The principle of the best interests of the child in the expulsion case law of the European Court of Human Rights: Procedural rationality as a remedy for inconsistency

Abstract

According to Article 3 CRC, the best interests of the child should be a primary consideration in all actions concerning children. This article examines how the European Court of Human Rights applies this principle in expulsion cases that have an impact on the right to family life. A distinction is made between the cases where the expulsion measure is aimed at one of the parents and the cases where the child itself is the subject of the impugned decision. A critical examination of the available case law proves that the Court’s use of the principle is inconsistent in several areas. It is argued that the Court should adopt a procedural approach towards the principle. This would make the case law more consistent, while simultaneously increasing the children’s protection.

1. Introduction

One of the most important principles in international law is the principle of the best interests of the child, enshrined in Article 3 of the Convention on the Rights of the Child (CRC). ¹ Its broad scope and general wording make it important in all aspects of society, like education, juvenile justice or health care. Throughout the years, the principle has also permeated into the sphere of migration law and has impacted many different aspects, including the practice of detaining families with children, ² detention facilities ³ and means of subsistence. ⁴

One other aspect of migration law that the best interest principle has affected, are expulsion proceedings. As a principle of well-established international law, states have the right to control the entry of non-nationals into their territory. ⁵ They therefore have the prerogative to expel aliens when they have sufficient reason to do so. ⁶ However, this power is curbed by the duties flowing from the international treaties they are a party to. ⁷

Despite the fact that the best interests principle has led to an incredible amount of academic writing, its use in expulsion cases has so far not received much scholarly attention. Existing research on this topic limits itself to discussing the use of the principle in specific countries, ⁸ or examines it as a part of a broader research question. ⁹ Nonetheless, this matter is of significant importance for child migrants and/or their parents. If the best interests of these children are not taken into account when deciding on an expulsion, this could have negative consequences for their physical and/or mental well-being. Therefore, this article aims to give a general overview of how the principle is applied in expulsion cases in the case law of the European Court of Human Rights (the Court).

The central research question in this article is thus how the Court uses the best interests principle in its expulsion case law. This research is limited to the case law concerning the right to family life and focuses on the most recent case law, more specifically cases from the last ten years. ¹⁰ The relevant judgments and decisions that were issued in this timeframe are analysed in order to infer the principles that the Court applies in its case law. This analysis, read in conjunction with the existing doctrine on the topic, allows for a normative evaluation of the Court’s jurisprudence. This contribution focuses on two different aspects of the Court’s case law. First of all, it examines whether or not the Court is consistent in its use of the best interests principle. It is important for the Court to retain consistency in its case law, because inconsistency might lead to external criticism. ¹¹ Moreover, discrepancies in the case law make it unclear for applicants whether they should lodge a case before the Court and create uncertainty for the national authorities that have to decide on an expulsion. ¹² Secondly, this contribution assesses whether the Court’s jurisprudence strikes a fair balance between the interests of the state and the interests of the migrant family, including the interests of the child.

2. The best interests of the child in expulsion cases regarding family life

The first explicit appearance of the best interests principle in the jurisprudence of the Court in an immigration context was in 2006, in the Rodrigues Da Silva and Hoogkamer case. ¹³ However, the Court generally gave some consideration to the impact of the impugned decision on the children even before this case. ¹⁴ It is clear that an expulsion measure can interfere with the family life that a migrant has built in a Host State; when one of the parents or the child itself is the subject of an expulsion measure, the rest of the family has to choose between either staying and being separated or following the expelled family member and having to leave their home. Both these options have been shown to have a big psychological impact on the child. ¹⁵ Especially a separation from either one of their parents is generally accepted as being against the best interests of the child. ¹⁶ Such an expulsion measure generally boils down to a balancing between the interests of the migrants in staying together with their family and the interests the state has in expulsion. ¹⁷ In what follows it will be analysed which place the best interests principle is awarded in this balancing exercise.

A distinction is made between two categories. The first one is the situation where one of the parents is faced with an expulsion measure, while the spouse and child(ren) can rightfully stay in the host state. The second category concerns the group of cases where the child itself is issued an expulsion order. These two categories are adjudicated on the basis of different strands of case law, both of which are critically examined in Section 2.1. and 2.2. This examination demonstrates that the Court’s current use of the principle is inconsistent in several areas. After this, a new approach is proposed on the use of the best interests principle in expulsion cases concerning the right to family life, which would make the case law more consistent and increase the protection of the children concerned in Section 2.3.

2.1. Expulsion Order for one of the parents

Expulsion orders and the possible violation of the right to family life which they entail, have always been a murky aspect of the European Court’s case law, characterised by its unpredictability. ¹⁸ Proof of this can be found in the many dissenting opinions ¹⁹ in such cases and the impressive amount of doctrine ²⁰ searching to find the logic behind them. In 2001, the Court tried to improve this situation by developing the Boultif-criteria, ²¹ which national courts should use when performing the proportionality assessment of the expulsion measure. ²² In the Üner case, the Grand Chamber confirmed these criteria and added two additional ones. More specifically it stated that regard should also be had to:

the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and,

the solidity of social, cultural and family ties with the host country and with the country of destination. ²³

In the Üner judgment, the Court thus expressly established the best interests of the child as a criterion to take into account when one of the parents is confronted with an expulsion measure. More specifically, regard should be had to the difficulties these children will encounter if they were to follow the expelled parent. It should be noted that these Üner-criteria only apply in cases where an adult is being expelled because of criminal offences he or she committed. ²⁴ After a while however, the best interests principle also found its way into the case law of the Court regarding parents that were expelled because of non-criminal offences, like administrative breaches of immigration law. ²⁵ Even though it can only be encouraged that such explicit reference is made to the best interests principle in the case law, in practice the child’s interests are usually dealt with very briefly. From the case law, it appears that the Court evaluates the children’s interests based on three factors: their age, their ties to both the receiving and the host country, and their effective family bonds. In what follows it will be examined how the Court assesses these factors and what weight is given to the child’s interests in the proportionality assessment.

2.1.1 The court’s assessment of the child’s best interests

Regarding the first factor – the child’s age – the Court seems to be of the opinion that younger children will have less developed ties with their host state and will therefore have less trouble growing accustomed to a new environment. Because of this, an expulsion will less likely be contrary to the child’s interests than in the case of a child that is older and more rooted into the social fabric of the host country. The Court has in this regard often referred to the young and adaptable age of the applicant’s child(ren). ²⁶

Even though the rationale behind this criterion is understandable, some critical remarks should be made regarding the consistency of its application. First of all, it should be pointed out that the Court is not consistent at which point it starts counting the child’s age. ²⁷ Examples can be found when it counts the age at the final domestic proceedings, ²⁸ when the parent is actually expelled ²⁹ or exceptionally when the case comes before the Court ³⁰ . Given the fact that the difference between these points in time can easily be several years, it would be preferable for the Court to make clear at what point in time it counts the child’s age. ³¹ Secondly, it should be noted that the Court at times neglects to consider the child’s age in its reasoning altogether. ³² Third of all it is apparent that even when the Court does include the age of the child in its reasoning, it does not always do so in a consistent manner. The Court normally considers very young children adaptable. ³³ Conversely, children that are close to the age of maturity are found to be no longer of an adaptable age. ³⁴ However, whereas the Court has on multiple occasions found children of six years old ³⁵ or even older ³⁶ to be adaptable, it seems to have come to the opposite conclusion in a recent judgment. In Kolonja the Court stated that a six-year-old boy had been living in Greece his entire life and went to school there. His father’s expulsion would therefore mean that he would grow up without a father. ³⁷ It is apparent that in this judgment the Court does not refer to the adaptable age of the child and even seems to consider that the six-year-old boy could not adapt to life in Albania.

One last case that should be mentioned here is Palanci. In this judgment, the Court held that three children of twelve, ten and seven years old respectively, would be able to adapt without any serious difficulties to a new life in Turkey, even though they were born in Switzerland, had been living there their entire life and all went to school there. ³⁸ It appears to me that children of this age, that are integrated so well in the host country’s society, can hardly still be considered easily adaptable. ³⁹ This judgment – among others – ⁴⁰ uncovers the drawbacks of this criterion. Even though it is a rather clear-cut decision when the child is either very young or close to maturity, it is more difficult to implement when the child’s age lies somewhere in the centre of the spectrum. A clear division between the age where a child is adaptable and where a child is not, is very hard to introduce and opens up the possibility for the Court to decide as it pleases.

The second factor the Court takes into account are the children’s ties to both the receiving and host country. This criterion partially overlaps with the previous one. In general, an older child will have stronger ties with the host state; conversely, a younger child will ordinarily have less ties. However, occasionally the Court adds specific information to evaluate the country ties. For example, when the child already knows the language ⁴¹ or the culture ⁴² of the receiving state, the expulsion measure will less likely be considered against his or her best interests. Similarly, the Court has taken former visits to the country into account, whereby the children had already been confronted with the culture of the receiving state. ⁴³ Having the receiving state’s nationality can also be a ‘mitigating factor’ in this regard. ⁴⁴ If the child has no ties to the receiving state, the expulsion of the parent will less likely be found to be in his best interests. ⁴⁵ Yet again it has to be noted that the Court does not consistently consider the child’s ties to either the receiving or the expelling country and sometimes makes no mention of this whatsoever. ⁴⁶

The third factor to evaluate the best interests of the child when one of the parents gets expelled, are the effective family bonds. Here, the Court determines the extent of genuine bonds of attachment within the family and assesses the effect an expulsion would have on the existing family life. The principle is again very simple: if the family was separated prior to the expulsion, the family bonds were already weakened and the parent’s expulsion would be a less radical measure against the child’s best interests. The Court has used a plethora of arguments to claim that the family ties were not that strong. It has ruled that family bonds were weakened when the parent spent several years in prison ⁴⁷ or in a detention centre pending expulsion ⁴⁸ . In addition, it has taken into account that the parent faced with expulsion was not involved in the children’s upbringing ⁴⁹ or that he or she has never ⁵⁰ or only for a short time ⁵¹ cohabitated with the children. The use of this criterion essentially results from the balancing exercise that Article 8 ECHR demands. At its core, every expulsion decision boils down to a balancing of the interests of the community against the interests of the family. If the ties between the parent and the child are – for whatever reason – rather weak, it stands to reason that the child’s best interests will less intensely oppose the expulsion of that parent. In that sense, a father that has never been very involved in the upbringing of his children, can hardly rely on their interests to fight an expulsion decision. ⁵²

Conversely, when there is a very close relationship between the child and the parent that is threatened with expulsion, the Court will take this into account as well. In this connection, it has referred to the fact that the father stayed at home to care for the children while his spouse worked ⁵³ or that the father remained involved in his daughter’s upbringing even though he was no longer living with her and the mother ⁵⁴ . The Court seems to attach considerable importance to this aspect. In Nunez a woman had entered Norway using a fake passport after already having been expelled once for criminal offences. The state therefore had a strong interest in her expulsion. ⁵⁵ However, the majority based themselves on the fact that the mother had been the primary care person for the children since their birth. This meant that they had very close personal ties and that the children would suffer considerably if the mother were to be expelled. For the Court, this was the most important consideration to find a violation of Article 8 of the Convention. ⁵⁶ Almost identical reasoning is found in the Jeunesse ⁵⁷ and Kaplan ⁵⁸ judgments.

2.1.2 The child’s best interests in the balancing exercise

The Court will consider these three criteria – the child’s age, the ties to the different countries and the effective family bonds – to evaluate whether or not the impugned expulsion measure for the parent would be contrary to the best interests of the child. However, it is important to keep in mind that the child’s best interests are only one of the criteria that the Court takes into account when deciding on the proportionality of the expulsion decision. ⁵⁹ They do not automatically prevail and can legitimately be outweighed by the other factors of the case and by the state’s interests in immigration control. ⁶⁰ The question therefore arises in which case the Court will find a violation of Article 8, based on the child’s best interests. The threshold set out by the Court is very high. It ordinarily assesses the interests of the child(ren) together with that of the spouse and will find a violation only if there are insurmountable obstacles for them to follow the expelled parent. ⁶¹ The Court uses this threshold in cases where the parent is expelled for criminal offences as well as in the situation of an expulsion for administrative breaches of immigration law. ⁶² However, the Court is again not consistent in applying its threshold. In other judgments the Court did not verify if there were insurmountable obstacles, but rather if there were ‘obstacles’ ⁶³ , ‘major obstacles’ ⁶⁴ or if it could ‘realistically be expected from the spouse and children to move to the other country’ ⁶⁵ .

Notwithstanding these inconsistencies, in my opinion some serious questions could be raised by the use of this threshold. At first glance it appears that the prerequisite of insurmountable obstacles is fundamentally at odds with the best interests of the child as a primary consideration. Even though there is no consensus on the precise scope of the best interests principle and the weight that has to be prescribed to it, it is generally accepted that the interests of the child should receive some hierarchical primacy. ⁶⁶ It can hardly be asserted that the children’s interests receive such a prominent position in the balancing exercise, when it has to be demonstrated that it would be insurmountable for them to relocate to another country. ⁶⁷ This threshold is the harsh legacy of the Abdulaziz, Gül and Ahmut cases, where the Court ruled that as a matter of well-established international law, a State has the right to control the entry of non-nationals into its territory. ⁶⁸ Therefore Article 8 ECHR does not impose a general obligation on a state to respect the choice by married couples of the country of their matrimonial residence ⁶⁹ and does not guarantee a right to choose the most suitable place to live ⁷⁰ . It is clear that these principles are heavily oriented in favour of the host state. ⁷¹ Because of this, the Court’s default position appears to be state-centred. ⁷² In principle, no violation of Article 8 ECHR will be found unless the applicant can persuade the Court that it is unreasonable to expect the family to establish family life elsewhere. As long as the prospects of continuing family life elsewhere are theoretically possible, albeit at the expense of great professional, ⁷³ educational ⁷⁴ or financial ⁷⁵ disadvantage, the Court will find for the respondent state. ⁷⁶ In this sense, the Court is often quickly satisfied that family life can continue in another country, based on rather impracticable solutions. For example, in Omoregie, the Court did not find it insurmountable for the wife and child of an expelled man to settle in Nigeria, even though both had been living in Norway their entire lives. ⁷⁷ In some judgments, where the family ties between the expelled parent and the child are not that strong, the Court even seems to be of the opinion that family life can adequately be preserved by telephone, letter and email or by occasionally visiting each other. ⁷⁸ This point of view has however been criticised in dissenting opinions. ⁷⁹ It is worth noting that the Court also takes the duration of the re-entry ban into account in its proportionality assessment. ⁸⁰ In this regard a re-entry ban of indeterminate duration can make the expulsion disproportionate. ⁸¹ From the case law it is equally clear that the Court can rule that the best interests of the child are duly taken into account by shortening the duration of the ban. ⁸² It even appears that an expulsion measure, that would otherwise be seen as creating insurmountable obstacles, will not be found disproportionate if the re-entry ban is short enough. ⁸³

In general, the expelled parent will thus have to prove that there are insurmountable obstacles for the spouse and child(ren) to relocate to the receiving country. However, there appears to be one very specific scenario where the best interests of the child will always outweigh the state’s interests. This is the situation in which the parents are separated or divorced, custody has been granted to the parent that can remain, but an access arrangement is in place for the parent that is threatened by an expulsion order. ⁸⁴ A fairly recent example of this can be found in Udeh. ⁸⁵ Here, a father of two daughters was expelled to Nigeria because of drug offences. He had long been divorced from the mother, but had endeavoured to maintain a close relationship with his children. The Court ruled that it would be in the children’s best interests to grow up with their father. However, due to the divorce, it was unlikely that the mother would be willing to follow the father to Nigeria. The Court therefore came to the conclusion that the only way for the children to enjoy real family life with their father would be to allow him to remain in Switzerland. Based on the best interests of the daughters, the Court therefore found a violation of Article 8. ⁸⁶ A similar conclusion was reached in Rodrigues da Silva and Hoogkamer ⁸⁷ and Nunez. ⁸⁸ Even though these judgments were not exempt from criticism, ⁸⁹ the idea behind them is laudable. When parents have ended their relationship, the assertion that the one that can stay will follow the one that is expelled is untenable. By finding a violation of Article 8 in this situation, the Court emphasises the importance for children to grow up with both parents and protects their best interests. One concern could however be posited here. This strand of case law has the paradoxical effect that children from a broken family are better protected than children of harmonious families. ⁹⁰

I contend that the burden of proof, introduced by the insurmountable obstacles test, is often too high. Especially in cases where the parent is expelled for administrative breaches of immigration law, rather than for actual criminal offences. This state-centred approach seems to attach a disproportionate importance to the interests of the state. ⁹¹ When no criminal offences were committed, one could ask whether the state’s interests should be given such weight that the family must prove the existence of insurmountable obstacles to be allowed to stay. In my opinion, the best interests of the child – and the right to family life in general – would be better protected if this burden of proof were to be reversed and if the proportionality test started from a family-centred approach. In this approach, the family – rather than having to prove that there were insurmountable obstacles for their relocation – would have to demonstrate that they were enjoying family life in the host state and had sufficient social and economic ties there. It will then be up to the host state to give sufficient reasons – for example serious threats to the public order – to justify the expulsion. In the Court’s case law, certain examples can be found where the Court seems to have adopted this approach. For example, in Üner, the Court ruled that in the particular circumstances of the case (the father was found guilty of manslaughter and assault) the family’s interests were outweighed by the other considerations. ⁹² Similarly in Chair and J.B., the Court was mindful of the fact that the father’s expulsion would mean his separation from his daughter, but found that his actions (rape) outweighed his family interests. ⁹³

In such a family-centred approach it would be for the state to prove that the expulsion measure was proportionate, rather than for the family to prove it was disproportionate. I argue this approach would have several substantial advantages. First of all, it better protects the family unity and therefore the child’s best interests. ⁹⁴ Second, it takes a more realistic approach to the relocation difficulties which the spouse or child(ren) of the expelled parent will face. Third, it allows to facilitate making a distinction between parents that are expelled merely on the basis of an administrative breach of immigration rules ⁹⁵ and those that have committed actual criminal offences, ⁹⁶ while in no way curtailing the possibility of the states to expel unwanted immigrants.

2.2. Expulsion order for the child itself

The overwhelming majority of expulsion cases concern expulsion measures targeting one of the parents. Occasionally however, such measures are aimed at the expulsion of the child itself. The Court attaches special importance to the status as a minor in these cases. For the Court, the deciding factor is not how old the person is when he or she actually gets expelled, but rather his or her age while committing the offences for which he or she gets expelled. ⁹⁷ For example in A.A. the Court stated that ‘the fact that the applicant was a minor at the time the offence was committed, is a relevant consideration in assessing the proportionality of a deportation. In this regard, the Court recalls that where offences committed by a minor underlie an exclusion order, regard must be had to the best interests of the child’. ⁹⁸ This excerpt immediately makes clear that the Court will have regard to the child’s best interests in this kind of cases.

The earliest judgments in this regard, however, did not expressly mention the principle. Nevertheless, it was clear that the applicant’s young age worked somewhat as a ‘mitigating factor’. ⁹⁹ In Jakupovic the Court held that very weighty reasons have to be put forward to expel a minor. ¹⁰⁰ Similarly, in Yildiz ¹⁰¹ , Radovanovic ¹⁰² and Emre ¹⁰³ the Court attached significant importance to the fact that the offences were committed while the applicants were still minors. This, however, does not mean that it is impossible to expel minors. For example, the Court has found no violation of Article 8 ECHR in cases where minors were expelled for aggravated rape, ¹⁰⁴ or attempted robbery, aggravated assault and manslaughter ¹⁰⁵ .

It is only in 2008, in the Grand Chamber ¹⁰⁶ judgment of Maslov, that the Court invoked the best interests principle in its reasoning while deciding on an expulsion measure concerning a minor. In this judgment, the Court departs from the principles set out in the Üner judgment, but stresses that the age of the person concerned can play a role when applying some of these criteria. ¹⁰⁷ In this sense, the Court found that Maslov’s acts of burglary, assault and extortion could still be regarded as acts of juvenile delinquency. According to the Court, where offences committed by a minor underlie an exclusion order, regard should be had to the best interests of the child. Where juvenile offenders are concerned, this duty to consider these interests includes an obligation to facilitate their reintegration. In this connection, the Grand Chamber explicitly referred to Article 40 of the Convention on the Rights of the Child, which makes reintegration an aim of the juvenile justice system. The Court was of the opinion that such reintegration would not be facilitated by severing all family ties through expulsion and found that the Austrian authorities had not taken these considerations sufficiently into account. Based on this and several other factors in the case, the Grand Chamber decided that the expulsion measure was a violation of Maslov’s right to family life. ¹⁰⁸ In later case law, this connection between the best interests principle and the obligation to reintegrate juvenile offenders has been reiterated. ¹⁰⁹ However, it seems that reintegration is not a decisive consideration when the minor committed very serious violent crimes. ¹¹⁰

In the Maslov judgment the Court clearly stated that the best interests of the child should be taken into account when expelling a minor. More interesting however, is the way in which it used this principle. As opposed to the expulsion of a parent, where the Court postulated the child’s best interests as a factor to assess the proportionality and introduced certain criteria to evaluate these interests, in Maslov the Grand Chamber linked the interests to the relevant substantial right in the Convention on the Rights of the Child. It interpreted the principle in the light of other rights safeguarded in the CRC. Even though this approach has been received with enthusiasm by some scholars ¹¹¹ and arguably increases the level of protection for child migrants, some concerns could be raised regarding this approach. In this judgment the Court essentially used the principle as a substantive right. Simultaneously, it gave content to this principle by identifying it through the lens of another right of the CRC. Even though this approach of the principle is favoured by the Committee, ¹¹² there are some unexpected drawbacks to this line of thinking. By substantively relying on the principle in interpreting the European Convention, it brings in the full gamut of relevant rights of the CRC. ¹¹³ In this sense the principle works as a Trojan horse and possibly broadens the scope of the Convention. An example of this can already be found in the Maslov judgment. Here, the best interests principle was construed as a duty of facilitating the reintegration of the minor, found in Article 40 of the CRC. This is an obligation that in itself cannot be found in the European Convention. ¹¹⁴ However, there is nothing that prevents the Court from applying the exact same reasoning with other rights found in the CRC. The Court could just as well link the principle to the right to an adequate standard of living, the right to development or the right to the highest attainable standard of health. All of these rights might be impinged upon in case of an expulsion. However, all these rights are socio-economic in nature and cannot be found in the European Convention itself. By substantively relying on the best interests principle, the Court postulated a principle in Maslov that might prove to be a slippery slope to bringing socio-economic rights that cannot be found in the Convention into the balancing exercise of Article 8 ECHR. In the next section, a new approach is proposed that can allay the concerns that were mentioned thus far regarding the Court’s use of the best interests principle.

2.3. Procedural review as a solution?

The above sections aimed at examining the Court’s use of the best interests principle in expulsion cases concerning the right to family life. The picture that is painted, is an incoherent and fragmented one. The case law is characterised by inconsistencies and for every line of apparently established jurisprudence an exception can be found. ¹¹⁵ Indeed, inconsistencies appear at which point in the procedure the child’s age is counted, the use of the child’s age, the use of the country ties and even the use of the insurmountable obstacles test. The jurisprudence concerning expulsion and Article 8 ECHR is still largely marked by its case-by-case approach, rather than a principled one. The best interests of the child seem to suffer the same fate with judges stating that either too much ¹¹⁶ or too little ¹¹⁷ weight has been afforded to them depending on the specific circumstances of the case. More than 20 years later, judge Martens’ scathing dissenting opinion in the Boughanemi case on the lottery effect this case-by-case approach entails, ¹¹⁸ still seems highly relevant. All of this is not incomprehensible however; immigration has always been a delicate topic, where political views can strongly differ. Especially in cases where children are involved, it is easy to let oneself be ‘guided by what is humane more than what is right’ ¹¹⁹ .

Notwithstanding this final consideration, the Court should of course strive for a clear and consistent jurisprudence. Fragmented case law can delegitimise the Court and lead to further criticisms. ¹²⁰ The question therefore arises what can be done in this regard. In my opinion, a solution can be found in the more procedural approach the Court has been taking for the last couple of years. ¹²¹ This sort of review implies that the Court takes the quality of the decision-making process at the legislative, the administrative and the judicial stage as decisive factors for assessing whether government interference in human rights was proportional. ¹²² Rather than conducting a substantive proportionality review, where it weighs the interests or rights itself, the Court looks at the decision-making process of the national authorities. ¹²³ If these authorities have assessed the proportionality of the measure on the basis of a careful and informed balancing of the interests at stake, the Court will more easily be convinced that this measure is proportionate. ¹²⁴ Conversely, if the national measure was taken without such considerations, the Court will more quickly decide that it is disproportionate.

With regard to the best interests of the child some examples of a procedural approach can be found in the Court’s case law. ¹²⁵ Especially in cases of international child abduction, such an approach is used. In X the Court held that

…the concept of the best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention […]. This task falls in the first instance to the national authorities of the requested State, which have, inter alia, the benefit of direct contact with the interested parties. […] Specifically, in the context of this examination, the Court reiterates that it does not propose to substitute its own assessment for that of the domestic courts. Nevertheless, it must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended. ¹²⁶

In expulsion cases, such a clear phrasing of a procedural review can hitherto not be found in the case law of the Court. However, in the most recent expulsion cases where children are involved, the Court does seem to develop a more procedural review towards their interests. ¹²⁷

In essence, what the Court did in these judgments – and does in the procedural review in general – is the following: instead of examining what is in the best interests of the child itself, the Court leaves this assessment to the national authorities and merely verifies if they gave due weight to these interests. ¹²⁸ It is argued here that this approach solves many of the problems identified above and should be used in all future expulsion cases where children are involved. This would entail several considerable advantages.

First and foremost, it should be noted that in this way the Court’s proportionality assessment is made considerably clearer. It has been demonstrated that the Court is in several ways inconsistent with regard to the best interests principle. Especially when it is considered that the best interests of the child are only one of the elements that are taken into account while performing the proportionality test, it does not come as a surprise that the Court’s case law is said to be unpredictable. ¹²⁹ If the Court were to apply the procedural approach with regard to the child’s best interests, this problem would partly disappear. The Court would then – rather than assess the child’s best interests itself – verify if the national authorities gave due attention to these interests and if this was sufficiently reflected in their decisions. In this sense, one of the criteria of the Court’s proportionality test would disappear, ¹³⁰ which would make this balancing exercise considerably easier. In doing so it puts the primary responsibility of human rights protection on the domestic level ¹³¹ and therefore encourages the strengthening of human rights by the member states themselves. ¹³² This is in line with the idea that it is up to the national authorities to give meaning to what is in the best interests of the child, rather than to the Strasbourg Court ¹³³ and is also more consistent with the Court’s approach in other cases where the child’s best interests are at stake ¹³⁴ . The primary responsibility of assessing and balancing the child’s interests in an expulsion decision would thus be placed on the national authorities. The Court would however still be able to review whether the assessment and balancing by these authorities was in conformity with the obligations laid down in the Convention. ¹³⁵ In doing so, the Court gives guidance to the national authorities concerning the elements they should take into account. This way the Court can indirectly enforce adherence to the best interests principle and authoritatively guide these authorities on what constitutes an adequate assessment of the child’s best interests. Ultimately, this would lead to a more consistent assessment and application of the best interests of the child in expulsion proceedings. However, for this to function properly, it will be important that the Court’s judgments are extensively reasoned and mention the elements that the authorities were required to take into account. ¹³⁶

Secondly, this procedural approach would prevent the objections that were made earlier regarding the use of the best interests principle by the Court in expulsion cases concerning the child itself. In the examination of the Maslov case, it was pointed out that the substantive use of the principle is liable to broaden the scope of the European Convention. In a procedural review this is no longer possible. Here, the Court cannot link the best interests principle to a substantive right in the CRC, because it will be up to the national authorities to assess whether or not the expulsion would be in the child’s best interests.

A third advantage is that the Court can safeguard the right of the child to be heard, which is closely linked to the best interests principle. ¹³⁷ As Smyth pointed out, the Court is institutionally ill-equipped to hear the child’s views on expulsion proceedings and often fails to do so. ¹³⁸ Nevertheless, children in principle have the right to be heard at the national level in these cases. ¹³⁹ In a procedural review, the Court can examine if the national authorities respected the right of the child to be heard and include this aspect in its judgment. In this sense, it can indirectly enforce the right of the child to be heard. ¹⁴⁰

Even though most scholars are positive about the Court’s procedural turn, some possible disadvantages should be addressed as well. First of all, the question could rightfully be posed if judges – and by extension the Court – actually have the expertise and the necessary knowledge to assess the quality of administrative and legislative decisions. ¹⁴¹ Indeed, the judges at the Strasbourg Court as well as the people in the registry have a background in law, not in sciences. Interpreting technical reports and engaging in methodological disputes is far from self-evident. This problem is relevant to the best interests principle as well: even though the national authorities are better placed to assess the child’s best interests in a given case, the Court should still be able to evaluate their rationale. An acceptable decision-making process does not irrefutably result in an acceptable result under human rights law. ¹⁴² The second drawback is closely related to this first one. The question could be asked where the threshold lies for appropriate procedural review. Regarding the best interests principle, one could ask if the Court should verify to a certain extent if the decision by the national authority actually complies with the best interests or if it will be satisfied as soon as the contested decision mentions the child’s best interests. In other words, will the procedural review be a mere formality or not? In older case law examples of the former approach being adopted can be found. ¹⁴³ With regard to the best interests of the child, the Court appears to retain some form of review. In the El Ghatet judgment, the Court found a violation of Article 8 of the Convention because the domestic courts examined the best interests of the child in a brief manner and put forward a rather limited reasoning in that regard. ¹⁴⁴ This means that the Court is not satisfied by mere referrals to the principle in the domestic authorities’ decisions, but will see if a thorough and sufficient assessment was made of the child’s best interest in the expulsion proceedings. ¹⁴⁵ Mere lip service is apparently not enough. To a certain extent, the proposed procedural approach would thus still imply a degree of substantive review. As has been noted by other scholars, when procedural review is used to completely replace substantive review, there is a risk that this would lead to a weaker substantive rights protection. ¹⁴⁶ Both types of review should therefore complement each other. ¹⁴⁷

Even though these two final remarks should not be ignored and will pose challenges for national and international courts alike, I argue that the advantages of a procedural review outweigh the drawbacks. It would make the Court’s proportionality test less difficult, while simultaneously streamlining the Court’s case law and making it a more coherent whole. Even though examples of this approach occasionally appear in the Court’s most recent case law, it would be recommended to use it consistently.

3. Conclusion

This article aimed at analysing how the European Court of Human Rights uses the principle of the best interests of the child in cases concerning the expulsion of aliens. After researching the available case law regarding the right to family life it has to be concluded that the principle is not used the way it could and should be. Where in other fields – such as international child abduction – the best interests principle is the crucial argument in the Court’s reasoning, such a coherent approach where genuine significance is attached to the child’s best interests is absent in expulsion cases.

In the article, a distinction was made between cases where one of the parents is expelled and cases where the children themselves are the subject of an expulsion measure. In the first kind of cases, the Court assesses the child’s best interests based on three criteria: the age, the country ties and the family bonds. Its use of these criteria however, is far from consistent. Furthermore, the child’s interests are only one of the elements that the Court uses in its balancing exercise and can therefore be outweighed by the other interests at hand. The threshold set out by the Court is very high. It will only find a violation if there are insurmountable obstacles for the child to follow his parent to the other country. In my opinion, such a high threshold can hardly be regarded as reconcilable with the best interests of the child as a primary consideration. I argue that it would be better if the burden of proof is reversed, in which case it is for the state to prove that the expulsion measure is proportionate, instead of up to the family to prove that it is not. In the second kind of cases, where the child itself gets expelled, the landmark case is Maslov v Austria. Here, the Court expressly states that the best interests of the child have to be taken into account. It does so by linking the best interests principle to other substantial rights in the CRC. Even though this practice might improve the protection of expelled minors, I hold that it might prove to be a slippery slope. By reading substantial rights from the CRC in the principle, the Court might bring socio-economic rights that cannot be found in the Convention into the balancing exercise of Article 8 ECHR.

The case law of the Strasbourg Court is thus characterised by inconsistency and confusion. It is argued here that the Court should adopt a procedural approach towards the best interests principle. In this approach, it would verify whether the national authorities diligently assessed the child’s best interests, rather than make that assessment itself. This approach would have several benefits. It would make the case law of the Court considerably clearer, while simultaneously encouraging the member states to strengthen the human rights protection on the national level. Moreover, it would prevent the objections that were made with regard to the use of the best interests principle in the Maslov judgment.

As a general conclusion, it should be noted that the best interests principle is presently not being used to its full potential. Much of this is due to the fact that international courts are inherently in a more ill-equipped position than national authorities to assess what is in the child’s best interests in a certain situation. Underlying the suggestions that were made here, is one comprehensive idea: when it comes to the use of the principle, international courts should take a more restrained position in favour of these national authorities. As Sandberg noticed: the future of children’s rights is dependent on these rights being domesticated. ¹⁴⁸ However, from the case law it becomes equally clear that these national authorities do not always give proper consideration to this principle.

All of this can to a certain extent be understood. Countries have a strong interest in removing illegal or dangerous immigrants and attaching significant weight to the child’s interests might raise an insurmountable barrier for doing so. Nonetheless, the best interests principle is too fundamental to be simply paying lip service to. ¹⁴⁹ A coherent case law, where national authorities are forced to take the best interests of the child duly into account under procedural supervision by international courts, could mean significant progress in this regard.