On 07 February 2020, the UN Committee on the Rights of the Child wrapped up its 83rd session. This week it published all of its adopted decisions under the OPIC – here’s what you need to know.
During the 83rd session (20 January-07 February 2020), the UN Committee on the Rights of the Child (the Committee) considered reports from six State parties, and adopted nine individual complaints under the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (OPIC), including the first decision on the merits concerning a country from Latin America.
Individual complaints adopted
In three of the individual complaints, the Committee adopted Views finding Spain had violated articles 3, 8, 12, 20 (1) of the Convention of the Rights of the Child (UNCRC) and article 6 of the OPIC concerning interim measures. These three complaints concerned unaccompanied minors migrants and the lack of recognition as a child in order to be afforded protection based exclusively on the results of medical age assessments. The identity documents proving the authors to each be under 18 years old was not taken into consideration in the age determination.
The Committee recalled that the determination of the age of a young person who claims to be a minor is of fundamental importance, as the outcome determines whether that person will be entitled to or excluded from national protection as a child. In this sense, the Committee referred to its previous jurisprudence that it is imperative that there be due process to determine a person’s age, as well as the opportunity to challenge the outcome through an appeals process. Similarly, it reaffirmed that while the age assessment procedure is under way, the person should be given the benefit of the doubt and treated as a child. The best interest of the child should be a primary consideration throughout the age determination process.
The Committee also recalled that the that identity documents presented by the young persons should be considered genuine unless there is proof to the contrary, and that age assessments should not only take into account the physical appearance of the individual. In the absence of identity documents or other appropriate evidence, “to make an informed estimate of age, the Committee recalled that States should undertake a comprehensive assessment of the child’s physical and psychological development, conducted by specialist paediatricians or other professionals who are skilled in combining different aspects of development. Such assessments should be carried out in a prompt, child-friendly, gender-sensitive and culturally appropriate manner, including interviews of children, and in a language the child understands.
The Committee further recalled that States parties should appoint a qualified legal representative and, if need be, an interpreter, for all young persons claiming to be minors, as soon as possible on arrival and free of charge. The Committee is of the view that to provide a representative for such persons during the age determination process is an essential guarantee of respect for their best interests and their right to be heard.
Finally, the Committee made concrete recommendations to prevent similar violations in the future including: to ensure that all procedures for assessing the age of young people claiming to be children are carried out in a manner consistent with the Convention. Particularly, that documents submitted by young persons are taken into consideration and that young people are assigned a guardian even if the age procedure is still pending. Similarly, they should be appointed a qualified legal representative without delay and free of charge, who can assist them during the age assessment procedure. The Committee also recommended the State to development of effective and accessible redress mechanism to review age decrees, and to provide training to immigration officers and law enforcement officials on the rights of migrant children, and, in particular, on the Committee’s General Comments no. 6, 22 and 23.
In its first adopted Views concerning a country from Latin America, the Committee found Paraguay had violated articles 3, 9 (3) and 10 (2) of the UNCRC. This complaint concerned the non-enforcement of national judicial decisions which had into account the best interest of the child to set the visiting and custody rights of the father. This deprived the child of regular and personal contact with the father during four years. The Committee considered that legal proceedings determining access rights between a child and a parent from whom he or she is separated require expeditious processing, as that the passage of time may have irreparable consequences on the relations between them. This includes the rapid implementation of decisions resulting from those procedures. In this sense, the Committee considered that the authorities had not taken the sufficient measures nor in the adequate time, to ensure the compliance with the national decisions. This is the first adopted View where the Committee finds a violation of articles 9 (3) and 10 (2) of the UNCRC.
Other decisions adopted by the Committee during its 83th session were either inadmissible: Germany (1), Finland (1) and Panama (1); or discontinued: Georgia (1) and Denmark (1). On 8 April 2020, the Committee issued a press release where it applauded Denmark’s decision to grant asylum to the mother of six Syrian refugee children living in the country thus putting the best interest of the children first, and discontinuing the case before the Committee.
Third party interventions
During its 83rd session, the Committee also published its Guidelines on Third Party Interventions, which outlines the procedure for third party interventions pursuant to Rule 23, paragraph 1, of Committee’s Rules of Procedure under the OPIC. These Guidelines precise the requirements that third party actors, such as, all other United Nations organs, other international organizations, as well as nongovernmental organizations or National Human Rights Institutions, should follow when presenting an intervention, in order for the Committee’s Working Group on communications to accept the information and documentation submitted.
Concluding observations and OPIC ratification
At the end of the 83rd session, the Committee issued its concluding observations, calling on Austria, Belarus, Hungary and Rwanda to further strengthen the fulfilment of children’s rights by ratifying the OPIC. The Committee also welcomed the progress made by Costa Rica in ratifying the OPIC in 2014, and by The State of Palestine in acceding to the OPIC in 2019.
In Belarus’ concluding observations, the Committee recalled its General Comment No. 24 (2019) on children’s rights in the child justice system, reiterating that the State party should establish a comprehensive system of child justice with specialized courts, procedures and trained judges, lawyers and law-enforcement professionals. In Rwanda’s concluding observations, it called the State Party to designate specialized judges for children in all courts and to ensure that such specialized judges, as well as prosecutors, police officers and other professionals, receive training on the provisions of the Convention. In Costa Rica’s concluding observations, the Committee also called to reinforce independent child-sensitive complaint mechanisms.
To view the Committee’s concluding observations of States reviewed in the 83rd session, as well as adopted decisions of individual communications under the OPIC, click here
Note: The Committee did not review individual communications under the OPIC during its 84th session in Samoa (2-6 March 2020).