Court/Judicial body:
Hong Kong Court of First Instance
Date:
12 January 2016
CRC Provisions:
Article 3: Best interests of the child
Other international provisions:International Covenant and Civil and Political Rights (ICCPR), Article 17: Right to privacy
International Covenant and Civil and Political Rights (ICCPR), Article 23: Rights in respect of family and marriage
International Covenant and Civil and Political Rights (ICCPR), Article 24: Rights of children
International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 10: Protection to be accorded to the family
Domestic provisions:
Basic Law, Article 37: Right to raise a family
Basic Law, Article 39: Application of ICCPR in Hong Kong includes the reservations entered
Case summary
Background:
The complainants sought judicial review of a decision by the Director of Immigration to reject applications by the mothers or grandmothers of permanent resident children for permission to remain in Hong Kong to take care of them.
Issue and resolution:
Immigration and the application of international treaties. The Court reiterated that the CRC has not been domesticated into Hong Kong law, and does not confer enforceable rights to the applicants to allow them to extend their stay to take care of the children.
Court reasoning:
The Court confirmed that the CRC has no legal force in Hong Kong because it has not yet been incorporated into domestic law. The Court considered further that, even if the CRC applied in Hong Kong domestic law, the reservation entered by Hong Kong clearly excludes its application to immigration legislation. This means that the complainants could not rely on the Convention to require the Director to consider the best interests of the child, nor could they have a legitimate expectation that the Director would consider Article 3 of the CRC. The Court held that there is no general principle in Hong Kong law which holds that the best interests of the child must always be a primary consideration in any case affecting a child’s welfare and wellbeing. The best interests of the child will only be a primary consideration in cases where the main focus is to determine the guardianship and maintenance of the child.
Excerpt citing CRC and other relevant human rights
[129] The well-established position of the law as to the lack of any legal and enforceable effect of an undomesticated international treaty (as affirmed by the majority in R (SG)) has been clearly reaffirmed in Hong Kong by the Court of Final Appeal in Ubamaka, at paragraph 43 as I emphasised above. This is binding on this court in Hong Kong.
[131] … However, I would in any event have no hesitation to conclude, if the question does arise, that if one looks at the terms of the reservation substantively and practically, it is clear that it seeks to exclude the application of the CRC in matters in immigration context (including entry into, stay in and departure from Hong Kong and to the acquisition and possession of residentship). I cannot see how on a proper construction, it could be said that it disens the Director to apply the reservation when considering applications (as in the present cases) which clearly relate to matters for “entry into, and stay in Hong Kong”, falling squarely within the terms of this reservation.
[147] … it must be noted that the CRC was adopted for Hong Kong expressly subject to the immigration reservation. Thus, the clear default position must be that the Government would not adopt these considerations insofar as immigration matters are concerned. To rebut or reverse this default position, it would in my view require very cogent and clear statements from the Government to expressly state that, even in immigration considerations and context, she would also in practice adopt the Article 3(1) consideration under the CRC. As quoted above, these statements do not show in any clear manner that, in relation to immigration matters and contexts, the Government is also adopting a practice that it would always take into account the best interests of the children.
[165] It is clear from the above that the relevant discussions of the court’s jurisdiction under the principle parens patriae were made in the special context of considering guardianship and maintenance for a child. It is in such context, where the focus is the child’s maintenance and welfare, that the child’s interest must as a matter of logic and common sense be a relevant or even primary consideration. They however cannot be taken as statements supporting the proposition that there has always been a general principle under the common law to take a child’s best interests as a primary consideration in any matters or contexts as long as a child’s wellbeing maybe affected.
CRIN comments:
CRIN believes this decision is not in compliance with the CRC. Article 3 paragraph 1 explicitly requires the best interests of the child to be the primary consideration ‘in all actions concerning children’. This includes decisions by administrative authorities which do not exclusively focus on the welfare of the child: in its General Comment No 14, the Committee on the Rights of the Child emphasised the strong legal obligation to ‘ensure that the child’s best interests are appropriately integrated and consistently applied in every action taken by a public institution’. The Committee further indicated that to ensure compliance, States Parties should amend domestic law to ‘ensure that the requirement to consider the child’s best interests is reflected and implemented in all national laws and regulation’.
Citation:
[2016] HKCU 83; HCAL 13/2014; HCAL 45/2014; HCAL 56/2014 (12 January 2016)
Link to full judgement: http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=102192&QS=%2B&TP=JU
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.