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FORMALISING RIGHTS

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

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FORMALISING RIGHTS

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  1. FORMALISING RIGHTS The Best Interests of Separated Children in the Asylum System

  2. 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

  3. 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

  4. 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?

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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

  10. 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

  11. SUBSTANTIVE CONTENT • Recognition of the child’s right to asylum • Recognition of child specific persecution • Preparation of child specific country information

  12. PROCEDURAL CONTENT • Access to the territory and child specific processes • Achieving best evidence interviews • Pathway Planning • Legal representation

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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

  18. NADINE FINCH • Barrister • Garden Court Chambers • 57 – 60 Lincoln’s Inn Fields • London WC2A 3LS 8th OCTOBER 2012

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