1. Respecting the Best Interests of Children in Transnational Child Protection Cases Jyothi Kanics, Advocacy & Policy Specialist Child Rights Advocacy & Education Unit, PFP 29 th January 2014

2. Role of international organisations  Awareness raising  Monitoring for evidence & accountability  Identification of noteworthy practice  Provision of technical support  Capacity building  Casework  Policy advocacy  Partnerships

3. Best Interests of Migrant Children in Europe  Background  From Principle to Policy & Practice  Key Features of a BID  Factors to Consider  Possible Durable Solutions  Related transnational initiatives

4. Background: Situation of Separated Children in Europe  Lack of…  Implementation of relevant General Measures 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  Leading to…  discrimination  lack of protection  lack of durable solutions – children “ageing out”  disappearances  irregular status  violations  exploitation

5. Background: Focus on EU policies & laws: challenges & opportunities  EU Action Plan on Unaccompanied Minors:  decision to be taken on the future of each separated child  considering obligation to trace family  explore other reintegration possibilities  solution to be in the child’s best interests  Trafficking Directive:  “EU Member States shall take the necessary measures with a view to finding a durable solution based on an individual assessment of the best interests of the child.”  Joint UN Commentary on EU Trafficking Directive  Returns Directive:  When implementing, EU Member States should take due account of the best interests of the child.  ECRE Save the Children Study including Checklist  Dublin transfers:  Recent European Court of Justice judgement  New work on Child Protection Systems & Guardianship 

6. The Best Interests Principle  Article 3.1 UN Convention on the Rights of the Child (CRC)  “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’’  This principle applies to all children (within a State’s jurisdiction), without discrimination: including to unaccompanied and separated children outside their country of origin.  It applies to actions affecting children in general as a group, such as when the State drafts legislation and policies, or allocates resources. It also applies to all actions affecting individual children.  See also new General Comment No 14 from the Committee on the Rights of the Child

7. From Principle to Policy and Practice 

8. Key Features should consider a range of solutions be holistic be multi- disciplinary ensure child participation through child-friendly procedures & proper information and support; be informed by the UN CRC be part of/or feed into a determination process that is independent with all due process safeguards demonstrate and document that the child's best interests have been a primary consideration

9. Factors to consider Safe Environment Safety normally priority; usually outweighs other factors Family and Close Relationships Child’s right to be brought up by parents a fundamental principle of international human rights law except when there are issues of safety Identity Rights and Development Rights Active Consideration of Child’s Views Inform on options and consequences Obtain child’s views, assess ability to understand implications of options; consider weight to place on child’s views

10. Possible Durable Solutions Those involved should conduct a comparison of possible (durable) solutions… and weigh possible competing rights of the child….. …. and assess which durable solution will best enable the child to exercise his/her full range of rights

11. Possible Durable Solutions

12. “Non-rights-based arguments such as those relating to general migration control, cannot override best interests considerations’’ General Comment No 6 – Committee on the Rights of the Child

13. Related transnational initiatives  UNICEF Germany-UNICEF Kosovo Office research and advocacy work related to forced repatriation to Kosovo  UNICEF NL report on Dutch return policy and forthcoming report on ERPUM  UNICEF NL project on methodology to develop child specific country of origin information  Monitoring of relevant case law – OHCHR/UNICEF study and on-going monitoring – see also RefWorld and Child Ref

14. THANK YOU! For more information, please contact: Jyothi Kanics, Advocacy & Policy Specialist, jkanics@unicef.org 