Children in Migration and International Family Law

Stefan Arnold (University of Münster) and Bettina Heiderhoff (University of Münster) edited Children in Migration and International Family Law – The Child’s Best Interests Principle at the Interface of Migration Law and Family Law with Springer.

The book, part of the EU-funded FAMIMOVE project, explores the challenges faced by children and families migrating to the EU, focusing on the interplay between international family law and migration law.

The book is available in open access and features the following contributions.

Introduction

Bettina Heiderhoff, Stefan Arnold, Children in Migration and International Family Law: An Introduction

This introductory chapter gives an overview over the aims and topics of the book. The key contents of the contributions to the book are briefly presented.
The authors begin by describing the complexity of the interface between migration law and family law and then highlight some crucial, overarching issues. In particular, they show that the best interests of the child are interpreted differently by different actors. The divergence of approaches in migration and family law is striking.
Also, some central case law of the CJEU and ECtHR for the topics covered by FAMIMOVE is discussed. The article concludes with an overview of the main actors at the interface between migration law and family law and their roles or activities.

Marta Pertegás Sender, An Introduction to FAMIMOVE, Its Accomplishments and Its Challenges

The author summarises the genesis, working methods and objectives of the FAMIMOVE project.

General Topics

María González Marimón, The Child’s Best Interests in International Jurisdiction Under the Brussels IIter Regulation

Cross-border conflicts dealing with parental responsibility matters have a wide diversity which is projected in the Brussels IIter Regulation international jurisdiction model. In particular, the system is articulated on the principle of the best interests of the child, linked to the criterion of proximity. Following this logic, the Brussels IIter Regulation, inheriting the system from its predecessor, reflects a much more accurate balance between the two conceptions of the best interests of the child, in abstracto and in concreto. The aim of this chapter is to present the jurisdiction model on parental responsibility matters of the Brussels IIter Regulation, from the necessary children-based approach that should be paramount in any case involving children, including Private International Law rules. This overview will allow to reflect on how the jurisdiction rules seek to answer to the complexity of international movement of families through the articulation of the best interest of the child principle.

Iris Goldner Lang, The Principle of the Child’s Best Interests in EU Law on Third-Country Nationals

This chapter demonstrates that the principle of the child’s best interests is an integral value of EU law and serves as an underlying rationale for EU legislation and judgments. It is analysed how the principle of the best interests of the child affects the rights of third country nationals in the EU, with a focus on decisions relating to family reunification and EU migration and asylum law. In this chapter a multidimensional conception of the child’s best interests principle is developed, emphasising its threefold function as a substantive right, as an interpretative tool and as a procedural rule. The article concludes that the principle of the child’s best interests will continue to grow in importance in EU law on third-country nationals.

Kai Hüning, Binding Effect of an Age Assessment

The assessment of age is one of the most challenging aspects when unaccompanied refugees, who are potentially minors, arrive in their country of destination. A particular problem arises when authorities in different countries or different authorities within the same country have doubts about whether a refugee is a minor.

Guardianship for Unaccompanied Minor Refugees

Orsolya Szeibert, Guardianship of Children in the Context of Migration in Hungary

This chapter explains the legal framework on guardianship for unaccompanied minor refugees in Hungary and deals with the real-life experiences of being an unaccompanied minor. The legal framework is fragmented and has continuously been such in the last decade. The situation of these children in Hungary was severely altered in the mid-2010s by several legal acts that contained special provisions for the “crisis situation caused by mass immigration”, and the (negative) effects of these provisions on minors are clearly pointed out in the chapter. These effects have been seen in the field of guardianship and other child protection measures and the prolongation of the crisis situation caused by mass immigration influences all legal sources which determine children’s rights. The chapter highlights the amendment of the child protection law and the implementation of children’s rights in case of unaccompanied minors. Some special legal protections of refugees from Ukraine are analysed as well. The chapter can be considered as a snapshot of how the situation of unaccompanied children is developing, and to which legal and temporal changes they and children’s rights are exposed to.

Bettina Heiderhoff, Guardianship and Other Protective Measures for Minor Refugees in Germany

This chapter explains the legal framework on guardianship and other protective measures, especially the so-called provisional taking into care, for unaccompanied minor refugees in Germany and explores the central terms “minor” and “unaccompanied”. Significant problems are highlighted in this chapter, in particular a conflict of interest on the part of the Youth Welfare Office, a lack of specific knowledge of asylum law on the part of guardians, the handling of cross-border guardianships, and certain problems in assessing age and responsibility.

Bettina Heiderhoff, A European Approach to Cross-Border Guardianship

This chapter considers whether the practice of appointing guardians could be improved by regulation at European level. It takes a pessimistic view of the future in the light of the New Pact on Migration and Asylum.

Early Marriage

Ulf Maunsbach, Early Marriages in Sweden

This chapter explains the recent developments in the Swedish legal framework on early marriage. It is shown, that early marriages are generally not recognised and only a narrow exception exists. This chapter argues for allowing individual exceptions to enable authorities and courts to make carefully considered decisions.

Stefan Arnold, Early Marriage in Germany: Law and Politics of Cultural Demarcation

This chapter examines the legal framework on early marriage for unaccompanied minor refugees in Germany. The article focuses on a critical analysis of the Federal Law to combat child marriages and its adjustments through the Law for the Protection of Minors in Foreign Marriages effective from 1 July 2024. It is demonstrated that the situation of those in need of protection, particularly the young women concerned and the children born from such marriage, has worsened as a result of the law.

Martina Melcher, Early Marriages in Austria: Private International Law and Ordre Public Assessment

This chapter explains the legal framework on early marriage in Austria. It is outlined, that the Austrian legal situation allows the courts to pursue a case-to-case approach in which the individual circumstances can be taken into account. The article argues in favour of the case-by-case approach, but emphasises that consequences of the non-recognition of an early marriage should be regulated.

Stefan Arnold, Early Marriage: A European Perspective

This article provides an overview and comparison of the findings of the contributions in this chapter and an outlook on possible European improvements. To protect the persons involved, the article argues against symbolic law-making and emphatically proposes a case-by-case approach.

Kafāla

Nadjma Yassari, Beyond Kafāla: How Parentless Children Are Placed in New Homes in Muslim Jurisdictions

Kafāla is just one of many systems used in the different Islamic laws in order to integrate a parentless child into a “foster” family. This article gives an overview of the different institutes and their functions.

Fabienne Jault-Seseke, Kafāla in France

This chapter explains the handling of kafāla-cases in France. The practical significance of kafāla in France is underlined, as many people of Moroccan or Algerian nationality living in France assume responsibility for a child born in their country of origin through kafāla. It is argued that although kafāla is not adoption, it should be treated in a similar way to ensure the protection of the fundamental rights of all parties concerned. It is stressed that the necessary framework for this regulation is provided by Article 33 of the 1996 Chid Protection Convention.

María Mayela Celis Aguilar, Kafāla in the Netherlands

This chapter explains the handling of kafāla-cases in the Netherlands, including the respective case law and migration legal framework. A change in policy in 2013 is noted, whereby kafāla is no longer handled in the same way as adoption but, with some caution, in a similar way to foster care measures. The Dutch policy on the recognition of kafāla is assessed as generally cohesive and in line with applicable international instruments. However, concerns are also raised about the use of kafāla to circumvent adoption and immigration policies and regulations.

Leontine Bruijnen, Kafāla in Belgium: Private International Law as an Essential Tool to Establish Migration Law Consequences?

This chapter explains how kafāla-cases are handled in Belgium, including the respective migration case law and migration legal framework. This article emphasises that a kafāla should be characterised as a child protection measure under the 1996 Child Protection Convention but that the Convention does not solve all issues relating to kafāla. The Belgian general recognition rules offer a solution for kafālas outside the scope of the 1996 Child Protection Convention. It is suggested that the private international law framework should be considered when determining whether a makfūl (ward) can be regarded as an unaccompanied minor.

Giovanna Ricciardi, Jeannette Wöllenstein-Tripathi, Principles to Ensure a Cross-Border Kafāla Placement Is in the Best Interests of the Child

This contribution aims at highlighting principles as well as recommended practice to guide states in ensuring a cross-border kafāla placement is in the best interests of a child. These principles stem from the ISS’ conviction that, from a child rights perspective, both public international and private international law provisions must inform approaches concerning cross-border kafāla. This joint approach is based on ISS’ long-standing casework experience in working daily and across the globe on complex cross-border child protection cases.

Fabienne Jault-Seseke, Recognition of Kafāla in European Member States: Need for a Uniform Approach?

This article provides an overview of the different approaches adopted by EU member states and highlights the lack of a uniform EU legislative approach. It is emphasised that any European solution must comply with the EU Charter, the 1996 Child Protection Convention and respect the cultural context of the child.

Additional Topics

Alessia Voinich, The Role of the Court of Justice in Shaping the Right to Maintain Family Unity for Beneficiaries of International Protection

The right to maintain family unity is one of the inherent guarantees of the content of international protection provided for in Chapter VII of the Qualifications Directive. This right extends to both refugees and beneficiaries of subsidiary protection, safeguarding the integrity of family units already present within the member state offering protection.
This inclusion of family unity within the framework of international protection reflects a more specific application of broader principles enshrined in instruments like the EU Charter of Fundamental Rights (Art. 7 and 24) and the European Convention on Human Rights (Art. 8). Notably, the Geneva Convention itself lacks an analogous provision, though the Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons emphasizes family unity as an ‘essential right’ for refugees and urges the States to protect it.
However, ensuring the practical application of this right presents significant challenges. The Qualifications Directive (Directive 2011/95/EU) mandates member states to uphold family unity yet setting specific conditions and delegating aspects to national laws (para. II).
This has resulted in a complex body of case law from the Court of Justice, which has navigated this tension and developed innovative legal solutions within asylum law.
This Chapter delves into this landscape and examines how the Court has addressed issues such as the flexibility of member states in establishing more favorable national regimes (para. III), the complex link between family member rights and the asylum right of their relative who is a beneficiary of international protection (para. IV), and situations where responsibility for international protection and for ensuring family unity falls on different member states (para. V).
Finally, the Chapter will examine the impact of recent reforms within the Common European Asylum System (CEAS) on this evolving legal landscape (para. VI) and some concluding remarks will be drawn (para. VII).

Giovanni Zaccaroni, Polygamous Marriages and Reunification of Families on the Move Under EU Law: An Overview

Polygamous marriages are usually associated with countries outside the EU. However, their recognition and the rights attached to the status of spouse, both civil and social, gave rise to a debate both in case law as well as in scholarship. The existing prohibition of family reunification under EU law represents an obstacle to free movement and family reunification of migrant families, and, potentially, also to the best interest of the child. At the same time, such a prohibition is rooted in the necessity to protect and promote equal treatment between men and women, enshrined in the EU Charter as well as in the national constitutions. As it will be seen, the debate on the balance to be found between these competing rights is far from being over.