The best interests of the child

1. The best interests of the child Johanna Schiratzki Ersta Sköndal University College 2014-08-28

2. What is a child? Autonomus and/or vulnerable?

3. HUMAN RIGHTS OF THE CHILD • 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

4. 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

5. 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

6. 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.”

7. 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.”

8. 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.”

9. 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.

10. 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. Thismayrequirepositive measures aimed at redressing a situation of real inequality.