Paper
Supporting legal decision-making in the best interest of the child in Refugee and Asylum law: A model combining psychological and judicial considerations
- issue: Issue 1 / 2009
- authors: Margrite Kalverboer, Elianne Zijlstra, Erik J. Knorth
- keywords: The Netherlands
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abstract
Background. The UN Convention on the Rights of the Child (Uncrc) has become the most widely accepted human rights treaty ever. The treaty has some 'umbrella articles' that represent the general principles of the Convention. It concerns among other things the right of the child to life, survival and development (art. 6), and the requirement to give primary consideration to the child's best interests in all matters affecting the child (art. 3).
Our study is about children and their families in Dutch Refugee and Asylum (RA) law. Children's rights are hardly protected in the legal procedures in this field. Refugee children and their families are psychologically extremely vulnerable. Because of the problems they experienced in their home countries and the stress they have to cope with in the host country, most parents are hardly capable of defending their children's rights in legal procedures when they apply for asylum (Kalverboer & Zijlstra, 2006a,b). In this context there is a strong need for a model and tool that helps to clarify - using a combined psychological and judicial point of view - what decision is in the best interest of the child: returning to the home country or not?
Purpose and method. Main question in this study is which considerations concerning the child and child's rights should be included in RA decision-making procedures, and how, to realize the application of the child's best interest principle and its rights on development.
A review study was performed on environmental conditions that promote a healthy development or imply developmental risks for the child. Our systematic search of the literature covered the period 1989-2005. As a preliminary framework we used the 'Conditions for Optimal Development' model (Bartels & Heiner, 1989). Based on that framework we developed a new model and a questionnaire for decision-making and children's rights, to be used by attorneys in defence of children's rights in Refugee and Asylum law. In that instrument prevailing environmental conditions are connected to specific provisions of the treaty; it enables professionals to discover which provisions actually are threatened for a child. The questionnaire also enables users to show which of the other articles of the treaty are involved if particular environmental conditions for the child are lacking or if a decision is made passing over the child's best interest principle.
To test the model and questionnaire 60 families including approximately 200 children applying for asylum in the Netherlands were visited and interviewed.
Key findings. The model that was constructed - the 'Best Interest of the Child and Environmental Conditions for Development' (abbreviated: Bicecd) model - encompasses fourteen environmental conditions, divided into family and societal conditions. If these conditions are available to the child over a longer period of time, a positive development of the child is to be expected - and vice versa.
The Bicecd questionnaire (RA version) proofed to be a reliable and useful instrument. The interviews brought to light main characteristics of the children, their families and their life circumstances and conditions. First salient findings about 47 children of 15 families indicate that many children feel very frightened (51%) and insecure (77%). They have sleeping problems (55%), nightmares (15%) and had traumatic experiences (40%). Many children suffer from stress (47%). Most children (60%) moved several times and the often changed schools (45%). In 9 of the 15 families (60 %), at least one of the parents, suffers from psychiatric problems. As to the crucial environmental conditions for development; none of the families in the host country is capable of offering the children a sufficient, supportive rearing environment containing al the crucial conditions.
Departing from the data in the Bicecd-RA and following a specified protocol, 60 assessment reports were written which attorneys brought in into the legal procedure. It turned out to be possible to state what kind of support the families needed that would enable them to supply for the environmental conditions promoting their children's healthy development and rights. The IND (the organisation for entrance of people into the Netherlands) appeared to weight this information in its decisions as well as the judges in Refugee and Asylum law. In all the 37 cases we analysed until now, we advised to give the families permission to stay in the Netherlands because of the expected insufficient rearing conditions for the children in their home countries and the expected children's rights to be treatened. In 15 of cases analysed (41%), the legal procedure still continues and a final decision isn't yet made. In 18 of the cases analysed (48%), the families got a permission to stay in the Netherlands. Those (legal) decisions were in line with the considerations and advices in the reports. In 2 cases we advised to give the families permission to stay in the Netherlands while the judge decided that the families had to return to their home countries (6%). In two cases the families disappeared out of sight of the attorneys involved (5%). We conclude that, if brought in properly into the judicial procedures, children's rights do matter.
Recommendation. Research in other Western and non-Western countries is suggested to discover if our model and questionnaire are useful in those countries too. Application of the model in other legal procedures is recommended as well.
Key references
Bartels, A., & Heiner, H. (1989). The juvenile criminal law and the child's best interest: A description of the child's best interest principle. Tijdschrift voor Familie- en Jeugdrecht, 11(3), 59-64 (in Dutch).
Kalverboer, M. E., & Zijlstra, A. E. (2006a). Children of asylum seeking families and their rights of development: The best interest of the child in Refugee and Asylum Law. Amsterdam: SWP Publishers (in Dutch).
Kalverboer, M. E., & Zijlstra, A. E. (2006b). The best interest of the child in Dutch law: Environmental conditions for development in a pedagogical perspective. Amsterdam: SWP Publishers (in Dutch).
Contacts: Margrite Kalverboer, University of Groningen, Dept of Special Education and Child Care, Groote Rozenstraat 38, 9712 TJ Groningen, the Netherlands, Tel. +3150-3636571, M.E.Kalverboer@rug.nl. Additional authors: Elianne Zijlstra, Erik J. Knorth