The Alien Child’s Best Interest Ignored: When Notions of Gendered Parenthood Meet Tightening Immigration Policies

ABSTRACT

This article investigates how arguments about the “child’s best interest” are constructed in court decisions on asylum and family reunification in Finland. The article brings together two strands of scholarship that have so far been rather separate from each other, namely that of the literature on family reunification and feminist family studies. Analysis shows that the best interest of the child is insufficiently addressed and other arguments sideline the evaluation of child’s best interest. Gender has an impact as the best interest of the child seems to play a more significant role in relation to motherhood than it does in relation to fatherhood. In general, the court did not deem motherhood or fatherhood central to the child’s development as such, but rather as something that became central if it could not be performed properly due to other reasons than separation. Considerations such as ties to either Finland or the country of origin, as well as the income requirement, can become factors that override the potential separation from a parent. Finally, the results are also compared to the child’s best interest evaluation in out-of-home placement cases from the same courts. Our analysis shows a stark contrast between these two types of cases. We show that whenever a child’s case falls under immigration law, even when simultaneously being handled within the framework of child protection, the main deciding factor is not the best interest of the child. Alien affairs are decided based on—almost solely—factors other than the child’s best interest, while the same Supreme Administrative Court rules on child welfare cases based on a very different interpretation of child’s best interest.

KEYWORDS:

• Family reunification
• gendered parenthood
• child’s best interest
• family migration
• feminist family studies

Disclosure statement

No potential conflict of interest was reported by the authors.

List of cases

The Supreme Administrative Court of Finland

KHO:2011:113 (27 December)

KHO:2013:23 (4 February)

KHO:2013:97 (22 May)

KHO:2014:50 (19 March)

KHO:2014:51 (19 March)

KHO:2015:137 (16 September)

KHO:2016:86 (7 June)

KHO:2017:6 (16 January)

KHO:2017:42 (20 March)

KHO:2017:43 (20 March)

KHO:2017:73 (5 May)

KHO:2017:74 (5 May)

KHO:2017:137 (28 August)

KHO:2017:172 (10 November)

KHO:2018:4 (12 January)

KHO:2018:39 (20 March)

KHO:2018:48 (11 April)

KHO:2018:114 (17 August)

KHO:2018:138 (23 October)

KHO:2018:141 (24 October)

KHO:2019:21 (7 February)

KHO:2019:22 (7 February)

Notes

1. The yearbook cases are published on the Supreme Administrative Court website: https://www.kho.fi/fi/index/paatoksia/vuosikirjapaatokset.html (accessed 20.7.2019). They are anonymized accounts of the legal proceedings in the different levels of decision-making. The rulings by the Immigration Service (first level) and Administrative courts (second level) are short descriptions of the most important facts, but the Supreme Administrative Court ruling is shown entirely. The same database includes out-of-home placement cases. However, there the first level decision is made by the municipality’s social worker.

2. We are aware of the fact that country of origin is a concept that is somewhat problematic, as the country of birth might be different from the country of long residence.

Additional information

Funding

This work was supported by the Academy of Finland [308249]; the Academy of Finland, Strategic Research Council [303480, 303529].

Notes on contributors

Johanna Hiitola

Dr. Johanna Hiitola (DSocSci, Gender Studies) is a Senior Researcher at the Migration Institute of Finland.

Saara Pellander

Saara Pellander (DSocSci, Gender Studies) is a Post-Doctoral Fellow at the Institute for Advanced Social Research (IASR), Tampere University.