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 8 th OCTOBER 2012