Best Interests of the Child in H&C Applications: What Officers Look For
The short answer: Section 25 of the Immigration and Refugee Protection Act requires officers to take into account the best interests of a child directly affected by an H&C decision. The Supreme Court of Canada has said a child's best interests must be well identified and defined, and examined with a great deal of attention, not just mentioned. A child's interests don't automatically decide the case, but they often carry significant weight.
What does "best interests of the child" mean?
In an H&C application, the officer must ask how the decision would affect any child directly affected, and give that real weight. The child can be:
Your own child, whether born in Canada or abroad
A child in Canada who depends on you, such as a grandchild you help raise
A child abroad who would be affected by the decision
Courts have said the analysis must be careful and detailed, not a single sentence. Children may feel hardship more deeply than adults, and circumstances that might not justify relief for an adult may justify it for a child.
What do officers look at?
Every child is different, but officers commonly consider:
Health and medical needs, and whether care would be available and accessible elsewhere
Education, including special education services and the child's progress
Emotional and psychological wellbeing, including the effects of separation
Language and cultural adjustment if the child had to move
Stability: home, school, friends and routine
Family relationships, including with a parent or grandparent in Canada
Safety, including discrimination or violence in the home country
Children with autism or special needs
These cases often involve the strongest best-interests evidence. Before becoming an immigration consultant, I spent more than a decade working with children with special needs, especially autism. In these cases, officers need to understand:
What services and therapies the child receives in Canada
How the child is progressing, and what would happen if that care stopped
Whether similar care exists in the home country, and whether the family could realistically access it
How a move would affect a child who depends on routine and familiar people
What evidence proves a child's best interests?
Medical and diagnostic reports, such as an autism assessment
Letters from teachers, therapists and support workers describing the child's needs and progress
School records: report cards, individual education plans (IEPs), attendance
A psychological assessment describing the likely impact of removal or separation
Country condition evidence about services for children with similar needs
Photos and records showing the child's life and relationships in Canada
Does a child born in Canada guarantee approval?
No. A Canadian-born child is a citizen and can't be removed, but the officer must still consider how the parents' removal would affect the child. That can weigh strongly, but it doesn't guarantee approval.
The 12-month bar exception
If you had a refugee claim refused, there's usually a 12-month wait before you can apply for H&C. One of the two exceptions is when removal would have an adverse effect on the best interests of a child directly affected.
Who does this affect?
Parents of children born or raised in Canada
Families of children with autism, disabilities or medical needs
Grandparents who help care for grandchildren in Canada
Related guides
Frequently asked questions
Do officers have to consider my child in an H&C application?
Yes. Section 25 of the Immigration and Refugee Protection Act requires officers to take into account the best interests of a child directly affected.
Does the child have to be in Canada?
No. A child outside Canada can also be directly affected by the decision.
Will my child's best interests decide the case?
Not on their own. They're one important factor, weighed with all your other circumstances, but they often carry significant weight.
What age counts as a child?
IRCC's instructions apply the best-interests analysis to children under 18 on the date your application is received. An older child's situation can still be considered as part of your other H&C factors.
Key takeaways
Officers must consider the best interests of any child directly affected.
The analysis should be careful and detailed, not a passing mention.
Special needs and medical cases often carry significant weight.
Prove it with reports, school records, professional letters and assessments.
A Canadian-born child doesn't guarantee approval, but matters.
The bottom line
When a child's future is at stake, the details matter. A clear picture of the child's needs, progress and daily life, backed by professional evidence, helps an officer see what's really at stake.
E-Pathway Immigration focuses on H&C cases involving children with special needs and autism, informed by over a decade working in special education. We work in English, Chinese and Vietnamese. Book a consultation.
About the author
Domonic Cheung is a Regulated Canadian Immigration Consultant (RCIC, licence R711344) with E-Pathway Immigration in Vancouver. He focuses on humanitarian and compassionate (H&C) applications and complex family sponsorships, and works with clients in English, Chinese and Vietnamese.
Sources
Immigration and Refugee Protection Act, s. 25(1) and 25(1.21); Kanthasamy v. Canada, 2015 SCC 61; IRCC H&C program delivery instructions, Assessment of the best interests of the child (canada.ca)
This article is for informational purposes only and does not constitute legal or immigration advice. Consult a licensed RCIC or immigration lawyer for your specific situation.
Comments