Consideration of the UN Committee on the Rights of the Child of November 05, 2018 in the case of Y.B. and N.S. v. Belgium (communication dated December 2007).
In 2007, the author was assisted in the preparation of the communication.
In the case, the author’s report on the fact of refusing to issue a visa to a child who was accepted into a new family as part of the kafalah procedure was successfully considered.
Circumstances of the case
The authors of the communication were a married couple living in Belgium. They filed a message on behalf of the child, a citizen of Morocco, over whom they took custody in accordance with the kafala agreement. According to Moroccan law, kafala is an obligation to take responsibility for the protection, education and maintenance of a child left without care. A mother who was born in Marrakech in 2011 was left at birth by her mother, and his father was unknown. The Marrakesh trial court appointed the authors of the communication as foster parents (according to the kafala procedure) of the child and ruled that they had the necessary material resources and social status to establish custody of the child according to the kafala procedure. The Belgian authorities refused to issue a child a visa at the request submitted by the authors of the communication.
QUESTIONS OF LAW
Articles 3 (the best interests of the child) and 12 (the right to be heard) of the United Nations Convention (hereinafter - the UN) on the rights of the child. In all actions concerning children, the best interests of the child should be given priority. The Belgian immigration authorities refused to issue a visa mainly because the kafala agreement did not give the ward the right to live in the country, and also because the authors of the message did not demonstrate that (i) his biological family could not take care of the child in Morocco and that (ii ) the authors of the communication could not provide education for the child, leaving him in Morocco, and also since (iii) the authors of the communication had financial means to support the child.
The indicated reasons, which were of a general nature, testified to the inability to consider the individual circumstances of the child’s special situation. Due to the fact that the child was born from an unknown father and left by the mother at birth, the likelihood that his biological family could take care of him was low. The Moroccan authorities acknowledged that the position of the authors of the communication was satisfactory, since they allowed the authors of the communication to take custody of the child by agreement of kafala, while the Belgian authorities did the same, allowing the authors to act as special guardians of the child.
The idea of leaving the child in Morocco, apparently, did not take into account the difference between the provision of education for the child while living in the shelter and the provision of the emotional, social and financial needs of the child when living with the same family. This argument suggested that the Belgian migration authorities in no way took into account the emotional ties that had been established between the authors of the communication and the child since 2011. In addition to the legal relationship established by the kafala agreement, the migration authorities did not seem to take into account the family ties that were established de facto over the years of the authors' joint residence with the child.
Article 12 of the UN Convention on the Rights of the Child did not establish an age limit on the right of the child to express his point of view. The fact that the child was very young and that he was in a vulnerable position did not deprive him or her of the right to express an opinion and did not reduce the importance of this opinion in determining the best interests of the child. The adoption of special measures to guarantee equal rights for children in such situations had to be assessed individually, which ensured the role of the children themselves in the decision-making process.
At the time of the decision on the second appeal of the authors of the humanitarian visa visa, the child was five years old in the present case, and he could fully express his point of view regarding the possibility of permanent residence with the authors of the communication in Belgium. The consequences of the proceedings on the case of the authors of the communication were fundamental to the life and future of the child, as they were directly related to his ability to live with the authors of the message as a member of the family.
In the case, there was a violation of the requirements of Articles 3 and 12 of the UN Convention on the Rights of the Child.
Article 10 of the UN Convention on the Rights of the Child (right to family reunion). Article 10 of the UN Convention on the Rights of the Child did not oblige the Belgian authorities to recognize the right to family reunion for children under the kafala agreement. However, evaluating and determining the best interests of the child with a view to resolving the issue of granting the child a residence permit, the Belgian authorities were obliged to take into account de facto the relationship between the child and the authors of the communication established on the basis of the kafala agreement.
Due to the fact that no attention was given to de facto family relationships and since more than seven years have passed since the filing of the visa application, the UN Committee on the Rights of the Child concluded that the Belgian authorities have not fulfilled their obligation to consider the application the authors of the communication, which was tantamount to a petition for family reunification, in a positive, humane and immediate manner and could not guarantee that filing this petition would not entail negative consequences for the applicants and their family members.
The case contained a violation of Article 10 of the UN Convention on the Rights of the Child.
The Belgian authorities are obliged to urgently revise the application for a child’s visa in a positive manner, ensuring that the best interests of the child are in the first place and that the child’s opinion is heard, taking into account the existing family ties. The Belgian authorities must also take all necessary measures to prevent similar violations in the future.