FORMALISING RIGHTS

The Best Interests of Separated Children

in the Asylum System

BEST INTERESTS

• Article 3 of the CRC states that in all actions concerning a child his or her best interests shall be a primary consideration

• Lady Hale recognised this as a fundamental principle of international law in ZH (Tanzania) v SSHD [2011] UKSC 4

SEPARATED CHILDREN

• The content of the CRC must be applied without discrimination of any kind

• It applies to all separated children outside their country of origin

• It also recognises their specific needs

WHAT ARE BEST INTERESTS ?

• More than providing the care and protection that may be necessary for their well-being ?

• Wider than Section 1 of the Children Act 1989 ?

• Is the content of the concept informed by the other articles in the CRC?

HISTORICAL DEVELOPMENT

• 1948 Universal Declaration on Human Rights stated that children were entitled to special care and assistance

• 1966 International Covenant on Civil and Political Rights said a child has the right to the protection required by his or her status as a child

1959 DECLARTION ON THE RIGHTS OF THE CHILD

• Still characterised children as needing special safeguards and care because of their physical and mental immaturity

• As yet no recognition of children as the active bearers of rights in addition to welfare and developmental needs

1989 CONVENTION ON THE RIGHTS OF THE CHILD

• Provides children with a range of civil and political rights (Case of Neulinger and Shuruk v Switzerland, ECtHR, Application 41615/07)

• As well as cultural, economic and social rights

• A right under Article 12 to participate and

• A right to life and development

PROTECTION NEEDS

• CRC prohibits physical, mental or sexual abuse and exploitation, neglect, child trafficking, torture and ill-treatment and recruitment of child soldiers

• It also confirms a child’s right to asylum

DURABLE SOLUTIONS

• The CRC obliges the United Kingdom to find a durable solution for an asylum seeking child based on an individual assessment of his or her best interests

• See Article 16.2 of Trafficking Directive

DUAL ROLE OF ARTICLE 3

• Article 3 has both a procedural and substantive component

• These are inter-dependent and it is only when both are fully developed that a durable solution can be arrived at for the individual separated child

SUBSTANTIVE CONTENT

• Recognition of the child’s right to asylum

• Recognition of child specific persecution

• Preparation of child specific country information

PROCEDURAL CONTENT

• Access to the territory and child specific processes

• Achieving best evidence interviews• Pathway Planning• Legal representation

PROVISION OF A GUARDIAN

• Separated children lack legal capacity

• Foster carers and social workers do not have parental responsibility for them

• Need an adult to take a co-ordinating role in a very complex situation

BEST INTERESTS PROCESS

• The asylum determination process sits within a wider Best Interests Determination

• Even if a child is granted asylum a durable solution to meet the totality of his or her needs will have to be decided upon

NON ASYLUM RIGHTS

• If the child is not found to be entitled to protection under the Refugee Children – he or she may be entitled to other international protection

• And/or it may be a breach of the CRC to remove him or her from the United Kingdom

• This also requires a Best Interests Determination process

FORMAL PROCEDURES

• At present the concept of best interests is applied without any consistency

• No national body is monitoring its application to separated children outside their countries of origin

ACTIONS NEEDED

• A national system to ensure durable solutions for separated children, whether or not they are entitled to refugee status

• National procedures providing a means by which a child can participate in the process

• The sharing of responsibility between the family court and other professionals coming into contact with separated children

NADINE FINCH

• Barrister• Garden Court Chambers• 57 – 60 Lincoln’s Inn Fields• London WC2A 3LS

8th OCTOBER 2012