overview of the main lines of the Court’s jurisprudence (anomalies smoothed out)
table 1

In two first-entry scenarios, namely, in the case of an older child, and where the parent is ‘to blame’ for leaving the child behind, the implicit suggestion is that family unity is not or is no longer in the best interests of the child. This is also the case in one expulsion scenario, namely, where there is a weak family bond. In such situations, age and the fact of separation (whether caused by migration or an ineffective family bond) appear to act as proxies for maturity and independence. Now it is true that maturity and approaching independence have a bearing on how rights are realised. This is expressed in the crc in the form of the concept of the ‘evolving capacities’ of the child.71 However, maturity has to be assessed in the individual case and cannot be inferred solely from the age of the child. In none of the cases surveyed, with the possible exception of Tuquablo Tekle, does the Court look behind the numerical age of the child. Neither can maturity or independence be inferred just from the fact of separation. The line of cases in which the Court penalises, not only the parent(s) for leaving the child behind, but also the child for being left behind, is particularly objectionable in this regard. Here, the implicit suggestion is that the child’s right to family unity is limited by the behaviour of the parent(s). This offends not only against the child’s right to family unity but against the prohibition of discrimination in Article 2 crc, which, like the principle of the best interests of the child, has been interpreted by the Committee on the Rights of the Child as a cross-cutting general principle of the Convention.72 Article 2(2) prohibits discrimination or punishment in any matter (including but not limited to the enjoyment of Convention rights such as family unity) on the basis, inter alia, of the activities of the child’s parents, legal guardians or family members.73 In these cases, the child is being punished for the migration activities of the parent(s). And the Court falls into the trap of interpreting the best interests of the child contrary to relevant rights of the child.

3.2.1.2 Other Relevant Rights

However, more usually the Court does grapple with the correct question, namely, whether it is in the best interests of the child to enjoy family unity here or there. As indicated, the factors the Court takes into account are country ties, age and effective family bond. The fact that the Court takes a diversity of child-specific factors into account in its decision-making has already been positively acknowledged. However, it is unclear why the Court fastens onto these particular factors. Approaching the best interests of the child from a rights-based perspective, there are, arguably, more obvious factors to consider.

One such factor is the child’s view of the matter. The right of the child to be heard, which is laid down in Article 12 crc, establishes the right of the child who is capable of forming his or her own views to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with age and maturity.74 Article 12 further provides that ‘[f]or this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.’75 According to the Committee on the Rights of the Child, there is an intimate connection between the best interests of the child and the views of the child:

[The] one establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing either the child or the children. In fact, there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives.76

Accessing and giving due weight to the views of the child in accordance with age and maturity is not something the ECtHR currently does in the context of Article 8. The Court cannot shoulder all the blame for this. As the Court itself has pointed out, frequently the child or children involved are not party to the proceedings.77 It is hard to see how the Court can consider in evidence the views of such a non-party. The onus therefore lies on applicants and their legal advisors to formally include the child or children in the application and to assert the right of the child to be heard as a prerequisite to the Court’s assessment of the best interests of the child.

In addition to the right of the child to be heard, certain socio-economic rights may be relevant to the question of the best interests of the child in the immigration context, notwithstanding the reticence of the ECtHR to construe Article 8 as encompassing such obligations.78 This is because, unlike the echr, the crc encompasses both ‘sets’ of rights, with the Committee on the Rights of the Child emphasising the indivisibility of the Convention’s provisions and insisting that ‘there is no hierarchy of rights in the Convention’.79 This is underscored by the right of the child to life, survival and development – another cross-cutting general principle of the crc (along with the prohibition of discrimination, the best-interests principle, and the right of the child to be heard).80

One socio-economic right that is of relevance in the present context constituting, as it does, a push factor for migrating parents is the right to an adequate standard of living. This right is defined in the crc as the right to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.81 The Committee on the Rights of the Child has drawn attention to the correlation between fulfilment of parents’ right to an adequate standard of living and fulfilment of the child’s right to an adequate standard of living, since ‘realising children’s rights is in large measure dependent on the well-being and resources available to those with responsibility for their care’.82 Other relevant socio-economic rights include the right of the child to health and to education. In actual fact, in the recent Kaplan case, discussed below, the Court did take the child’s considerable health difficulties into account in its decision-making;83 and in two cases, the Court considered the children’s education, although in both instances, with a view to supporting the expulsion decision.84 However, in general, despite looking at the child’s links with the country of origin and the host country, the ECtHR does not engage in a discussion of the relative merits of the two countries in the light of relevant socio-economic rights of the child. Nonetheless, if the ECtHR is to adopt a holistic, rights-based approach to interpreting and applying the principle of the best interests of the child, the full gamut of relevant rights in the crc will have to be canvassed.

To sum up, the Court does not generally adopt a principled approach to identifying the best interests of the child. A principled approach, it is argued here, is one which sees the best interests of the child identified in the light of relevant rights of the child. The key right in this regard is the right of the child to family unity. The Court occasionally intimates that family unity is not in the best interests of the child, not for permissible reasons associated with the parent-child relationship, but for reasons associated with migration. Furthermore, although the Court fastens onto to potentially relevant issues such as country ties, age and effective family bond, it does so unevenly, while ignoring other more relevant rights such as the right of the child to be heard and certain socio-economic rights.

4 Weight Accorded to the Best Interests of the Child

This section examines the weight that the Court apportions to the best interests of the child in balancing the state’s and the applicant’s interests. As before, the first subsection sets out the practice of the Court and the second subsection evaluates that practice in the light of the normative requirements of the best interests principle.

4.1 The Practice of the Court

In the vast majority of cases involving children, the Court upholds the impugned domestic decision. The Court’s deference to state sovereignty in immigration matters was laid down in the pivotal Abdulaziz case, in which the Court established that such cases are ‘concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.’85 Pursuant to this sovereign right, the Court established that the state enjoys a margin of appreciation in balancing the competing interests of the applicant and the state. Only if there are ‘obstacles’ to establishing family life in the country of origin, will the state be held to have exceeded its margin of appreciation, and thus have violated Article 8. The obstacles test established in Abdulaziz was to become and remains the decisive factor in most first-entry cases.86 The Court, at a certain point, appeared to modify the obstacles test by propounding a reasonableness test. Thus, in Sen v the Netherlands and Tuquablo Tekle v the Netherlands, the Court posited whether family reunification in the Netherlands was ‘the most adequate way’ to develop family life.87 However, subsequent cases reverted to the language of obstacles and consequently Sen and Tuquablo Tekle appear to be the exception rather than the creation of a new norm.88 The obstacles test also crossed over to expulsion cases.89 In those expulsion cases where the applicant’s immigration status was precarious at the time of family formation, the Court has also stated that only in the most exceptional of circumstances will the applicant’s expulsion constitute a violation of Article 8.90 ‘Exceptional circumstances’ seems to play much the same role as ‘obstacles’. The question is: what weight is given to the best interests of the child within the obstacles/exceptional circumstances test? A distinction can be made here between cases with no particular factual matrix and a line of cases with a very specific factual matrix, namely, where the parent who is threatened with expulsion is divorced or separated and has lost custody of the child.

4.1.1 Cases with No Particular Factual Matrix

There have been four recent cases in which the Court has pronounced, explicitly or implicitly, on the weight to be accorded to the best interests of the child within the obstacles/exceptional circumstances test. There are presented chronologically and in pairs, because in the first two, the judgment of the Court did not accord with the best interests of the child, and in the second two, the judgment of the Court did accord with the best interests of the child.

In Josef v Belgium, the Court found that the expulsion of a single mother, who was an unsuccessful asylum seeker, and her three children, who had been born and always lived in Belgium, to Nigeria did not violate Article 8 although it would ‘not necessarily be favourable’ to the children.91 This was something of an understatement: the mother was herself an aged-out minor, hiv positive and in need of a high level of medical and psycho-social support in order to cope with her situation. The Court appeared to accept the existence of a risk that, if returned to Nigeria, she would die a premature death, leaving the children alone in a country where they had no social or family links. The Court disposed of this risk in two ways. First, it advanced the rather unlikely proposition that the father of the children, a Nigerian illegal immigrant in Belgium who was not living with the family and appeared only sporadically in the narrative, could return to Nigeria with them. Second, following its Article 3 jurisprudence, the Court held:

Le risque de décès prématuré de la requérante et les conséquences qui pourraient en résulter sur la vie familiale de ses enfants, une fois de retour au Nigéria, ne sauraient faire peser sur l’État belge une obligation de reconnaître à la requérante un droit de séjour en Belgique.92

With respect to the Court, the issue is not whether that risk establishes an Article 8 obligation per se, but rather how it impacts on the assessment of the best interests of the child, which may have Article 8 implications. However, the Court’s attitude may be explained by the fact that the woman had given birth to her three children during the delay in her expulsion, the delay having been caused by an interim measure indicated by the ECtHR. In this context, the Court was keen not to validate the ‘fait accompli’ – as it saw it – with which she had confronted the Belgian authorities.

Similarly, in Paposhvilli v Belgium, the Court expressly accepted that the option of the three children remaining with their mother in Belgium, where they were born, had always lived and had an unlimited right to remain, while coming and going to visit their critically ill father when he was expelled to Georgia, would not be in their best interests.93 Neither did it underestimate the difficulties of the other option – of the family temporarily relocating to Georgia. Nevertheless, the Court did not see any exceptional circumstances which would oblige it to overturn the deportation decision or to regularise the applicant’s status. This was especially so in light of the father’s irregular immigration status and chronic recidivism.

However, these cases can be contrasted with Kaplan v Norway and Jeunesse v the Netherlands.94 In Kaplan, the Court reiterated that the decisive criterion according to the Court’s case-law was whether there were exceptional circumstances. However, the Court found that just such circumstances existed and indeed had motivated the domestic authorities to grant a residence permit to a mother and children where the youngest child was suffering from a serious degree of child autism. As the child’s father was heavily involved in her day-to-day care, the Court considered that the expulsion of the father with a five-year re-entry ban constituted ‘a very far-reaching measure especially vis-à-vis her’.95 The other key factor the Court took into consideration was the fact that the immigration authorities had been inconsistent in their dealings with the family – failing to move to deport the father after a criminal conviction, tacitly overlooking his immigration offences for a long period, granting a residence permit to the other family members but not to him and, finally, imposing an expulsion and exclusion ban on him. Taken together with the daughter’s special care needs, the Court held that it was not convinced ‘that sufficient weight was attached to the best interests of the child for the purposes of Article 8’.96

In Jeunesse, the Court considered the best interests of the child as one of four cumulative factors in deciding that the exceptional circumstances test had been made out. The other factors were: that the applicant’s husband and three children were all Netherlands nationals; that the applicant’s irregular presence in the Netherlands had been tolerated for 16 years, thus enabling her to develop family life there; and that the applicant and her family would experience a degree of hardship short of insurmountable obstacles if required to relocate to Suriname. As to the fourth factor, the Court held that since the applicant was ‘the mother and homemaker’, it was ‘obvious’ that it would not be in the children’s best interests for their mother to be forcibly relocated to Suriname and for them to either remain in the Netherlands and thus rupture their relationship with her, or relocate to Suriname themselves, a country to which they had never been.97 When all the factors were considered together, and notwithstanding that the domestic authorities had shown some regard to the situation of the applicant’s children, the Court concluded that ‘insufficient weight’ had been accorded to the best interests of the child.98

It is hard to understand why significant weight was given to the best interests of the child in the second set of cases but not the first. In fact, one might have expected more significance to be attached to the best interests of the child in the first three cases than the last, given that the applicants in Josef, Paposhvilli and Kaplanprima facie and notwithstanding any contrary findings by the Court – faced obstacles/exceptional circumstances over and above the ‘normal’ upheaval of an adverse immigration decision (respectively, a vulnerable single mother with a critical illness, a father with a critical illness and a child with severe autism). However, the clue may lie in the fact that in Josef and Paposhvilli the other factors considered by the Court in the balancing exercise were in the states’ favour, whereas in Kaplan and Jeunesse they were in the applicants’ favour. This suggests, not (or at least not only) that the best interests of the child outweighed or were outweighed by other factors, but that the best interests of the child were ascribed more or less weight depending on the run of other factors. Drifting in the slip-stream of other factors (whether positive or negative for the applicant), the best interests of the child had no inherent weight.

However, Jeunesse may signal a new point of departure for the Court in this regard. Although the best interests of the child was only one of a number of factors that the Court considered, it did make some interesting pronouncements on the proper weight to be accorded to the principle. Thus, the Court held that while the best interests of the child alone could not be decisive, ‘such interests certainly must be afforded significant weight’.99 This meant that the national decision-making bodies should ‘advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal order in order to give effective protection and sufficient weight to the best interests of the child’.100

In summary, it appears from recent cases that the weight the Court attaches to the best interests of the child in determining whether the obstacles/exceptional circumstances test is made out varies according to the preponderance of other factors in the balancing exercise. As such, the best interests of the child has no inherent weight. However, Jeunesse may signal a new commitment on the part of the Court to giving ‘significant weight’ to the best interests of the child, regardless of other factors, although this remains to be seen.

4.1.2 The Divorce/Separation-Custody Cases

There does, however, appear to be one factual matrix in which the best interests of the child per se constitutes the obstacle/exceptional circumstance and hence is always given significant weight. This is when the parents are divorced or separated, custody has been awarded to the parent with the right to remain, but there is an access arrangement in place in respect of the parent who is susceptible to deportation or seeking regularisation. This was the case in Rodrigues Da Silva and Hoogkamer v the Netherlands, Nunez v Norway and Udeh v Switzerland, all previously discussed.101 In these cases, the Strasbourg Court found itself between a rock and a hard place – precluded by the separation/divorce and custody decision (the latter usually taken by the domestic authorities in the best interests of the child) from holding that the child could simply follow the parent to his/her country of origin to enjoy family life there; and yet unable to hold that the parent should be expelled anyway as this would cut off regular contact with the child.

Nunez is arguably the most far-reaching of the cases, because the state’s interest in expulsion was strong, the mother having been convicted of multiple immigration offences. Perhaps for this reason, the Court also based its judgment on the vulnerability of the children (owing to their ages, their parent’s separation and the risk of their mother being expelled) and on the amount of time that had elapsed before the authorities instigated expulsion proceedings. In Rodrigues Da Silva and Hoogkamer, by contrast, the state’s interest in expulsion was portrayed as rather weak because the mother could potentially have regularised her immigration status at a certain point. Likewise in Udeh, the Court took pains to minimise the seriousness of the applicant’s offences, thereby downplaying the state’s interest in expulsion, perhaps to offset the weakness of the father’s access arrangements. Nevertheless, the kernel of all three judgments lies in the divorce/separation-custody issue – something that becomes apparent when the cases are contrasted with the factually similar Antwi case.

In Antwi v Norway, the father, a Ghanian national, was threatened with expulsion and exclusion for five years for acquiring a Norwegian residence permit on fraudulent grounds.102 The mother was a naturalised Norwegian from Ghana. Their daughter was Norwegian. The Court noted that the daughter had spent her entire life in Norway (she was ten years old at the material time), was fully integrated into Norwegian society, spoke Norwegian at home and had very limited links with Ghana. She was also ‘strongly attached’ to her father, who was her primary carer. Although the Court accepted that that her father’s expulsion would not be beneficial to her and that it would be difficult for her to adapt to life in Ghana if she and her mother were to follow her father there, it held that there were no insurmountable obstacles to the family moving to Ghana. In essence this was because the parents were still together.

Antwi provides an insight into the Court’s consistent attitude to the best interests of the child in cases involving the divorce/separation-custody factual matrix, and inconsistent attitude in other cases. In the former cases, a negative decision would necessarily result in the forced separation of the child from one of his/her parents. It is clearly in the best interests of the child to be with both parents. Consequently, the Court gives signficant weight to the best interests of the child. This is entirely appropriate, bearing in mind the remarks about a rights-based approach to the best interests of the child made in sub-section 3.2.1.1. However, in all other factual scenarios, a negative decision will not necessarily result in forced separation. Therefore, the question for the Court becomes the ‘best interests here or there’ question, which requires the Court to look beyond family unity to other determinants of the best interest of the child. In such cases, the Court is inconsistent on the amount of weight it gives to the best interests of the child, as if the principle of the best interests of the child loses its inherent significance once the family are together. Indeed, the Court said as much in Josef when it opined:

En tout état de cause, et cela est déterminant à ses yeux pour évaluer l’ampleur des obligations pesant sur l’Etat défendeur dans cette affaire au titre de la vie familiale, la Cour constate que l’unité familiale de la requérante et de ses enfants ne sera pas affectée par la décision prise par les autorités belges de les éloigner.103

4.2 Evaluation of the Practice of the Court

The Court seems certain to give significant weight to the best interests of the child only in one factual scenario: the divorce/separation-custody scenario; in all other scenarios, the Court varies the weight it ascribes to the best interests of the child according to the balance of other factors. Sometimes the judgment accords with the best interests of the child; sometimes it does not. Can this approach to weighing the best interests of the child be considered a ‘principled approach’ to the best interests principle?

This question opens something of a Pandora’s Box. Article 3(1) crc refers to the child’s best interests as ‘a primary consideration’. This contrasts with wording of the precursor to Article 3(1) crc, namely, Principle 2 of the 1959 un Declaration on the Rights of the Child, which referred to the best interests of the child as ‘the paramount consideration’.104 It also contrasts with other, stronger formulations of the best interests principle in the context of specific rights in the crc and in other international legal instruments.105 ‘Primary’ has slightly weaker connotations than ‘paramount’ – a comparative weakness that is compounded in Article 3(1) by the use of the indefinite, as opposed to the definite, article.106 If we fasten onto the difference in the two formulations, then the best interests of the child is not necessarily any more weighty than any other interest, and the word ‘primary’, if it means anything, has a chronological meaning – that the best interests of the child must be canvassed first. If we collapse the distinction between the two formulations, then the best interests of the child becomes the decisive interest, the word ‘primary’ having a hierarchical meaning. Which is the correct interpretation?

It is submitted that the answer lies somewhere in between these bi-polar options. Certainly, the best interests of the child should be considered chronologically prior to all other interests. This ensures that the best interests of the child are not (accidently or willingly) subsumed into the interests of other actors. But the best interests of the child should also be ascribed significant weight in the hierarchy of interests, although admittedly they cannot be decisive in every case. This interpretation reflects an emerging consensus in international law. First, it is consistent with the travaux préparatoires relating to Article 3(1) crc, which indicate that, although not strictly absolute, the child’s best interests can only be displaced in extremely compelling circumstances.107 Second, the Committee on the Rights of the Child advocates a hierarchical understanding of the primacy factor. Thus, in General Comment No. 14, the Committee states:

The expression ‘primary consideration’ means that the child’s best interests may not be considered on the same level as all other considerations. This strong position is justified by the special situation of the child: dependency, maturity, legal status and, often, voicelessness.108

Third, there is growing support for the idea that the best interests of the child can only be displaced by other rights-based considerations, as opposed to the state’s general interest in immigration control. For example, in the context of returning separated children to their country of origin, the Committee on the Rights of the Child has noted that:

Exceptionally, a return to the home country may be arranged after careful balancing of the child’s best interests and other considerations, if the latter are rights-based and override the best interests of the child. Such may be the case in situations in which the child constitutes a serious risk to the security of the state or to the society. Non rights-based arguments, such as those relating to general migration control, cannot override best interests considerations.109

A similar proposition is advanced by unhcr in its guidelines on determining the best interests of the child, which were quoted with approval by the ECtHR in Neulinger and Shuruk v Switzerland, cited at the very beginning of this article.110

This approach is very similar to that advanced by the Court in Jeunesse. It also corresponds to the approach adopted by the Court in the divorce/separation-custody scenarios. However, does not sit well with the variable weight ascribed to the best interests of the child in other cases. The Court cannot give significant weight to the best interests of the child if the weight ascribed to the best interests of the child is a function of other (extraneous) factors, which themselves vary from case to case. When the Court purports to give primacy to the best interests of the child in this way it engages in a kind of double-speak, something that was identified by the dissenting judges in the aforementioned Antwi case, who opined:

[W]e have serious difficulties to follow the majority when stating that: ‘the Court is satisfied that sufficient weight has been attached to the best interests of the child in ordering the first applicant’s expulsion’ (supra para. 103). Admit that the impugned measure was ‘clearly not’ in – i.e., against – the best interests of the third applicant, while at the same time affirming that such interests have been duly taken into account seems to pay lip service to a guiding human rights principle.111

If significant weight is given to the best interests of the child, then one would expect the best interests of the child to prevail in most cases. This is not to suggest that the best interests of the child dispenses with the balancing exercise (of the state’s and the applicant’s interests) or interferes with the state’s margin of appreciation in this regard. In this regard, it is still possible to envisage exceptional circumstances where the state’s interests might prevail. This might occur, for example, if the parent threatened with expulsion posed a serious threat to public safety or national security. However, one would expect that in most cases where the Court finds that it is in the best interests of the child to be with the parent in the host country – even absent other supporting factors in favour of the applicant – then the best interests of the child would prevail over the state’s general interest in immigration control.

5 Conclusion: How Principled is the Court’s Use of the Principle?

This article analysed some 30 Article 8 expulsion and first-entry cases involving children with a view to ascertaining whether the ECtHR adopts a principled approach to the best interests principle. It was found that in the majority of cases the Court canvasses the interests of the child or children involved. In identifying those interests, the Court takes a diversity of factors into account: country ties, age, effective family bond. However, what the Court infers from these factors varies enormously from case to case and the Court does not generally ground its reasoning in a rights-based approach. Such an approach would see the analysis of the interests of the child conducted through the prism of relevant rights of the child, as enumerated in the crc. Furthermore, when it comes to weighing the best interests of the child against the state’s interest in immigration control, a principled approach would see significant weight accorded to the former in all cases, something that does not consistently happen. This would not guarantee an outcome consistent with the best interests of the child but it would increase the likelihood of such an outcome. If the Court fails to develop a principled approach to the best interests principle, its jurisprudence risks undermining the normative requirements of the principle in international law. And, more immediately, it will have a deleterious effect on the lives and rights of immigrant children. A leading commentator on children’s rights once famously suggested that children’s main remedy is to grow up.112 It is to be hoped that the Court’s jurisprudence on the best interests principle will mature first.

1 Application No. 41615/07, Judgment (gc) of 6 July 2010, para. 135 (emphasis added).

2 As a matter of treaty law, the principle of the best interests of the child is also found in the 1979 Convention on the Elimination of All Forms of Discrimination against Women and the 2006 Convention on the Rights of Persons with Disabilities. The Human Rights Committee considers the principle to be implicit in Articles 23 and 24 of the International Covenant on Civil and Political Rights. See, respectively, General Comment 19 (1994), Article 23, un Doc. hri/gen/1/rev.1 at 28, para. 6, and General Comment 17 (1994), Article 24, un Doc. hri/gen/1/rev.1 at 23, para. 6. The best interests principle is one of three rights of the child referred to in Article 24 of the Charter of Fundamental Rights of the eu. Notably, however, the Court of Justice had recourse to the principle of the best interests of the child as a general principle of ec law even before the entry into force of the Charter: Case C-540/03, European Parliament v Council, Judgment of 27 June 2006. Although the best interests principle does not appear in the revised European Social Charter, the European Committee of Social Rights has stated that ‘when ruling on situations where the interpretation of the Charter concerns the rights of a child, the Committee considers itself bound by the internationally recognized requirement to apply the best interests of the child principle.’ Defence for Children International (dci) v the Netherlands, Complaint No. 47/2008, Decision on the merits, 20 October 2009, para. 29.

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

4 J. Schiratzki, ‘The Best Interests of the Child in the Swedish Aliens Act’, 14 International Journal of Law, Policy and the Family (2000) 206–225, at p. 206.

5 J. Eekelaar, ‘The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determinism’, 8 International Journal of Law and the Family (1994) 42–61, at p. 58.

6 See, Article 31 Vienna Convention on the Law of Treaties, 1969.

7 A leading judgment in this regard is Demir and Baykara v Turkey, Application No. 34503/97, Judgment of 12 November 2008. For academic commentary see, G. Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’, 21 European Journal of International Law (2010) 509–541.

8 Application Nos 9214/80; 9473/81; 9474/81, Judgment of 28 May 1985.

9 Ibid.; B. de Hart, ‘Love Thy Neighbour’: Family Reunification and the Rights of Insiders’, 11 European Journal of Migration and Law (2009) 235–252.

10 Gül v Switzerland, Application No. 23218/94, Judgment of 19 February 1996, para. 38.

11 For example, Nunez v Norway, Application No. 55597/09, Judgment of 28 June 2011.

12 Application No. 50435/99, Judgment of 31 January 2006.

13 For example, in the recent case of Jeunesse v the Netherlands, the Court, relying on Tuquablo-Tekle v the Netherlands, observed that for the purpose of affording the best interests of the child significant weight, ‘in cases concerning family reunification, the Court pays particular attention to the circumstances of the minor children concerned, especially their age, their situation in the country or countries concerned and the extent to which they are dependent on their parents’. Application No. 12738/10, Judgment of 3 October 2014, para. 118. Tuquablo-Tekle was a 2005 case in which the best interests of the child was not explicitly discussed. Application No. Application No. 60665/00, Judgment of 1 December 2005.

14 Relevant case-law preceding the adoption of the Convention on the Rights of the Child in 1989 is excluded from the analysis. An example is Berrehab v the Netherlands, Application No. 10730/84, Judgment of 21 June 1988.

15 See, Gül v Switzerland, supra note 10, in which the Court considered the position of the applicants’ sons but not their daughter; Soloman v the Netherlands, Application No. 44328/98, Decision of 5 September 2000; i.m. v the Netherlands, Application No. 41226/98, Decision of 25 March 2003, in which the Court considered the applicant’s daughter but not her son; Priya v Denmark, Application No. 1359/03, Decision of 6 July 2006; Udeh v Switzerland, Application No. 12020/09, Judgment of 16 April 2013, in which the Court considered the interests of the applicant’s children from his first relationship but not those of the child from his second relationship; Biao v Denmark, Application No. 38590/10, Judgment of 25 March 2014.

16 T. Spijkerboer, ‘Structural Instability: Strasbourg Case Law on Children’s Family Reunion’, 11 European Journal of Migration and Law (2009) 271–293.

17 Application No. 6914/02, Decision of 5 October 2004.

18 Application No. 46410/99, Judgment (gc) of 18 October 2006.

19 Application No. 265/07, Judgment of 31 July 2008.

20 Application No. 38005/07, Judgment of 15 November 2012.

21 Application No. 54131/10, Judgment of 12 June 2012.

22 Application No. 70055/10, Judgment of 27 February 2014.

23 Application No. 50252/99, Judgment of 31 January 2006.

24 Application No. 31465/96, Judgment of 21 December 2001.

25 Application No. 2607/08, Judgment of 25 March 2014.

26 Application No. 41738/10, Judgment of 17 April 2014.

27 Application No. 32504/11, Judgment of 24 July 2014.

28 Supra note 13.

29 Application No. 26940/10, Judgment of 14 February 2012, para. 96.

30 Supra note 12, para. 42.

31 Supra note 11, para. 81.

32 Application No. 53102/99, Decision of 13 May 2003.

33 Supra note 15.

34 Application No. 948/12, Judgment of 30 July 2013. Berisha is properly an expulsion case, although somewhat unique in that it was the children, and not the parents, who were being expelled. The children had been living irregularly in Switzerland with their parents, who were settled immigrants there.

35 Supra note 24.

36 Supra note 13.

37 Ibid., para. 50.

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

39 Supra note 18, para 62. The case of Useinov v the Netherlands should also be mentioned for the Court’s implicit assumption that an unconventional living arrangement validates a low level of contact post-expulsion. In this case, the applicant, who was from the fry of Macedonia, had a daughter and son with a Netherlands national before and after the final determination of his asylum claim, respectively. The couple appear to have separated and reunited several times and family’s situation was described by the applicant as one of ‘living apart together’. In finding the application to be manifestly ill-founded, the Court noted that if the applicant’s partner chose to remain in the Netherlands with the children, the distance between the Netherlands and the fry of Macedonia was ‘not so great as to render contacts between the applicant and his children virtually impossible.’ Application No. 61292/00, Decision of 25 November 2005 (emphasis added).

40 Supra note 26.

41 Supra note 23, para. 49.

42 Supra note 15, para. 52.

43 Ibid., para. 53.

44 Supra notes 12 and 11, respectively.

45 Supra note 20.

46 Ibid., para. 69. Judgment in French.

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.

48 Supra note 10, para. 41.

49 Application No. 21702/93, Judgment of 28 November 1996, para. 70.

50 Supra note 32.

51 Application No. 59186/00, Decision of 18 March 2003.

52 Ibid.

53 Supra note 15.

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

55 Supra note 20.

56 Ibid., para. 68. Judgment in French.

57 Supra note 24.

58 Supra note 13.

59 Ibid., para. 47.

60 Supra note 34, para. 54.

61 Thus, the Committee on the Rights of the Child advises that ‘[a]ssessing the child’s best interests is a unique activity that should be undertaken in each individual case, in the light of the specific circumstances of each child or group of children or children in general. These circumstances relate to the individual characteristics of the child or children concerned, such as, inter alia, age, sex, level of maturity, experience, belonging to a minority group, having a physical, sensory or intellectual disability, as well as the social and cultural context in which the child or children find themselves, such as the presence or absence of parents, whether the child lives with them, quality of the relationships between the child and his or her family or caregivers, the environment in relation to safety, the existence of quality alternative means available to the family, extended family or caregivers, etc.’ General Comment No. 14 (2013), The right of the child to have his or her best interests taken as a primary consideration (art. 3, para.3), un Doc. crc/c/gc/14, para. 48.

62 Application No. 1638/03, Judgment of 23 June 2008.

63 Ibid., para. 83.

64 Concluding Observations to, inter alia, Jordan in 2006, u.n. Doc crc/c/jor/co/3, para. 37.

65 See, most recently, General Comment No. 14 (2013), supra n.61, para. 4, in which the Committee recalls ‘that there is no hierarchy of rights in the Convention; all the rights provided for therein are in the “child’s best interests” and no right could be compromised by a negative interpretation of the child’s best interests’. See further, General Comment No. 8 (2006), The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, un Doc. crc/c/gc/8, para 26 and General Comment No. 13 (2011), Article 19: the right of the child to freedom from all forms of violence, u.n. Doc. crc/c/gc/13, para. 54.

66 Thus, family unity in international child rights law has a broader rights base than family unity in general human rights law. On the relationship between the terms ‘family’, ‘family unity’, ‘family life’ and ‘family reunification’, see D. Stevens, ‘Asylum-Seeking Families in Current Legal Discourse: A uk Perspective’, Journal of Social Welfare and Family Law (2010), 32, pp. 5–22.

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.

68 Article 10(2) provides that ‘A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country.’ There is some confusion as to whether Article 10(1) should be interpreted in the light of 10(2) or whether Article 10(1) establishes the general principle, with Article 10(2) pertaining to the specific situation of parental separation in different states. If the former interpretation is adopted, this narrows the personal and material scope of Article 10(1), respectively, to situations of parental separation across states and to the right to leave any country and to enter one’s own country. Owing to this ambiguity, the Committee on the Rights of the Child has been slow to use Article 10 as a free-standing right to family reunification.

69 See, in this regard, Articles 3(2), 5, 14(2), 18, 23(2) and (3), 24(2)(e) and (f), 26(2) and 27 crc.

70 In this regard, in its General Comment No. 14, the Committee on the Rights of the Child states that: ‘When the child’s relations with his or her parents are interrupted by migration (of the parents without the child, or of the child without his or her parents), preservation of the family unity should be taken into account when assessing the best interests of the child in decisions on family reunification.’ Supra note 61, para. 66.

71 Article 5 crc. See also Articles 12 and 14 crc.

72 See General guidelines regarding the form and content of initial reports to be submitted by states parties under Article 44, paragraph 1(a) of the Convention, un Doc. crc/c/5 (1991) and un Doc A/47/41 (1992) at Annex iii.

73 For analysis of this innovative provision in international law, see S. Besson, ‘The Principle of Non-Discrimination in the Convention on the Rights of the Child’, 13 International Journal of Children’s Rights (2005) 433–461.

74 Article 12(1).

75 Article 12(2).

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

77 In some cases, this has led the Court to refuse to consider the interests of the child. See, for example, i.m. v the Netherlands, supra note 15, and, most recently, Paposhvilli v Belgium, supra note 26, para. 153. Conversely, in many cases the Court does canvass the best interests of the child (or children) involved even where he/she is not party to the proceedings. Nunez v Norway is an example of one such case where the Court found a violation of Article 8. Supra note 11.

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.

80 See, Article 6 crc and supra note 72 for its status as a general principle of the crc.

81 See, Article 27 of the crc.

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

83 Supra note 27.

84 In Palanci v Switzerland (supra note 25) the Court used the fact that there was a good education system in Ankara as an argument in favour of the family relocating to Turkey with their expelled father; in Josef v Belgium (supra note 22) the Court refused to countenance the argument that the children would receive a better education in Belgium than Nigeria, reiterating its established line that Article 8 does not impose a general obligation on the state to respect the choice by immigrants of their country of residence.

85 Supra note 8, para. 67.

86 See Gül v Switzerland, Ahmut v the Netherlands, Soloman v the Netherlands, Chandra v the Netherlands, i.m. v The Netherlands, Ebrahim and Ebrahim v the Netherlands and Biao v Denmark, all previously cited.

87 Supra notes 24 and 13, respectively.

88 In Ebrahim and Ebrahim v the Netherlands (supra note 51) and Berisha v Switzerland (supra note 34), the Court used the language of Sen and Tuquablo Tekle although, as no violation of Article 8 was found in either case, is it hard to measure the significance of this.

89 See Amara v the Netherlands, Priya v Denmark, Sezen v the Netherlands, Üner v the Netherlands, Omergerie v Norway, Nunez v Norway, Antwi v Norway, Kissiwa Koffi v Switzerland, Bajsultanov v Austria, Udeh v Switzerland, Palanci v Switzerland, Josef v Belgium, Paposhvilli v Belgium, Kaplan v Norway and Jeunesse v the Netherlands, all previously cited.

90 See Soloman v the Netherlands, Rodrigues Da Silva and Hoogkamer v the Netherlands, Useinov v the Netherlands, Omergerie v Norway, Udeh v Switzerland, Kaplan v Norway and Jeunesse v the Netherlands, all previously cited.

91 Supra note 22, para. 142 (author’s translation from French).

92 Ibid., para. 145. Judgment in French.

93 Supra note 26.

94 Supra notes 27 and 13, respectively.

95 Ibid., para. 93.

96 Ibid., para. 98.

97 Supra note 13, para. 119.

98 Ibid., para. 120.

99 Ibid., para. 109.

100 Ibid., para. 120.

101 Supra notes 12, 11 and 15, respectively. It is submitted that the case of Kissiwa Koffi v Switzerland, also previously discussed, in which a similar factual matrix did not produce the same outcome, can be distinguished on the basis that the parent who risked becoming separated from his children from a previous relationship if he followed his expelled spouse to the country of origin was not the applicant. Supra note 20.

102 Supra note 29.

103 Supra note 22, para. 145.

104 ‘The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a health and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.’

105 ‘Best interests’ is referred to in seven other provisions of the crc: Article 9(1), 9(3) and 9(4) (separation of a child from his/her parents against their will), Article 18 (parental responsibilities), Article 21 (adoption), Article 37(c) (treatment while in detention) and Article 40 (juvenile justice). In Article 18, the best interests of the child is said to be parents’ ‘basic concern’. In Article 21, the best interests of the child is stated to be ‘the paramount consideration’. In the other articles, a negative formulation is used whereby an action is prescribed except if it is contrary to the child’s best interests or proscribed unless it is necessary for the best interests of the child. Consequently, all these provisions establish the best interests of the child as the decisive consideration. As for other instruments of international law, Article 5 of the Convention on the Elimination of All Forms of Discrimination Against Women refers to the best interests of the child as ‘the primordial consideration’ and Article 16 provides that the best interests of the child ‘shall be paramount’. Article 23 of the Convention on the Rights of Persons with Disabilities also uses the latter formulation.

106 According to the Oxford English Dictionary, ‘primary’ means the fact of being primary, pre-eminent or more important, while ‘paramount’ means more important than anything else or supreme. The New Oxford Dictionary of English, Oxford: Oxford University Press 1998.

107 It was stated during negotiations that the interests of the child should be a primary consideration in all actions concerning children, but were not the overriding, paramount consideration in every case, since other parties might have equal or even superior legal interests in some cases, such as in medical emergencies during childbirth. Considerations by the 1981 Working Group, un Doc. e/cn.4/l.1575, para, 24, reproduced in S. Detrick (1992), The United Nations Convention on the Rights of the Child, A Guide to the Travaux Préparatoires, Dordrecht: Martinus Nijhoff, p. 133. The medical emergencies example suggests that the best interests of the child should prevail in all usual circumstances.

108 Supra note 61, para. 37.

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).

110 unhcr Guidelines on Determining the Best Interests of the Child, 2008, at p. 76: ‘The interests of a child can sometimes conflict with the interests of other persons or groups in society. The general principle contained in the crc provides that the best interests of the child shall be a primary consideration. The Convention does not, however, exclude balancing other considerations, which, if they are rights-based, may in certain rare circumstances, override the best interests considerations.’ Emphasis added. Neulinger, supra note 1.

111 Supra note 29, dissenting opinion of Judge Sililianos, joined by Judge Lazarova Trajkovska, para. 8.

112 O. O’Neill, ‘Children’s Rights and Children’s Lives’, 6 International Journal of Law and the Family (1992) 24–42.

  • 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).

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