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Ensuring Respect for the Best Interests of Children on the Move in Europe

Jyothi Kanics20th November 2015

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Lack of…

• implementation of the Convention on the Rights of the Child

• harmonized standards for reception and care

• procedures for listening to the child

• procedures for determining the child’s best interests

Leads to…

• discrimination

• lack of protection

• lack of durable solutions – children “ageing out”

• disappearances

• irregular status

• violations and exploitation

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CRC General Measures of Implementation

Removal of Reservations to the CRC Ratification of relevant treaties National action plans National coordination mechanisms Data collection and analysis Legislative reform

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CRC General Measures of Implementation

Awareness raising & training National Human Rights Institutions Participation of civil society International co-operation Resource allocation and budgeting Child Rights Impact Assessments

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Best Interests

of the Child

from Principle

to Practice

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A durable solution is:

a sustainable solution

that ensures that the unaccompanied or separated child is able to develop into adulthood,

in an environment which will meet his or her needs

and fulfil his or her rights as defined by the Convention on the Rights of the Child

and will not put the child at risk of persecution or serious harm.

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Features of a Best Interests Determination

• Informed by the Convention on the Rights of the Child

• Holistic (examining all rights and needs of the child)

• Ensures child’s participation

• Considers a range of solutions

• Well documented including written reasoned decision (-/+)

• Multi-disciplinary – to examine different aspects holistically

• Independent and impartial

• Due process – including right to appeal and possibility to reopen

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UNHCR ExCom Conclusion 107 on Children at Risk (2007)

Within the framework of the respective child protection systems of States, utilize appropriate procedures for the determination of the child's best interests which facilitate adequate child participation without discrimination: • where the views of the child are given due weight in

accordance with age and maturity; • where decision makers with relevant areas of expertise

are involved; • and where there is a balancing of all relevant factors in

order to assess the best option;

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Care, protection and safety of the child

Child’s views

Child’s identity

Parents’ and current caregiver’s views

Preservation of the family environment, maintaining or restoring relationships

Situation of vulnerability

Child’s right to health

Access to education

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Procedural

safeguards

ensure

the child’s

right

to be heard

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Procedural

Safeguard:

Independent

Professional

Guardian

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Procedural

Safeguard:

Quality

Legal

Assistance

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Procedural

Safeguard:

Specialised

Trained

Professionals

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Procedural

Safeguard:

Tools for:

capacity

building,

working with

children &

documenting agreeements

or decisions

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Substantive Decision-Making:Guidance

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Substantive

Decision-Making:

Country of Origin

Information

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Substantive

Decision-Making:

Credibility

Assessment

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The Role of

the Courts

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jyothi.kanics@unilu.ch