Best interests of the child - an overarching principle

Pages6-7
Returning unaccompanied children: fundamental rights considerations
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2. Best interests of the child–
an overarching principle
EU Charter of Fundamental Rights
Article 24– Rights of the child
2. In all actions relating to children, whether
taken by public authorities or private institu-
tions, the child’s best interests must be apri-
mary consideration.
The best interests of the child are the starting point
when examining the return of unaccompanied chil-
dren in an irregular situation. This horizontal prin-
ciple serves as ayardstick throughout all return-
related actions and decisions.
The best interests of the child principle is one of
the four guiding principles of the CRC (Article 3). It
is also acentral element of the rights of the child
protected by the Charter and the Treaty on Euro-
pean Union (TEU, Article 3 (3)). The Court of Justice of
the EU (CJEU) has expressly recognised the need to
respect children’s rights and requires Member States
to take due account of the CRC when implement-
ing EU law.12 It has stressed that, when authorities
make any return-related decisions, the best inter-
ests of the child must be taken into due account.13
The principle of the best interests of the child is also
mirrored in secondary EU legislation on return. The
Return Directive specif‌ies that, when implementing
this directive, Member States’ authorities must take
due account of the best interests of the child, which
must be aprimary consideration in their actions.14
When deciding on the return of an unaccompanied
child who does not have the right to stay in the EU,
immigration law enforcement authorities, the police
and other return-enforcing authorities are obliged to
give primary consideration to the child’s best inter-
ests. This requires the early involvement of child
12 CJEU, C-540/03, European Parliament v. Council of the European
Union [GC], 27 June 2006, paras. 37, 57; CJEU, C-244/06,
Dynamic Medien Vertriebs GmbH v. Avides Media AG, 14 February
2008, para. 39.
13 CJEU, C-82/16, K.A. and Others [GC], 8 May 2018, paras. 103,
107.
14 See Return Directive, Art. 5 (a) and Art. 10 (1), read together
with recital (22). These provisions have also been recalled in
the case law of the CJEU; see CJEU, C-249/13, Khaled Boudjlida
v. Préfet des Pyrénées-Atlantiques, 11 December 2014, para. 48.
protection services, who should remain engaged
during all steps of the return procedure.
As clarif‌ied by the CRC Committee, the principle of
the best interests of the child applies at two differ-
ent levels. First, it applies when making adecision
that affects an individual child. Second, the princi-
ple also obliges states to ref‌lect it in laws, policies
and practices at all levels of government.15
According to the CRC Committee and the UN Migrant
Workers Committee, the principle of the best inter-
ests of the child is not only an interpretative legal
principle: it is also asubstantive right and arule of
procedure.16 It requires EU Member States to take
proactive measures and to set up specif‌ic proce-
dures to assess the best interests of the child before
taking any decision affecting the child. The CRC
Committee recommends, in its General Comment
No. 14 on best interests of the child, that any deci-
sion concerning achild must be motivated, justi-
f‌ied and explained.17 This is particularly important
when deciding on adurable solution for the child,
as it will affect signif‌icantly the child’s future.
Various international soft law instruments offer
interpretative and operational guidance on the
assessment and determination of the best inter-
ests of the child. In addition, the United Nations High
Commissioner for Refugees (UNHCR), the United
Nations Children’s Fund (UNICEF) and the European
Asylum Support Off‌ice (EASO) developed practi-
cal guidance. Such materials are set out in Table 1.
15 UN, Committee on the Rights of the Child (CRC Committee),
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), CRC/C/GC/14, 29 May 2013, para. 15a; UN, CRC
Committee, General Comment No. 5 (2003) General measures
of implementation of the Convention on the Rights of the Child,
CRC/GC/2003/5, 27 November 2003, para. 12.
16 UN, CRC Committee, 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), CRC/C/GC/14, 29 May 2013, para. 6;
subsequently conrmed and detailed by UN, Committee on the
Protection of the Rights of All Migrant Workers and Members
of Their Families and the Committee on the Rights of the Child,
Joint general comment No. 3 (2017) of the Committee on the
Protection of the Rights of All Migrant Workers and Members of
Their Families and No. 22 (2017) of the Committee on the Rights of
the Child on the general principles regarding the human rights of
children in the context of international migration, CMW/C/GC/3-
CRC/C/GC/22, 16 November 2017, paras. 27-32.
17 UN, CRC Committee, 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), CRC/C/GC/14, 29 May 2013, para. 97.

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