Expanding the Framework of Family Issues: Bringing Children’s Rights and Children’s Perspectives into Immigration

2.1 Introductory comments relating to conceptual framework

Overarching all children’s rights is the right to equality, or as UNICEF framed it recently, ‘For Every Child, Every Right.’⁸ Critical categories of children’s rights include: relational rights, identity rights, developmental rights, socio-economic or positive rights, and protection from State harm or intrusion in a child’s family.

These categories are grounded in the evolution of children’s rights and underlying principles from multiple sources and contexts. They reflect in particular the CRC.⁹ The CRC stands for the key proposition that children are rights holders, and defines their rights comprehensively, as an interconnected whole.¹⁰ It connects children to systems while recognising the importance of their families as their most intimate and important ecology.¹¹ The CRC expresses core principles of non-discrimination, equality and fairness; use of the best interests of the child as the guiding principle in decisions about children; provision of positive support for children’s development, and therefore recognition of their economic, social, and cultural rights; and respect for the primary role of the family.¹² In addition, relevant to the immigration context explored below, under the CRC children have rights to the prevention of separation from their parents, support for family reunification, and refugee rights.¹³

While the conceptualisation of children within family law has assuredly changed over time,¹⁴ the breadth and scope of the CRC solidifies and expands the traditional view of children within family. Most notably it links children to the structures necessary for their support, more closely linking areas of law that are highly relevant to children and families but often separated from what is defined as family law, including social welfare, child protection, juvenile justice, and education. All of those systems are linked back to family as children’s primary and valued social framework. In this sense the CRC reinforces the traditional primacy of family while claiming as children’s right the State’s systems of support.

While the CRC is preeminent in the field of children’s rights, it is not the exclusive source. The European Convention on Human Rights and its enforcement system is another powerful source of conceptualising and implementing children’s rights.¹⁵ It provides a regional system of rights backed by a strong enforcement system, an attribute that the CRC lacks.¹⁶ The implementation of the European Convention in the Member States, also signatories to the CRC, presents multiple perspectives on implementing children’s rights.¹⁷

In the US context, similar principles to those embodied in the CRC and the European Convention on Human Rights are inherent in the American constitutional scheme.¹⁸ Although the United States is the only country that has not ratified the CRC, the core principles of the CRC are inherent in American constitutional principles.¹⁹ Barbara Bennett Woodhouse, the leading US children’s rights scholar, has articulated the connection this way:

The special nature of childhood, as a time of inherent dependency and also of evolving capacity, gives rise to another way of classifying children’s rights – as ‘needs-based’ and ‘capacity-based’ rights…[F]ive core principles should inform our thinking about children’s rights: Privacy, Agency, Equality, Dignity and Protection.²⁰

The presence of those principles in US law and the explicit and implicit evaluation of the CRC when relevant has meant that a significant number of CRC principles have been expressly recognised in US law.²¹ In addition, the potential for a robust recognition of children’s rights remains even if the US continues to fail to sign on to the CRC.²² The evolution of children’s rights under a constitutional framework makes the United States a resource for analysis and implementation of children’s rights principles.

Children’s rights concepts offer to family law and to systems with which families interact a substantive elaboration based on the categories of relational, identity, developmental, socio-economic and protection rights, all interconnected and comprehensive for every child, and equal for every child. The family is the core of family law; children’s rights enhance the valuing of family by providing claims for essential resources for the needs of children.

2.2 The Concepts

Children’s relational rights, or rights in relationship, can be defined functionally by understanding the meaning of relationships in their lives and to their development.²³ Those relationships can be measured by the actions of others, the quality of their relationship with children, and particularly their engagement in care, and its importance to the psychological and emotional health of the child. The consistency and commitment of those who engage in relationships with children is vital. We would evaluate those relationships from the perspective of the importance of the relationship to children. This would not, then, depend on formal legal categories or status. Nor would goals like gender equality define who is entitled to the relationship, or be the basis to automatically confer rights, without requiring that the individual demonstrate equality of care and actual relationship.²⁴

Children’s right to relationships, and in relationships, would require preservation and support of significant relationships, and therefore might include, based on a functional standard, relationships with grandparents, stepparents, and siblings.²⁵ It might also include a duty of collaboration among the relevant relational adults in the child’s life as a requirement of ongoing legal support for the relationship. In those instances where functional realities cannot be measured, such as determining rights at birth, then a relational perspective might rely on the best interdisciplinary evidence of predicting relational success, including the possibility of using intent as a standard, and measured as well by preparation, planning and other relevant factors.²⁶

The relational perspective of children would particularly benefit interpretation of the ‘best interests of the child’, a pervasive norm for families and children that in practice all too frequently plays out as a contest between parents instead of an outcome informed by the perspective of the child.²⁷ For example, where there is disagreement over the structure of custody or parenting time, or particular issues such as the choice of school or health care decisions are presented as an argument between parents, analysis frequently is limited to the competing visions of two parents, but often without the voice or input of the child or children involved.²⁸ The best interests of the child standard, infused with the relational interests of children, would focus on what works best for the child and the child’s relationships, not necessarily what is most convenient for the parents.

A second category of children’s rights is children’s identity rights.²⁹ This means cultural, racial, ethnic and religious identities (and/or their intersections) of children. It also includes children’s gender identity, by valuing children’s expression of gender and not confining their expression to gender norms or a gender binary. Their identities should be valued but also not confined to any stereotypic norm, recognising the dynamic nature of individual identity as well as the fluid construction of culture, and the importance of a pluralistic multicultural norm. Children’s interests here include allowing children to benefit from the diversity of their parents and their communities, and to see their communities valued. Their identity or identities should not be the basis for discrimination, but rather should be celebrated. This might include the requirement that the State address and deal with racism, or anti-immigrant sentiments, as necessary to permit each child to express and identify with their culture. Identity includes not only strong support for self-value, but also valuing the humanity of others, as well as insuring that others value the humanity of each child. Children’s identity rights strongly connect to their equality rights.³⁰ Identities should not be the basis for hierarchies among children.³¹

A third category of children’s rights is their developmental rights, which are also closely connected to the category of children’s socioeconomic rights.³² Children’s developmental rights are rights connected to children’s developmental arc from birth to adulthood, and to their developmental equality.³³ Each child should have support to achieve their developmental capacity, which requires that the State remove barriers as well as guarantee equal support. This is the basis for their positive/affirmative socio economic rights, which requires the support of their families as their primary developmental context, but also requires effective systems and policies of support. Equality is essential to robust developmental rights.³⁴ Children are born substantially equal; while there are differences among them, developmental equality is the affirmative right of each child to develop to their maximum capacity.³⁵ To the extent State policies render children unequal, they violate core principles of equality and non-discrimination. Moreover, every child should have the support that they need, which may vary among children even if the State has not put obstacles in their way. The principle of equity is therefore integral to the principle of equality. Equal respect for all children recognises their equal dignity and requires that they be treated with acknowledgment and valuing of their dignity.³⁶

Closely connected to children’s developmental rights are their socio-economic rights.³⁷ These are positive rights of support from the State. Children have distinctive rights because of their dependency, value, and need for support. In a welfare State, if there are nevertheless inequalities among children, it should lead to asking the question of how policies and systems ensure that family inequalities are not replicated for particular children.³⁸

Finally, as a coefficient of children’s interests, there is not only this positive obligation of support, but also a proscription on the State: it must abstain from interfering with children’s rights against harm as well as their right to care and support in situations of known adversity.³⁹ The State should not be the cause of harm,⁴⁰ and there should be an obligation to provide support to deal with trauma and address structural causes of harm.⁴¹

3.1 Introduction

Children’s developmental, equality, and socio-economic needs lead outward from their families to the systems that families rely on to raise their children. Reciprocally, those systems place families at the centre of supporting children. The example of immigration issues regarding children and families illustrates this relationship. Casting immigration issues as ‘family’ issues without incorporating children’s rights may leave critical issues unaddressed. A children’s rights perspective at the border and once in the country does not allow the State to render children invisible by directing policies at adults and ignoring the impact of those policies on children. The importance of family to children also does not permit a focus on children’s rights to justify negative treatment of their parents or families, with children inevitably harmed as well. The example of immigration also directs us back to the implications of children’s rights to systems that affect families generally. The systems must be responsive to the particular needs of immigrant children just as they should be responsive to the distinctive needs of every child to ensure equity and equality among children.

Immigration tableaux of a human rights crisis of massive proportions continues to challenge multiple countries.⁴² The forces of war, internal chaos and violence, economic displacement, and patterns of gendered, racial and ethnic violence are some of many forces that drive migration. Receiving countries have shifted from supportive asylum policies to a wave of nationalistic resistance to open borders. Borders are contested and defended, triggering a range of problems for immigrants: making the process of border crossing and legal migration more difficult, complex, and time consuming; requiring lengthy, complex and difficult legal procedures; facing conditions of detention that are purposefully uncomfortable and inadequately provide even basic needs.

In the ongoing controversy regarding the southern border of the United States, specific cases have come to the fore, including the death of children in custody and the miscarriage of a pregnant woman in custody, as well as persistent concerns about basic medical care; reports of sexual abuse in the detention of children; and the separation of children from their parents.⁴³ In addition, unaccompanied minors are held in sprawling camps until they can be released or deported.⁴⁴ Similar concerns are present in the border facilities, detention practices and immigration processes in Europe.⁴⁵ The issues faced by families are not only family law issues, but also civil rights/human rights issues and children’s issues, and should be evaluated, discussed, and articulated in all of those ways.⁴⁶

If immigrants are accepted into the country, there are also longer-term issues regarding their inclusion as members of the society.⁴⁷ Social inclusion ideally includes not only the acquisition of basic skills (eg language) and establishment of a home, work, and education for children, but also a mutual interchange of cultures, rather than forced assimilation, discrimination, or subordination to the lowest rung in the social hierarchy. Thus, a critical additional issue is equality. Immigrant children, because of their experiences and their shift to a new culture and a new set of systems, require that their developmental interests be taken into account within their context and needs. Their developmental equality requires being responsive to their unique needs, including providing resilience support and ensuring that every child achieves their maximum capacity.

What if immigrant children/migrant children were the focus under a family law framework infused with children’s rights? How might we approach this differently from an integrated approach instead of a separated approach – in other words, not just from a family/parent perspective, but also from the child’s perspective? This would mean approaching the issues from a children’s rights perspective/child law perspective, not only to prevent or minimise harm after being taken into custody, but to prevent significant detention, ensure social and economic support, and provide support to avoid the long-term effects of trauma, both from circumstances leading to migration as well as the trauma of the journey and the events at the border.

For children, implicated are relational rights, developmental rights, identity rights, equality rights, and protection from harm as well as attention to trauma already suffered and potentially exacerbated by border policies or supports once in the country (or the lack of policies). Our focus on parents/families means that children are the innocent bystanders who are sacrificed. Instead, children’s perspectives would reinforce family/parental perspectives by requiring assessment and support for children no matter what the border crossing determination is; requiring social and economic rights be recognised and supported at crossing, as well as considered for special needs if permanent settlement is permitted. The harsh camps, detention, and lack of services characteristic of current border policies would not be permissible when viewed from the perspective of children.

Consistent with the principle of developmental equality, the State should not only provide developmental support, it also should neither cause nor ignore harms or toxic factors in the lives of children. The Adverse Childhood Experiences (ACEs) framework suggests that childhood adverse experiences, particularly when they are multiple, can reach toxic levels that can have long-term developmental consequences if unaddressed.⁴⁸ In order to explore that possibility the core question asked of a child (or even an adult) is not ‘why are you like this?’ or ‘why are you behaving this way?’ but rather, ‘what happened to you?’.⁴⁹ In the context of migration, leaving one’s home country is a traumatic event by itself; the factors that triggered migration may be even more traumatic. Because of that context, border crossings are inherently challenging and anxiety-provoking events. Border policies can add to the consequences, revictimising a child or adding new trauma, or they can be geared to be responsive, to the context and potential consequences. Children’s rights would demand a responsiveness to children’s unique needs as well as a consideration of how the process of determining their fate at the border should be handled in a way that does not bring a new series of adverse effects upon their development.

In order to better explain and illustrate this perspective, two real stories, one from the American context, and one from the Danish context, illustrate the absence of a children’s rights perspective, and should cause us to question how a children’s rights perspective would change the outcome. They might also cause us to ask what other connected systems reflect the absence of a children’s rights perspective. I suggest that in these two situations a children’s rights perspective might include attentiveness to process in order to give children a real voice in proceedings, as well as considering their specific needs. Furthermore, there is a need for a thorough developmentally informed set of policies to ensure that any children in the State’s care are not isolated or unsupported, but rather are developmentally assured of support.

3.2 Examples: Stories from the United States and Denmark

The first story is a report of a case brought before an immigration judge in New York City, far from where it began in Texas.⁵⁰ Fernanda Jacqueline Davila, from Teguicigalpa, Honduras, appeared in a New York City US federal immigration court in the autumn of 2018. She was two years old. Imagine walking a two-year-old into a courtroom designed for adults, typically designed to impress, even intimidate, adults. Just before she entered the courtroom, she had a few minutes with a lawyer, who was trying to ‘prepare’ her for the hearing. To his questions, she gave no responses. Fernanda was led into the courtroom by a child welfare caseworker, then lifted into the chair provided for those making appearances; a chair sized for adults, so her feet stuck out from the chair. As described by a reporter who was present, after being placed in the chair, the caseworker walked away, consistent with courtroom protocol. Fernanda began to cry. The judge permitted the caseworker to return and remain, and then the proceeding continued.

In this proceeding the judge asked questions of Fernanda, including how old she was, whether she spoke Spanish; explained the proceedings; and made decisions about the case, which she then asked Fernanda if she understood, and requested that the lawyer explain to her client. Fernanda was one of thirty children whose cases were heard that day, ranging in age from two through 17. Fernanda had come to the border with her maternal grandmother in July 2018. She was the child of teenage parents, and her father had died before she was born; she was being raised by her paternal grandparents. Her maternal grandmother travelled with her to the border to, in her words, ‘give her a better life’, but without the knowledge or permission of her mother or the paternal grandparents. Three days after Fernanda and her grandmother arrived at the border, they were separated. For three months, Fernanda was on her own, transferred to New York, where she was placed in the care of Cayuga Centers and/or foster families. Despite the fact that her paternal grandparents wanted her to return to Honduras, the process for completing her return was complicated, and had been made intentionally more complex and difficult due to Trump administration policies.

The judge in Fernanda’s case, in a subsequent hearing to the initial hearing described above, granted her return to her paternal grandparents. She returned to Honduras three months after her maternal grandmother had taken her to the United States.⁵¹ Describing the day of her homecoming, reporters who followed up on her story described a scene of extended bureaucracy before Fernanda, along with other children who had been held in the United States after illegal border crossings by adults. The description of the homecoming scene captures the confusion and difficult emotions of this child. Fernanda did not immediately recognise her family or understand what was going on. Initially she hardly spoke to any of her family, including her mother and grandparents, and seemed lost and withdrawn.

As noted in the initial and follow-up story about Fernanda, she was not the only child under six who appeared on the immigration docket; children this young are now regularly on the docket; and she was not the only child who was eventually allowed to return to her family, often after months of separation. The fact of separation, under the traumatic context of a custodial setting, and the time frame of separation within the developmental framework of a two-year-old, all combine to create a developmental crisis for this child.⁵² Some 350 children separated from their families as a result of the controversial separation policy of the summer of 2018 have still not been reunited with their families.⁵³ Despite a court ordered deadline of late July, reunification had still not occurred for many children by the autumn of 2018.⁵⁴ In addition, policies of separation of families have not entirely ended; these continue under a policy that separates children from the adults they are with if the children are deemed ‘at risk’ based on vague and unstated child welfare concerns, a reinvention of the zero-tolerance policy.⁵⁵

Even when families are kept together, the conditions under which they are in custody are harsh and uncomfortable: the detention centres are called ‘freezers’ because they are kept so cold and families are only provided meagre blankets.⁵⁶ Most recently, a surge in migrant families exceeded the capacity even of these harsh centres, and families were temporarily held in El Paso in an encampment under a bridge.⁵⁷ The conditions for families, even if held together in the United States, are clearly inhumane and damaging to the well-being particularly of children, although also traumatic for adults.

What if those conditions were permanent? That is the reality of my second story, a Danish story at a much later stage of the immigration process from an initial border crossing.⁵⁸ My concerns about American immigration policy led to many conversations about the parallels in other countries, and the push not only to prevent immigrants from coming into the country, but also to expel them if they did not fit the paradigm of a person that would be welcomed as a resident and perhaps one day, as a citizen. In Denmark there is a holding facility that houses families who are in limbo: for these families, it had been determined that they would not be allowed to live in Denmark, but they cannot or will not leave.⁵⁹ In an apparent effort to deter immigrants from thinking that eventually they would be accepted into the country if they could not be deported, there is an official policy to detain these migrants under conditions designed to be undesirable.

Two deportation centres, Sjaelsmark and Kaershovedgard, are part of ‘motivation enhancement’ measures of the Danish Aliens Act for non-deportable rejected asylum seekers. A coalition of human rights organisations and activists, the Freedom of Movement Research Collective, explored the policies and operation of these centres in a chilling report, Stop Killing Us Slowly.⁶⁰ The core goal of the policy is to induce ‘voluntary’ self-deportation by locating the centres in remote areas, providing bare minimum housing and living standards. The Sjaelsmark facility, in Horshom municipality, northeast of Roskilde, includes 70 children, 21 of whom were born in Denmark. The families are housed in a special part of the centre, which is a military barracks, surrounded by fences and with electronic gates. A part of the report compares the goals of the centres to prisons, and it notes that prisons are geared towards enabling prisoners to re-enter society, while the centres are geared to getting those in custody to leave Denmark. As the report notes, ‘We know from earlier reports that “most children are psychologically damaged after a few years in the Danish asylum system.”’⁶¹ Many children have spent more than four years of their lives in the centre, spending their childhood in a ‘State of exception.’⁶² The report continues:

[A]side from sharing the anxiety and uncertainly of their parents, children are also deeply affected by the social isolation, stigmatization, and lack of freedom in the centre, where the everyday is also marked by forced deportations, and by the destructive or desperate outbursts of other fellow residents … long-term residence in Sjaelsmark will have a lasting, traumatizing effect on children … Children are, in other words, bereft of a sound and healthy future.⁶³

This human tragedy seems surprising in Denmark, a country known for its strong social welfare system and robust family support.⁶⁴ Denmark, however, does not act in isolation, but in the context of EU policies and of regional variations that impact border pressures.