Challenges and Progress in Ensuring the Right to Be Heard and the Best Interests of Children Seeking International Protection.

Author:Kanics, Jyothi
 
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Abstract

Societal attitudes towards children significantly limit the extent to which they are able to realize their rights and can contribute to discrimination against children. Fortunately, legislative reform as well as changes in policies and practices are slowly leading to progress for children, in line with the Convention on the Rights of the Child. Child-sensitive procedures for children seeking international protection are being developed and implemented. It is crucial that these systems be strengthened so that durable solutions for children and families are secured without discrimination and in line with the best interests of the children concerned.

Resume

Les attitudes d'une societe envers les enfants peuvent limiter considerablement leur capacite de faire valoir leurs droits et peuvent contribuer a la discrimination contre les enfants. Toutefois, des initiatives de reforme legislative ainsi que des changements en matiere de politiques et pratiques sont heureusement en voie d'aboutir a des progres pour les enfants conformement a la Convention relative aux droits de l'enfant. Des procedes sensibles aux besoins des enfants cherchant la protection internationale sont en processus d'elaboration et de mise en oeuvre. Il est essentiel de renforcer ces systemes afin que des solutions durables pour les enfants et les familles soient assurees sans discrimination et selon l'interet superieur des enfants concernes.

Introduction

The treatment of migrant children and consideration of their claims for international protection in industrialized countries are based on the provisions and implementation of international, regional, and national legal and policy frameworks. In order to understand better the gaps and biases in these frameworks and their application, which may lead to discrimination against children in accessing or receiving international protection, it is helpful to consider the historical attitudes and theoretical approaches towards children and childhood. With changes in society and developments in international human rights law, particularly since the adoption of the Convention on the Rights of the Child (CRC) (1) in 1989, it is now recognized that children are endowed with human rights and should be supported to realize those rights. Nevertheless, how do lingering concepts of childhood and family affect the realization of children's rights in practice, particularly for asylum-seeking and at-risk migrant children?

While there has been a great deal of research and advocacy on the situation of separated and unaccompanied migrant children, (2) there has been far less attention given to the rights and protection of children migrating with their families. Accompanied migrant children are often viewed simply as appendages, rather than as separate individuals, who have rights and who may have international protection needs, perhaps even a stronger claim than that of their parents. According to the guiding principles and related obligations set out in the CRC, states should allow each child to express his or her views and to take that into account when considering the best interests of the child without discrimination and with a view to ensuring the child's right to life, survival, and development. Yet while there is international law and guidelines, few states assess the cases of accompanied migrant children systematically in international protection procedures.

There is a continuing evolution of law in this field at the international, regional, and national levels. Furthermore, states have been pushed to make progress in practice based on recent jurisprudence, auditing of practice, and authoritative guidance from the Committee on the Rights of the Child, UNHCR, and others. Fortunately, some new policies and practices are emerging that seek to operationalize the best-interests principle and to ensure respect for the rights of all migrant children. Child-sensitive and child-friendly international protection procedures--for both unaccompanied and accompanied children, whether asylum-seeking or irregular--are being established and implemented. (3) It is crucial that these systems be strengthened so that outcomes for children and families are secured without discrimination and in line with the best interests of the children concerned. Such "durable solutions" would ensure that the children are able to develop into adulthood, in an environment that will meet their needs and fulfil their rights as defined by the CRC and will not put children at risk of persecution or serious harm. (4)

Children: Our Most Cherished Possession?

According to Article 1 CRC, a child is defined as "every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier." Despite this legal marker of the age of majority, it is important to bear in mind other social constructs of age that may lead to different understandings of roles and capacities as well as the reality where vulnerability may have no age limit. (5) In assessing the impact of the CRC, Save the Children expressed concern that children's needs are often subsumed within a family agenda and criticized the traditional approach that leaves children with "no voice and no power within families." (6)

It is not surprising, therefore, that law and jurisprudence often tend to reflect "confused" societal constructs of age, family relations, and attitudes towards children. (7) Our societal view and perception of children and childhood significantly limit the extent to which children are able to realize their rights, and can contribute to discrimination against children. As Thronson and others have emphasized, "Deeply ingrained ideas about children's rights, often unacknowledged and unexamined, shape the way children are perceived and treated." (8)

Discrimination against children is in part a result of historical attitudes that view children either as controlled or protected by their parents. Such attitudes stem from the time when children were viewed as "assets" to be controlled or as "wards" to be protected. (9) While this latter approach, focused on the child's welfare, may give rise to special treatment and protection, it does not signify a true appreciation of the rights of the child. Smyth also highlights this "theory gap" and philosophical criticism of child rights as contributing to the "residual ambiguity in law, policy and practice about the status of the child as rights-bearer." (10) As will be described below, this ambiguity leads to the neglect of children's rights in law and in practice. Smyth rightly stresses that it is important to be aware of this gap because it persists today and continues to inform the legal and policy framework. Therefore, it also limits the outcomes that are possible for children. On the one side of this moral theory debate are those who argue that children lack autonomy and rights and, thus, require protection and child welfare measures. On the other side, liberationists consider children as autonomous rights-holders, even if they may lack capacity to exercise their rights autonomously. (11) Children may require special assistance and supports in order to participate meaningfully in matters that may affect them. Yet a certain age does not necessarily equate to specific level of capacity or correlate with competency. (12) Moreover, even those children who can demonstrate maturity and competency may still need assistance, such as the support of a guardian ad litem in court proceedings, because as children they usually lack legal capacity.

In order to explain why immigration law does not fully recognize children as individuals with independent rights and interests, Thronson argues that debates about children's rights have largely bypassed immigration law. (13) Similarly, Bhabha asserts that the "notorious invisibility of children in international law applies to refugee law in particular-children have simply not been thought of as appropriate subjects of asylum applications or refugee status grants." (14) She further claims that migration authorities and children's rights experts are separated in silos and that this isolation has militated against the development of a child-specific refugee law regime. (15) This divergent approach can also be seen in domestic legal frameworks where child protection legislation and immigration and asylum law do not accord with each other. This also means that migration authorities rarely request or consider the opinions of child protection professionals, who are working directly with the children concerned, even when children have been placed in the care of national child-protection systems, as is the case in many European countries. (16)

Furthermore, decision-makers in the immigration and asylum system do not take the child's perspective into consideration, because "children are not expected to have a role or meaningful contribution." (17) Unfortunately, it is not only decision-makers whose attitudes limit the realization of children's rights, but even advocates and parents may not perceive the need to listen to the voices of children or may try to shield them from the asylum process, which is frequently viewed as traumatizing. (18) According to good practice standards, however, an individual assessment should be made whether it is in the child's best interests to be interviewed. Ironically, measures created to protect a child may mean that the child's story is not heard and that the child does not receive a more durable solution to his or her protection needs. For example, Lundberg found that handling officers at the Swedish Migration Board, who were afraid of re-traumatizing children, avoided talking to children and consequently failed to give due weight to the best interests of the child. (19) In this regard, models from the child protection field, such as the Barnahus or Children's House model, could provide inspiration for less adversarial and...

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