Children in the Migration Process – protection and respect

IOM-UNITARUNHQNYC

9-11 June 2010

Kristina Touzenis.

The International Legal FrameworkThe International Legal Framework

• The number of households, adults and children involved in all forms of global migration flow is unknown. But it is certain that youth are a high share of the flow of migrants, especially in migration to developing countries.

• The CRC protects every child, regardless of nationality or immigration status. States have obligations, outlined in the Convention, towards each and every child within their jurisdictions

CRC - basisCRC - basis

The rights of migrant children are not addressed specifically. There are nevertheless several provisions particularly relevant to migrant children, including Article 10 on family reunification, Article 36 on protection from all forms of exploitation and Article 37 on protection from torture or other cruel, inhuman or degrading treatment or punishment, and from unlawful and arbitrary deprivation of liberty

Guiding PrinciplesGuiding Principles• Article 2 – non-discrimination.

• “The Committee notes that all children who have had their asylum requests rejected but remain in the country have had their rights to health care and education provided de facto but not de jure. It is the view of the Committee that such services should be provided as a matter of principle according to the letter and spirit of articles 2 and 3 of the Convention.”

• The enjoyment of rights stipulated in the Convention are therefore not limited to children who are citizens of a State Party and must therefore, if not explicitly stated otherwise in the Convention, also be available to all children – in cluding asylum-seeking, refugee and migrant children – irrespec tive of their nationality, immigration status or statelessness.

• States have four levels of obligations when it comes to implementing human rights:

• the obligation to respect, to protect, to facilitate and to fulfil.

• In terms of international law, the obligation “to respect” requires States “to refrain from any actions which would violate any of the rights of the child under the Convention. The obligations to protect and ensure goes well beyond that of to respect, since it implies an affirmative obligation on the part of the State to take whatever measures are necessary to enable individuals to enjoy and exercise the relevant rights, including protection form third parties.

• Child’s best interests - Article 3:

• The principle of the child’s best interests, derived from article 3 of the CRC, is the second core principle applicable in all policies.

• Consideration of best interests must embrace both short and long-term considerations for the child. Any interpretation of best interests must be consistent with the spirit of the entire Convention – and in particular with its emphasis on the child as an individual with views and feelings of his or her own and the child as the subject of civil and political rights as well as special protections.

• Evolving capacity – article 5

• Using the concept of “evolving capacities” has avoided the need for the Convention to set arbitrary age limits or definitions of maturity tied to particular issues. The “evolving capacities” of the child is one of the Convention’s key concepts – an acknowledgement that children’s development towards independent adulthood must be respected and promoted throughout childhood.

• Linked to article 12

• Life and development – article 6• The child’s right to life and full development

constitute another core article of the convention. In its second paragraph, article 6 goes beyond the fundamental right to life to promote survival and development “to the maximum extent possible”.

• The concept of “development” is not just about the preparation of the child for adulthood. It is about providing optimal conditions for childhood, for the child’s life now.

• Participation – article 12• Participation is a theme that runs throughout the CRC. In one

way or another, nearly every article concerns some aspect of children’s participation in society.

• Participation takes many forms.• Since the Convention is read as a whole, and Articles 3 and 12

are considered together, it is clear that what is in the child’s best interests also depends on the child’s opinion. In the Convention, the child is given a much greater role in deciding than with a more traditional approach

• The child should therefore not be envisaged as a passive human being or allowed to be deprived of such right of intervention, unless he or she would clearly be incapable of forming his or her views

Specific RightsSpecific Rights

• All right are valid • But some are more relevant than others for

particular groups of children. • The CRC’s comprehensive standards cover

virtually every aspect of a child’s life, from health and education to social and political rights.

• Some of the standards are specific, such as the articles on juvenile justice (Arts 37 and 40), adoption (Art. 21) and family rights (Arts 5, 9 and 14.2).

• Some social welfare rights are expressly qualified by the State’s financial ability, the rights to health (Art. 24), education (Art. 28), and to an adequate standard of living (Art. 27)are progressive rights because they increase along with the State’s economic development. However, these social welfare rights are not just principles or abstract goals.

Specific protection against abuse

• An additional level of specific protection is provided in the CRC against abuse and exploitation. Children are to be protected from economic, sexual, military and all other forms of exploitation

• Article 19 of the CRC requires States to take a variety of measures – legislative, administrative, social and educational – to protect children from all forms of violence. Paragraph 2 sets out possible protective measures, acknowledging that social and educational measures, and in particular the provision of appropriate support to children and families, are relevant to the protection of the child from violence, abuse and exploitation.

• Articles 34 to 36 on exploitation must be read in conjunction with special protection and assistance obligations to be provided according to Article 20 of the Convention in order to ensure that unaccompanied and separated children are shielded from trafficking, and from sexual and other forms of exploitation, abuse and violence..

• Article 36 of the CRC establishes that States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare. Any treatment of children which amounts to exploitation is rarely due to the violation of a single right

FamilyFamily unionunion

Every child has the right to be cared for by her or his parents. According to Article 10 of the CRC, applications made by a child or her or his parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner.

Detention and Juvenile JusticeDetention and Juvenile Justice Art 37 - The article is formulated so that States have a

duty to effectively protect children from such treatment, and not only a duty to prevent State agents from vio lating the provision. Paragraph (a) of article 37 emphasizes that the absolute prohibition on torture, and cruel, inhuman or degrading treatment or punishment

Art 39 - victims

Art 40 – juvenile offenders.

GuardianGuardian

• States are required to create the underlying legal framework and take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests. Therefore, States should appoint a guardian or adviser as soon as the unaccompanied or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has perma nently left the territory and/or jurisdiction of the State in compliance with the Convention and other international obligations. The guardian should be consulted and informed regarding all actions taken in relation to the child

Health CareHealth Care

The provision for health care is found in Articles 24, 39 and for children with disabilities Article 23 of the CRC. Problems may be experienced because of language barriers and lack of awareness of services, attitudes and values of healthcare professionals, lack of resources and cultural insensitivity

Article 24 of the Convention on the Rights of the Child recognizes the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health

Working ChildrenWorking Children

ICESCR Article 10

CRC Article 32 and 31

ILO Conventions on child labour

UN Migrant Workers Convention

The CRC is the first instrument gathering civil and political rights and economic, social and cultural rights in one;

The right to education The right to an adequate standard of living The right to family life Freedom of expression

• Art 2 – non-discrimination

• Art 12 – participation

• Art 5 – evolving capacities

The Child as Active Agent

The SchoolThe School

Education is both a human right in itself and an indispensable means of realising other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and acquire the means to participate fully in their communities.

The school is also a meeting point – children will socialize with each other and migrant children may well here make some of their first contact with the country of destination

Certain aspects of education can inherently protect children: the sense of self-worth that comes from being identified as a student and a learner; the growth and development of social networks; the provision of adult supervision and access to a structured, ordered schedule. Maintaining education and its “built-in” protective components can thus provide vital continuity and support for children living through crisis. The importance of education is relevant not only in preventing abuse but also, in integration processes.

Arrival in the country of destination can be quite a shock for many children. They avoid schooling and many work illegally or drift into street activities

Such a lack of opportunities is not only a negation of basic rights but also counterproductive.

Children are at the front line in building the new social contacts necessary for successful social integration in their new countries and communities. Different countries have very different histories of migration, different expectations of incoming migrants and different policies regarding their education, employment and social inclusion.

Children often act as the “link” between society and parents

They are thus agents in building trans-nationalism

Children left behind

Positive impacts: reduced poverty level, improvement in living conditions and access to basic services – malnourishment and deceases decrease.

Further school attendance may increase with remittances and less need for children to work to sustain the household and school abandonment may decrease when income level increases

Negative impacts: severe emotional problems, caretakers have low educational level and cannot support chilren in schooling, children may feel abandoned, un-loved and lost, increase in risky behaviour and danger of being subject to abuse.

Migration of adults may create a breakdown in the social fabric which children need to grow up as responsible adults – but which is also needed in order for children not to suffer while they are children.

States should create the possibilities for children not to be separated from their parents - policies must consider the best interests of the child (CRC Art.3)

“Second Generation”

Feeling of belonging to country of destination but with another background

Often act as intermediaries between parents/“old” culture and institutions/“new culture”

Feeling of being part of the country in which born/grown up leads to empowerment and the feeling of a right to participate – may lead to conflict such empowerment and participation was not expected by the host community.

Higer crime rate Socio-economic conditions; levels of employment,

housing, schooling and eductation. Higer focus on crime committed by non-nationals in

the media Violence a desperate way of communicating when no

other voice

Conclusions Recognizing that children and young people affected

by migration are particularly vulnerable and should receive special attention;

Migration policies should be accompanied by additional and targeted investments in health, education and social protection and should be youth and family sensitive – policies must consider the best interests of the child.

Children are not only vulnerable but are also agents in fostering integration and interaction between communities – they have agency!

Young immigrants who have grown up in the country of destination want to be heard and to have a voice – positive or negative way of expressing this.

Thank you!!Thank you!!