The situation of unaccompanied and separated children from third countries arriving in the European Union is primarily covered by specific instruments which address the situation of these children either as children seeking asylum, as trafficked children, as children seeking family reunification or as illegally staying third country national children who are subject to return. Aspects of their situation may be affected by other EU legal instruments, such as the directives dealing with sexual abuse and sexual exploitation and victims’ rights.
These instruments in large part take the form of general obligations in directives which must be transposed into EU law and implemented by Member States in full respect of fundamental rights, including the rights of the child. In this regard, specific provisions of the Treaty on the European Union and the European Charter of Fundamental Rights are particularly relevant, as is the European Convention on Human Rights, as well as international law obligations which apply in the Member States, in particular, the UN Convention on the Rights of the Child. The European Court of Justice is the ultimate arbiter of the interpretation of EU law and provides interpretative rulings on the application of EU law. Judgements of the European Court of Human Rights are also relevant, in particular upon the accession of the EU to the European Convention of Human Rights.
In Section 2.1, we set out the primary EU law directly relevant to child rights, migration and asylum, including the Charter of Fundamental Rights.
In Section 2.2, the key secondary EU legal instruments are indicated, with reference to related EU policy discussions which focussed on unaccompanied and separated children.
This listing can be linked to the EU Reference Document Table contained in Chapter 4 which provides an indication of where specific issues (such as age assessment or representation) are addressed in the EU legislative instruments and allows comparison of how they are addressed across the different instruments. It links these issues to the fulfilment of the rights in the UN Convention on the Rights, thereby facilitating the process of ensuring that EU provisions are implemented and applied in line with the rights of the child.
Section 2.3 sets out key international conventions and related interpretative guidance, of particular relevance to the situation of unaccompanied and separated children.
Section 2.4 focuses on judgments of the European Court of Justice and the European Court of Human Rights dealing directly with the situation of unaccompanied children of third country. Other key judgments addressing children in migration are also referenced as illustrations of the Courts’ general approaches to children’s rights in this field.
This section addresses the primary EU law (including relevant provisions of the Treaty on the European Union and the Charter of Fundamental Rights) that is particularly relevant to the application of EU provisions relating to unaccompanied and separated children.
Article 3(5) of the Treaty on the European Union
“In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.”
The Charter of Fundamental Rights recognises a range of personal, civil, political, economic and social rights of EU citizens and residents, enshrining them into EU law. In December 2009, with the entry into force of the Lisbon Treaty, the Charter was given binding legal effect equal to the Treaties. The general provisions of the Charter are applicable to children and of specific relevance to the rights of children is Article 24:
- Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
- In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
- Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.
At the time of writing the European Union is working towards EU accession to the European Convention on Human Rights. Although it contains very limited specific references to the situation of children, its provisions are consistently interpreted in line with the UN CRC. Provisions of particular relevance to unaccompanied and separated children include Article 3, Article 5 (1) and (4) and Article 8.
Article 67, 2 Treaty on the Functioning of the European Union addresses the fact that the EU shall:
“[...] frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals.”
Article 77, Treaty on the Functioning of the European Union addresses:
“(a) the common policy on visas and other short-stay residence permits;
(b) the checks to which persons crossing external borders are subject;
(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;
(d) any measure necessary for the gradual establishment of an integrated management system for external borders;
(e) the absence of any controls on persons, whatever their nationality, when crossing internal borders.”
Article 78, Treaty on the Functioning of the European Union provides that:
“Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.”
Article 79, Treaty on the Functioning of the European Union notes that:
“Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.”
Article 79(3) provides that:
“Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States.”
Article 82, Treaty on the Functioning of the European Union provides, inter alia, for the establishment of minimum rules at EU level concerning:
“(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.
Article 83, Treaty on the Functioning of the European Union inter alia provides for the establishment at EU level of “minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis” including as regards trafficking in human beings and sexual exploitation of women and children.
This section compiles the EU secondary law that is most relevant to the situation of unaccompanied children.
Under the section “related documents”, this publication identifies EU documents associated with the development, implementation or interpretation of legislative provisions relating to unaccompanied and separated children, as well as indicating cross references to the policy framework in Chapter 3 below where relevant.
- The Handbook on European law relating to asylum, borders and immigration is jointly produced by the European Court of Human Rights and the EU Fundamental Rights Agency (FRA). It examines the relevant law in the field of asylum, borders and immigration stemming from both European systems: the European Union and the Council of Europe. http://goo.gl/nrxtk7
Regulation (EU) No 610/2013 of the European Parliament and of the Council of 26 June 2013 amending Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), the Convention implementing the Schengen Agreement, Council Regulations (EC) No 1683/95 and (EC) No 539/2001 and Regulations (EC) No 767/2008 and (EC) No 810/2009 of the European Parliament and of the Council.
This regulation provides for the absence of border control of persons crossing the internal borders of the Schengen area and establishes rules governing border control of persons crossing the external borders of the EU. In relation to children, under the Schengen Borders Code Member States have obligation to include in the training curricula for border guards specialised training for detecting and dealing with situations involving vulnerable persons, such as unaccompanied minors and victims of trafficking. Annex VII, point 6 of the Schengen Borders Code provides for rules on checks carried out on minors crossing the border, either accompanied or unaccompanied. Also, Member States must nominate national contact points for consultation on minors. A list of these national contact points is made available to the Member States by the Commission. The consultation of these national contact points is mandatory for the border guards in case of a doubt.
- Report from the Commission to the European Parliament and the Council on the requirements for children crossing the external borders of the Member States, COM(2013) 567 final, http://goo.gl/XfU6JZ
- Recommendations of the Belgian EU Presidency Conference “Unaccompanied children: children crossing the external border in search of protection, December 9/10 2010, http://goo.gl/hw3hyU
Recast EU asylum legislation
The following directives have been adopted and have been, or shortly will be, transposed by all Member States, save in Denmark, Ireland and the UK. For the EU asylum directives which are applicable in these countries, please see under original EU asylum legislation below. More generally, the original Eurodac, Asylum Procedures Directive, Reception Conditions Directive referred to in (ii) below will continue until the entry of the recast instruments. The Dublin III Regulation noted below applies in all Member States from its adoption (including Ireland, the UK and Denmark).
Qualification Directive (Directive 2011/95/E he): The Qualification Directive establishes common grounds to grant international protection. Its provisions also foresee a series of rights on protection from refoulement, residence permits, travel documents, access to employment, access to education, social welfare, healthcare, access to accommodation, access to integration facilities, as well as specific provisions for children and vulnerable persons.
Asylum Procedures Directive (Directive 2013/32/EU): The Asylum Procedures Directive establishes common standards of safeguards and guarantees to access a fair and efficient asylum procedure. It creates a coherent system, which ensures that asylum decisions are made more efficiently and more fairly and that all Member States examine applications according to common high quality standards.
Reception Conditions Directive (Directive 2013/33/EU): The Reception Conditions Directive establishes common standards of conditions of living of asylum applicants. It ensures that applicants have access to housing, food, health care and employment, as well as medical and psychological care.
Dublin Regulation (Regulation (EU) No 604/2013): The Dublin Regulation establishes the Member State responsible for the examination of the asylum application. The criteria for establishing responsibility run, in hierarchical order, from family considerations, to recent possession of visa or residence permit in a Member State, to whether the applicant has entered EU irregularly, or regularly.
Applicable to applications for international protection lodged as from 1 January 2014; applicable to any request to take charge or take back in the Dublin procedure as from 1 January 2014 (Art. 49 and Art. 41 on transitional measures). Will also apply to Norway, Iceland, Switzerland and Liechtenstein.
In relation to above regulation, note: Statement by the Council, the European Parliament and the Commission: The Council and the European Parliament invite the Commission to consider, without prejudice to its right of initiative, a revision of Article 8(4) of the Recast of the Dublin Regulation once the Court of Justice rules on case C-648/11 MA and Others vs. Secretary of State for the Home Department and at the latest by the time limits set in Article 46 of the Dublin Regulation. The European Parliament and the Council will then both exercise their legislative competences, taking into account the best interests of the child. The Commission, in a spirit of compromise and in order to ensure the immediate adoption of the proposal, accepts to consider this invitation, which it understands as being limited to these specific circumstances and not creating a precedent.
Commission Implementing Regulation (EU) No 18/2014 of 30 January 2014 amending Regulation (EC) No 1560/2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national;
Eurodac Regulation (Regulation (EU) No 603/2013): The EURODAC Regulation establishes an EU asylum fingerprint database. When someone applies for asylum, no matter where they are in the EU, their fingerprints are transmitted to the EURODAC central system. EURODAC has been operating since 2003 and has proved a very successful IT tool. Some updates were however required, in particular to reduce the delay of transmission by some Member States, to address data protection concerns and to help combat terrorism and serious crime.
Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.
Regulation EC/439/2010 of 19 May 2010 of the European Parliament and of the Council establishing a European Asylum Support Office.
- Materials from ongoing meetings of Contact Committees relating to EU asylum instruments which may be relevant to provisions on unaccompanied children or encompassing unaccompanied children. See Register of Commission expert groups and other similar entities: http://goo.gl/YeUqmd
- See activities of EASO (interviewing children, age assessment, family tracing and country of origin information) as well as FRA (guardianship) in Chapter 3 below.
Original EU asylum legislation
Directive 2005/85/EC of the Council of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326/13, 13 Dec. 2005 (Asylum Procedures Directive). Continues to apply in Ireland and the UK (not in Denmark).
Directive 2003/9/EC of the Council of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ L 31/18, 6 Feb. 2003 (Reception Conditions Directive). Continues to apply in UK (but not in Denmark or Ireland).
Directive 2004/83/EC of the Council of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304/12, 30 Sep. 2004 (Qualification Directive). Continues to apply in Ireland and the UK (not in Denmark).
Regulation EC 2725/2000 of the Council of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, OJ L 316 , 15 Dec. 2000 (Eurodac Regulation). Continues to apply in the UK (but not in Ireland or Denmark).
Directive 2011/36/EU of the European Parliament and of the Council on preventing and combatting trafficking in human beings and protecting its victims
The Directive makes explicit that the definition of trafficking in human beings covers also trafficking for forced begging, for the exploitation of criminal activities, for the removal of organs as well as for illegal adoption or forced marriages. The instrument also introduces tougher penalties for traffickers, provisions regarding the prevention of trafficking, as well as better protection of and assistance to victims. It establishes specific safeguards for children in criminal proceedings, and requires Member States to take necessary measures to provide durable solutions for unaccompanied children.
- Materials from Contact Committee Meeting as relevant to unaccompanied children under the EU Anti-Trafficking Directive. See Register of Commission expert groups and other similar entities: http://goo.gl/YeUqmd
- See activities of EU agencies in Chapter 3 below.
Additional Useful Publications:
- “Prevent. Combat. Protect”, the joint UNHCR, OHCHR, UNICEF, UNODC, ILO and UN Women commentary on selected articles of the EU Directive on preventing and combating trafficking in human beings and protecting victims.” See http://goo.gl/jDB9G6
Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities
This Directive introduces a temporary residence permit intended for victims of trafficking in human beings or, if a Member State decides to extend the scope of this Directive, to third-country nationals who have been the subject of an action to facilitate illegal immigration, to whom the residence permit offers a sufficient incentive to cooperate with the competent authorities while including certain conditions to safeguard against abuse.
Third country nationals concerned should be informed of the possibility of obtaining this residence permit and be given a period in which to reflect on their position. This should help put them in a position to reach a well-informed decision as to whether or not to cooperate with the competent authorities, which may be the police, prosecution and judicial authorities (in view of the risks this may entail), so that they cooperate freely and hence more effectively. Article 10 includes specific provisions to be applied to the children in the event that Member States elect to apply the Directive to children.
- Report from the Commission to the European Parliament and the Council of 15 October 2010 on the application of Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities [COM(2010) 493 final], http://goo.gl/CQS3rk
Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification
The Directive aims to establish common rules of law relating to the right to family reunification. It enables family members of third-country nationals residing lawfully on the territory of the European Union (EU) to join them in the Member State in which they are residing, provided they fulfil certain conditions. The objective is to protect the family unit and to facilitate the integration of nationals of non-member countries. Article 10(3) notes that if the refugee is an unaccompanied minor, the Member States shall authorise the entry and residence for the purposes of family reunification of his/her first-degree relatives in the direct ascending line without applying the conditions laid down in Article 4(2)(a) of the Directive and may authorise the entry and residence for the purposes of family reunification of his/her legal guardian or any other member of the family, where the refugee has no relatives in the direct ascending line or such relatives cannot be traced. The Directive provides that Member States may apply its general provisions in situation of family reunification between an unaccompanied minor arriving independently in the EU, with its family that is living already in the EU, for as long as they are not effectively taken into the care of the family (Article 2(f)).
- Communication from the Commission to the European Parliament and the Council of 3 April 2014 on guidance for application of Directive 2003/86/EC on the right to family reunification, COM(2014) 210 final, http://goo.gl/W2MuAT
- Commission GREEN PAPER on the right to family reunification of third-country nationals living in the European Union (Directive 2003/86/EC). See: http://goo.gl/KxvBpZ
- Report from the Commission to the European Parliament and the Council of 8 October 2008 on the application of Directive 2003/86/EC on the right to family reunification, http://goo.gl/pAmSVn
Directive 2008/115/CE of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals
This directive provides Member States with common standards and procedures for returning third-country nationals staying illegally on their territories, with certain exceptions. In all cases, Member States must respect the principle of non-refoulement and take into consideration the best interest of children
(Article 5), family life and the health of the person concerned. Article 10 contains specific provisions relating to the return of unaccompanied minors.
- Return Handbook (anticipated in 2014): This will contain common guidelines, best practice and recommendations to be used by Member States’ competent authorities when carrying out return-related activities and as a point of reference for return-related Schengen evaluations. It will refer to the EU return acquis and relevant international standards such as those developed by the European Committee for the Prevention of Torture and the UN Committee on the rights of the child General Comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration.
- Communication from the Commission to the Council and the European Parliament on EU Return Policy (COM/2014/0199 final), http://goo.gl/FDdIxf
- Return Contact Committee Workshops on Article 10 (1) and 10 (2), November 2009 and February 2010; see summaries contained in the Register of Commission expert groups and other similar entities: http://goo.gl/rkKZ5E
- European Commission, Directorate General Home, Comparative Study on Practices in the Field of Return of Minors, Home/2009/RFXX/PR/1002. See: http://goo.gl/7G5GWu
Regulation EC/862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection
This Regulation establishes common rules for the collection of Community statistics on migration by European Union (EU) countries. It concerns statistics relating to immigration to and emigration from an EU country, citizenship and country of birth of persons resident in the territories of EU countries, and administrative and judicial procedures relating to migration.
Revised Guidelines for data collection under Article 6 of Regulation No 862/2007
The revision of these guidelines enabled additional information to be gathered on a further category of unaccompanied minors, namely the residence permits granted to unaccompanied minors who are not seeking asylum and who have not been granted a residence permit as victims of human trafficking.
Unaccompanied and separated children may find themselves the victim of crimes and in some cases may find themselves in conflict with the law. A series of EU Justice legislative instruments may be relevant to their situation.
Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography
This Directive establishes provisions to protect children in general against sexual abuse, child pornography and sexual exploitation. It addresses the definition of offences, sets minimum levels for criminal penalties, and facilitates reporting, investigation and prosecution. It extends national jurisdiction to cover abuse by EU nationals abroad, gives child victims easier access to legal remedies and includes measures to prevent additional trauma from participating in criminal proceedings. Offenders will be subject to risk assessments, and have access to special intervention programmes. Information on convictions and disqualifications are to circulate more easily among criminal records, making controls more reliable. The Directive prohibits organising child sex tourism and provides for education, awareness raising and training of officials. See EU acquis document noted in Chapter 3.4 for an indication of further features of the Directive.
Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA
The purpose of the Directive is to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings. It includes several provisions on children, including Article 1.2 (best interests of the child and child-sensitive approach), Article 10 (right to be heard), Article 21 (right to protection of privacy), Article 22.4 (individual assessment of victims to identify specific protection needs), Article 23 (right to protection of victims with specific protection needs during criminal proceedings), Article 24 (right to protection of child victims during criminal proceedings).
Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order
This Directive concerns the manner in which protection for victims of crime stemming from certain protection measures adopted under the law of one Member State can be extended to another Member State in which the protection person decides to stay. Recital 15 and Article 7 address child suspects of a European protection order (needs of particularly vulnerable victims such as children).
Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings
This Directive focuses on requiring Member States to ensure that suspected or accused persons who do not speak or understand the language of the criminal proceedings concerned are provided, without delay, with interpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings. It does not contain any specific separate provisions for children but applies to child suspects.
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings
This Directive requires Member States to ensure that the information provided for under paragraph 1 shall be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons. According to Recital 26, when providing suspects or accused persons with information in accordance with this directive, competent authorities should pay particular attention to persons who cannot understand the content or meaning of the information, for example because of their youth or their mental or physical condition.
Proposal for a directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest
See EU acquis document for further information in Chapter 3.4.
Commission proposal of 27 November 2013 for a directive of the European Parliament and of the Council on procedural safeguards for children suspected or accused in criminal proceedings
This proposal aims to ensure that children have mandatory access to a lawyer at all stages (Article 6), are promptly informed about their rights (Article 4), are assisted by their parents (or another appropriate person) (Articles 5 and 15), are not questioned in public hearings (Article 14), have the right to a medical examination (Article 8) and an individual needs assessment (Article 7). It also includes provisions on deprivation of liberty, legal aid, training and data collection.
Main Internal EU Funding instruments
Regulation of the European Parliament and of the Council establishing the Asylum, Migration and Integration Fund (2014-2020)
The Regulation on the Asylum and Migration Fund brings together financial support for integration, migration, asylum and return management and addresses the needs of different target groups of third country nationals, including unaccompanied minors, in a more comprehensive and coordinated way.
Regulation EU/1382/2013 of the European Parliament and of the Council of 17 December 2013 establishing a Justice Programme for the period 2014 to 2020.
The general objective of the Programme shall be to contribute to the further development of a European area of justice based on mutual recognition and mutual trust, in particular by promoting judicial cooperation in civil and criminal matters. The specific objectives of the Programme shall include, inter alia… “(b) to support and promote judicial training, including language training on legal terminology, with a view to fostering a common legal and judicial culture; and (c) to facilitate effective access to justice for all, including to promote and support the rights of victims of crime, while respecting the rights of the defence”. The new fund consolidates a series of previous funds in the area, including the Fundamental Rights and Citizenship Programme and the Daphne III Programme.
External Funding instruments
There are a range of external funding instruments that may be of relevance to activities concerning unaccompanied children. The package of external financing instruments for 2014 to 2020 comprises seven separate regulations, including Common Implementing Rules; Instrument for Pre-Accession Assistance; European Neighbourhood Instrument; Partnership Instrument; Instrument for Stability and Peace (the former Instrument for Stability); European Instrument for Democracy and Human Rights; and the Instrument for Development Cooperation. For more information, see: http://goo.gl/2sxn50
This section lists those international law instruments, including those of the United Nations, the Council of Europe and the Hague Conference, which are of particular relevance to the application of EU law addressing the situation of unaccompanied children.
UN Convention on the Rights of the Child of 20 November 1989
The Convention comprehensively sets out universally-recognized norms and standards for the protection and promotion of children’s rights. It covers a full range of civil, political, economic, social and cultural rights. It sets out general principles, including the principle of non-discrimination, the best interests of the child, the child’s right of participation and the child’s right to life, survival and development. It also contains a range of specific rights addressing issues such as basic health and welfare, family environment and alternative care, education and leisure as well as special protection rights. All EU Member States have ratified the UN CRC.
- The implementation of the UN Convention on the Rights of the Child is monitored by the UN Committee on the Rights of the Child, composed of independent experts, who amongst other activities, issue authoritative interpretative guidance on provisions of the UN CRC, all of which can be found: http://goo.gl/XytMUZ
The most relevant of these for the situation of unaccompanied children are as follows:
General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42, and 44 para. 6):
“The Committee on the Rights of the Child has drafted this general comment to outline States parties’ obligations to develop what it has termed “general measures of implementation. … The general measures of implementation identified by the Committee and described in the present general comment are intended to promote the full enjoyment of all rights in the Convention by all children, through legislation, the establishment of coordinating and monitoring bodies - governmental and independent - comprehensive data collection, awareness-raising and training and the development and implementation of appropriate policies, services and programmes“
General Comment No. 6 (2005) CRC/GC/2005/6 on the “Treatment of Unaccompanied and Separated Children outside their country of origin”
“The objective of this general comment is to draw attention to the particularly vulnerable situation of unaccompanied and separated children; to outline the multifaceted challenges faced by States and other actors in ensuring that such children are able to access and enjoy their rights; and, to provide guidance on the protection, care and proper treatment of unaccompanied and separated children based on the entire legal framework provided by the Convention on the Rights of the Child (the “Convention”), with particular reference to the principles of non-discrimination, the best interests of the child and the right of the child to express his or her views freely.“
General Comment No. 12 (2009) on the right of the child to be heard
“The overall objective of the general comment is to support States parties in the effective implementation of article 12.” It addresses the fact that “Article 12 of the Convention establishes the right of every child to freely express her or his views, in all matters affecting her or him, and the subsequent right for those views to be given due weight, according to the child’s age and maturity. This right imposes a clear legal obligation on States parties to recognize this right and ensure its implementation by listening to the views of the child and according them due weight. This obligation requires that States parties, with respect to their particular judicial system, either directly guarantee this right, or adopt or revise laws so that this right can be fully enjoyed by the child.”
General Comment No. 13 (2011) on the right of the child to freedom from all forms of violence
“The present general comment seeks [inter alia] (a) To guide States parties in understanding their obligations under article 19 of the Convention to prohibit, prevent and respond to all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation of children, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child, including State actors;
General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)
“The main objective of this general comment is to strengthen the understanding and application of the right of children to have their best interests assessed and taken as a primary consideration or, in some cases, the paramount consideration (see paragraph 38 below). Its overall objective is to promote a real change in attitudes leading to the full respect of children as rights holders.”
UN CRC Day of General Discussion 2012: The Rights of All Children in the Context of International Migration
The purpose of the Days of General Discussion is to foster a deeper understanding of the contents and implications of the Convention as they relate to specific articles or topics. The overall objective of the 2012 DGD was to promote, at the international and national levels, the rights of all children in the context of international migration.
UN Convention Relating to the Status of Refugees 1951 and the Protocol Relating to the Status of Refugees 1967
The Convention of the Status of Refugees established an international legal framework defining who are considered to be refugees, their rights and the obligations of States in their regard.
- UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Minors Seeking Asylum, 1997. “The purpose of this note is threefold: to promote awareness of special needs of unaccompanied children and the rights reflected in the Convention on the Rights of the Child; to highlight the importance of a comprehensive approach; and to stimulate discussions in each country on how to develop principles and practices that will ensure that the needs of unaccompanied children are being met.” http://www.refworld.org/docid/3ae6b3360.html
- UNHCR Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees “The guidelines offer substantive and procedural guidance on how to carry out refugee status determination in a child sensitive manner. They highlight the specific rights and protection needs of children in asylum procedures” http://www.refworld.org/docid/4b2f4f6d2.html
- UNHCR Guidelines on Determining the Best Interests of the Child (2008) and forthcoming UNHCR/UNICEF Guidance on Determining the Best Interests of the Child in Industrialised Countries. Building on the practice of domestic child protection systems, the UNHCR Guidelines on Determining the Best Interests of the Child - BID (2008) offers guidance on how to apply the best interests’ principle in practice, and defines the three situations in which UNHCR must undertake a BID. These include the identification of the most appropriate durable solution for unaccompanied and separated refugee children, temporary care decisions for unaccompanied and separated children in certain exceptional circumstances, and decisions which may involve the separation of a child from parents against their will. http://goo.gl/uASd7V
- The 2008 Guidelines were developed largely for use in the field. The forthcoming UNHCR/UNICEF Guidance on Determining the Best Interests of the Child in Industrialised Countries is aimed primarily at policy makers, but also practitioners and the judiciary and provides direction on how the best interests principle of art. 3.1. CRC can be applied in practice when identifying durable solutions for children who are outside their country of origin or habitual residence by offering flexible approaches transforming real issues into concrete mechanism, building on elements of noteworthy practices in EU Member States and EFTA countries.
- UNHCR A Framework for the Protection of Children, 26 June 2012. The Framework applies a child protection systems approach that includes actions for duty bearers at all levels – family, community, national and international – to mitigate and respond to the protection risks children are facing. This recognizes that all actors contribute to the comprehensive protection of children. http://www.refworld.org/docid/4fe875682.html
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime
The Protocol is the first global legally binding instrument with an agreed definition on trafficking in persons, facilitating convergence in national approaches with regard to the establishment of domestic criminal offences and supporting efficient international cooperation in investigating and prosecuting trafficking in persons cases. An additional objective of the Protocol is to protect and assist the victims of trafficking in persons with full respect for their human rights.
Apart from the European Convention on Human Rights referenced in Chapter 2.1.1, several Council of Europe conventions have a direct bearing on unaccompanied and separated children, including:
- The European Social Charter (revised) 1996 (ETS No. 163) which guarantees fundamental social and economic rights of all individuals in their daily lives, including the right to health and housing;
- The European Convention on the Exercise of Children’s Rights 1996 (ETS No. 160), which provides for measures which aim to promote the rights of the children, in particular in family proceedings before judicial authorities. Among the types of family proceedings of special interest for children are those concerning custody, residence, access, questions of parentage, legitimacy, adoption, legal guardianship, administration of property of children, care procedures, removal or restriction of parental responsibilities, protection from cruel or degrading treatment and medical treatment.
- The Council of Europe Convention on Action Against Trafficking in Human Beings 2005, (ETS 197) which focuses on the protection of victims of trafficking and the safeguard of their rights. It also aims at preventing trafficking as well as prosecuting traffickers.
- The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 2007 (ETS 201) which, inter alia, establishes the various forms of sexual abuse of children as criminal offences, including such abuse committed in the home or family, with the use of force, coercion or threats. It includes preventive measures, protective provisions for victims of abuse and special procedures to protect child victims during judicial procedures.
Other activities of the Council of Europe also provide substantial impetus for national measures in the field, in particular:
- Council of Europe Guidelines on Child Friendly Justice. For further information, see: http://goo.gl/1G8TXH
- European Commissioner for Human Right highlighting violations of children’s rights. For further information, see http://goo.gl/4gI9Pq
- Activities of the committees of the Parliamentary Assembly of the Council of Europe and the Committee of Ministers, most recently, Resolution 1810 (2011) of its Parliamentary Assembly entitled ‘Unaccompanied children in Europe: issues of arrival, stay and return’, http://goo.gl/tFZSE9
- Recommendation of its Committee of Ministers to Member States on life projects for unaccompanied migrant minors (CM/Rec(2007)9) and the handbook on life projects for unaccompanied minors. http://goo.gl/dO305u
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children
The Hague Convention covers civil measures of protection concerning children, ranging from orders concerning parental responsibility and contact to public measures of protection or care, and from matters of representation to the protection of children’s property.
Addressing unaccompanied minors:
MA, BT, DA v. Secretary of State for the Home Department, case C-648/11, 06 June 2013 (preliminary ruling). Key words: transfer, Dublin II, asylum procedure, best interest.
Addressing children’s rights in the context of migration:
Family reunification directive:
European Parliament vs. Council Case C-540/03. Key words: family reunification, right to family life, right to non-discrimination.
Gerardo Ruiz Zambrano v. Office national de l’emploi (ONEm), case C-34/09, 08 March 2011. Key words: right to family life, expulsion, preliminary ruling, child of third-country national, Union citizenship.
O, S v. Maahanmuuttovirasto and Maahanmuuttovirasto v. L, joint cases C-356/11 and C-357/11 (preliminary ruling), 06 December 2012.
Key words: right to family life, Algeria, Ghana.
Addressing the situation of unaccompanied children:
Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, application
n° 13178/03, 12 October 2006. Key words: detention, separated children, return, reunification, DRC.
Rahimi v. Greece, application n° 8687/08, 05 April 2011.
Key words: detention, best interest, Afghanistan.
Housein v. Greece, application n° 71825/11, 24 October 2013.
Key words: detention, Afghanistan.
A wide range of other ECHR judgments relate to the rights of children in migration and may be relevant to the interpretation of the law relating to unaccompanied and separated children. See under Chapter 3.5.6 below: FRA, Handbook of European Law on the Rights of the Child (forthcoming 2015). The handbook, inter alia, will provide legal professionals with an accessible summary and analysis of the relevant case law of the Court of Justice of the EU, the European Court of Human Rights and the European Committee of Social Rights with the objective of improving the implementation of children’s rights in Europe.