Court/Judicial body: Administrative Law Division, Council of State, Netherlands
Date: February 22, 2006 CRC
Provisions: Article 3: Best interests of the child
Background: Two unaccompanied minor foreign nationals seeking asylum in the Netherlands, “A” and “B”, petitioned the Minister for Immigration (the “Minister”) to extend the duration of their Dutch residence permits. The Minister denied A and B’s request because there was a relief centre for underage orphans in Angola (A and B’s country of origin) that could provide them with adequate support. On appeal, the District Court of The Hague rejected the Minister’s decision and found that the Minister had failed to sufficiently investigate whether the relief centre in Angola could provide a long-term home for A and B until they reach age 18. The Minister appealed the District Court of The Hague’s decision to the Dutch Administrative Law Division of the Council of State (the “Division”).
Issue and resolution: Best interests of the child and asylum-seeking children. The Division found that the “best interests of the child” standard in Article 3 of the CRC could not be directly applied in the courts and that the Minister had adequately considered the best interests of A and B in rejecting the extension of their residence permits in any event.
Court reasoning: In the absence of domestic laws or regulation to guide the courts, the best interests of the child provision in Article 3(1) of the CRC does not provide the courts with a standard for determining how much weight should be given to a child’s interests in a particular case. The Minister took into account the best interests of A and B by considering whether a relief centre would be available to them in Angola. In addition, the desire to return a child to his or her parents, family and/or social environment where possible must be paramount in policies related to children.
Excerpt citing CRC and other relevant human rights as translated by the Oxford Reports on International Law in Domestic Courts [2.7.1] … Article 3, first section of the Convention on the Rights of the Child (CRC) provides that the best interest of the child concerned is included in all measures concerning children. It is evident from the fact that the minister rejected the foreign nationals’ applications because he was of the opinion that adequate support facilities already existed in the country of origin that these best interests have been taken into consideration. As to the weight that should be accorded to a child’s best interest in a particular case, the wording of the provision contained in the first section does not contain a standard that can be applied directly by the courts without further elaboration in national law and regulations.
CRIN comments: CRIN believes that this decision is inconsistent with the CRC. According to Article 3, the best interests of the child must be the paramount consideration in all proceedings concerning them, and courts’ obligation to consider these interests as a first priority is crystal clear. This rule and General Principle of the Convention does not need further elaboration in national law to be applied, and all legal and administrative decisions involving children in every State Party should ensure that the best interests of the child are the focus of proceedings.
Citation: Minister for Immigration Affairs and Integration v. A and B, Appeal decision, 22 February 2006, 200507814/1 (JV 2006/132); ILDC 543 (NL 2006).