The case of I.B. and N.S. v. Belgium. Views of the Committee on the Rights of the Child dated September 27, 2018. Message No. 12/2017.
In 2017, the authors of the message were assisted in preparing a complaint. Subsequently, the complaint was communicated to Belgium.
The Committee on the Rights of the Child of the Child found that the State party did not examine the issue of the best interests of the child in the process of considering the request for a visa for S.E. (a child who was raised by the authors of the communication under the kafala relationship) and, in violation of articles 3 and 12 of the Convention on the Rights of the Child, did not ensure respect for her right to be heard. The Committee noted that in assessing and determining the best ways to ensure the 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 of the communication, which were formed on the basis of the kafala relationship. In violation of article 10 of the Convention, the State party has failed to comply with 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.
As seen from the text of the Considerations, the authors were married. They adopted S.E., who was born on April 21, 2011 in Marrakech and was a citizen of Morocco, as part of the kafala relationship. There was no information about S.E.'s father; S.E.'s mother abandoned her at birth. The decision to recognize her as a child, which was rejected by her parents, was made by the court of first instance in Marrakech on August 19, 2011 (paragraph 2.1 of the Considerations). The authors noted that kafala does not lead to the establishment of a family relationship with the child, as a result of which they were unable to submit an application on the grounds of family reunification. For this reason, on December 21, 2011, they applied for a long-term visa on humanitarian grounds on the basis of article 9 of the Belgian Law of December 15, 1980 on the entry of foreigners into the country, their stay in it and expulsion (paragraph 2.4 of the Considerations). On November 27, 2012, the Office for Foreigners rejected the authors' application for a visa, as it considered that the decision to transfer the child to upbringing within the framework of the Kafala relationship did not constitute adoption and was not the basis for the right to stay in the country (paragraph 2.5 of the Considerations). The authors claimed that the State party had violated the rights of S.E. enshrined in articles 2, 3, 10, 12 and 20 of the Convention (paragraph 3.1 of the Views).
The Committee's legal position is 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 "should be adjusted and determined individually 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).
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. 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).
Article 12 of the Convention on the Rights of the Child does not establish any age restriction on the right of a 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 child's right to be heard on all matters affecting him or her. The child does not need to have comprehensive knowledge of all aspects of the issues affecting him, and he only 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 due weight, according to their 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.) do not deprive him of the right to express his views and do 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).
When assessing the possibilities of preserving the family environment and maintaining relationships as one of the elements that should be taken into account when determining how to best ensure the 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 authors' allegations that four decisions on visa refusal adopted by the Belgian migration authorities did not refer to the principle of the best interests of the child were taken into account. The Committee took into account 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 on Protection of Children and Cooperation in Respect of Foreign Adoption of 29 May 1993, as well as to guarantee the best interests of the child in international adoption (paragraph 8.2 of the Views).
The basis for the decision of the Belgian migration authorities to refuse to issue a visa to S.E. was the fact that custody in the form of "kafala" does not give any right to reside in the country, while, according to the State party, the authors did not demonstrate that:
- a) S.E.'s biological family in Morocco cannot take care of her;
(b) The authors cannot raise her if they leave her in Morocco;
and (c) The authors have the financial capacity necessary to meet the needs of C.E. However, the Committee noted: 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 are no 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 of the communication. The State party has generally questioned the procedure used in Morocco in which the kafala relationship was established, but has not indicated 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 meant that the migration authorities had not taken into account the emotional connection that had 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, nor the family ties that naturally de facto began over time in the conditions of such a joint life (paragraph 8.5 of the Considerations).
With regard to the authors' complaint of a violation of article 12 of the Convention, the Committee took 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 that a child who is able to formulate his or her own views has the right to express those views freely in all matters affecting the child, with due consideration given 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 have formed an opinion on the possibility of permanent residence in Belgium with the authors. The Committee did 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, accordingly, the Committee holds the opposite opinion. In this case, the consequences of this procedure were 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 concluded that the State party had failed to 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, had failed to 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 considered that article 10 of the Convention does not oblige the State party to recognize in general terms the right to family reunification for children placed in institutions in the order of "kafala". Despite this, the Committee noted 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).
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, public health or morals or the rights and freedoms of others and are compatible with other rights recognized in this Convention."
Taking into account the fact that de facto family ties were not taken into account in this case, and the fact that the time elapsed since the authors applied for a visa exceeded seven years, the Committee concluded: in violation of article 10 of the Convention, the State party has not fulfilled its obligation to consider the authors' application, equivalent 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's conclusions: The facts presented indicated a violation by the State party of articles 3, 10 and 12 of the Convention (paragraph 8.14 of the Views).