Reflections of social behavioural diagnostic research on migrant children in judicial decision-making

Since 2006 the Study Centre for Children, Migration and Law of the University of Groningen is requested by lawyers to make an assessment and a determination on the best interests of the child (BIC) of migrant children involved... [ view full abstract ]

Since 2006 the Study Centre for Children, Migration and Law of the University of Groningen is requested by lawyers to make an assessment and a determination on the best interests of the child (BIC) of migrant children involved in migration procedures. The assessment is done by using the BIC-method, that is derived from the BIC-model (Kalverboer and Zijlstra 2006 and Zijlstra 2013), which is found to be in line with the 2013 published General Comment No. 14 of the United Nations Committee on the Rights of the Child (Kalverboer and Beltman 2014) which provides guidelines on the implementation and interpretation of article 3, paragraph 1, of the United Nations Convention on the Rights of the Child (“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”). As we are interested in what came forth of the requested expert opinions (based on the BIC assessment and BIC determination), in particular how lawyers deal with social behavioural diagnostic research findings, we analyzed 25 expert opinion which have been submitted in 25 different court cases (judgments), including the 25 notices of appeal. In this qualitative study, we show the reflections of the submission of expert opinions by lawyers in Dutch judicial migration procedures. We conclude that migrant children are very dependent on a lawyer who should be able to make a good transposition of social behavioural diagnostic research findings into legal terms. We further found that the expert opinions give substance to children’s rights in the context of human rights provisions that (directly) could lead to a right to residence, i.e. the protection of the child in the host country. Lastly, from the studied cases it emerged that the best interests of the child, although identified in the expert opinion, are not always weighed as a primary consideration. This is due to legal procedural constraints. We suggest the courts to embrace General Comment No. 14 which would guide them in a meticulous weighing of the best interests of the child in the specific individual context of the case.