C.E. v. Belgium

• CRC

Convention on the Rights of the Child: Articles 2, 3, 10, 12 and 20

Optional Protocol to the Convention on the Rights of the Child on a communications procedure: Article 7 paragraphs e and f

General Comment No. 12 (2009): the right of the child to be heard; and General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3 paragraph 1)

The authors of the communication are Y.B. (Belgian national) and N.S. (a dual Belgian and Moroccan national). They brought the complaint on behalf of C.E. (a Moroccan national born on 21 April 2011).

The authors are married to each other. Under a kafalah arrangement, they took in C.E., who was born to an unknown father and was abandoned by her mother at birth. A decision declaring her abandoned was handed down by the Court of First Instance of Marrakesh on 19 August 2011. The authors were also granted authorization to travel outside of Morocco with C.E. Under Moroccan law, kafalah is recognized as a form of alternative care and permits a Muslim couple or a Muslim woman to care for, ensure protection, education and provide for an abandoned child as a parent would do for his/her biological child, but this does not give the right of succession or the right to a legal parental relationship. Because kafalah does not create a parental relationship, the claimants were unable to introduce a long stay visa application on the basis of family reunification. On 21 December 2011, they introduced an application to enter and reside in Belgium for humanitarian reasons on the basis of Article 9 of the Law of 15 December 1980 concerning access to the territory, stay, establishment and removal of foreigners. In the application they specified that C.E. was an abandoned child who had been entrusted to them, presented certificates of good conduct and assurances on their financial capacity. The visa application was rejected on 27 November 2012 by the Office of Foreigners on the basis that a kafalah was not an adoption and did not confer any right of residence, that the applicants had not asked for the kafalah to be recognized and that an application for an authorization of residence for humanitarian reasons could not substitute for an adoption application.

The applicants introduced an appeal to the visa refusal decision, which led to it being overturned. The authors then contacted the Office of Foreigners on several occasions for a new decision, but with no response. In the meanwhile, the authors had also tried to obtain a short stay visa for the child in 2014 and 2015, which was rejected in both cases. On 19 July 2016, the Office of Foreigners issued a new decision that refused the visa on the basis inter alia of the following: firstly, that kafalah did not give rise to a right of residence in Belgium because it did not create family ties with the child and that the humanitarian criteria had not been fulfilled (although the mother had abandoned the child, she was still alive and there was no proof that other members of the family up to third degree could not care for the child). Secondly, the authors could support the education of the child without the child leaving the country of origin, culture and family. The authors introduced another appeal to the new decision on 25 October 2016, which was still pending at the time that the authors introduced their communication to the Committee. The authors noted that the while the decision of the Office of Foreigners could be appealed, the appeals body did not have the competence to take a decision in lieu of the one it annulled. The second visa refusal decision was also later overturned on 26 April 2018. In the meanwhile, the female author had taken up primary residence in Morocco and was living with C.E., traveling to Belgium two or three times per year and her husband lived in Belgium primarily but was visiting Morocco for two to three months every year to be with his family.

The communication alleged that the Belgian State violated the rights of C.E. under Articles 2 (non-discrimination), 3 (best interests of the child), 10 (family reunification), 12 (right to be heard) and 20 (special protection of children deprived of family environment) of the Convention.

The authors noted that although kafalah was recognized as a protection measure for children under the 1996 Hague Convention on Parental Responsibility, to which Belgium was party, the claimants’ various attempts to unite with the child in Belgium had been derailed. The claimants contended that C.E. experienced discrimination as a child having the nationality of a third country that recognized a different institution of adoption; the child’s best interests had not been considered; and although the child was too young to be heard, the State had an obligation to ensure the child’s proper representation; and that Article 20 should be read to include kafalah.

On 26 September 2017, the State party submitted that the communication should be considered inadmissible for failing to exhaust domestic remedies, since the appeal process of the second refusal decision had been pending at the time of the communication and was considered an effective remedy by Belgium.

On the substance, Belgium alleged that adoption and kafalah were two different institutions; kafalah being an institution that ends when the child was no longer a minor and one which does not create a parental relationship. Belgium also alleged that the authors had not respected the conditions set in the civil code that allowed for the recognition of a kafalah and also questioned whether the procedures followed in Morocco in instituting the kafalah had been conducted in the best interests of the child in question.

In comments dated 5 December 2017, the authors reiterated the facts and their claims.

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In a letter dated 3 May 2018, the authors indicated that the Aliens Litigation Council issued a ruling on 26 April 2018, invalidating the decision to refuse a visa of 19 July 2016. The Council considered that the contested decision had made no mention of the ruling by the Tournai Juvenile Court, in which the authors were given approval to act as C.E.’s special guardians.

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Consideration of admissibility

The Committee found the communication was admissible in part. The Committee noted that, while the authors referred to Article 20 of the Convention, they failed to substantiate their claims. The Committee thus concluded that these claims were manifestly unfounded and, as such, inadmissible. The Committee proceeded to the merits of the remaining claims.

Consideration of the merits

The Committee was of the view that the facts amounted to a violation of Articles 3 (best interests of the child), 10 (family reunification) and 12 (right to be heard) of the Convention.

With respect to Article 3, Committee found that the reasons given by the Belgian State in its refusal of a long-term visa to be of a general nature and that they failed to examine the particular situation of C.E. The Committee also found Belgium’s implication that C.E. could be cared for by her biological family to be unrealistic and uncorroborated by the fact of her specific circumstances as a child born of an unknown father and abandoned at birth by her biological mother.

With respect to Article 12, the Committee noted that although C.E. had been considered too young by Belgium to voice her opinion and that Belgian authorities believed her opinion to be of no relevance in the visa proceedings, she was five years old and, in line with her best interests, should have been given a say in the process that had long-lasting repercussions for her life and education.

With respect to Article 10, the Committee found Belgium had failed to take into consideration the relationship and the de facto family ties forged by the claimants and C.E. since 2011, to the effect that one of the claimants had been living with and caring for C.E. almost since her birth. In the seven years that elapsed, Belgium had failed to treat the family reunification request of the claimants “in a positive, humane and expeditious manner” as required by Article 10.

The Committee concluded that there had been violations of Articles 3, 10 and 12 of the Convention, but did not consider it necessary to examine whether the same facts constituted a violation of Article 2 (non-discrimination).

The State party was obligated to re-examine the visa application of C.E. urgently and in a positive manner, ensuring the child’s best interests to be a primary consideration and that the voice of C.E. was heard. In addition, the Committee noted that Belgium should take into consideration the family ties forged de facto between the claimants and the child. Finally, the State party was deemed to also have an obligation to take all necessary measures to prevent similar violations from recurring.

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