Families Constrained

An analysis of the best interests of the child in family migration policies

In the International Convention on the Rights of the Child (CRC) it is stated that children have the right not to be separated from their parents, except when this is not in their best interests (Article 9 CRC). According to Article 3 CRC the best interests of children must always be a primary consideration. It is estimated that approximately ten thousands of children remain or become separated from their parents by governments due to the current family migration policies.

With this study, DCI-The Netherlands and the authors answer the following question on the basis of desk research and a case law analysis:

In what way should the concept ‘primary consideration’ from Article 3 CRC be construed in the family migration policy?

The question is be answered based on the establishment of the ‘best interests of the child’ in the CRC, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the law of the European Union. An analysis of the situation in The Netherlands will be provided at the end of every chapter as illustration of challenges encountered in giving the best interests of the child a prominent place in the family migration policy.

This research was made possible thanks to inputs from: Prof. P. Boeles (emeritus professor immigration law at the University of Leiden and visiting professor of migration law at VU University Amsterdam), Prof. P.R. Rodrigues (professor immigration law at the University of Leiden), and Dr. M.H.A. Strik (researcher and teacher at the Centre for Migration Law at the Radboud University Nijmegen).

This report has been produced with the financial support of Adessium Foundation.

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