Judicial Colloquium in Barcelona addresses key issues of best interest of migrant children

On 8 July the Regional Office for Europe held a Judicial Colloquium on the Implementation of Article 3 of the Convention on the Rights of the Child (CRC).  The Colloqium was organized in cooperation with UNHCR and UNICEF and with the support of Save the Children, ECRE and the Supreme Court of Catalonia. Article 3 of the CRC deals with determination of the best interest of the child and the specific focus of the Colloquium was the implementation of this article with regard to the situation of migrant children, including unaccompanied and separated children, in Europe. The Colloquium brought together judges from national and regional courts in Europe in order to discuss experiences and good practices in best interest determination in specific procedures dealing with migrant children.

Seventeen distinguished judges (from Belgium, Czech Republic, France, Hungary, The Netherlands, Italy, Poland, Portugal, Spain and the UK as well as from the European Court of Human Rights) with considerable experience in the area of best interest determination participated in the event, as did Kirsten Sandberg, Member of the CRC, and representatives of the European Commission and the Fundamental Rights Agency. A jointly sponsored (OHCHR-UNICEF) consultancy research study was prepared ahead of the Colloquium, analyzing court cases at the national and regional level in Europe with relevance for best interest determination.

In his opening statement, Judge Miguel Angel Gimeno Jubero, President of the Supreme Court of Catalonia (Tribunal Superior de Justicia de Cataluña), stated: “One of the challenges of European integration is for Europe to become a place where all rights are a reality for all citizens. We have to work to harmonize and standardize the practice of justice. Because of our role in society, judges are increasingly required to think thoroughly about these issues and act accordingly. The respect of and assistance to children in the exercise of their rights is a duty of the whole community and all social institutions”.

One of the key issues discussed was that of age determination - how to decide whether a person is still a child (under 18) in contentious cases. Judge Jose Luis De Castro from the Spanish Audiencia Nacional, stressed that “it is critical to ensure legal assistance to the child from the very beginning of the process so as to fully guarantee the respect of his or her rights as it is critical that in cases of age determination, the possibility to appeal a decision is in place”.

Judge Catherine Sultan, Child Tribunal of Evry in France, referred to the difference of practices in addressing age determination not only between EU Member States but also within a single member state. “There is a need for harmonized regulations and practice at the EU level and within each of the Member States. The difference of treatment between nationals and unaccompanied children on the issue of age determination is also an issue that needs to be seriously addressed”. Also speaking about age determination, Maria Luisa Cava de Llano, Spanish Ombudsperson stated that “Medical tests for age determination pose a number of concerns to us in the Ombudsman’s Office in Spain. From a medical point of view, the existing margin of possible technical errors is simply unacceptable. From a human rights perspective, the deprivation of liberty of the presumed child being brought to the medical center by police officers to undergo age determination tests and the lack of guarantees to challenge the results and to request additional complementary tests are just some examples of the serious concerns involved in these processes”.

OHCHR Regional Representative Jan Jarab summed up the discussion on age determination as follows: "Medical and social methods of age determination should complement each other because none of them can provide absolute certainty. In some countries, medical professionals are more likely to indicate that the person is over 18, while social services tend to argue that s/he is a child. In other countries, the opposite is the case. Whenever there are contradictions between the medical and social evaluations, the individual should always be given the benefit of the doubt."

Justice Joseph Moyersoen, President of the International Association of Youth and Family Judges and Magistrates noted that there was a broad consensus among the participants that most of the gaps identified in the determination of best interest of migrant children including unaccompanied children were not due to different legal traditions, but rather due to failure to address particular concerns. It was felt that such gaps could potentially be overcome on the basis of mutual inspiration and exchange of best practices. He stressed that avenues should be found to ensure that national judges are fully aware of the concluding observations adopted by the Committee on the Rights of the Child as well as the decisions adopted by the European Court of Human Rights and European Court of Justice relevant to the subject matter.

Other key issues discussed during the colloquium were the situation of children with families, access to basic social services, including education and health, in the host country, as well as guardianship, legal aid and procedural safeguards to ensure the voices of children are heard in the proceedings and the decisions affecting them. There was a clear consensus among the judges that it is vital to prevent the (still frequent) conflict of interest on part of guardians or representatives appointed for the children, for instance when these are officials of local authorities. The guardians should not have just a formal role, but should have a clear obligation to represent the best interests of the child; all children should be provided with legal aid at the outset. It is also problematic to deprive individuals of the benefit of a guardian on the assumption that they are in fact over 18, while that question remains to be decided by the court.

The outcomes of the Colloquium will be included in a final study that will use the consultancy research as a basis. It is expected to include a series of recommendations or overall principles to contribute to the various ongoing efforts at EU level dealing with good practices in the practical implementation of Article 3 of the CRC. The study will be available on this website.

9 July 2011

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