Claire Breen, Professor of Law at the University of Waikato (New Zealand). (2021)
BLOG: When a state decides to deport a child, this decision needs to take the child’s rights and their best interests into account.
Children and young people are at the centre of strained relationships between New Zealand and Australia at the moment. In February, Australia denied entry to a New Zealand born mother and her two children on grounds of national security.
In March, Australia announced that it was deporting a 15 year old New Zealander who has spent his childhood in Australia. The reasons for his deportation have not been disclosed so as to protect his privacy.
The Australian Department of Home Affairs has stated that Australia is complying its international legal obligations, including those of the UN Convention on the Rights of the Child 1989. New Zealand’s Foreign Minister has stated that New Zealand has not been advised that Australia has breached any international law.
In contrast, New Zealand’s Children’s Commissioner has stated that Australia is not meeting its international obligations under the Convention on the Rights of the Child, which he says clearly indicates the best interest of the child needs to be put first.
Children’s rights must be considered
Whilst Australia, like every country, has a right to control its borders, cancel visas and deport individuals to protect national security and the public interest, the exercise of this right must be balanced with the human rights of those individuals who are the subject of such decisions.
The fact that the deportee in question is a minor (a child) means that the UN Convention on the Rights of the Child 1989 also applies, and there are some key principles and rights that must be considered.
- One, children who are alleged to, or who may, have broken the law, must be treated with a sense of dignity and worth, and their age must be taken into account. States parties also recognise that it is desirable to promote the child’s reintegration and that they should be able to take up a constructive role in society.
- Two, States parties are also under a legal obligation not to separate a child from their parents against their will, unless such separation is in the best interests of the child (a point that is considered below). This obligation reflects the broader recognition that the child should grow up in their family environment, a right that reflects the Convention’s recognition of the family as the fundamental group in society.
- Three, these two rights, and the importance of the family as an aspect of the rights of the child, are underpinned by the recognition of the best interests of the child as a primary consideration in all decisions relating to the child.
This means that when a state decides to deport a child for reasons of national security or public interest, this decision needs to take the child’s rights and their best interests into account.
These interests include the impact on family relationships, removal to a country that the child may have little or no connection with, and the overall inference from the decision to deport that the child could never be rehabilitated, reintegrated, or ever play a constructive role in society.
Respect for family life
The balancing of the individual minor’s rights with the overall public interest has been considered by the European Court of Human Rights, in the context of Article 8’s right to respect for family life. In short, the expulsion of a settled migrant who has lawfully spent all or the major part of their childhood in a host country can only occur for very serious reasons.
In 2008, in Maslov v. Austria, the Grand Chamber held that Maslov’s deportation to Bulgaria had violated his right to family life, and the Austrian courts had not given adequate consideration to his best interests in ordering his exclusion for minor non-violent crimes that he had committed between the ages of 14-16 years.
In the Kilic cases, Denmark’s expulsion of two cousins after their manslaughter convictions – a crime that they had committed when they were aged 16 and 17 years respectively – did not to raise an issue under Article 8.
Prior to that, in Bouchelkia v. France, the Court had found that the expulsion of an individual who had been convicted aggravated rape, a crime that he’d committed aged 17 years, did not violate Article 8. Notably, the best interests standard did not feature in the latter two cases.
Respecting children’s rights
Despite years, if not decades, of discussion, there is still no regional human rights court in the South Pacific. As regards the current question of deportation, those being deported from Australia could challenge their deportation under the individual complaints mechanism of the UN’s International Covenant on Civil and Political Rights 1966. Unfortunately, neither New Zealand nor Australia have ratified the complaints mechanism of the Convention on the Rights of the Child.
Perhaps now is the time to do so and to demonstrate genuine commitment to respecting children’s rights and acting in their best interests.