4 Methodological approach and materials
5.3 A procedural understanding of best interests
Article III, ‘Understanding the Best Interests of the Child as a Procedural Obligation: the Example of the European Court of Human Rights’, starts from where Article II ended. The article was motivated by the asymmetries in the child protection and immigration case law that I examined in Article II. How could the argumentation be improved? When reading the cases, I noticed an interesting pattern. Especially in newer cases in which the ECtHR found for the applicant, the Court increasingly based its argumentation on procedural shortcomings rather than on a substantive finding that the outcome of the case would not have been in the best interests of the child. I found this development remarkable and wanted to explore it further.
The terms ‘procedural approach’, ‘procedural review’ or ‘process-based review’
refer to a mode of reasoning in which a decision-making body focuses on how the decision being assessed was reached rather than the content of the decision.
Such a development has been detected in both national and supranational courts.
388 Strand Lobben and others v Norway, App no 37283/13, 30 November 2017; cf Strand Lobben [GC], especially paras 149-152.
389 Strand Lobben [GC], para 135.
In Article III, I discussed this ‘procedural turn’ detected by many scholars390 and suggested the procedural approach as a remedy to the inconsistent application of the best interests concept between different case groups. The article then presents a categorisation of three layers of a procedural approach to the best interests of the child in the ECtHR and illustrates the categories with examples.
As I explained in Article III, the ECtHR is a productive terrain for exploring the procedural approach as its case law demonstrates both the challenges of an outcome-focused approach to best interests and the procedural approach as a potential solution. When Article 3(1) CRC is understood as a predominantly procedural obligation, a consistent application of the best interests concept in different cases becomes easier. By an outcome-focused approach, I refer to an understanding by which decision-makers define which outcome is in the best interests of the child(ren) concerned. The challenges of an outcome-focused approach have been noted in other areas, too, in addition to migrant cases; in cross-border surrogacy, for example, where a violation of Article 8 ECHR was found based on best interests of the child due to the failure of national authorities to register the family, but no violation was found in otherwise identical circumstances when no genetic link existed between the parents and the child born as a result of a surrogacy arrangement.391 Bracken has criticised the Court’s approach for procedural inconsistency and for not expressing clearly how best interests were assessed and how the balancing was conducted.392 However, in some areas, such as child abduction cases, a procedural approach seems to have been established after some struggles.393 The ECtHR’s increased emphasis on procedural arguments has been studied in earlier research focusing on the procedural turn of fundamental and human rights protection but not explored in depth in the context of best interests, even though a similar argument has been made concerning expulsion cases.394
In Article III, my categorisation of the ECtHR’s procedural approach jurisprudence builds on a categorisation by Brems, who has identified three types
390 Article III, 748-751; see eg Janneke Gerards and Eva Brems (eds), Procedural Review in European Fundamental Rights Cases (Cambridge University Press 2017); Leonie Huijbers, Process-based Fundamental Rights Review: Practice, Concept, and Theory (Human Rights Research Series, Intersentia 2019); Lavrysen, Human Rights in a Positive State: Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights 184.
391 Mennesson v France, App no 65192/11, 26 June 2014 and Labassée v France, App no 65941/11, 26 June 2014; cf. Paradiso and Campanelli v Italy [GC], App no 65941/11, 24 January 2017.
392 Bracken, ‘Assessing the best interests of the child in cases of cross-border surrogacy: inconsistency in the Strasbourg approach?’
393 Vandenhole and Türkelli, ‘The Best Interests of the Child’ 213; Keller and Heri, ‘Protecting the Best Interests of the Child: International Child Abduction and the European Court of Human Rights’.
394 Leloup, ‘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’.
of ‘substance-flavoured procedural review’.395 I mapped ECtHR jurisprudence focusing on recent cases, with the aim of illustrating how the procedural approach may look in concrete cases and identified three layers according to the varying intensity of the review. In the first approach, the ECtHR acknowledges that a best interests consideration is required to satisfy the requirements of the substantive ECHR article in question. In the second, the ECtHR also pays attention to the quality of the consideration. In the third, the ‘checklist approach’, the ECtHR requires that national authorities have considered certain factors with sufficient attention. In Article III, I presented three forms of the checklist approach in more detail: that the national authorities have used last resort argumentation, linked best interests to relevant rights and considered the child’s views. Other elements can also be relevant to the checklist approach, such as the use of expert evidence also emphasised by the ECtHR.396 My categorisation of ECtHR case law shows that the ECtHR has created far-reaching procedural obligations for states in cases concerning the best interests of the child. At present, these procedural obligations are not equally developed in all case groups; in addition to Article 8 cases, they are used in some Article 5 cases when assessing the permissibility of the immigration detention of children.397 However, as I argued in Article III, the ECtHR’s principles of interpretation would allow the approach to be broadened to other ECHR articles.398 This way, the procedural approach could contribute to aligning future case law and increasing the protection of children’s rights.
As discussed above, the starting point of the article was the observation that the procedural approach has often proved more favourable to the applicant.
Even though impartiality is one of the most important objectives in court cases, previous research has demonstrated that proceedings in human rights courts always manifest a bias towards either the applicant or the state in questions such as sharing the burden of proof. Favouring one party automatically disadvantages the other. As the ideal of perfect neutrality cannot be achieved in practice,
395 Article III, 750-751; Eva Brems, ‘The “Logics” of Procedural-Type Review by the European Court of Human Rights’ in Janneke Gerards and Eva Brems (eds), Procedural Review in European Fundamental Rights Cases (Cambridge University Press 2017) 34-35. It has been questioned whether a ‘substance-flavoured procedural review’ can be considered procedural: according to Lavrysen, assessing the quality of the decision-making process comprises a procedural review of the domestic authorities’ compliance with a substantive obligation and should, therefore, be considered as a substantive positive obligation. Lavrysen notes, however, that as a general trend, the Court’s preference for formulating its review in terms that fit the substance-flavoured procedural review scheme indicates ‘a shift in the Court’s mindset towards more deference to domestic authorities’. Lavrysen, Human Rights in a Positive State: Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights 109-110, 185.
396 See eg Elita Magomadova v Russia, App no 77546/14, 10 April 2018, paras 66-70 (child’s residence); V v Slovenia, App no 26971/07, 1 December 2011, para 83 (child protection).
397 Article III, 756-765.
398 Article III, 759.
recognising and eliminating those biases that were not the result of conscious choice is crucial.399 The procedural approach can be seen as a means to adjust the state bias of the ECtHR.
Article III focuses on the ECtHR and uses it as an example, but the article’s claim is more general. I argued in Article III that the preference for the procedural approach results not only from the nature of the ECtHR system and the ECtHR’s position as a supranational court with a subsidiary role in relation to national authorities – which surely make the procedural approach more feasible at the ECtHR compared to national courts400 – but also from the nature of the best interests concept. In practice, understanding the concept as a procedural obligation means that in cases concerning children, courts would pay attention to whether the best interests of the child have been considered, the grounds of the assessment explained and procedural requirements, such as obtaining the child’s views, followed. Recently, a similar view has been suggested by others.401 The substantive assessment would be expressed in terms of the rights of the child.
To demonstrate that the added value of the best interests concept lies in understanding it as a procedural obligation, Article III considered the CRC Committee’s understanding of Article 3(1) expressed in GC14 – that is, as a substantive right, an interpretive principle402 and a rule of procedure – and argued that a threefold understanding does not sufficiently clarify the nature of best interests. The substantive dimension can be challenged because if considering best interests means considering relevant rights, the added value of the concept is questionable. The interpretive dimension seems to require a substantive best interests determination, and even though the interpretive dimension functions well when children’s rights can be maximised, it does not seem helpful when rights conflict. However, as I also discussed in Article III, the substantive and interpretive functions should not be over-criticised: the substantive function underlines the rights of the child in line with the CRC’s object and purpose, and the interpretive function adds value in situations in which the decision-making process has room to identify the best option for the child in question, for example, in adoption
399 Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint 8-9.
400 For a more detailed discussion of this and other challenges of a procedural approach at the ECtHR, see Article III, 765-766.
401 Eekelaar and Tobin, ‘Article 3: The Best Interests of the Child’ 84-95.
402 See also Geraldine Van Bueren, The International Law on the Rights of the Child (Kluwer Academic Publishers 1995) 45, who characterises the best interests of the child as ‘a new principle of interpretation in international law’.
cases.403 In previous research, the concept’s function as an interpretive principle has been considered ‘potentially powerful’.404
In Article III, I only discussed the interpretive function briefly. I discuss it further here as previous literature has not explored in detail the question of how the interpretive function should be understood. I suggest that an analytical distinction should be drawn between, on the one hand, interpreting other international obligations in light of the CRC in the meaning of Article 31(3)(c) VCLT and, on the other, using the best interests of the child as an interpretive principle when deciding between two interpretations of a provision of national law. Accordingly, the use of best interests in the ECtHR, for instance, does not depend on whether the best interests concept is understood as an interpretive principle but rather on general rules of treaty interpretation as well as the ECtHR’s own interpretation techniques. In contrast, calling the best interests provision an interpretive principle that facilitates the choice between two interpretations of a legal provision comments on the use of international law in domestic courts.
States have to abide by their treaty obligations in accordance with Article 26 VCLT, and provisions of internal law may not be invoked to justify failure to perform a treaty, as Article 27 VCLT provides. It is clear that an obligation to implement treaty obligations exists in international law, but is there also an obligation to interpret national legislation with treaty obligations? In other words, is the idea of best interests as an interpretive principle a new one, or do existing rules already require construing national law in light of Article 3(1) CRC?
As a general rule, international law does not prescribe its application on the domestic level. The effect of a rule of international law is a matter of national law.405 According to a common understanding in several states, however, domestic law must be interpreted in conformity with international obligations.406 According to this ‘principle of consistent interpretation’, domestic courts must interpret
403 Article III, 752-754.
404 Vandenhole, ‘Distinctive characteristics of children’s human rights law’ 26.
405 Gerrit Betlem and André Nollkaemper, ‘Giving Effect to Public International Law and European Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation’ (2003) 14 European Journal of International Law 569, 573; Armin von Bogdandy, ‘Pluralism, direct effect, and the ultimate say: On the relationship between international and domestic constitutional law’ (2008) 6 International Journal of Constitutional Law 397, 403.
406 In the United States context, this principle originates from the Supreme Court case Murray v The Schooner Charming Betsy, 6 U.S. 64 (1804) and is accordingly called the ‘Charming Betsy principle’; according to the rule expressed in the case, ‘An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains’. For a discussion of the principle in the United States context, see Ralph G Steinhardt, ‘The Role of International Law as a Canon of Domestic Statutory Construction’
(1990) 43 Vanderbilt Law Review 1103. Examples can also be found from other jurisdictions: in the Teoh judgment, for instance, the High Court of Australia held that ‘a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law’; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
domestic law consistently with international law407 – a position that has been called ‘internationalist’408 and is not accepted by all scholars.409
The principle of consistent interpretation is primarily a matter of national law.
As Nollkaemper observes, there is no obligation deriving from international law for national courts to engage in consistent interpretation as national courts are an organ of the state and their powers are not directly determined by international law.410 Nevertheless, the principle of consistent interpretation can be grounded in international law, too; it has been argued that there is ‘sufficient acceptance of the notion of international law as “higher law” that must be given effect in the national legal order, and that courts, and state organs, are responsible for the proper application of international law within their jurisdiction’.411 Nollkaemper has argued that from the perspective of international law, widespread state practice combined with the principle of effective treaty interpretation can be used as a basis for construing the principle of consistent interpretation. Another basis is the hierarchically higher status of international law in relation to national law.412 The CESCR has also referred to the ‘generally accepted’ idea that
[D]omestic law should be interpreted as far as possible in a way which conforms to a state’s international legal obligations. Thus, when a domestic decision-maker is faced with a choice between an interpretation of domestic law that would place that state in breach of the Covenant and one that would enable the State to comply with the Covenant, international law requires the choice of the latter.413
407 Betlem and Nollkaemper, ‘Giving Effect to Public International Law and European Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation’ 571-572;
von Bogdandy, ‘Pluralism, direct effect, and the ultimate say: On the relationship between international and domestic constitutional law’ 401-402; d’Aspremont, ‘The Systemic Integration of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal Order’
143-144; André Nollkaemper, National Courts and the International Rule of Law (Oxford University Press 2011) 139-165.
408 Katharine G Young, ‘The World, through the Judge’s Eye’ (2009) 28 The Australian Year Book of International Law 27, 42-46.
409 See eg Curtis A Bradley, ‘The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law’ (1997) 86 Georgetown Law Journal 479, 535-536.
410 Nollkaemper, National Courts and the International Rule of Law 148; von Bogdandy, ‘Pluralism, direct effect, and the ultimate say: On the relationship between international and domestic constitutional law’
402.
411 Betlem and Nollkaemper, ‘Giving Effect to Public International Law and European Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation’ 574.
412 Nollkaemper, National Courts and the International Rule of Law 149.
413 Committee on Economic, Social and Cultural Rights, ’General Comment No 9: The domestic application of the Covenant’ E/C.12/1998/24 (3 December 1998), para 15.
This quote resembles the CRC Committee’s statement regarding the best interests concept as an interpretive principle. As well as being a general obligation, the principle of consistent interpretation exists in several states in state practice414 and national law415. It can, therefore, be questioned whether the interpretive dimension of the best interests concept is of added value.
To summarise, I suggested in Article III that Article 3(1) CRC should be understood as a predominantly procedural obligation. Such an interpretation is reasonable: it better safeguards children’s rights than a substantive approach, and it allows for a consistent application of the concept between case groups. It adds value to the existing legal framework by obliging decision-makers to consider the best interests of the child, and it is also logical in light of rules of international law on treaty interpretation. I illustrated the argument with a typology of three layers of the procedural approach to the best interests of the child in the ECtHR.
Article IV continued to examine the procedural-structural trend in the context of the best interests of the child.