In the Interest of Children
January 23, 2008In immigration law, we come across many situations where the decision taken greatly impacts the welfare of children. In 1999, the Supreme Court of Canada ruled on a case (Baker v. Canada) which brought the interests of children to the forefront in immigration matters. In that case, a woman with 4 Canadian-born children was ordered deported from Canada despite the concerns for her own medical treatment in her country of origin and the effect her removal would have on her children. In the ruling, the Court specified that in making decisions on humanitarian and compassionate grounds for immigration, officials are required to pay "close attention to the interests and needs of children, since children's rights and attention to their interests are central humanitarian and compassionate values in Canadian society". The Baker decision is now nearly 10 years old and not nearly enough has been done to put its recommendations into practice.
One such case now before the courts involves 3 children, aged 6 through 17. These children fled to Canada from Mexico with their grandmother after their parents were killed by drug traffickers, and their own lives were threatened. The children have now been living in Montreal for 2 years, they attend school and have learned French; they are trying to go on with their lives. Amnesty International Canada has stated that the organization "fears for the lives and security of these persons" if they are returned to Mexico. Yet their refugee claim and subsequent humanitarian and compassionate application have been rejected and their removal has been ordered. How can this possibly reflect the best interests of the children?
Additionally, Canada has expressed the importance of taking into account children's interests in its international commitments. The UN Convention on the Rights of the Child was ratified by the Parliament of Canada in 1991. By adopting this convention, the Canadian government accepted an obligation to take the "best interests of the child" into account in all government policies, and this would certainly include immigration decisions. The Canadian Children's Rights Council criticizes the Canadian government for failing to live up to its treaty commitments. Canada's spotty record in assessing humanitarian and compassionate immigration claims involving children is strong evidence of this shortcoming.
In building international treaties on human rights, Canada has developed a reputation and a record as a world leader. The current UN Commissioner for Human Rights, Louise Arbour, is a former Canadian Supreme Court justice. At home however, Canada is failing to live up to its reputation and obligations. There are too many cases where immigration officials fail to take into account the best interests of children. Both Canadian case law and international law specify an explicit duty to put children's interests front and centre. It's about time we saw it done in practice.
4 Comments:
It's NOT just Canada. It is the law in ALL of Europe - because of the European Convention on Human Rights and local Human Rights legislation, the FIRST LINE in all Children's legislation is "The Welfare of the Child is PARAMOUNT". What happens practically is the state or the parents have slick lawyers who don't give a "monkey's" about the children; only their clients. In England, the legislation is called THE CHILDREN ACT 1989, but Court Officers and JUDGES still list matters as A vs A.
In the Isle of Man where this contributor is living, the Court Office has maladministered a Children's matter so badly that I am claiming damages from them for MALFEASANCE IN PUBLIC OFFICE. I suspect that some Canadian officials could also be sued.
Interesting writing. I have just discovered this blog, and perusing the previous postings should be quite informative.
The scope of article 3 is limited by article 2, stating that the state parties (including Canada) obligations are limited to the children "under their jurisdiction". This generally refers to Canadian citizens and people within Canadian borders.
This understanding follows from the ordinary meaning of the wording of the convention. It is also supported by the Comittee for the Rights of the Child general comment from 2005, http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2005.6.En?OpenDocument,
These rulings seem harsh - and I'm sure deserve study before meriting any weight to an opinion thereon, especially from myself. All I think is that the whole "where to draw the line" debate comes to the fore here. I know it's not a similar problem, but we have immigrants currently flooding into SA and the resulting strain on our systems, recent xenophobic attacks etc. are due to this - and yet they do not want to abide by SA law and, as terrible as their plight may be, they are here illegally - so the "line" I speak of, I guess, is the one that divides state law with compassionate aid. But at what cost to the people who actually belong in that country? If we assume that we are obliged as humans to offer aid, we must accept the burden thereof, but this may be devastating to, and ultimately, the cause of the destruction of social and economic systems and infrastructure of the country built by its true people. To conclude, however, I do feel that these aforementioned Canadian rulings seem somewhat harsh - but perhaps, in the literal and not contextual part of the word, are legal.
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