On the need to take into account the principle of the best interests of the child and respect for the rights of the child in migration processes when taking a decision to deport parents being asylum seekers
It is in a child's best interest to be raised in a family where both parents are able to exercise due care for the child. The State's legitimate interest in enforcing its criminal and migration laws and decisions shall consider that this interest needs to be balanced against the children’s right not to be separated from their parents in accordance with the international standards.
The UN Convention on the Rights of the Child stipulates that 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 (art. 3, para. 1).
Article 3, paragraph 1, of the Convention on the Rights of the Child gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere.
The Convention also explicitly refers to the child's best interests in other articles:
article 9: separation from parents; article 10: family reunification; article 18: parental
responsibilities.
Article 10 of the Convention stipulates that in accordance with the obligation of States Parties under article 9, paragraph 1, 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. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.
The child's best interests shall be applied to all matters concerning the child or
children, and taken into account to resolve any possible conflicts among the rights
enshrined in the Convention or other human rights treaties. Attention must be placed onidentifying possible solutions which are in the child's best interests. This implies that States are under the obligation to clarify the best interests of all children, including those in vulnerable situations, when adopting implementation measures.
In accordance with the General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration the Committee considers that the
elements to be taken into account when assessing and determining the child’s best interests, as relevant to the situation in question, are as follows: The child's views, The child's identity and preservation of the family environment and maintaining relations.
The Committee recalls that it is indispensable to carry out the assessment and
determination of the child’s best interests in the context of potential separation of a child from his or her parents (arts. 9, 18 and 20).
The family is the fundamental unit of society and the natural environment for the
growth and well-being of its members, particularly children (preamble of the Convention).
The right of the child to family life is protected under the Convention (art. 16). The term
“family” must be interpreted in a broad sense to include biological, adoptive or foster
parents or, where applicable, the members of the extended family or community as
provided for by local custom (art. 5).
Preventing family separation and preserving family unity are important components of the child protection system, and are based on the right provided for in article 9, paragraph 1, which requires “that a child shall not be separated from his or her parents against their will, except when [...] such separation is necessary for the best interests of the child”. Furthermore, the child who is separated from one or both parents is entitled “to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests” (art. 9, para. 3).
Given the gravity of the impact on the child of separation from his or her parents,
such separation should only occur as a last resort measure, as when the child is in danger ofexperiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child.
Also the Committee in its General comment No. 14 (2013) stresses 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 unit should be taken into account when assessing the best interests of the child in decisions on family reunification.
The Committee is of the view that shared parental responsibilities are generally in
the child's best interests. However, in decisions regarding parental responsibilities, the onlycriterion shall be what is in the best interests of the particular child. It is contrary to thoseinterests if the law automatically gives parental responsibilities to either or both parents. Inassessing the child's best interests, the judge must take into consideration the right of the child to preserve his or her relationship with both parents, together with the other elements relevant to the case.
With regard to national legislation of the Republic of Kazakhstan it is important to mention the Law of the Republic of Kazakhstan dated 8 August 2002 № 345 "On the Rights of a Child in the Republic of Kazakhstan ".
In accordance with the Article 6 on purposes of state policy in favor of children State policy in favor of children is a priority field of activity of state bodies and is based on (including, but not limited): legislative ensuring of the rights of a child; state assistance of a family for the purpose of ensuring of full nurturing of children, protection of their rights, their preparation for full life in society.
Also article 21 of the law emphasizes the right of a child to live and be nurtured in family.
Each child shall have the right to live and be nurtured in family, right to know his (her)parents and other close relatives, right to their care and nurturing, with the exception of caseswhen this contradicts to his (her) interests.
Article 21 of the Law focuses on the right of child to live with parents. Child shall have the right to joint living with his (her) parents or other legal representatives. It is prohibited to separate a child from his (her) parents or other legal representatives against the will of the child, parents or legal representatives. Decision on separation shall be adopted only by court in exclusive cases and inasmuch as it is required for the purpose of protection of a child.
In this regard it is important to highlight a decision of the UN Committee on the Rights of the Child in which the issue of deportation of father of three children to Nigeria, thereby separating him from his children was raised (CRC communication No. 145/2021, C.C.O.U. et al v Denmark).
The communication was submitted by a Nigerian citizen, whose requests for international protection and residence status in Denmark were refused. He alleged that his deportation to Nigeria would violate the rights of his children, as the impact of the separation of the children from their father/stepfather was not considered during the different proceedings and their best interests was not taken into account as a primary consideration.
The Committee noted that Denmark had failed to consider the impact of the separation on the children in the particular circumstances of the case, including the children’s young age and the mother’s chronic health condition. The Committee noted that contact through social media platforms does not ensure that the children can maintain adequate and meaningful personal relations and direct contact with the complainant. The Committee acknowledged the State party’s legitimate interest in enforcing its criminal and migration laws and decisions but considered that this interest needs to be balanced against the children’s right not to be separated from their parents. It noted that particular weight should be given to the necessity and proportionality of the return order, as well as to the particular impact that the separation would have on the children, taking into account their views. The Committee noted that a detailed assessment of the best interests of the children would have been paramount in this case and considered that the authorities’ failure to assess the impact of the decisions on the children and to enable continued contact with their father violated their rights under articles 3 (best interests of the child) and 9 (1) of the Convention (right not to be separated from their parents).
The Committee decided that Denmark is under the obligation to refrain from returning the author to Nigeria, and to ensure a reassessment of his claim, taking the best interests of the children as a primary consideration. The state party is also requested to ensure that asylum or other proceedings directly or indirectly affecting children ensure an assessment of the best interests of the child as a primary consideration and to guarantee that decisions involving the separation of children from one of their parents or caregivers should particularly ensure a careful consideration of the separation on the children in light of their specific circumstances, and consider all possible alternatives to such separation.