Views of the Committee on the Rights of the Child dated September 27, 2018 in the case of I.B. and N.S. v. Belgium (communication No. 12/2017).
In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Belgium.
Subject of the message: refusal to issue a humanitarian visa to a child adopted as part of the kafala relationship <29> by spouses with Belgian and Moroccan citizenship.
"According to Moroccan law, kafala is regulated by dahir No. 1-02-172 of June 13, 2002 on the promulgation of Law No. 15-01 concerning the adoption and maintenance (establishment of the kafala relationship) of children abandoned by their parents. According to article 2 of this Law, kafala is "an obligation to provide a child abandoned by parents with the same protection, education and care that a father provides to his own child. The kafala attitude does not create the legal consequences created by adoption and is not the basis for the right of inheritance." A child abandoned by his parents is temporarily placed in a state center or a state institution for the social protection of children. After the inspections, a decision may be made to abandon the child. Custody of children who have been declared abandoned by their parents is provided by a custody judge. Such children may then be placed in the care of a Muslim spouse or a Muslim woman within the framework of a kafala relationship" (paragraph 2.3 of the Considerations).
Substantive issues: the best interests of the child; discrimination based on ethnic origin; freedom of opinion; child development; protection of the child from all forms of violence, abandonment or deprivation of care; protection of a child deprived of a family environment.
Legal positions of the Committee: The Committee recalls that the best interests of the child should be the main consideration in all relevant decisions and that the concept of the best interests of the child "is subject to adjustment and determination on an individual basis in relation to the specifics of the situation of the child or children concerned, taking into account their personal circumstances, situation and needs. When making decisions on individual cases, the assessment and determination of the best interests of the child should be carried out in the light of the specific circumstances in which the child is located" (paragraph 8.3 of the Considerations).
The Committee... Recalls that, as a rule, the examination of facts and evidence falls within the competence of national judicial authorities, except in cases where such examination is obviously arbitrary or amounts to a judicial error (U.A.I. v. Spain (CRC/C/73/D/2/2015), paragraph 4.2; and A.I. v. Denmark (CRC/C/78/D/7/2016), paragraph 8.8.). In this regard, the Committee does not replace national authorities in interpreting national legislation and evaluating facts and evidence, but it is obliged to verify that there is no arbitrariness or denial of justice in the assessment of the authorities and ensure that the principle of the best interests of the child has been used as the main criterion in this assessment (paragraph 8.4 of the Considerations).
The Committee recalls that "article 12 [of the Convention on the Rights of the Child] does not establish any age restriction on the right of the child to express his or her views and it does not encourage States parties to introduce age restrictions in law or in practice that would infringe on the right of the child to be heard on all matters affecting him or her. [...] The child should by no means have comprehensive knowledge of all aspects of the issues affecting him and he needs an understanding of the issue that would allow him to properly formulate his opinions on it; [...]". The Committee... Recalls that "any decision that is made without taking into account the views of the child and does not give them proper importance, according to his age and degree of maturity, means that the child or children are not given the opportunity to influence the process of determining their best interests. [...] The child's small age or the vulnerability of his situation (for example, disability, belonging to a minority, migrants, etc.) does not deprive him of the right to express his views and does not reduce the importance attached to the views of the child in determining his best interests. Specific measures to ensure that children exercise their rights on an equal basis in such situations should be taken taking into account an individual assessment, which is designed to give children themselves a role in the decision-making process and, if necessary, reasonable accommodation and support in order to ensure their full participation in the assessment of their best interests" (paragraph 8.7 of the Considerations).
The Committee recalls that, when assessing the possibilities of preserving the family environment and maintaining relationships, as one of the elements to be taken into account in determining the best interests of the child, "the term "family" should be understood broadly as including biological, foster or foster parents or, where appropriate, members of an extended family or community as provided for by local custom (article 5 [of the Convention on the Rights of the Child])" (paragraph 8.11 of the Views).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the authors' allegations that the four visa refusal decisions taken by the Belgian migration authorities do not refer to the principle of the best interests of the child. The Committee... Takes note of the arguments of the State party, according to which these decisions were taken in compliance with the current domestic legislation, as amended to implement the Hague Convention of 1993, as well as to guarantee the best interests of the child in international adoption (paragraph 8.2 of the Considerations).
The reason for the decision of the Belgian migration authorities to refuse to issue a visa was the fact that custody in the form of "kafala" does not give any right to reside in the country, while the authors did not demonstrate that: a) the biological family of S.E. in Morocco cannot take care of her; b) the authors cannot take care of her upbringing if they leave her in Morocco; and c) the authors have the financial resources necessary to meet the needs of S.E. However, the Committee notes that these arguments are general in nature and indicate that the specific situation in which S.E. found herself was not considered; in particular, the fact that she is a child born to an unknown father and abandoned by her biological mother was not taken into account, and that for this reason It is unrealistic and in any case there is no reason to assume that her biological family will take care of her. The argument about the lack of necessary financial resources does not seem to take into account the fact that the Moroccan authorities established custody in the form of a "kafala" based on the results of checking the social status of the authors and their financial capabilities. The Moroccan authorities recognized that she met the relevant criteria and established a "kafala" relationship between S.E. and the authors, and the Belgian authorities, in turn, issued a decree establishing informal guardianship over her. The State party generally questions the procedure used in Morocco in which the kafala relationship was established, but does not indicate to what extent this procedure in this case may not provide the necessary guarantees. And finally, the option associated with leaving the S.E. In Morocco, it does not allow taking into account the difference between providing for the needs of raising a child in an orphanage and meeting the emotional, social and financial needs of this child in conditions of cohabitation with him, which would correspond to the relationship existing between parents and the child. This argument means that the migration authorities did not take into account the emotional connection that has developed between the authors and S.E. since 2011. In particular, in addition to the legal relations created within the framework of kafala, the immigration authorities, apparently, did not take into account either the fact that N.S. lived together with S.E. from the moment of her birth, or the family ties that naturally de facto began over the years in the conditions of such a joint life (paragraph 8.5 of the Views) (See the rulings of the European Court of Human Rights in the cases of Wagner c. Luxembourg, Moretti et Benedetti c. Italie and Harroudj c. France.).
With regard to the authors' complaint of a violation of article 12 of the Convention, the Committee takes note of the State party's arguments that S.E. was one year old at the time of the first decision and five years old when the second decision was made, and that she was not able to formulate her own views, and therefore it would be unjustified to hear the child within the framework of the application of the rules concerning the issuance or non-issuance of a residence permit in the country (paragraph 8.6 of the Considerations).
According to article 12 of the Convention on the Rights of the Child, "1. States Parties shall ensure to a child who is able to formulate his or her own views the right to express these views freely in all matters affecting the child, with due regard to the views of the child in accordance with the age and maturity of the child. 2. To this end, the child, in particular, is given the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or an appropriate authority in accordance with the procedure provided for by the procedural norms of national legislation.".
The Committee notes that S.E. was five years old when the decision was made on the results of the second procedure for reviewing the visa application submitted by the authors for humanitarian reasons, and that she could form an opinion on the possibility of permanent residence in Belgium with the authors. The Committee does not share the position of the State party, which stated that it was not necessary to take into account the views of the child during the consideration of the issue of a residence permit in the country, and holds the opposite opinion. In this case, the consequences of this procedure are of paramount importance for the life and future of S.E. due to the fact that for her they are directly related to the possibility of living together with the authors in the same family (paragraph 8.8 of the Considerations).
The Committee concludes that the State party did not specifically address the issue of the best interests of the child in the process of considering the issue of a visa for S.E. and, in violation of articles 3 and 12 of the Convention, did not ensure respect for her right to be heard (paragraph 8.9 of the Views).
With regard to the authors' complaint concerning non-compliance with article 10 of the Convention, the Committee takes note of the arguments of the State party, according to which no interference with the right to private and family life is allowed when considering the first visa application and, therefore, there is no reason to assert that even in the absence of biological or kinship by adoption (the existence of actual ties forms a "family life", which gives the right to "family reunification" (paragraph 8.10 of the Considerations).
By virtue of article 10 of the Convention on the Rights of the Child "1. In accordance with the obligation of States parties under article 9, paragraph 1, applications by a child or his parents to enter or leave a State party for the purpose of family reunification must be considered by States parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request does not lead to adverse consequences for applicants and family members. 2. A child whose parents reside in different States has the right to maintain personal relationships and direct contacts with both parents on a regular basis, except in special circumstances. To this end, and in accordance with the obligation of States Parties under article 9, paragraph 2, States Parties shall respect the right of the child and his parents to leave any country, including their own, and return to their country. The right to leave any country is subject only to such restrictions as are prescribed by law and are necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others and are compatible with other rights recognized in this Convention."
The Committee considers that article 10 of the Convention does not oblige the State party to generally recognize the right to family reunification for children placed in institutions in the order of "kafala". Despite this, the Committee considers that in assessing and determining the best interests of the child in terms of the consequences of accepting or rejecting an application for a residence permit, S.E. In the country, the State party was obliged to take into account the existing de facto links between the child and the authors (especially with N.S.), which developed on the basis of the kafala relationship (paragraph 8.11 of the Considerations).
Taking into account the fact that the de facto family ties in this case were not [taken into account], and the fact that the time elapsed since the authors applied for a visa exceeded seven years, the Committee concludes that, in violation of article 10 of the Convention, the State party has not fulfilled Its obligation to consider the authors' application, which amounts to an application for family reunification, in a positive, humane and expeditious manner, ensuring that the submission of such a request does not lead to adverse consequences for the applicants and their family members (paragraph 8.12 of the Considerations).
The Committee... Considers that the facts presented to him indicate a violation by the State party of articles 3, 10 and 12 of the Convention (paragraph 8.14 of the Views).