JNVR 2013/9 - The legal position of minor EU citizens who wish to exercise their right to family life in their country of nationality
Aflevering 1, gepubliceerd op 01-03-2013 geschreven door Nissen, EllenIn what way do the European Court of Human Rights (ECtHR) and European Court of Justice (ECJ) incorporate the values and principles of the CRC in their interpretation of a child’s right of residence and a child’s individual right to respect for family life in cases that concern minor citizens of an EU Member State who are residing in their country of nationality and wish to enjoy family life with (a) non-EU parent(s)? In applying the rights of citizen children who wish to enjoy family life with third-country national parents, the ECJ and ECtHR both embrace certain (different) elements of the CRC while discarding others, even though the Convention is meant to be viewed as a whole. Yet, in their reasoning and judgments it is often not explained for which reasons the different courts chose to deal with the rights of children in a certain way. Transparent reasoning by the European courts is needed, especially when rights of children are at stake. Not only because of their vulnerability, but also because the rights of children are contested and not at all straightforward. Children are human beings, and therefore cannot be denied rights just because they do not have the same capacities as adults. However, an interpretation of these rights that does not take into account, or accommodate, the special circumstances and characteristics of children may render them merely theoretical. Furthermore, because children are more vulnerable than adults, and because of their rapid development, children are entitled to extra protection at the same time. Seeing as the rights of children are both based on the similarities and differences between children and adults, elaborate and transparent reasoning is needed in order to understand their scope and content. I believe the CRC is a useful tool for the European courts as it provides a touchstone and line of reasoning which can be used to achieve more coherence in the European courts’ application of the rights of children. The CRC is designed as a holistic document for a reason. I believe it would be wise if the courts would explore and acknowledge this intrinsic feature of the CRC to a greater extent.