I cringe when I hear the acronym BIOC used by Canadian Justice Department lawyers when they describe the interests of children in immigration law.
BIOC stands for Best Interests of the Child. The phrase BIOC diminishes the value of what the term expresses to four letters that do not connect to any intrinsic meaning.
It is used so judges don’t picture a child clinging to his father as Canadian Border Services Agency officials force him onto an airplane. Justice lawyers use it to make sure the interests of a child sound like a robotic control system on a drone or some pharmaceutical product that glows in the dark or the name of an indie band.
Or maybe they use it for their own comfort. It is easier to justify separating a family and arguing that the interests of a child are not of sufficient import to keep the family together in Canada, when you can say, “the BIOC was thoroughly considered.”
The Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration) affirmed that the best interests of the child are not determinative on an immigration application — but they are pretty important. I do concede that it is hard to know where the line is, but frankly, in circumstances that do not involve issues of security or safety to the Canadian public, it is unclear why the interests of a child are not determinative.
What if the child is 7 and may not see his parent again, or not for a number of years? Why is that not determinative? Why is it sufficient, as some immigration officers have said, for a child to stay in contact with a banished parent through the Internet or Skype? Justice lawyers defending such decisions would have a hard time keeping a straight face if they try to say that the interests of a child are served with such technology, unless it is the mighty BIOC they reference.
BIOC does not need his mom. BIOC sounds metallic and warrior-like and invincible. BIOC can converse over the Internet and send Skype messages and maybe make coffee while they wait. BIOC can’t cry!
I am fairly certain when former Supreme Court justice Claire L’Heureux-Dubé admonished Canada Immigration officials for their casual and often heartless consideration of children in applications called humanitarian and compassionate, she never intended that from the ashes of a system that favoured Canadian sovereignty over children’s rights, a BIOC would arise.
I am also confident that children’s interests are never served when they can communicate over the Internet or Skype with their parent, but never hug them. Yet, in a cascade of ever-imaginative and broadening justifications explaining how and why a child’s interests are served by the deportation of their parent, technology is offered as a surrogate to parental love and affection.
These officers are clearly “gamers,” far removed from the flesh and blood of a human child, and operating perhaps from the basement of their parent’s home, or in some silo in the mountains of British Columbia dealing out BIOC decisions with the compassion of those who fly drones into Afghanistan from holes somewhere in the midwest of the United States.
“How many BIOCs you shoot down today Fred?”
“Got three, one was close though, but I got him, used a Skype missile.”
Let’s bring this back to first principles and deal with these mechanical assessments of the rights of children.
In Baker, L’Heureux-Dubé said international human rights principles recognize the importance of being attentive to the rights and best interests of children when decisions are made that relate to and affect their future. Childhood, she went on, is “entitled to special care and assistance.”
Interpreting this statement, the Immigration Appeal Division in Stewart, Gary O’Neil v. M.C.I. (IAD T99-04592) held that “alert, alive and sensitive” to the interests of the child requires the decision-maker to assess, from the child’s perspective, how the child’s overall development will be affected when the child’s parent is facing removal from Canada and then weigh that against other factors.
This requires evidence that speaks to the conditions of the child, the means of the child, the needs of the child, and any special circumstances that may affect the child’s physical, emotional, or social growth and development.
With respect to the conditions of the child, children have the best chance of growing into responsible adults if the quality of the parenting is high and if there is continuity in parenting.
In 2012, the Federal Court in Williams v. Canada set out principles to follow. The officer must first establish what is in the child’s best interests and then indicate the degree to which these interests are compromised by one potential decision over another.
Finally, The Supreme Court of the United Kingdom, in ZH (Tanzania) v. Secretary of State for the Home Department, acknowledged that the dilemma of a child in the immigration context is not of the child’s making, but that of his or her parents, and it is wrong to focus on the failings of the parent when a child’s interests are in jeopardy.
They are innocent victims of their parent’s choice, the court stated. The UN Committee on the Rights of the Child, in General Comment No. 6, observed that the assessment of a child’s interests in the immigration context entailed a rights based analysis and that non-rights based arguments, such as those relating to general migration control, cannot override best-interests considerations.
Continuity in parenting. Special care and assistance. Innocence. Primacy over migration control. These are the sentiments that should guide an assessment of the best interests of a child, interests which cannot be served by Skype or the Internet or other long-distance communication methods.
BIOC the invincible can survive on such instruments of separation, but kids can’t.