Out Now: New open Access book on Children in Migration and International Family Law (Springer, 2024) by Stefan Arnold & Bettina Heiderhoff

Stefan Arnold (Institute of Worldwide Enterprise Legislation, Chair for Non-public Legislation, Philosophy of Legislation, and Non-public Worldwide Legislation, College of Münster, Münster, Germany) and Bettina Heiderhoff (Institute for German and Worldwide Household Legislation, Chair for Non-public Worldwide Legislation, Worldwide Civil Process Legislation and German Non-public Legislation, College of Münster, Münster, Germany) have lately printed an edited guide on Kids in Migration and Worldwide Household Legislation (Springer, 2024).

The guide is an open entry title, so it’s freely obtainable to all. Within the editors’ phrases, the guide goals “to make clear the customarily ignored authorized difficulties on the interface between worldwide household legislation and migration legislation” (p. 3) with focus positioned “on the precept of the perfect pursuits of the kid and the way this precept could be extra successfully utilized.” (p.4)

The guide’s blurb reads as follows:

This open entry guide presents readers a greater understanding of the authorized scenario of youngsters and households migrating to the EU. Shedding gentle on the authorized, sensible, and political difficulties on the intersection of worldwide household legislation and migration legislation, it demonstrates that enhanced coordination between these coverage areas is essential to enhancing the authorized scenario of households on the transfer. It not solely raises consciousness of those “interface” points and the necessity for stakeholders in migration legislation and worldwide household legislation to collaborate intently, but in addition identifies deficits within the statutory framework and suggests doable cures within the type of interpretation and regulatory measures.The guide is a part of the EU co-financed FAMIMOVE venture and contains contributions from worldwide specialists, who cowl subjects resembling guardianship, early marriage, age evaluation, and kafala from a very European perspective. The authors’ method includes a rigorous evaluation of the related statutory framework, case legislation, and educational literature, with explicit consideration given to the perfect curiosity of the kid in all its aspects. The guide examines how this precept could be extra successfully utilized and suggests methods to foster a extra fruitful understanding of its regulatory potential.

Given its scope and focus, the guide will likely be of curiosity to researchers, students, and practitioners of Non-public Worldwide Legislation, Household Legislation, and Migration Legislation. It makes a priceless contribution to those fields, notably at their often-overlooked intersections.

The content material of the chapters is succinctly summarized within the introductory chapter of the guide, authored by the editors (“Kids in Migration and Worldwide Household Legislation: An Introduction,” pp. 11–16). This abstract is referenced right here as a type of summary for every chapter.

Half I Introduction

Kids in Migration and Worldwide Household Legislation: An Introduction

Bettina Heiderhoff and Stefan Arnold

The chapter describes the “Goals of the guide and the FAMIMOVE Undertaking”, “The Protections of the Greatest Pursuits of the Youngster: ”

An Introduction to FAMIMOVE, Its Accomplishments and Its Challenges

Marta Pertegás Sender

The primary a part of this guide (Half I) …  is devoted to the FAMIMOVE-project and units out the background, basis and goals of FAMIMOVE.

Half II Normal Matters

The Youngster’s Greatest Pursuits in Worldwide Jurisdiction Beneath the Brussels IIter Regulation

María González Marimón

[The chapter] sheds gentle on the kid’s greatest pursuits within the space of worldwide jurisdiction underneath the Brussels IIter Regulation. María González Marimón focuses on parental responsi-bility which is of paramount significance for the kid’s greatest pursuits in worldwide settings and inside migration contexts. She demonstrates how the Brussels IIter Regulation’s jurisdiction mannequin goals to replicate an correct stability between summary and concrete notions of the kid’s greatest pursuits. The article illustrates how this stability is achieved: The routine residence of the kid is mostly the related issue for jurisdiction, however a variety of exceptions to this basic rule replicate experiences from follow and allows courts to attain ample options. María González Marimón additionally welcomes the jurisdiction regime as an enhancement of the kid’s greatest pursuits precept in its triple dimension as a substantive proper, an inspiring precept, and as a procedural rule.

The Precept of the Youngster’s Greatest Pursuits in EU Legislation on Third-Nation Nationals

Iris Goldner Lang

[The chapter] demonstrates that the kid’s greatest pursuits precept is a paramount and intrinsic worth of EU legislation, serving as an underlying rationale for EU laws and judgments. Iris Goldner Lang examines how this elementary precept impacts the rights of third-country nationals within the EU, with a give attention to choices associated to household reunification in addition to EU migration and asylum legislation. She develops a multidimensional understanding of the kid’s greatest pursuits precept, highlighting its threefold operate as a substantive proper, an interpretative device, and a procedural rule. Based mostly on this evaluation, Iris Goldner Lang argues that the precept of the kid’s greatest pursuits will proceed to realize significance in EU legislation on third-country nationals, as a result of its multidimensional nature and its function as a counterbalance to the continuing development of limiting the rights of migrants and asylum seekers throughout the EU.

Binding Impact of an Age Evaluation

Kai Hüning

[The chapter] examines a tough drawback that’s well-known in authorized follow, particularly the issue of age evaluation within the perspective of the kid’s greatest pursuits precept. Kai Hüning illustrates the background of age evaluation within the context of migration of minors and sheds gentle on the necessity for age evaluation and its strategies. The article’s focus lies on the query of whether or not or not age evaluation procedures carried out in a single member state of the EU have to be recognised by different member states. Kai Hüning invokes the Constitution of Elementary Rights of the European Union, the UN 1989 Conference on the Rights of the Youngster (CRC) and the Human Rights Conference for his method to that drawback: Kai Hüning argues for a binding impact in precept — an impact that have to be included by means of interpretation of the nationwide provisions.

Half III Guardianship for Unaccompanied Minor Refugees

Guardianship of Kids within the Context of Migration in Hungary

Orsolya Szeibert

[The chapter] focuses on guardianship of unaccompanied minors in Hungary. Orsolya Szeibert provides an outline of the Hungarian asylum regime, its political background and complexity. She factors out how the scenario of youngsters in Hungary was closely affected by a number of authorized acts within the mid-2010s that contained particular provisions for the “disaster scenario brought on by mass immigration”. Orsolya Szeibert exhibits the (destructive) results of those provisions for minors and factors out that the “disaster scenario” has been continously extended since 2016 till right this moment. She refers to criticisms of the Hungarian established order through which unaccompanied minors between the age of 14 and 18 are successfully thought-about as grownup asylum candidates.

Guardianship and Different Protecting Measures for Minor Refugees in Germany

Bettina Heiderhoff

[The chapter] emphasises the significance of defending unaccompanied minor refugees and factors out the connections of migration legislation, non-public worldwide legislation and household legislation. Bettina Heiderhoff examines the central phrases “minor” and “unaccompanied” within the perspective of German legislation, describes the procedures for the appointment of guardianship and different protecting measures (particularly, the so-called provisional taking into care). She additionally analyses instances through which a minor refugee arrives in Germany after a guardian has been appointed in one other member state. Bettina Heiderhoff exhibits that Germany combines a number of authorized establishments to make sure the safety of unaccompanied minor refugees. But she additionally factors to appreciable issues, particularly a battle of curiosity of the youth welfare workplace, the dearth of particular information of the guardians as regards asylum legislation and sure difficulties as regards age evaluation and accountability.

A European Strategy to Cross-Border Guardianship

Bettina Heiderhoff

[The chapter provides] an outlook on the European perspective concerning guardianship […]. [The author ] emphasises that EU legislation solely regulates particular elements of migration legislation and personal worldwide legislation, whereas substantive household legislation stays underneath the jurisdiction of member states. Bettina Heiderhoff argues that the alternatives for EU legislation to immediately affect guardianship practices are restricted. Nonetheless, she factors out potential refinements, notably within the utility of the Brussels IIter Regulation.

Half IV Early Marriage

Early Marriages in Sweden

Ulf Maunsbach

[The Chapter] explains latest developments in Sweden, the place early marriages validly concluded overseas are typically not recognised. Ulf Maunsbach exhibits that there’s a very slender exception to this non-recognition precept: recognition is feasible solely in distinctive instances when there are extraordinary causes. He argues that the appliance of the non-recognition precept might fluctuate throughout completely different institutional settings, resembling asylum proceedings, household legislation, or inheritance proceedings. Ulf Maunsbach explains that for the needs of registering standing relationships within the Swedish inhabitants registration database, the exception to the non-recognition precept will hardly ever apply because the Tax Company’s examination depends solely on written documentation and doesn’t embrace particular investigations into the circumstances surrounding the wedding. He additionally highlights a basic lack of case legislation, which makes it much more tough to judge the scenario. Ulf Maunsbach argues for permitting particular person exceptions to allow authorities and courts to make fastidiously thought-about choices.

Early Marriage in Germany: Legislation and Politics of Cultural Demarcation

Stefan Arnold

[The Chapter] examines the German legislation on early marriage with a give attention to the latest statute efficient from 1 July 2024. Stefan Arnold argues that the latest German legislation on early marriage is emblematic of symbolic politics and cultural demarcation, highlighting the detrimental energy of symbolic lawmaking. He exhibits that the legislation’s turbulent latest historical past has been written by an unlucky interaction between courts, politicians, and curiosity teams. He argues that earlier than the latest legislative interventions, simply and differentiated options have been achieved by the courts by the appliance of the ordre public clause. Stefan Arnold exhibits that such options are not attainable, as German legislation now adheres to a strict coverage of non-recognition of early marriages when a partner was underneath the age of 16 on the time of marriage. He argues that the political debate and the legislation’s resort to a symbolic outlawing of early marriages overseas have considerably worsened the place of these deserving safety, notably the younger girls involved and the youngsters born from such marriage.

Early Marriages in Austria: Non-public Worldwide Legislation and Ordre Public Evaluation

Martina Melcher

[The Chapter] explains the Austrian authorized framework concerning early marriages. Martina Melcher exhibits that the difficulty of a legitimate marriage arises not solely in household legislation issues, however most frequently in household reunification and asylum proceedings. This half reveals that, in contrast to in Germany, early marriage has not but been the topic of intense political and educational debates in Austria. Martina Melcher factors out that Austrian Legislation allows courts to fastidiously think about the person circumstances of every case. She notes that there is no such thing as a violation of the Austrian ordre public if each spouses are adults on the time of the evaluation, need to uphold their marriage, and there was neither coercion nor lack of will on the time of the wedding’s conclusion. She emphasizes that express laws might not be essential and argues for a cautious, particular person, and aware evaluation of all related elements of the scenario. On the identical time, Martina Melcher requires legislative motion concerning sure elements, notably the results of early marriages in instances the place they don’t seem to be recognised.

Early Marriage: A European Perspective

Stefan Arnold

[The Chapter] notably compares Sweden’s and Germany’s strict non-recognition method with Austria’s versatile ordre public method concerning early marriages validly concluded overseas. He argues that the Austrian method is preferable, because it allows courts to attain simply options primarily based on a person case-by-case evaluation. Based mostly on the chapter’s comparative analysis, Stefan Arnold develops proposals for potential legislative measures with an emphasis on institutional options that promote justice and prioritise the wants of these worthy of safety.

Half V Kafala

Past Kafala: How Parentless Kids Are Positioned in New Houses in Muslim Jurisdictions

Nadjma Yassari

[The Chapter] explores the assorted authorized choices obtainable in Muslim jurisdictions for putting parentless youngsters into new houses. She identifies 4 classes of those choices: full incorporation of a kid into a brand new household, wide-ranging incorporation, constructions for the non permanent care of deserted or orphaned youngsters, and jurisdictions the place caretaking happens informally, with minimal state supervision or intervention. Nadjma Yassari evaluations a number of Muslim jurisdictions and demonstrates how they’ve developed various caretaking preparations for parentless youngsters primarily based on these classes. She discusses how these jurisdictions navigate the prohibition of tabanni (adoption) in Islamic legislation whereas nonetheless discovering methods to offer youngsters with secure houses. Nadjma Yassari highlights Tunisia as the one nation to formally regulate and settle for tabanni, permitting for full incorporation of a kid into a brand new household. She additionally notes the absence of a formalised authorized framework for putting parentless youngsters in new houses in some Muslim jurisdictions, resembling Lebanon.

Kafala in France

Fabienne Jault-Seseke

[The Chapter] gives a French perspective on kafala. Fabienne Jault-Seseke highlights the sensible significance of kafala in France: Many people of Moroccan or Algerian nationality dwelling in France assume accountability for a kid born of their nation of origin by kafala. Fabienne Jault Seseke explains how such preparations intend to compensate for the absence of fogeys or to supply the kid higher dwelling circumstances and training. Moreover, because the chapter exhibits, kafala serves as a substitute for adoption, which is prohibited in Morocco and Algeria. Jault-Seseke argues that regardless of kafala not constituting adoption, it must be regulated equally to make sure the safety of elementary rights for all events concerned. She emphasises that Article 33 of the 1996 Hague Conference on parental accountability and safety of youngsters gives the mandatory framework for this regulation.

Kafala within the Netherlands

María Mayela Celis Aguilar

[The Chapter] explains the authorized framework and case legislation on kafala within the Netherlands the place most instances originate from Morocco. Mayela Celis Aguilar factors out a change of coverage in 2013 following which kafala is not handled as adoptions however, with some warning, just like foster care measures. She expounds the Dutch laws and Article 33 of the 1996 Hague Conference which are utilized within the Netherlands. Mayela Celis Aguilar evaluates the Dutch coverage with regard to the popularity of kafalas as typically coherent and consistent with the relevant worldwide devices. But she additionally factors to issues about the usage of kafala to avoid adoption and immigration insurance policies and laws.

Kafala in Belgium: Non-public Worldwide Legislation as an Important Device to Set up Migration Legislation Penalties?

Leontine Bruijnen

[The Chapter] discusses how a kafala could be characterised and recognised in Belgium, whether or not or not it must be transformed into an adoption or whether or not kafala is the same as foster care. She factors out {that a} kafala must be characterised as a toddler safety measure based on the 1996 Youngster Safety Conference but that the Conference didn’t clear up all kafala-related points — notably as regards migration legislation penalties. Leontine Bruijnen explains the related authorized framework in addition to the Belgian household and migration case legislation. She presents an answer primarily based on the overall recognition guidelines for kafalas falling exterior the scope of the 1996 Youngster Safety Conference. Leontine Bruijnen additional argues that the non-public worldwide legislation framework must be taken into consideration to find out whether or not a makf?l (ward) could be thought-about an unaccompanied minor.

Rules to Guarantee a Cross-Border Kafala Placement Is within the Greatest Pursuits of the Youngster

Giovanna Ricciardi and Jeannette Wöllenstein-Tripathi

[The Chapter] highlights the ideas and advisable practices drawn from the Worldwide Social Providers (ISS) Kafalah research 2020. These ideas are aimed toward guiding states in guaranteeing that cross-border kafala placements prioritise the perfect pursuits of the kid. The authors emphasise that defending youngsters’s rights has at all times been central to the ISS mission. They warning that European debates on kafala usually replicate Western views that equate kafala with establishments like adoption, guardianship, or foster care. The authors underscore the significance of sustaining continuity within the youngster’s scenario throughout borders, guaranteeing authorized safety, and respecting the kid’s elementary human rights.

Recognition of Kafala in European Member States: Want for a Uniform Strategy?

Fabienne Jault-Seseke

[The Chapter] addresses whether or not and underneath what circumstances a kafala issued in an Islamic state could also be recognised in European member states. Jault-Seseke highlights the various approaches taken by member states and the dearth of a uniform EU legislative method. She argues that any European resolution should uphold the EU Constitution, the CRC, and the 1996 Youngster Safety Conference, and respect the cultural context of the kid. She concludes that kafala shouldn’t not be equated with adoption and that the perfect pursuits of the kid have to be taken into consideration at each the pronouncement of kafala and recognition levels.

Half VI Extra Matters

The Position of the Court docket of Justice in Shaping the Proper to Keep Household Unity for Beneficiaries of Worldwide Safety

Alessia Voinich

[The Chapter] examines how the CJEU addresses member states’ flexibility in establishing extra favorable nationwide regimes. It explores the connection between the rights of relations and the asylum rights of their kin who’re beneficiaries of worldwide safety, in addition to conditions the place completely different member states bear accountability for worldwide safety and guaranteeing household unity. The chapter additionally assesses the influence of latest reforms inside the Widespread European Asylum System (CEAS). Alessia Voinich underscores the excessive requirements of safety for the best to household unity supplied by EU secondary legislation and highlights the CJEU’s efforts to prioritise the perfect pursuits of the kid as a guideline. She argues that the CJEU’s future choices will likely be pivotal in attaining a balanced method between uniformity and essential flexibility in particular person instances.

Polygamous Marriages and Reunification of Households on the Transfer Beneath EU Legislation: An Overview

Giovanni Zaccaroni

[The Chapter] is devoted to polygamous marriages which are normally related to nations exterior the EU. Giovanni Zaccaroni exhibits how questions of the popularity of polygamous marriages and doable rights connected to the standing of the spouses have led to intense discussions within the EU. He argues that the prohibition of household reunification underneath EU legislation represents an impediment to free motion and household reunification of migrant households, and, probably, additionally to the perfect pursuits of the kid. However, as Giovanni Zaccaroni argues, on the identical time it’s rooted within the necessity to guard and promote equal remedy between women and men, enshrined within the EU Constitution of Elementary Rights in addition to within the nationwide constitutions. The contribution highlights the necessity to defend the rights of the weaker components of the connection and to keep away from the creation of companions of first and second class, thus discriminating amongst individuals in an identical scenario and violating their elementary rights.