I. INTRODUCTION
More than 15 years ago Professor Guy Goodwin-Gill demonstrated characteristic foresight in contemplating that the Convention on the Rights of the Child (‘CRC’)Footnote 1 called for a ‘total realignment of protection’ for child refugee applicants.Footnote 2 In a subsequent submission to the UK House of Lords Select Committee on the European Union, Goodwin-Gill, writing with Agnès Hurwitz, criticized the draft European Union Qualification Directive for its failure to sufficiently engage with the CRC and, in particular, the best interests principle codified in Article 3.Footnote 3 They submitted that ‘[i]n every decision affecting the child, the best interests of the child shall be a primary consideration, and where children are concerned (particularly the unaccompanied), a duty to protect may arise, absent any well-founded fear of persecution or possibility of serious harm’.Footnote 4 A similar argument has been advanced by Professor Jane McAdam, who has argued that Article 3 of the CRC adds an additional layer of consideration to the interpretation and application of the Refugee Convention,Footnote 5 in addition to ‘constitut[ing] a complementary ground of protection in its own right’.Footnote 6
Although we remain some way from a total realignment, there are signs that we are moving in that direction, with the CRC, and Article 3 in particular, playing an increasingly significant role in decisions involving the admission or removal of a child from a host State. This article examines the role of Article 3 in adjudicating the status of a child seeking international protection, and the extent to which the best interests principle may provide an independent source of protection. That protection may, for instance, proscribe the removal of a child notwithstanding the fact that the child is not eligible for protection as a refugee or protection under the non-refoulement obligations in international human rights law.Footnote 7 Part I provides a brief exposition of the argument and an overview of academic, institutional and judicial support for the use of Article 3 as an independent and complementary source of protection.Footnote 8 Part II outlines a two-stage framework for assessing what is in the best interests of a child and the circumstances in which those circumstances will preclude the removal of a child from a host State.
There are at least three reasons why it is important to examine the extent to which Article 3 may provide an independent source of international protection. First, participation in the CRC is greater than participation in the Refugee Convention.Footnote 9 For host States that have not yet become a party to the Refugee Convention, the CRC may provide the strongest—indeed, in some cases the only—treaty-based entitlement capable of preventing the removal of a child from a host State. Secondly, there will be children who do not satisfy the Article 1 refugee definition, because either they do not satisfy the inclusion criterionFootnote 10 or are found to be no longer needing or otherwise undeserving of protection,Footnote 11 but are nonetheless at risk of some form of harm. In these cases the CRC has the capacity to provide a critical additional layer of protection.Footnote 12 Thirdly and finally, there is a greater level of international oversight of State compliance with the CRC, predominately through the Committee on the Rights of the Child. This level of oversight is generally lacking in the context of the Refugee Convention, which has no interstate supervisory body to hold States accountable for non-compliance with the treaty.Footnote 13 This oversight is reinforced by the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure,Footnote 14 which provides children with a direct mechanism to bring complaints against a State for a failure to meet the protection obligations under the CRC.
II. ARTICLE 3 AS AN INDEPENDENT SOURCE OF INTERNATIONAL PROTECTION
Article 3 provides that the best interests of the child shall be a primary consideration in all actions concerning children.Footnote 15 This includes actions undertaken by ‘public or private social welfare institutions, courts of law, administrative authorities or legislative bodies’.Footnote 16 Article 3 requires ‘[e]very legislative, administrative and judicial body or institution … to apply the best interests principle by systematically considering how children's rights and interests are or will be affected by their decisions or actions’.Footnote 17 The express language of the provision, which captures all actions concerning children, makes clear that the best interests principle is engaged not only where a decision directly affects a child, for example where a child independently claims international protection, but also when a child is indirectly affected by a decision, for example where a child's parent is at risk of being removed.
The UNCRC has in its recent General Comment No 14 underlined that the best interests principle operates as both a substantive right and an interpretative device.Footnote 18 As regards the former, the Committee observed that the Article 3(1) obligation incorporates:
The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered … and the guarantee that this right will be implemented whenever a decision is to be made concerning a child … .Footnote 19
According to the Committee, Article 3(1) ‘creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a Court’.Footnote 20 The Committee also acknowledged the role of Article 3 as an interpretative legal principle, observing that ‘[i]f a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child's best interests should be chosen’.Footnote 21
The obligation under Article 3(1) attaches to all children within a State's jurisdiction.Footnote 22 A State cannot limit the application of the provision on the basis of a child's citizenship or immigration status. This is made clear by the non-discrimination guarantee in Article 2(1) of the CRC, as well as Article 22 which provides that unaccompanied or accompanied children seeking refugee status are entitled to enjoy all applicable rights in the CRC on a non-discriminatory basis. Although it is now generally accepted that Article 3 is relevant to children seeking international protection, such recognition has tended to focus on procedural guarantees and the treatment that children receive during and subsequent to any status determination process.Footnote 23 But while Article 3 is plainly relevant to the procedures and treatment applicable to children seeking international protection, the best interests principle may also be relevant to the substantive determination as to whether a child is in fact eligible for international protection. This aspect of the obligation is often overlooked by States,Footnote 24 despite the fact that the best interests principle applies to ‘all actions concerning children’Footnote 25 and must therefore ‘be respected during all stages of the displacement cycle’.Footnote 26
Article 3 may be relevant in adjudicating the status of a child seeking international protection in two distinct ways. First, the best interests principle may inform the interpretation of a State's protection obligations under the Refugee Convention (or, indeed, the wider non-refoulement obligations under international human rights law). In particular, the best interests principle demands an age-sensitive and inclusive interpretation of these respective obligations.Footnote 27 This is consistent with the UNCRC's recent affirmation that where a legal provision is open to more than one interpretation the decision-maker should favour the interpretation that best serves the child's best interests.Footnote 28 This is not to suggest that the best interests principle amends or displaces the definitional criterion set out in the Refugee Convention (or, indeed, the broader non-refoulement obligations under international human rights law). In this respect, States are correct to caution that the ‘best interests principle … does not replace or change the refugee definition in determining substantive eligibility’.Footnote 29 But accepting that circumscription does not render the best interests principle otiose to the interpretation of the Refugee Convention definition.Footnote 30 In the context of interpreting the constituent elements of the refugee definition the principle must simply be understood as norm-shaping rather than norm-producing.Footnote 31
By way of illustration, in the context of the ‘being persecuted’ definition, UNHCR has recognized that ‘[t]he best interests of the child requires that the harm be assessed from the child's perspective’ and that ‘[t]his may include an analysis as to how the child's rights or interests are, or will be, affected by the harm’.Footnote 32 National decision-makers have similarly drawn upon the best interests principle in assessing the suitability of an internal protection alternative,Footnote 33 the appropriateness of removing a child to a ‘safe third-country’ for processing,Footnote 34 and the scope of the Refugee Convention's exclusion provisions.Footnote 35 In each of these examples the best interests principle has been drawn upon to inform the interpretation of a particular element of the Refugee Convention definition rather than being invoked as an alternative or replacement to that definition.
The second context in which Article 3 may be engaged is as an independent basis for protection outside the traditional refugee protection regime. In particular, an assessment of the best interests of the child may preclude the return of a child to her home country notwithstanding the fact that the child is not eligible for protection under the Refugee Convention or the more traditional non-refoulement obligations noted above. Article 3 thus creates a new category of protected persons whose claims need to be assessed and evaluated by domestic decision-makers.Footnote 36 The relevant inquiry in these cases is whether the removal of the child is in the child's best interests. If removal is contrary to those interests, there will be a strong presumption against removing the child, subject only to a tightly circumscribed range of considerations that may in certain circumstances override the child's best interests.
The argument that Article 3 provides an independent basis for international protection has both academic and institutional support. As noted above, Goodwin-Gill has for some time emphasized the relevance of the best interests principle in determining whether or not a State owes a child international protection.Footnote 37 The argument has since been taken up and developed by McAdam:
the best interests of the child, reflecting an absolute principle of international law, are highly relevant in determining whether or not a child needs international protection. The principle applies to any protection claim concerning children, irrespective of whether they are unaccompanied, accompanied by family members (even where the child is not the primary applicant), or seeking family reunion … [B]est interests are also relevant to removal cases which will personally affect a child, such as where the State seeks to deport a parent.Footnote 38
McAdam argues that the best interests principle adds an additional layer of consideration to the interpretation and application of the Refugee Convention, in addition to ‘constitut[ing] a complementary ground of protection in its own right’.Footnote 39
Both the UNCRC and UNHCR have also endorsed the argument that Article 3 creates a new category of protected persons. The clearest affirmation is found in the UNCRC's General Comment No 6, which provides that ‘[r]eturn to the country of origin shall in principle only be arranged if such return is in the best interests of the child’.Footnote 40 According to the Committee, this determination should take into account the views of the child; the safety, security and socio-economic conditions awaiting the child upon return; the availability of care arrangements for the child; the child's level of integration in the host country; the child's right to preserve her identity, including her nationality, name and family relationship; and the desirability of continuity in a child's upbringing.Footnote 41 The Committee suggests that in exceptional circumstances other considerations may override the best interests of the child; it stresses, however, that such considerations must be rights-based and that ‘[n]on-rights-based arguments such as those relating to general migration control, cannot override best interests considerations’.Footnote 42
In recent years, the UNCRC has underlined the need for States to ‘conduct individual assessments and evaluations of the best interests of the child at all stages of … any migration process affecting children’.Footnote 43 In particular, the Committee has explained that ‘primary consideration should be given to the best interests of the child in any proceeding resulting in the child's or their parents' detention, return or deportation’.Footnote 44 In its most recent observations on Australia, for instance, the Committee counselled Australia to ensure that ‘its migration and asylum legislation and procedures have the best interests of the child as the primary consideration in all immigration and asylum processes’ and that ‘determinations of the best interests are consistently conducted by professionals who have been adequately trained in best interests determination procedures’.Footnote 45 Further support for the approach taken by the Committee can be found in the reports of the Special Rapporteur on the Human Rights of Migrants, who has stressed that ‘children should be repatriated only if it is in their best interests, namely, for the purpose of family reunification and after due process of law’.Footnote 46 This view also finds support in the work of the Office of the United Nations High Commissioner for Human Rights which has acknowledged that ‘the ability of States to return children in the context of migration is constrained by a number of factors' and that ‘[t]he principle of the best interests of the child … should be a primary consideration in any decision to return, and in decisions on the deportation of their parents’.Footnote 47
UNHCR has similarly acknowledged the importance of Article 3 in determining the eligibility of a child for international protection. In its Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, the organization states that where a child is found not to qualify for refugee status ‘an assessment of the solution that is in the best interests of the child should follow as soon as practicable after the negative result’.Footnote 48 The UNHCR Executive Committee has also recognized that ‘[t]he principle of the best interests of the child shall be a primary consideration in regard to all actions concerning children’Footnote 49 and recommended that States adopt ‘appropriate procedures for the determination of the child's best interests which facilitate adequate child participation without discrimination’.Footnote 50 To assist decision-makers in that determination process, UNHCR has published a set of guidelines outlining a formal mechanism for determining the best interests of children, which primarily serve UNHCR field agents working in developing countries.Footnote 51
At a domestic level, Article 3 is beginning to play an increasingly important role. Although the role of the best interests principle is well established as a matter of international obligation, at the municipal level there has traditionally been a general lack of enthusiasm with the idea that the best interests principle may provide an independent basis for international protection. There are, however, signs that this is beginning to change. By way of illustration, following the UK's withdrawal of its reservation to the CRC—which limited the entitlement of non-citizen children to claim rights under the CRC, including under Article 3—the government enacted legislation requiring the State to ‘make arrangements for ensuring that [the Secretary of State's] functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom’.Footnote 52 The withdrawal of the reservation and the subsequent passage of domestic legislation provided the impetus for a series of decisions considering the application of Article 3 to migration-related decisions concerning children and, in particular, cases raising issues under Article 8 of the European Convention on Human Rights.Footnote 53 As Bolton explains, ‘it was this withdrawal … that began to level the playing field … to create conditions for more substantive progress to be made in the arena of immigration and asylum law and policy, nearly two decades after the [CRC] was ratified by the UK’.Footnote 54
One of the earliest UK cases to afford greater prominence to the best interests principle in the migration context was LD v Secretary of State for the Home Department,Footnote 55 an appeal against a decision to remove a Zimbabwean man with three young children who were lawfully resident in the UK. Drawing heavily on the Strasbourg jurisprudence on the right to respect for private and family life under Article 8 of the European Convention on Human Rights, Blake J determined that ‘there can be little reason to doubt that the interests of the child should be a primary consideration in immigration cases’ and that ‘[a] failure to treat them as such will violate Article 8 [of the European Convention on Human Rights] as incorporated directly into domestic law’.Footnote 56 In the context of a removal decision, Blake J took the view that ‘[v]ery weighty reasons are needed to justify separating a parent from a minor child or a child from a community in which he or she had grown up and lived for most of her life’.Footnote 57 He considered that both principles were engaged in the case and that, given the absence of any strong reasons to support the removal of the children's father, the appellant's removal would constitute a violation of the Article 8 right to family life.Footnote 58
The issue was revisited the following year in the now oft-cited decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department (‘ZH’).Footnote 59 This case involved an appeal against a decision to remove a Tanzanian woman who had two children born in the UK, a daughter aged 12 and a son aged 9. Before the case was heard the Secretary of State conceded that on the particular facts removing the appellant would be a disproportionate interference with the Article 8 rights of the children; however, the case proceeded to allow the Supreme Court to deliver guidance on the general principles which should apply in future cases.Footnote 60 In the majority opinion, Lady Hale drew on the Strasbourg jurisprudence and underlined that the best interests principle is relevant ‘not only to how children are looked after in this country while decisions about immigration, deportation or removal are being made, but also to the decisions themselves’.Footnote 61 Accordingly, ‘[i]n making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first’.Footnote 62 Lady Hale acknowledged that the child's best interests might be outweighed by ‘the cumulative effect of other considerations’Footnote 63 but stressed that a decision-maker must not ‘treat any other consideration as inherently more significant than the best interests of the children’.Footnote 64
Both the decisions of the Supreme Court in ZH and the Upper Tribunal in LD arose in the context of an appeal against the removal of a child's parent where the parent had no right to be or remain in the country.Footnote 65 Courts have, however, sensibly taken the view that the general principles set out in these cases apply wherever an Article 8 right is engaged. As Lord Kerr stated in HH v Deputy Prosecutor of the Italian Republic, Genoa, ‘the intrinsic value of the [Article 8] right cannot alter according to context’.Footnote 66 Accordingly, although the interests that a State invokes to justify the interference will differ depending on the context, the approach to the evaluation of Article 8 remains the same.Footnote 67 A review of decisions in the UK over the past five years reveals that the best interests principle has been incorporated into the Article 8 proportionality assessment in a wide range of contexts, including cases involving the extradition of a parent,Footnote 68 the removal of a children as part of a family unit,Footnote 69 the return of a child pursuant to the Hague Convention,Footnote 70 the deportation of a parent following a criminal conviction,Footnote 71 the removal of an unaccompanied child,Footnote 72 the admission of a child applying from outside the UK,Footnote 73 the detention of a parent,Footnote 74 and the denial of permanent residence to a parent and her children.Footnote 75
Although the UK is at the forefront of recent developments, a number of jurisdictions have, for some time, engaged with the best interests principle in determining whether a child is entitled to an international protection status.
Senior courts in Canada, Australia and New Zealand have long recognized that a decision involving the deportation or extradition of a child's parent must necessarily entail a consideration of the best interests of the child.Footnote 76 One of the first decisions to discuss the role of the best interests principle in this context was the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh.Footnote 77 The case involved a Malaysian citizen with an Australian-citizen wife, three Australian-born children and four Australian-born stepchildren. Mr Teoh's application for residency status was rejected on character grounds because he had been convicted of drug offences. He sought judicial review of that decision. The High Court held the primary decision-maker had committed an error of law by failing to treat the best interests of Mr Teoh's children as a primary consideration. The majority of the High Court considered that Australia's ratification of the CRC generated a legitimate expectation that decision-makers would act in conformity with it, including Article 3.Footnote 78 The High Court considered that in refusing to grant Mr Teoh residency status the primary decision-maker had treated the government's character policy, rather than the best interests of Mr Teoh's children, as the primary consideration. According to Mason CJ and Deane J, ‘[a] decision-maker with an eye to the principle enshrined in the [CRC] would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it’.Footnote 79 Subsequent decisions have confirmed that the reasoning in Teoh applies both to the situation where the removal of a parent will force the separation of the child and parent, as was the scenario in Teoh, and to the situation where the child is constructively deported because she will voluntarily accompany the parent upon departure.Footnote 80
In Canada the leading decision is Baker v Canada (Minister of Immigration and Citizenship),Footnote 81 which involved a Jamaican national who had been served with a deportation order after it was established that she had worked illegally in Canada and overstayed her visitor's visa. Ms Baker applied for humanitarian protection under what was then section 114(2) of the Immigration Act,Footnote 82 principally on the basis that her deportation would be contrary to the best interests of her children. The certified question for the Supreme Court was whether, in the absence of express reference to the CRC in domestic immigration legislation, decision-makers were required to treat the best interests of children as a primary consideration in assessing an application for humanitarian protection. The majority of the Supreme Court answered in the affirmative and determined that in assessing an application for humanitarian protection ‘the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them’.Footnote 83 The Court emphasized that the best interests will not always be determinative, but considered that ‘where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable’.Footnote 84 The requirement specified in Baker has since been codified in section 25(1) of the Immigration and Refugee Protection ActFootnote 85 which mandates that in exercising the discretion to grant humanitarian protection the Minister must ‘tak[e] into account the best interests of a child directly affected’.Footnote 86 The provision has been supplemented by departmental guidelines, which provide guidance on the matters which decision-makers ought to consider in assessing a child's best interests.Footnote 87
In New Zealand recourse to the best interests principle is mediated via the Immigration Act 2009, which allows a parent to appeal against deportation on humanitarian grounds where ‘[t]here are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand’ and ‘[i]t would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand’.Footnote 88 In Ye v Minister of Immigration Footnote 89—a case involving two families, each containing New Zealand-born children and Chinese national parents at risk of removal—the New Zealand Supreme Court held that New Zealand's immigration legislation must be interpreted in a way that is consistent with New Zealand's obligation to observe the requirements of the CRC and, in particular, the requirement that ‘in all actions concerning children, by public and administrative authorities, the best interests of the child shall be a “primary consideration”’.Footnote 90 This means that in considering a parent's humanitarian appeal it is necessary to consider ‘who will care for the child, and the nature and extent of the difficulties the child may face in remaining in New Zealand without parents’ or, if the child is to leave New Zealand, ‘the nature and extent of any problems the child may face if returned to the parent's home country’.Footnote 91
An increasing number of jurisdictions, including Canada, Australia, New Zealand and several European States, have also implemented discretionary humanitarian protection schemes that require decision-makers to take into account the best interests of any children affected by a decision to remove a child and/or the child's parent. Critically, this includes cases where the child is the principal applicant. By way of illustration, and as already touched upon above in the context of the removal of a child's parents, Canadian legislation mandates that in exercising the discretion to grant humanitarian protection the Minister must ‘tak[e] into account the best interests of a child directly affected’.Footnote 92 The comparable New Zealand statutory humanitarian protection scheme has been interpreted to require the decision-maker to treat the best interests of the child as a primary consideration.Footnote 93 In Australia the process is less transparent, with the Minister retaining a non-compellable and non-reviewable discretion to grant protection ‘[i]f the Minister thinks it is in the public interest to do so’.Footnote 94 Published guidelines provide that, in exercising the discretion, the Minister should take into account circumstances that may enliven Australia's obligations under the CRC, including Article 3.Footnote 95 Several European States have legislated to mandate that the best interests of the child be considered in assessing whether a child should be granted a humanitarian protection status, including Sweden,Footnote 96 Finland,Footnote 97 and Norway.Footnote 98
Finally, in response to the distinct challenges presented by the increase in the arrival of unaccompanied children a number of jurisdictions have introduced special protection measures specifically targeted at unaccompanied children which expressly incorporate a best interests assessment. By way of illustration, in the US an unaccompanied child may apply for a bespoke form of protection: special immigrant juvenile status (‘SIJS’).Footnote 99 In order to be eligible for SIJS a child (less than twenty-one years of age) must first be declared the dependent of a juvenile court or placed in the care of a child welfare agency. A State court must then decide that the child cannot be reunited with one or both parents because of abuse, abandonment, neglect or a similar reason, and that it is not otherwise in the child's best interests to return to her home country. In the UK an unaccompanied child will not be removed unless the Secretary of State is satisfied that there are ‘adequate reception arrangements'Footnote 100 in place in the child's home country.Footnote 101 These children are granted a form of limited leave until they are 17-and-a-half years of age, at which point in time the leave to remain lapses. In assessing whether discretionary leave ought to be granted, decision-makers are instructed that ‘the best interests of the child must be taken into account as a primary consideration in the decision’.Footnote 102
The preceding (brief) overview of State practice demonstrates the capacity of Article 3 to limit a State's ability to remove a child and/or a child's parent from its jurisdiction. Although States may have initially resisted the idea that Article 3 may give rise to an independent source of protection status, the above discussion makes clear that the best interests principle is playing an increasingly central role in decisions involving the removal of children. The application of the best interests principle in a range of migration contexts and across multiple jurisdictions illustrates that the argument advanced in this article—that the best interests principle may give rise to an independent protection status—is not merely a theoretical aspiration, but finds support in a fast-evolving body of regional and domestic jurisprudence that engages with Article 3 to provide effective protection to children and their parents. That jurisprudence provides an important source of guidance for decision-makers tasked with considering the application of Article 3 as an independent source of protection and with identifying the circumstances in which the provision may preclude the removal of a child from a host State.
III. THE APPLICATION OF ARTICLE 3 AS AN INDEPENDENT SOURCE OF INTERNATIONAL PROTECTION
How, then, should a decision-maker determine what is in the best interests of the child and whether those interests preclude the removal of the child from a host State? Although there is clear value in providing a general framework for the application of the best interests principle as an independent source of protection, it is important to emphasize that the best interests principle is by design a flexible and dynamic concept; it is not possible to prescribe how a child's interests will be best served in any given situation at any given point in time.Footnote 103 A best interests assessment must take place on a case-by-case basis, taking into account the specific circumstances of the individual child.Footnote 104 There are, however, a number of signposts that are capable of guiding decision-makers in the application of Article 3 of the CRC to situations where a child is at risk of removal. These general principles derive principally from jurisprudence developed in the various migration-related contexts in which States have engaged with the best interests principle.
Article 3 will be engaged wherever a child may be affected by an immigration decision.Footnote 105 In certain circumstances, Article 3 will require a decision-maker to look beyond the claim and/or evidence formally put forward by the applicant. As Justice Gaudron of the High Court of Australia has observed, any reasonable person ‘would assume or expect that the interests of the child would be taken into account … as a matter of course and without any need for the issue to be raised with the decision-maker’.Footnote 106 Decision-makers are thus under an obligation to ‘be proactive in identifying [the child's best interests] so that they can be properly taken into account’.Footnote 107
An assessment of a child's best interests involves a two-stage process. The first stage requires a decision-maker to determine what is in the best interests of the child. The second stage requires a decision-maker to assess whether those interests are outweighed by any countervailing factor. The two stages are clearly set out by the Australian Federal Court in Wan:
[The decision-maker is] required to identify what the best interests of Mr Wan's children required … and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.Footnote 108
The two stages are distinct and should not be conflated. In ZH, the Supreme Court stressed the importance of considering the child's best interests first.Footnote 109 The reason for this is straightforward: a failure first to determine what is in the best interests of the child makes it impossible to assess whether any countervailing considerations outweigh those interests. As the Australian Federal Court has explained:
Given this balancing exercise, where the children's best interests were left at the level of mere hypothesis, it is hardly surprising that the positive finding of a risk of harm to the Australian community from even the small risk of the applicant re-offending outweighed the hypothesis of possible harm to the best interests of the applicant's children should his visa be cancelled.Footnote 110
In this case the Federal Court quashed the Minister's decision on the basis that the Minister had never addressed the ‘central question of what the best interests of the children required’ and was thereby unable to ‘assess whether any other consideration outweighed the best interests of the children understood as a primary consideration’.Footnote 111
A. Stage 1: Determining the Best Interests of the Child
As noted above, it is imperative that a decision-maker determines what is in the best interests of the child as a first and separate stage. This is made clear by the express language of Article 3(1): the use of the word ‘shall’ reflects the mandatory nature of the obligation, while the term ‘consideration’ makes clear that the child's interests must actually be taken into account.Footnote 112 Alston has underlined that the ‘consideration’ mandated by Article 3 must be ‘genuine rather than token or merely formal’ and must ‘ensure that all aspects of the child's best interests are factored into the equation’.Footnote 113 This point has been recognized in the case law, with the Canadian Supreme Court emphasizing that a decision-maker must be ‘alert, alive and sensitive’ to the best interests of an affected child.Footnote 114 It is insufficient for a decision-maker simply to state that they have taken into account the interests of the child without identifying with adequate particularity what those interests are.Footnote 115 The best interests of the child must be ‘well identified and defined’Footnote 116 and the decision-maker must undertake ‘a careful and sympathetic assessment of the children's interests’.Footnote 117
A best interests assessment requires decision-makers to consider the long-term effects that a decision or action may have on a child's welfare and development, including those effects that will be felt after a child has reached her eighteenth birthday.Footnote 118 The need for a forward-looking examination is difficult to reconcile with the approach adopted by some States of granting children temporary protection status solely for the duration of childhood. For instance, unaccompanied children arriving in the UK are granted a form of limited leave until they are 17-and-a-half years of age, at which point in time the leave to remain lapses and the child may be removed. This approach gives rise to an enforced state of limbo, with children being required to live with the constant fear that they will be removed as soon as they reach adulthood.Footnote 119 As the High Court of England and Wales has observed:Footnote 120
I am unable to see how the welfare of a 16 year old youth is best promoted by forcing him to anxiously face the prospect or spectre of removal from the UK … The stress of this constant re-appraisal of his life is hardly conducive to the promotion of his best interests … The claimant has been forced into a form of limbo by the decision of the SSHD. I fail to see how this can be suggested to advance best interests of a 16 year old youth. He is entitled—is he not—to have some notion of what his future holds?
A mechanistic approach such as that adopted in the UK—which mortgages off a permanent solution to some future point in time (or, more cynically, serves only to postpone removal)—is incompatible with the object and purpose of the CRC which, at its core, is concerned with developing a child to their fullest potential and preparing a child for a responsible life in a free society.Footnote 121 A child cannot be expected to postpone her growth and development.Footnote 122 The best interests principle requires a decision-maker to consider a child's future protection and development needs. In certain circumstances this may require the implementation of an immediate and permanent solution, such as the grant of an indefinite form of protection.
There are three factors that must be taken into account in making an assessment as to what is in the best interests of a child.Footnote 123 The first factor is the views of the child. Article 12(1) of the CRC imposes a positive obligation on States to give due weight to the views of the child in accordance with their age and level of maturity. Article 12(2) stipulates that children have a right to be heard in ‘any judicial and administrative proceedings affecting the child’. Although a child's views may not be determinative, they represent a critical ingredient in undertaking the best interests assessment.Footnote 124 This has been affirmed by the UNCRC, which considers that ‘there can be no correct application of article 3 if the components of article 12 are not respected’.Footnote 125 The recast EU Qualification Directive also expressly notes that, in assessing the best interests of the child, Member States should in particular take into account ‘the views of the minor in accordance with his or her age and maturity’.Footnote 126
Senior appellate courts have recognized the importance of seeking a child's views when determining the best interests of a child in the immigration context. The UK Supreme Court has drawn upon Article 12 of the CRC and affirmed that an important part of determining a child's best interests is ‘discovering the child's own views’.Footnote 127 This is regarded as important because a child's views and interests will not always coincide with their parents’ and, in some cases, a parent may not be able properly to put the child's views before the court.Footnote 128 According to Lady Hale, ‘[t]he important thing is that everyone, the parties and their representatives, but also the courts, is alive to the need to obtain the information necessary in order to have regard to the best interests of the children as a primary consideration, and to take steps accordingly’.Footnote 129 The New Zealand Supreme CourtFootnote 130 and the Canadian Federal Court of AppealFootnote 131 have similarly acknowledged the right of children to express their views in the context of an Article 3 best interests assessment.
The second factor that must be taken into account is the specific situation and circumstances of the child, including the child's age, level of maturity and any particular vulnerabilities or needs that that child may have.Footnote 132 For example, has the child been the subject of physical or psychological abuse? Does the child suffer from a disability or other medical condition? What, if any, language does the child speak? Is the child unaccompanied or accompanied by a family member? The best interests of a child in a specific situation of vulnerability will not be the same as a child who is not in the same vulnerable situation. As the UNCRC has apprised, decision-makers must thus ‘take into account the different kinds and degrees of vulnerability of each child’ in order to accommodate the reality that ‘each child is unique and each situation must be assessed according to the child's uniqueness’.Footnote 133
The third factor is the extensive catalogue of rights protected under the CRC. The best interests principle is self-evidently indeterminate. It has been suggested that such imprecision gives rise to a risk that the best interests principle will be used as ‘an alibi for individual arbitrariness’.Footnote 134 This criticism, however, is premised on an interpretation of Article 3 that fails to take into account the balance of the CRC. The rules of treaty interpretation are clear, however, that Article 3 must be read within the context of the CRC as a whole, including the substantive rights protected under it.Footnote 135 The latter construction injects substantive content into Article 3 and thus provides a critical bulwark against the risk of subjective arbitrariness. As Alston explains,
the Convention as a whole goes at least some of the way towards providing the broad ethical or value framework that is often claimed to be the missing ingredient which would give a greater degree of certainty to the content of the best interests principle. It provides a carefully formulated and balanced statement of values to which some [now, 194] State Parties have formally subscribed.Footnote 136
The argument is developed further by Tobin:
While the best interests principle remains a fluid and flexible concept it is not unfettered or entirely subject to the personal whims of a decision-maker. Rather it remains informed and constrained by the rights and principles provided for under the Convention … Put simply, a proposed outcome for a child cannot be said to be in his or her best interests where it conflicts with the provisions of the Convention.Footnote 137
In other words, it is in a child's best interests to enjoy the rights and freedoms provided for in the CRC. This integrative construction of Article 3 is endorsed by the UNCRC, which affirms that ‘[t]he concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child’.Footnote 138
Critically, there is no principled basis for importing any additional hardship threshold into the best interests analysis. As explained by the Canadian Federal Court, ‘[t]here is no basic needs minimum which if “met” satisfies the best interest test’ and there is no ‘hardship threshold, such that if the circumstances of the child reach a certain point on the hardship scale only then will a child's best interests be so significantly “negatively impacted” as to warrant positive consideration’.Footnote 139 As the Federal Court recognizes, ‘[t]he question is not: “is the child suffering enough that his ‘best interests’ are not being ‘met’?[”] The question at the initial stage of the assessment is: “what is in the child's best interests?”’Footnote 140 The Canadian Federal Court of Appeal has similarly noted that a hardship threshold is ill-suited when assessing the claims of children, given that ‘[c]hildren will rarely, if ever, be deserving of any hardship’.Footnote 141
A principled construction of Article 3 thus requires a decision-maker to consider the extent to which a child seeking international protection will enjoy each of the rights protected under the CRC, having regard to both the personal circumstances of the child and the conditions prevailing in the home country. That assessment should be based on empirical evidence that relates to both the specific child and the human rights conditions in the destination country. This is because the best interests assessment ‘requires a judgment to be made on a rational basis taking into account all relevant factors’ and not just ‘on the basis of how these matters are perceived by the child and/or parent(s)’.Footnote 142 By anchoring the best interests assessment in both a principled (rights-based) and objective (evidence-based) framework the risk of subjective and/or speculative arbitrariness in the application of the best interests principle is considerably reduced.Footnote 143
A broad range of CRC rights may be relevant to the best interests assessment.Footnote 144 As acknowledged by UNHCR, ‘the best interests of the child determination must take account of the full range of the child's rights, and … is rarely determined by a single, overriding factor’.Footnote 145 Although by no means an exhaustive list, decision-makers have considered the following substantive rights in determining whether removal is in a child's best interests: the right to an education (Articles 28, 29);Footnote 146 the right to protection against discrimination (Article 2);Footnote 147 the right to the highest attainable standard of health, including access to medical care and treatment (Articles 24, 25);Footnote 148 the right to life, survival and development (Article 6);Footnote 149 the right to protection from all forms of physical or mental violence (Articles 19, 34, 35, 36, 37, 38);Footnote 150 the right to be registered and acquire a nationality, and to preserve an identity, including a nationality (Articles 7, 8);Footnote 151 the right to privacy and home life, based on the child's level of integration in the host country (Article 16);Footnote 152 and the right to an adequate standard of living, based, among other things, on the availability of care arrangements for the child in the country of origin (Articles 20, 27).Footnote 153
An additional right critical to the best interests assessment in the immigration context is the child's right to be with her family.Footnote 154 In the majority of cases involving unaccompanied children, if the child's family can be located, the best interests of the child will generally be best served by reuniting the child with her family.Footnote 155 This is consistent with the protection against arbitrary interference with the family (Article 16), the obligation to respect the responsibilities, rights and duties of parents (Article 5) and the duty of non-separation (Article 9). Yet the principle of family unity is not absolute, and it is critical that family reunification is not invoked as an automatic trump card to justify a child's removal where that removal will be contrary to the child's best interests.Footnote 156 This is inherent in the structure of Article 9(1), which specifies that a child may be separated from her parents where this is necessary for the best interests of the child. Although Article 9 expressly includes certain circumstances that may necessitate separation—most relevantly, cases involving abuse or neglect of the child by the parents'—the UNCRC has made clear that the list is not comprehensive and that other considerations may dictate that family reunion is not in the best interests of the child:
Family reunification in the country of origin is not in the best interests of the child and should therefore not be pursued where there is a ‘reasonable risk’ that such a return would lead to the violation of fundamental human rights of the child. Such risk is indisputably documented in the granting of refugee status or in a decision of the competent authorities on the applicability of non-refoulement obligations (including those deriving from article 3 of the CAT and articles 6 and 7 of the ICCPR). Accordingly, the granting of refugee status constitutes a legally binding obstacle to return to the country of origin and, consequently, to family reunification therein. Where the circumstances in the country of origin contain lower level risks and there is concern, for example, of the child being affected by the indiscriminate effects of generalized violence, such risks must be given full attention and balanced against other rights-based considerations, including the consequences of further separation. In this context, it must be recalled that the survival of the child is of paramount importance and a precondition for the enjoyment of any other rights.Footnote 157
In assessing whether family unification is appropriate, the decision-maker must take into account the views of the child and, consistent with Article 5 of the CRC, the views of the child's parent or other interested party.
The best interests assessment is generally more complex in cases involving children that are accompanied by their parents. The more straightforward scenario is where the child's parents are eligible to remain in the host State, for instance because the parents qualify for refugee status. In this situation it will almost always be in the best interests of the child to remain with their family. For instance, in BP (Iran) an Iranian girl, aged 10, was at risk of being removed to Iran alone after both her mother and father, also citizens of Iran, had been recognized as refugees in New Zealand.Footnote 158 The child was granted humanitarian protection on the basis that it was in her best interests ‘to be with both parents who are the people with responsibility for her day-to-day care’ and that ‘[g]iven that the parents will remain in New Zealand, it is in the … child's best interests that she too be permitted to remain’.Footnote 159
The more difficult scenario is where neither the parents nor the child has any right to remain in the host State. In this situation there has been a tendency for decision-makers to start from an assumption that the parents will be removed and then assess the best interests of the child off the back of that assumption (generally resulting in a finding that it is in the best interests of the child to remain with their family and therefore be removed).Footnote 160 A more principled approach, consistent with Article 3 and the wider rights framework protected under the CRC, is to canvass the full range of options for the child, including the possibility of the entire family remaining in the host State, and then to assess which of those options is best suited to securing the realization of the child's rights.Footnote 161 In the event that there are separate issues raised by a family member remaining in the host State—for example, where the child's parent has been convicted of a crime and is considered to be a risk to the safety of the host State—these concerns are addressed in the second stage of the best interests process.Footnote 162
A child's best interests are rarely determined by a single, overriding factor. The best interests assessment can thus not be approached as ‘a simplistic or reductionist exercise’Footnote 163 but must entail consideration of a range of factors including any view held by the child, the child's individual circumstances and the extent to which the child will be able to enjoy her CRC rights in the country of destination. As the UNCRC has explained, the relevance and weight to be afforded to each element ‘will necessarily vary from child to child and from case to case, depending on the type of decision and the concrete circumstances’.Footnote 164 In cases where there is a tension or even a clear conflict between factors—for instance, where family reunification conflicts with the need to guarantee the child's survival and development or indeed with the child's or parent's own individual view—the decision-maker must weigh up the various factors in order to reach a determination as to what is in the child's best interests.Footnote 165
Where a decision-maker determines that removal is not in the best interests of the child it is important to keep in mind the cumulative strength of the factors that fed into that determination, as this will be relevant to the balancing exercise undertaken in the second stage of the best interests assessment.Footnote 166 For example, if all the factors relevant to the best interest of the child determination overwhelmingly support the child remaining in the host State, then strong countervailing factors will be required to justify an outcome that is inconsistent with the child's best interests. On the other hand, in a borderline case—where there are good arguments that support a determination that it is in the child's best interests to return to her home State—less will be required by way of countervailing factors.Footnote 167
B. Stage 2: The Balancing Exercise
Article 3 provides that in all actions ‘concerning children … the best interests of the child shall be a primary consideration’.Footnote 168 The adoption of the indefinite article (‘a’ rather than ‘the’) indicates that the child's best interests are ‘not to be considered as the single overriding factor’ and thus affords sufficient flexibility, ‘at least in certain extreme cases’, to enable decision-makers to take into account a broader range of interests.Footnote 169 Yet while this means that identifying a child's best interests will not ‘lead inexorably to a decision in conformity with those interests’,Footnote 170 it does not mean that a decision that conforms with a child's best interests can be easily displaced by reference to some other interest.Footnote 171 As Alston explains, the formulation adopted by the drafters imposes a ‘burden of proof on those seeking to achieve such a non-child-centered result to demonstrate that, under the circumstances, other feasible and acceptable alternatives do not exist’.Footnote 172 Thus, in the context of a child seeking international protection, where removal of the child is contrary to the child's best interests, those interests must be afforded substantial weightFootnote 173 and the decision-maker must provide a compelling and evidence-based justification where they intend to reach a decision contrary to the child's best interests.Footnote 174
The weight to be given to the child's best interests has been the subject of considerable debate in national courts and tribunals.Footnote 175 In ZH, Lady Hale recognized that the child's best interests might be outweighed by ‘the cumulative effect of other considerations’Footnote 176 but underlined that a decision-maker must not ‘treat any other consideration as inherently more significant than the best interests of the children’.Footnote 177 In this particular case Lady Hale considered that the competing interests relied upon by the government—a need to maintain immigration control, the mother's immigration history, and the precariousness of her immigration status when the children were born—were insufficient to outweigh the fact that the children's best interests were plainly served by remaining in the UK with their mother.Footnote 178 In a separate concurring opinion, Lord Kerr similarly acknowledged that the best interests principle ‘is not a factor of limitless importance in the sense that it will prevail over all other considerations’,Footnote 179 but took the view that ‘[i]t is a factor … that must rank higher than any other’.Footnote 180 According to Lord Kerr, ‘[w]here the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them.’Footnote 181
There has been judicial debate as to whether the decision of Lord Kerr goes further than the decision of the majority as regards the weight to be afforded to the best interests of the child.Footnote 182 It has been suggested that while Lady Hale left open the possibility that there may be more than one primary consideration, Lord Kerr adopted a more hardline view that the best interests of the child must rank higher than any other consideration. Lord Kerr has since clarified that he did intend to express the position more strongly than the majority, explaining that ‘[w]hat [he] was seeking to say was that … no factor must be given greater weight than the interests of the child’.Footnote 183 The distinction may be semantic,Footnote 184 but to the extent that there is any difference between the two positions, Lady Hale's construction is more neatly aligned with the language of Article 3.Footnote 185
Both the UNCRC and UNHCR suggest that only rights-based interests can outweigh the best interests of a child.Footnote 186 Although certainly positive from a protection standpoint, such a strict interpretation does not sit comfortably with the language of Article 3 which places no limitation on the range of interests that may be taken into account and balanced against the best interests of a child. In ZH, Lady Hale observed that the distinction between rights-based and non-rights-based arguments was difficult to understand, particularly given that wider interests, such as protecting the economic well-being of a host country, are also concerned with protecting the rights of individuals.Footnote 187 It may simply be the case, as Lady Hale suggests in ZH, that the approach adopted by the UNCRC and UNHCR reflects the reality that an argument that a child and/or her parents remaining in a host country poses a specific risk to the community will more easily outweigh the best interests of a child than an argument that the child and/or her parent's continued presence poses a more general threat to the economic well-being of the host country.Footnote 188 The question is one of weight rather than admissibility.
The two interests most commonly relied upon to militate against what is in a child's best interests are the maintenance of immigration control and the protection of members of host community as a result of criminal activity or other serious misconduct by the child or the child's family member. As regards the former, it is self-evident that ‘[i]mmigration control and child protection/making the best interests of a child a primary consideration do not always pull in the same direction’.Footnote 189 Although a legitimate consideration—given that maintaining the integrity of a system of immigration control is one of the means by which a State protects its economic well-being and national securityFootnote 190—decision-makers have appropriately recognized that a general concern about maintaining immigration control will on its own generally be insufficient to justify an outcome inconsistent with the best interests of a child.Footnote 191
Although not dispositive, evidence that the continued presence of a child and/or a child's parent in a host State poses a risk to members of the community may more easily outweigh the best interests of a child. This interest is most commonly raised where a family member of the child has engaged in criminal or other serious misconduct. Although a child must not be punished for the conduct of her parents,Footnote 192 the criminal activity of a family member, and the attendant risk it may pose to the host community, may militate against a decision that is in the best interests of the child—for instance, keeping the family together in the host State—and necessitate the removal of that family member.Footnote 193 Critically, in this scenario it will not necessarily follow that the child will be removed from the host State. Rather, it is necessary to revisit the first stage of the best interests assessment and assess whether it would be in the child's best interests to join the family member overseas or to remain in the host State notwithstanding the parent's removal.
Other countervailing factors that have been relied upon by decision-makers in undertaking the balancing exercise include: the integrity of the international system of extradition;Footnote 194 deterrence of parents sending children to a host State as ‘anchor children’;Footnote 195 the integrity of the practical application of Dublin II,Footnote 196 and the deterrence of people smuggling networks.Footnote 197 Decision-makers have, however, recognized that the Article 3 balancing exercise should not be limited to a consideration of the interests that conflict with the child's best interests. Most critically, leading courts have accepted that there is an independent public interest in promoting the best interests of children. As the UK Supreme Court held in a case involving the extradition of a child's parent, ‘[i]t is not just a matter of balancing the private rights of children against the public interest in extradition, because there is also a wider public interest and benefit to society in promoting the best interests of its children’.Footnote 198 Children are after all ‘a country's most valuable asset for the future’Footnote 199 and there is thus a strong public interest ‘in ensuring that children are properly brought up’.Footnote 200 Decision-makers have also sensibly affirmed that there is an autonomous public interest in the preservation and protection of the family unit, underlining that ‘the preservation and protection of the family is a matter of significant social importance’.Footnote 201
How a decision-maker ultimately balances the best interests of the child with other relevant interests will depend on the circumstances of the individual child. As noted above, it is important that the decision-maker keep in mind the overall factors that make up the substantive determination as to the child's best interests, as the cumulative strength of those factors is central to the balancing exercise.Footnote 202 As explained by the UK Upper Tribunal, if ‘all the factors weighed in the best interests of the child consideration point overwhelmingly in favour of the child and/or relevant parent(s) remaining in the UK, that is very likely to mean that only very strong countervailing factors can outweigh it’.Footnote 203 If the decision-maker ultimately determines that the child's best interests are outweighed by other interests, the decision-maker must demonstrate that no alternative outcome exists that is more compatible with the child's best interests.Footnote 204
IV. CONCLUSIONS
The CRC provides the most comprehensive articulation of the minimum obligations that a State owes to a child, both generally and in the migration context. The CRC is widely regarded as a ‘critical milestone for the protection of children’,Footnote 205 promoting a construction of children as individual rights-bearers with distinct problems and distinct needs. As UNHCR has emphasized, ‘the CRC requires perhaps the most exacting standards for protection and assistance to minors under any international instrument’ and provides ‘a valuable frame … for any consideration of asylum issues as they affect children’.Footnote 206 Although the Refugee Convention may well remain the cornerstone of the international refugee protection regime,Footnote 207 it is becoming increasingly clear that the CRC provides a critical legal and moral benchmark for the treatment of children and that Article 3 may, in certain circumstances, provide a more appropriate and more child-friendly gateway for assessing the protection needs of a child seeking international protection.Footnote 208 This article has attempted to demonstrate the capacity of Article 3 to provide an independent source of international protection outside the traditional refugee protection regime. As Part I identifies, the argument advanced here is neither an unfamiliar nor an entirely aspirational one, with both UNHCR and the UNCRC endorsing the argument that Article 3 provides an independent source of protection, and increased engagement with Article 3 by national decision-makers in a range of migration contexts. Part II of the article drew from this still reasonably nascent jurisprudence to outline a number of general principles to guide the application of Article 3 as an independent source of international protection. It is hoped that the framework outlined here will provide a platform for further discussion and debate, and may in the longer term strengthen the protection mechanisms available to children in need of international protection.
