The Protection of Best Interests of Migrant Children: Private International Law Perspectives

Migration news stories have, in recent years, captured the world’s attention almost daily. Migration is not however a new phenomenon. The first wave of globalisation, between 1870 and 1914 saw as much as 10% of the world’s population move permanently to a new country. It is paradoxical therefore that, at the start of the new millennium, migration was still under-researched.

The phenomenon may generally be divided into diverse categories: temporary labour migration or highly skilled and business migration; internal or international migration; legal or illegal migration; forced or chosen migration; family reunification migration, return migration… Such typology reflects an approach that largely sees migration as a challenge states and primarily considers it under the angle of international politics and security.

Migration can though also be studied from the perspective of the individual migrant. In this whilst it is human rights law which immediately resonates, private international law also has a key role to play. The interface between human rights and private international law as regards issues of migration has not frequently been considered. And this is particularly the case as regards children.

Can and do States achieve the protection of the best interests of migrant children in part through the framework of private international law? To answer this question, this article will consider first the relevance of private international law to migrants and migration. It then discusses whether the reliance on private international law rules, methods and approaches, including the increasingly popular connecting factor of habitual residence is adequate as a basis on which to protect the best interests of migrant children.