Child migration
Rights of children in migration and mobility
Rights of children in migration and mobility
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### The right to be heard

The right to be heard is a child rights principle as defined by the [UN Convention on the Rights of the Child](/wiki/UN_Convention_on_the_Rights_of_the_Child "UN Convention on the Rights of the Child"). According to Article 12 of the convention, children have the right to express their views in all matters affecting them, and their views have to be given due weight in accordance with the age and maturity of the child. This right applies equally to children's participation in social and political matters as well as in judicial and administrative proceedings. As a general principle, the child's right to be heard reflects the concept of children's ‘agency’, viewing children not only as vulnerable persons in need of special protection, but also as informed decision makers, rights holders and active members of society.

Many children are reluctant to share information with the authorities in the country of destination due to fears that disclosing information might not be in their interest and that telling their story might lead to being returned to their country of origin. Children might have been instructed by third persons to reveal only certain parts of their story, there might be threats and fears of reprisals involved, and the child might not trust the police and local authorities will be able to protect them. A reception system that demonstrates respect and upholds the dignity of the child can achieve to foster a sense of trust in the child towards the officials and professionals whom she or he meets with. Interpreters might influence the information gathering process in asylum procedures and criminal investigations as they affect how the child's story is being understood and perceived. Inaccurate translation might compromise the child's statement, leading to decisions on the basis of incorrect information. This relates not only to the content translated but also to the style and semantic choices made by the child and how the interpreters convey the message.Crawley, Heaven, Working with Children and Young People Subject to Immigration Control, Guidelines for best practice, Second Edition, Immigration Law Practitioners’ Association, 2012\.

### Best interests’ assessment and determination

[Best interests](/wiki/Best_interests "Best interests") is defined in Article 3 of the [UN Convention on the Rights of the Child](/wiki/UN_Convention_on_the_Rights_of_the_Child "UN Convention on the Rights of the Child"), which says that “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”. Assessing the best interests of a child means to evaluate and balance “all the elements necessary to make a decision in a specific situation for a specific individual child or group of children”. The right of the child to have her or his best interests taken as a primary consideration means that the child's interests have high priority and are not just one of several considerations. The assessment is specific to the child as an individual, making it important to establish a trust\-based relationship with the child and to communicate effectively in a language that the girl or boy understands. The assessments ideally involves a multi\-disciplinary team of qualified professionals.

Risk and resilience assessments are a central component of the best interests’ determination process because they consider the context of the countries of destination and origin and also how the risks and resiliency of the child will change on the basis of any decision taken.

In transnational cases, a comprehensive best interests’ assessment and determination process considers the following:

* Establishing the child's identity and the identity of any accompanying persons and the quality of their relations
* Case assessment, including the following components:
	+ Hearing the child
	+ Assessment of the child's situation, background and needs
	+ Social situation and family assessment
	+ Gathering evidence including through forensic examinations and interviews with the child
	+ Risk and security assessments
	+ Mapping sources of support, skills, potentials and resources for empowerment
* Developing a life project
* Comprehensive child impact assessment of any potential decisions
* Identification of a durable solution
* Continued assessments during the implementation of the durable solution with due follow\-up, review and monitoring, and adjustments to the durable solution arrangements, if and as required, according to the best interests of the child

In the country of Ghana, there is a topic focused on the education comparison between migrant and non\-migrant students. It is shown that the non\-migrant students received more attention, and therefore, scored higher than the migrant students. More attention needs to be shown to the migrants just as much as its shown to all the other students. 

### Right to non\-discrimination: Status, access and jurisdiction

The Convention on the Rights of the Child affords a broad protection from discrimination and the essential and equal inalienable rights afforded to all human beings. It stipulates that States Parties shall respect and ensure the rights set forth in the convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parents' or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.[Convention on the Rights of the Child](/wiki/Convention_on_the_Rights_of_the_Child "Convention on the Rights of the Child") Article 2\.1

The rights afforded under the Convention apply to non\-national children, regardless of their immigration status or the migration status of their parents. This includes children who are visiting, refugees, children of migrant workers and undocumented children. The right to non\-discrimination entitles each child to immediate assistance and support while the situation of the child and her or his best interests are being assessed. Non\-discrimination does not imply that a child is granted an automatic permit of stay, but that a decision is taken on the basis of the [best interests](/wiki/Best_interests "Best interests")’ determination, whether a child shall be [returned](/wiki/Repatriation%23Difference_between_repatriation_and_return "Repatriation#Difference between repatriation and return") or whether the country of destination assumes jurisdiction over the child.European Commission, Tackling Multiple Discrimination: Practices, Policies and Laws, Directorate\-General for Employment, Social Affairs and Equal Opportunities, 2007\.European Union Agency for Fundamental Rights, Handbook on European Non\-discrimination Law, 2011\.

While assessing the child’s case and situation, state authorities have a responsibility to clarify which state has the jurisdiction over a child and, if required and appropriate, transfer or establish jurisdiction in the country of destination. When jurisdiction over a non\-national child remains unclear, the child risks staying in a state of uncertainty and might benefit only from temporary services and protection measures, until the child’s status is fully regularised or the child returns to the country holding jurisdiction. Common factors that affect jurisdiction include: 
* There could be a case pending at court in which the child is involved,
* Social services in another country may have been monitoring the child and her or his family;
* The child’s situation may have been under law enforcement investigations in another country, including where child trafficking is suspected;
* The child may have handed in an asylum application in another country;
* The child may be registered as a ‘missing child’ abroad.Hague Conference on Private International Law, Practical Handbook on the Operation of the 1996 Child Protection Convention, 2014\.

### Development

The rights of the child to life, survival and development is afforded under Article 6 of the Convention on the Rights of the Child. These rights are recognized by

States and are related to survival, security and health as a precondition for physical development as well as the mental, spiritual, moral, intellectual, cognitive, emotional and sociology\-cultural development of the child. This is in effort to ensure the maximum survival, growth and potential of the child.

The quality of care has a direct effect on a child's development. Promoting the child's developmental rights and needs means enabling her to grow up in her family of origin or in a family\-based or family\-like alternative care placement, wherever this is in the best interests of the child. The care arrangements and access to quality services for health and education are important when assessing the child's developmental needs.

The following factors are relevant when assessing the development needs of a child (with reference to the relevant articles under the UN Convention on the Rights of the Child):
* The right to preserve her or his identity, including nationality, name and family relations (Article 8\);
* The continuity in the child's care and upbringing, with due regard to the child's ethnic, religious, cultural and linguistic background (Article 20\);
* The right of the child to enjoy the highest attainable standard of health (Article 24\);
* The right of every child to a standard of living adequate to the child's physical, mental, spiritual, moral and social development (Article 27\);
* Access to education (Articles 28 and 29\);
* The right of the child to rest and leisure, to engage in play and recreational activities appropriate to her or his age (Article 31\).

### Access to justice

#### Children and justice in transnational cases

Children on the move sometimes are affected by or are in conflict with the law, including with cross\-border family disputes and matters of parental responsibility and contact, as asylum seekers or victims of crime and, in some cases, as children who are in conflict with the law for immigration matters or for illegal and criminal matters. Some children in conflict with the law are actually victims of crime. International and European law provide for clear standards regulating the treatment, rights and entitlement of children in contact with the judiciary, as victims, defendants or perpetrators of crime.

#### Child victims of crime

The UN Convention on the Rights of the Child prohibits the exploitation of children in any form and in any context (Articles 19, 32\-36\). Any child who is exposed to violence, exploitation or abuse can be considered a victim of crime and enjoys the correlated rights and entitlements, including access to assistance, protection and support, services for recovery and rehabilitation, access to justice, with due procedural safeguards in any related legal or administrative proceedings. Children at risk of exploitation should be identified as being at risk and referred to assistance and support in order to prevent their exploitation or any other harm.

#### Children exploited in illegal and criminal activities

An important safeguard for child victims of crime is the ‘non\-punishment clause’. It means that child victims of criminal offences, including human trafficking, are to be protected from sanctions or prosecution for acts that they committed in relation to their situation as victims. The non\-punishment clause protects children who are exploited in illegal or criminal activities and child victims of exploitation and/or trafficking who were forced to enter a country without valid travel documents.

The UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime emphasis that “children who are victims and witnesses may suffer additional hardship if mistakenly viewed as offenders when they are in fact victims and witnesses.” The Guidelines say child victims should be protected from prosecution irrespective of any form of ‘consent’ or their active involvement in an offence and irrespective of the child's age in relation to national laws defining the age of criminal liability. A child victim should be considered and treated as such “... regardless of their role in the offence or in the prosecution of the alleged offender or groups of offenders”.

The Office of the High Commissioner for Human Rights (OHCHR) Recommended Principles and Guidelines on Human Rights and Human Trafficking and the UNICEF Guidelines on the Protection of Child Victims of Trafficking reiterate the right to non\-criminalisation specifically in relation to the situation of victims of trafficking who are to be protected from criminal liability for “any criminal offence that was a direct result from being trafficked”. This provision is further strengthened by the non\-punishment clause of the 2011 EU Anti\-trafficking Directive and the Council of Europe Convention on Action against Trafficking in Human Beings, and is therefore made binding upon States Parties: “Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.” (Article 26\).

When a non\-national child is in conflict with the law and there are no indications that the child has been exploited in illegal activities or has otherwise been victimized, the same standards of juvenile justice applies to national children.

### Right to consular assistance

Children who are outside of their country of residence have a right to assistance by embassies and consular offices representing their country. Consular staff can play an important role in supporting and assisting children abroad, establishing supportive contacts and referral, and mobilizing help. Consular staff may contact central authorities or national contact points for technical advice in cases involving children. Under the 1963 [Vienna Convention on Consular Relations](/wiki/Vienna_Convention_on_Consular_Relations "Vienna Convention on Consular Relations") of the United Nations, consular functions include helping and assisting nationals of the sending state. This could involve measures to safeguard the interests of children who are nationals of the sending State within the limits imposed by the laws and regulations of the receiving State, particularly when a guardian needs to be appointed.Vienna Convention on Consular Relations Article 5e and h The authorities of the country of destination must inform the competent consular office without delay when the appointment of a guardian for a child is considered. The laws and regulations of the receiving State concerning the appointment of a guardian apply and are not affected by the information sharing with the relevant consular offices.Vienna Convention on Consular Relations Article 37b

### Migration and mobility within the European Union

All individuals, including parents, families with children and [unaccompanied children](/wiki/Unaccompanied_minor "Unaccompanied minor"), enjoy [freedom of movement within the European area](/wiki/European_Single_Market%23Free_movement_of_persons "European Single Market#Free movement of persons"). In the European area of freedom of movement, citizens of EU Member States and the EFTA States Iceland, Liechtenstein, Norway and Switzerland are entitled to enter and reside in other EU Member States for a period of up to three months without registration and are granted a permit to stay when they can demonstrate an income. The rights of children as unaccompanied migrants in the European area of freedom of movement are not explicitly defined and the related institutional responsibilities remain unclear. The way that national governments interpret and regulate the rules of freedom of movement for unaccompanied children under 18 years of age differs among the countries.European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

### Asylum

The UN [UN Refugee Convention](/wiki/Refugee_convention "Refugee convention") and its Protocol regulate the right of persons to seek international protection. Children enjoy special safeguards and have a right to have their asylum application examined individually. Child\-specific grounds of persecution need to be considered irrespective of whether the child applies alone or together with a parent or caregiver. The European Union Member States have re\-elaborated these standards for the EU context and have adopted [a series of Directives](/wiki/List_of_international_and_European_law_on_child_protection_and_migration "List of international and European law on child protection and migration") regulating the qualification and reception conditions of asylum seekers in the EU as well as asylum procedures and matters of return.


Do child-specific grounds of persecution need to be considered in asylum applications?