C-112/20: The CJEU rules on the assessment of best interests of the child in return procedures

Thursday, March 11, 2021

On 11 March 2021, the CJEU ruled in case C-112/20 concerning the obligation to consider the best interests of the child in return proceedings.
The case concerns return procedures against a third-country national, M.A., whose minor daughter has Belgian nationality. He was ordered to leave the territory due to the commission of offences in Belgium. In his appeal against the decision by the Council for Alien Law Litigation (CALL), he stated that it is not necessary for him to act on behalf of the child to invoke the best interests of the child protection. The Council of State referred a question to the CJEU on the obligation to consider the best interests of the child in return proceedings, even if return action is not taken against the child but only in respect of the father.
The Court assessed the case on the premise that M.A.’s stay is illegal and that the Return Directive is applicable. It noted that the Member States are bound by Article 5 (a) to take due account of best interests of the child in that Directive’s implementation, including where action to return is taken against a person who is the father of a minor residing legally in the EU.
To exclude adult-related decisions from best interests of the child considerations would also contravene the objective of Article 5 and the Directive itself, which is to ensure returns are conducted in compliance with fundamental human rights. This guarantee, in combination with the broadly defined Article 24 of the Charter and Article 3 (1) of the Convention on the Rights of the Child, should apply to cases that “indirectly” affect children. In that regard, the Court highlighted that the latter provision covers all decisions and actions directly or indirectly affecting children, as was pointed out by the UN Committee on the Rights of the Child in the General Comment No. 14 (2013). Lastly, where the EU legislature wanted considerations to only relate to the person against whom action is taken, it has indicated so, such as in Article 5 (c) of the Return Directive. Consequently, EU law should not be interpreted as precluding the consideration of the child’s best interests if action is taken only with regard to an adult parent’s return.
With thanks to Stavros Papageorgopoulos, Legal Officer at ECRE, for drafting this summary. You can read the extended EDAL Summary here. 

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Best interest of the child
Child Specific Considerations