Transcript The best interests of the child

The best interests of the child
Johanna Schiratzki
Ersta Sköndal University College
2014-08-28
What is a child?
Autonomus and/or vulnerable?
HUMAN RIGHTS OF THE CHILD
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Convention on the Rights of the Child (CRC)
Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography (CRC-OPSC)
Optional Protocol to the Convention on the Rights of the Child on the involvement
of children in armed conflict (CRC-OPAC)
Minimum Age Convention, 1973 (No. 138)
Worst Forms of Child Labour Convention, 1999 (No. 182)
Convention against Discrimination in Education
United Nations Rules for the Protection of Juveniles Deprived of their Liberty
United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(The Beijing Rules)
Guidelines for Action on Children in the Criminal Justice System
United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh
Guidelines)
Convention on Consent to Marriage, Minimum Age for Marriage and Registration
of Marriages
General comment No. 14 (2013) on the right of the
child to have his or her best interests taken as a
primary consideration (art. 3, para. 1)*.
• A substantive right
• A fundamental, interpretative legal principle
• A rule of procedure
General comment No. 14 (2013) on the right of
the child to have his or her best interests taken as a primary
consideration (art. 3, para. 1)*
• The child’s views
• The child’s identity
• Preservation of the family environment &
maintaining relations
• Care, protection and safety of the child
• Situation of vulnerability
• The child’s right to health
• The child’s right to education
The GC no 6 (2005) Treatment of
unaccompanied and separated children outside
state of origin
“1. The objective of this general comment is to draw
attention to the particularly vulnerable situation of
unaccompanied and separated children; to outline the
multifaceted challenges faced by States and other actors
in ensuring that such children are able to access and
enjoy their rights; and, to provide guidance on the
protection, care and proper treatment of unaccompanied
and separated children based on the entire legal
framework provided by the Convention on the Rights of
the Child (the “Convention”), with particular reference to
the principles of non-discrimination, the best interests of
the child and the right of the child to express his or her
views freely.”
The GC no 6 (2005) Treatment of
unaccompanied and separated children
outside state of origin
“53. Risks are also great for a child who has already been a
victim of trafficking, resulting in the status of being
unaccompanied or separated. Such children should not be
penalized and should receive assistance as victims of a serious
human rights violation. Some trafficked children may be eligible
for refugee status under the 1951 Convention, and States should
ensure that separated and unaccompanied trafficked children
who wish to seek asylum or in relation to whom there is
otherwise indication that international protection needs exist,
have access to asylum procedures. Children who are at risk of
being re-trafficked should not be returned to their country of
origin unless it is in their best interests and appropriate
measures for their protection have been taken. States should
consider complementary forms of protection for trafficked
children when return is not in their best interests.”
GC no 11 (2009) Indigenous children and
their rights under the Convention of the
right of the child
Re: Article 30 of the Convention states that “In
those States in which ethnic, religious, or
linguistic minorities or persons of indigenous
origin exist, a child belonging to such a minority
or who is indigenous shall not be denied the
right, in community with other members of his
or her group, to enjoy his or her own culture, to
profess and practise his or her own religion or to
use his or her own language.”
European Law
• MSS v. Belgium and Greece.
• Case C-648/11, MA, BT, DA [2013].
• European Union citizenship
3 months - no right to social welfare.
GC 14 The child’s best interests and
the right to non-discrimination (art. 2)
41. The right to non-discrimination is not a passive
obligation, prohibiting all forms of discrimination in the
enjoyment of rights under the Convention, but also
requires appropriate proactive measures taken by the
State to ensure effective equal opportunities for all
children to enjoy the rights under the Convention. This
may require positive measures aimed at redressing a
situation of real inequality.