In the Interest of Children

January 23rd, 2008

In 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.

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