The
evaluation of the best interests of the child
in
the choice between remaining in the host country and repatriation:
a
reflection based on the Convention on the Rights of the Child
by
Elena Rozzi, Save the Children Italy
1)
The principle of the “best interests of the child”
1.1) The “best interests of the child” as the general criterion in the choice between remaining in the host country and repatriation
1.2) The
indeterminacy of the concept of “best interests of the child” and
the need to define certain criteria of evaluation
1.3) The Convention on the Rights of the Child: the holistic approach
and the general principles
2) Certain rights that are
particularly significant in the choice between remaining in the host country
and repatriation
2.1) The right to life and protection: situations “at risk”
and situations “not at risk”
2.2) The right to family unity
2.3) The economic and social rights
2.4) The contradiction between the right to family unity and economic
and social rights
2.5) The right to participation
2.6) The right to parental guidance and the evaluation of the opinion of
the parents
2.7) The right to
maintain one's own cultural identity, and, implicitly, to live in one's country
of origin
3)
The application of the criteria for the choice between remaining in the host
country and repatriation: some examples
3.1) The case of Italy
3.1.1)
Responsibility: the Committee for Foreign Minors
3.1.2) The criteria adopted by the Committee for Foreign Minors
3.1.3) Some results of the return projects in Albania
3.2) Case studies
3.2.1) The case of A.
3.2.2) The case of M.
4)
Conclusions
1) The principle of the “best interests of the child”
1.1) The “best interests of the child” as the general
criterion in the choice between remaining in the host country and repatriation
The choice of whether the separated child should be repatriated or stay
in the host country is an extremely complex and delicate question. In
particular, the question requires even greater reflection in the case of
children who are not asylum seekers or refugees.
On the basis of the Convention on the Rights of the Child, the general
criterion which must guide this choice (like all actions regarding children) is
the principle of the “best interests of the child”, on the basis of
which “In all actions concerning children, whether undertaken by public
or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primary consideration.” (Convention on the Rights of the Child, art. 3).
Consequently, the decision whether the child should remain in the host
country or be repatriated should be taken on the basis of what is considered,
case by case, to correspond to the best interests of each single child.
All other considerations, e.g. the control of clandestine immigration,
should be secondary compared with the “best interests of the
child”.
In this sense, the Resolution of the Council of the European Union on
unaccompanied minors who are nationals of third countries (June 1997) is not
fully consistent with the Convention, seeing that even if it includes minimum
guarantees, it states that the child should be repatriated whenever possible,
without referring specifically to the principle of the best interests of the
child[1]:
“[...] Whereas the unauthorized presence in the territory of Member
States of unaccompanied minors who are not regarded as refugees must be
temporary, with Member States endeavouring to cooperate among themselves and with
the third countries of origin to return the minor to his country of origin or
to a third country prepared to accept him, without jeopardizing his safety, in
order to find, whenever possible, the persons responsible for the minor, and to
reunite him with such persons; [...]” (preamble).
The European Council Resolution is to be seen more within the framework
of norms aiming to regulate clandestine immigration than that of the protection
of children: the “matters of common interest” quoted in the
preamble, which account for the adoption of a measure on the European level,
refer firstly to the need “to combat unauthorized immigration and
residence by nationals of third countries on the territory of Member
States” and only secondly, and far less incisively, to the protection of
unaccompanied children.[2]
Having established, then, that the general criterion should be the
principle of the “best interests of the child”, it is necessary to
solve the problem of what the expression “best interests of the
child” means exactly, and how they are to be evaluated.
1.2) The indeterminacy of the concept of “best interests of the
child” and the need to define certain criteria of evaluation
The concept of “best interests of the child” is extremely
wide-ranging and vague, it is not defined by rigid criteria, such as to allow
us to bear in mind all the particularities of each single child: "It is
clear that the criterion of "the interests of the child" cannot lead
to the creation of stereotypes that are valid for all situations, seeing that
they are closely linked to the peculiar nature of each specific case; they must
necessarily be subject to change in time, on the basis of the special
requirements and maturity of a concrete historical and sociological reality
(for example, the situation of a child in an industrialised society, where the
requirements of autonomy are greater and more widely felt, is one thing, but
the situation in a more traditional society, where primary relationships are
very much alive and present, is quite another); they must undoubtedly be
evaluated in relation to the age of the subject (a sixteen-year-old boy's
interests are completely different from those of an infant); they are closely
connected with the past situation of the child, the way he or she has reacted
to it, and the links that have been created [...], they can without doubt be
linked with the characteristics of individual personalities, the aspirations
and qualities of the subject, and the resources that he or she may dispose
of."[3]
As a result of this broad range of application and vagueness, the notion
of “best interests of the child” has been widely criticised. It is
sometimes claimed that the best interests of the child constitute a vague,
indeterminate concept which may open the way, at the moment of their
interpretation, to ideologically marked positions and theories, thus becoming a
"magic notion" (Carbonier); or else that the concept of the best
interests of the child "risks turning into an empty tautology, a mere
external embellishment of the argument. It has contributed, in its own way, to
the considerable (and sometimes rather dangerous) enlargement of the sphere of
discretionality of juvenile court judges" (Dogliotti); this concept is
still criticised for "having fulfilled up to now a kind of buffer
function; a sort of discretional passepartout, in the name of which contrasting
decisions are adopted daily […], based on subjectivism and
discretionality" (Dosi).[4]
But other scholars answer this criticism by defending the value of the
concept of the best interests of the child: "Nobody can deny that the
concept of "the interests of the child” is vague, and that its
meaning has not been clearly defined once and for all by the legislator: but
this is simply the necessary price to pay whenever - as the law requires - we
desire to bring the judges' decisions into line with the achievement of better
living conditions, not for a generic type of child, but for specific children
for whom decisions have to be adopted, with their unique personalities, their
real requirements, their different levels of maturity, their individual
resources, their experience and their own capacity for establishing
relationships" (Moro)[5].
If, then, we accept the idea of the best interests of the child, with
all its vagueness, as the instrument which can best guarantees the
implementation of the rights of the child, the problem arises of the need to
define certain criteria on which to base the evaluation of these interests:
"Criticising the concept of the child's interests (...) without trying to
develop better criteria, even if they are not binding, for the interpretation
of the real contents of these interests in the individual legal cases –
is to my mind a culturally and socially harmful operation (...). There is a different,
and real problem of trying to reduce the risks of arbitrary, misleading
interpretations of the principle of the best interests of the child, thus
radically overcoming the dangers of connections between the interpretation and
ideological prejudices or highly personal visions of life which influence, with
a certain frequency, the judges' determination of the best interests of the
child in specific cases".[6]
This necessity becomes even more important if we consider not only the
decisions of the magistrates, but also those of the administrative bodies,
which play a fundamental role in the experience of an unaccompanied foreign
child, and which, on the basis of art. 3 of the Convention on the Rights of the
Child, are likewise to ground their decisions on an evaluation of the best
interests of the child.
While magistrates are (at least in theory and tendentially) not
influenced by political orientations, the administrative bodies, who are
responsible for issuing residence permits, for children's assistance, and in
some countries, for the choice between repatriation and remaining in the host
country, are strongly influenced by their political orientation.
Furthermore, while juvenile court judges are sensitive, in view of their
training and their task, to the logic of the “best interests of the
child”, the administrative bodies, on the contrary, especially those that
are directed by the Ministry for Home Affairs, inevitably respond also to other
kinds of logic, in particular to that of the fight against clandestine
immigration. This leads to a considerable increase in the risks of "ideological prejudices that
influence the determination of the best interests of the child in specific
cases".
While it is important, therefore, in general to establish interpretative
criteria that can guide the evaluation of the interests of the child, this is
even more necessary in the case of foreign children.
1.3) The Convention on the Rights of the Child: the holistic approach
and the general principles
In order to establish criteria of interpretation that can guide us in
the evaluation of the best interests of the child, we shall have to refer to
the general principles governing the rights of children, as laid down by the
Constitution and by the law in each country, and, in particular, by the
Convention on the Rights of the Child, which represents the normative framework
as regards the rights of children.
Let us try, then, to analyse, in the light of the Convention on the
Rights of the Child, which criteria should be taken into consideration in the
evaluation of the best interests of the child, in the choice between remaining
in the host country and repatriation.
In the interpretation of the Convention, we will follow the
interpretations and the indications supplied by the Committee for the Rights of
the Child, the United Nations Committee based in Geneva that has the task of
monitoring the implmentation of the Convention.
In the Implementation Handbook for the Convention on the Rights of the
Child published by UNICEF, we read: “The Working Group drafting the
Convention did not discuss any further definition of “best
interests”, and the Committee on the Rights of the Child has not as yet
attempted to propose criteria by which the best interests of the child should
be judged in general or in relation to particular circumstances, apart from
emphasizing that the general values and principles of the Convention should be
applied to the context in question. The Committee has repeatedly stressed that
the Convention should be considered as a whole and has emphasized its
interrelationships, in particular between those articles it has elevated to the
status of general principles (articles 2,3,6 and 12). Thus, the principles of
non-discrimination, maximum survival and development, and respect for the views
of the child must all be relevant to determining what the best interests of a
child are in a particular situation, as well as to determining the best
interests of children as a group. And consideration of best interests must
embrace both short- and long-term considerations of 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 […]
The Committee has stressed that the principle should be applied along with the
other general principles in all those instances in which the Convention does
not set a precise standard.”[7]
A first fundamental indication provided by the Committee on the Rights
of the Child as regards the interpretation of the Convention is that “the
Convention is indivisible and its articles are interrelated”: the
interpretation of the rights of the child, then, must be based on a
“holistic”, overall approach; there is no hierarchy among the
rights that it lays down, such that the guarantee of a particular right should
prevail over the guarantee of the others.
Secondly, the Committee for the Rights of the Child has identified four
principles as underlying or general principles, which have a significance in
the consideration of all the other rights laid down by the Convention.
These principles are:
·
the right to non-discrimination:
“States Parties shall respect and ensure the rights set forth in the
present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child's or his or her parent's
or legal guardian's race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability, birth or
other status.” (art. 2)[8];
·
the principle of the best interests
of the child (art. 3);
·
the right to maximum survival and
development: “States Parties shall ensure to the maximum extent possible
the survival and development of the child.” (art. 6);
·
the right to participation:
“States Parties shall assure to the child who is capable of forming his
or her own views the right to express those views freely in all matters
affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child.” (art. 12).
These four principles are (according to the interpretation that the
Geneva Committee provides) closely interconnected. In particular, as indicated
by the Committee, the principle of the best interests of the child must be
interpreted “in the light of” the other three principles,
considering them as underlying principles “by means of which” the
best interests of the child are to be evaluated: “the principles of
non-discrimination, maximum survival and development, and respect for the views
of the child must all be relevant to determining what the best interests of a
child are in a particular situation”.
The evaluation of the best interests of the child, then, cannot be
separated from a consideration of the opportunities to exercise the right to
maximum survival and development, the right to participation and the right to
non-discrimination.
The maximum protection of the rights of the child is achieved, of
course, when all the rights laid down in the Convention on the Rights of the
Child are successfully guaranteed. However, in real situations, it often
happens that the respect of a specific right implies the lack of respect of
another right.
On the basis of the two above-quoted indications of the Committee about
the correct interpretation of the Convention, in these cases it will be
necessary:
·
to evaluate in the specific
situation which solution best corresponds to the interests of the child, trying
to achieve an optimal balance between the various rights in question:
considering a particular right (for example, the right to family unity) as the
supreme right to which all other rights are always to be subordinated is not a
correct application of the Convention;
·
always to consider the other three
general principles in the evaluation of the best interests of the child: the
right to maximum survival and development, the right to non-discrimination, and
the right to participation.
2) Certain rights that are particularly significant in the choice
between remaining in the host country and repatriation
Having established these initial fundamental indications, we may
consider which of the rights laid down by the Convention on the Rights of the
Child are particularly significant in the choice between staying in the host
country and repatriation.
We may subdivide these rights into six groups:
1.
the right to life and to protection
from abandonment and violence;
2.
the right to family unity;
3.
the economic and social rights, that
is to say, the right to a standard of living adequate for the child’s
development, the right to health, to education, to leisure, etc.;
4.
the right to participation;
5.
the right to receive guidance from
one's own family in the exercise of the rights recognized by CRC;
6.
the right to maintain one's cultural
identity, and implicitly, to live in one's country of origin.
2.1) The right to life and protection: situations “at
risk” and situations “not at risk”
The Convention on the Rights of the Child establishes that the child has
the right:
·
to life and maximum survival (art.
6);
·
to protection in cases where the
child has no family (art. 20 and 22): “A child temporarily or permanently
deprived of his or her family environment, or in whose own best interests
cannot be allowed to remain in that environment, shall be entitled to special
protection and assistance provided by the State.” (art. 20); “ In
cases where no parents or other members of the family can be found, the child
shall be accorded the same protection as any other child permanently or
temporarily deprived of his or her family environment for any reason, as set
forth in the present Convention.” (art. 22);
·
to protection from violence, abuse,
and negligence (art. 19); if parents maltreat or neglect a child, the State may
decide to separate the child from his or her parents, in the best interest of
the child: “States Parties shall ensure that a child shall not be
separated from his or her parents against their will, except when competent
authorities subject to judicial review determine, in accordance with applicable
law and procedures, that such separation is necessary for the best interest of
the child. Such determination may
be necessary in a particular case such as one involving abuse or neglect of the
child by the parents […]” (art. 9);
·
to protection from economic
exploitation (art. 32), from sexual exploitation (art. 34), from all other
forms of exploitation (art. 36), and from sale and trafficking (art. 35);
·
to protection from torture and
deprivation of liberty (art. 37) and from direct involvement in armed conflicts
(art. 38).
As regards separated children, we can make an initial fundamental
distinction between:
·
situations “at risk”,
that is to say, situations in which if the child were repatriated, he would be
exposed to the risk of persecution, involvement in conflicts, abandonment or
maltreatment and abuse, implying a violation of the rights to life and
protection;
·
situations “not at
risk”, in which repatriation would not involve these risks.
In situations “at risk”, although the decision cannot be
defined by rigid criteria, seeing that it must always be based on an evaluation
of the specific case and a holistic approach to the rights of the child, we can
state that in general, and tendentially, it is more likely to correspond to the
best interests of the child if he or she remains in the host country rather
than being repatriated.
Firstly, let us consider situations in which there are no members of the
family or authorities in the country of origin who are willing to accept
responsibility for the child following repatriation. In these cases, in
accordance with articles 20 and 22 of the Convention, the State is obliged to
adopt measures to protect the child, and therefore in general cannot order his
or her repatriation.[9]
Consistently with this, the Resolution of the Council of the European
Union on unaccompanied minors who are nationals of third countries, establishes
that: “1. Where a minor is not allowed to prolong his stay in a Member
State, the Member State concerned may only return the minor to his country of
origin or a third country prepared to accept him, if on arrival therein -
depending on his needs in the light of age and degree of independence - adequate
reception and care are available. This can be provided by parents or other
adults who take care of the child, or by governmental or non-governmental
bodies. 2. As long as return under these conditions is not possible, Member
States should in principle make it possible for the minor to remain in their
territory.” (Resolution of the Council of the European Union on
unaccompanied minors, art. 5).
Secondly, there are situations in which the repatriated child would be
exposed to the risk of persecution, involvement in conflicts, etc.
The norms that regulate the prohibition of expulsion (the principle of
non-refoulement) laid down by the Convention of the United Nations relating to
the status of refugees of 1951, also apply to repatriation: “No Contracting
State shall expel or return ("refouler") a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a
particular social group or political opinion.” (UN Convention relating to
the status of refugees, art. 33).
This limitation is underlined also by the Resolution of the Council of
the European Union on unaccompanied minors: “In any case, a minor may not
be returned to a third country where this return would be contrary to the
Convention relating to the status of refugees, the European Convention on Human
Rights and Fundamental Freedoms or the Convention against Torture and other
Cruel, Inhuman or Degrading treatment or Punishment or the Convention on the
Rights of the Child, without prejudice to any reservations which Member States
may have tabled when ratifying it, or the Protocols to these
Conventions.” (Resolution of the Council of the European Union on
unaccompanied minors, art. 5.4)
A child should not be repatriated also if he or she comes from a country
that is affected by conflict, natural disasters or other particularly serious
events that can be dangerous for the child.
Lastly, there are situations in which the investigations in the country
of origin reveal that the parents are guilty of abuse and maltreatment of the
child, or are responsible for negligence, or for selling the child.
In these cases, which are dealt with in art. 9 of the Convention on the
Rights of the Child, the national laws regarding limitations or loss of
parental authority must be applied: consequently, in these situations,
repatriation can generally not be imposed for the purposes of reuniting the
child with parents who have lost their parental authority.[10]
In situations “not at risk”, on the contrary, in which
repatriation does not involve a violation of the child's rights to life and to
protection, the evaluation becomes more complicated.
For these situations, there are no specific norms regarding repatriation
(as there are, on the contrary, in cases where there are no members of the
family or authorities of the country of origin who are prepared to accept
responsibility for the child), or norms that can be applied by analogy (as in
cases of a risk of persecution).
Nevertheless, the choice of criteria to be used is not left to the
discretionality of the body responsible for deciding between repatriation and
remaining in the host country, seeing that this body will in all cases have to
apply the Convention on the Rights of the Child, and must make reference, in
order to evaluate the best interests of the child, to the rights laid down in
it, adopting a holistic approach and bearing in mind the three other general
principles of non-discrimination, participation, and maximum survival and
development.
2.2) The right to family unity
The right of the child to live in his or her own family of origin, which
should provide for his maintenance and education, and favour his development,
is a fundamental right of the child, and is one of the rights by means of which
the general principle of the child's right to development is achieved.
·
“Convinced that the family, as
the fundamental group of society and the natural environment for the growth and
well-being of all its members and particularly children, should be afforded the
necessary protection and assistance so that it can fully assume its
responsibilities within the community; Recognizing that the child, for the full
and harmonious development of his or her personality, should grow up in a
family environment, in an atmosphere of happiness, love and understanding,
[…]” (Convention on the Rights of the Child, preamble);
·
“The child shall be registered
immediately after birth and shall have the right from birth to a name, the
right to acquire a nationality and, as far as possible, the right to know and
be cared for by his or her parents.” (art. 7);
·
“States Parties undertake to
respect the right of the child to preserve his or her identity, including
nationality, name and family relations as recognized by law without unlawful
interference.” (art. 8);
·
“ States Parties shall ensure
that a child shall not be separated from his or her parents against their will,
except when competent authorities subject to judicial review determine, in accordance
with applicable law and procedures, that such separation is necessary for the
best interests of the child.” (art. 9);
·
“ In accordance with the
obligation of States Parties under article 9, paragraph 1, applications by a
child or his or her 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.” (art. 10);
·
“ States Parties shall use
their best efforts to ensure recognition of the principle that both parents
have common responsibilities for the upbringing and development of the child.
Parents or, as the case may be, legal guardians, have the primary
responsibility for the upbringing and development of the child. The best
interests of the child will be their basic concern.” (art. 18);
·
“ For this purpose, States
Parties shall provide, as they consider appropriate, co-operation in any
efforts by the United Nations and other competent intergovernmental
organizations or non-governmental organizations co-operating with the United
Nations to protect and assist such a child and to trace the parents or other
members of the family of any refugee child in order to obtain information
necessary for reunification with his or her family. In cases where no parents
or other members of the family can be found, the child shall be accorded the
same protection as any other child permanently or temporarily deprived of his
or her family environment for any reason, as set forth in the present
Convention.” (art. 22.2);
·
“ The parent(s) or others
responsible for the child have the primary responsibility to secure, within
their abilities and financial capacities, the conditions of living necessary
for the child's development.” (art. 27.2)
On the basis of the general principle of non-discrimination, laid down
in art. 2 of the Convention, the child's right to family unity must be
respected without any discrimination.
In particular, in the case of separated children, it is clear that the
conditions of poverty of the family may become a factor that entails the
separation of the child from his or her family, implying a discrimination of
these children with respect to the right to family unity. It is the duty of the
State to take steps in order to remove this discrimination, and support the
family so that they are able to provide for the maintenance and the development
of the child:
·
“For the purpose of
guaranteeing and promoting the rights set forth in the present Convention,
States Parties shall render appropriate assistance to parents and legal
guardians in the performance of their child-rearing responsibilities and shall
ensure the development of institutions, facilities and services for the care of
children.” (art. 18.2);
·
“States Parties, in accordance
with national conditions and within their means, shall take appropriate
measures to assist parents and others responsible for the child to implement
this right and shall in case of need provide material assistance and support
programmes, particularly with regard to nutrition, clothing and housing.”
(art. 27.3)
In the interpretation of the right to family unity, lastly, it is
necessary to bear in mind, as general principles, the principle of the best
interests of the child, and the child's right to participation: living together
with his or her family is a right
of the child, not a duty, and the implementation of this right must always tend
towards the best interests of the child, and cannot be separated from a
consideration of the child's opinion, in accordance with his or her age and
maturity. “It should, however, be noted that family reunification should
not be used as a justification for acting against the child's best interests.
Children may not wish to be reunited with their family or the family may refuse
them (for example if they have to return to the country of origin). As article
9 provides, separation from families may be necessary in the child's best
interests.”[11]
“The point at which this right [that is to say, the right of the
child to be brought up by his or her parents, as laid down by art. 7 of the
Convention] becomes most problematic is perhaps when children themselves decide
that they would rather not be cared for by parents, although parents and State
do not support this. Among the many thousands of homeless children in all
countries, there are those who fall into this category – children who
have, in effect, voted with their feet. States need flexible, child-centred
procedures where runaway children are concerned. Any automatic return of such
children to parents without investigation of the reasons why they ran away and
without provision of alternative measures of care, for example, is in conflict
with the provisions and principles of the Convention”.[12]
“The child's right not to be separated from parents against their
will […] The words “against their will” refer either to the
parents' will or to the parents' and the child's will together.”[13]
2.3) The economic and social rights
If the child's right to maximum survival and development is to be
guaranteed, a series of other rights must be guaranteed, which in turn are laid
down by the Convention on the Rights of the Child, including[14]:
·
the right to an adequate standard of
living: “States Parties recognize the right of every child to a standard
of living adequate for the child's physical, mental, spiritual, moral and
social development.” (art. 27);
·
the right to health: “ States
Parties recognize 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. States Parties shall strive to ensure that no child
is deprived of his or her right of access to such health care services.”
(art. 24);
·
the right to education:
“States Parties recognize the right of the child to education and with a
view to achieving this right progressively and on the basis of equal
opportunity, they shall, in particular: (a) Make primary education compulsory
and available free to all; (b) Encourage the development of different forms of
secondary education, including general and vocational education, make them
available and accessible to every child [...]” (art. 28);
·
the right to social security:
“States Parties shall recognize for every child the right to benefit from
social security, including social insurance” (art. 26);
·
the right to lesisure: “States
Parties recognize the right of the child to rest and leisure, to engage in play
and recreational activities […].” (art. 31);
·
the right to protection from
economic exploitation: “States Parties recognize the right of the child
to be protected from economic exploitation and from performing any work that is
likely to be hazardous or to interfere with the child's education, or to be
harmful to the child's health or physical, mental, spiritual, moral or social
development.” (art. 32)[15]
In the Implementation Handbook for the Convention on the Rights of the
Child we read: “The Committee on the Rights of the Child has emphasized
that it sees child development as a holistic concept, embracing the whole
Convention. In the Guidelines for Periodic Reports, it asks States to describe
measures taken ‘to create an environment conducive to ensuring to the
maximum extent possible the survival and development of the child, including
physical, mental, spiritual, moral, psychological and social development
[…]’. Many of the obligations of the Convention, including in
particular those related to health, adequate standard of living, education, and
leisure and play (articles 24, 27, 28, 29 and 31) are relevant to ensuring the
maximum development of the child.”[16];
“Article 27 recognizes that such development cannot be divorced from the
child's living conditions. By listing the different components of full
development –physical, mental, spiritual, moral and social –
article 27 makes it clear that an adequate standard of living is not just
limited to the basics of food, clothing and housing, important though these
are.”[17]
The implementation of these rights – which may be defined as
“economic and social rights” – largely depends on the
economic and social context in which the child lives: “[The Convention on
the Rights of the Child] has also recognised a series of social rights, that is
to say, the rights to education, to work, to health, to social security, to
leisure, to protection from all forms of exploitation [...]. Social rights are
those rights which can be applied not only in cases of their violation by a
specific subject, but also, or rather above all, with respect to a community
organised as a State and its various territorial components. These rights are
connected with fundamental needs of the personality, which may not be
respected, not because a specific subject fails in the task of respecting them,
but because particular situations may make it difficult to enjoy them to the
full. While the classic rights of civil freedom are rooted in the concept of
“natural freedom”, social rights find their theoretical
justification in the different concept of “liberation” from certain
forms of deprivation, and therefore they have the purpose of creating an
effective synthesis between freedom and equality, ensuring identical
opportunities for everybody, and thus an equality that is no longer formal, but
substantial.”[18]
On the basis of the general principle of non-discrimination, also
economic and social rights must be guaranteed for all children who fall under
the State’s jurisdiction, without any discrimination. This implies that
in the consideration of the economic and social conditions in the original
environment, different “standards” cannot be adopted: in other
words, it cannot be considered “normal” that a minor from the
mountains of Albania or Morocco should have a much lower standard of living,
limited opportunities of health assistance, education, etc.
This does not mean that the host country should guarantee, on the basis
of the Convention, to “all Third World children” a standard of
living equal to that of its own citizens, seeing that this obligation exists
only for children who fall under the jurisdiction of the State, and therefore
only for children who are on its territory.
2.4) The contradiction between the right to family unity and economic
and social rights
In the case of
separated children coming from very poor environments, there is a clear
contradiction between the right to family unity and economic and social rights
(the right to a standard of living adequate for the child’s development,
the rights to health, to education, to social security, to leisure, to
protection from economic exploitation, etc.).
In these cases, because of the gap between the poverty of the country of
origin and the well-being of the European host country, the economic and social
rights will generally be more respected if the minor remains in the host
country, rather than being repatriated. But this involves the permanent
separation of the child from his or her family, and therefore a violation of
the child's right to family unity. Unless the family, in turn, emigrates to the
host country: the reunification of the family can be achieved either in the
country of origin or in the host country, and we would like to recall that art.
10 of the Convention states that: “ applications by a child or his or her
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”.
If, however, the family stays in the country of origin, there is a clear
contradiction between different rights laid down by the Convention: if the
minor stays in the host country, his or her economic and social rights will be
better guaranteed, but the right to family unity will be violated; vice versa,
if the minor is repatriated, his or her right to family unity will be
respected, but the economic and social rights will be guaranteed much less.
This contradiction, deriving from the marked inequality between rich
countries and poor countries, cannot be solved simplistically, by regularly
assigning the priority to the right to familt unity or to the economic and
social rights: it is to be faced in all its complexity, always maintaining a
holistic approach to the consideration of the rights of the child, and bearing
in mind the three principles of non-discrimination, participation, and maximum
survival and development.
In order to evaluate the interests of the child in the choice between
staying in the host country or repatriation, then, it will be necessary to take
into consideration not only his or her right to family unity, but also the
opportunities to exercise the economic and social rights: consequently, it will
be necessary to consider the opportunities of health assistance, education,
training, work, social security, etc. that are available in the country of
origin and in the host country.
Vice versa, remaining in the host country cannot be considered to always
correspond to the best interests of the child (on the basis of the
consideration that the opportunities of well-being, health assistance,
education, etc. are greater than in the country of origin), but the child's
right to family unity should also be taken into consideration.
The assessment must be made case by case (on the basis of the child's
age and maturity, the child's will, the family's will, the economic and social
conditions of the country of origin, the possibilities of integration into the
host country, etc.) whether for the individual child it is better to be
reunited with his or her family and live in a poorer country, surrounded by the
affection of his or her family, or to live separated from his or her family,
but in a context which offers greater opportunities of well-being, health
assistance, education, work, etc.
Of course, the age and maturity of the child are crucial factors in the
consideration of the relative importance to be assigned respectively to the
right to family unity and the opportunity to exercise the economic and social
rights. With respect to the level of maturity, it will also be necessary to
bear in mind the different socio-cultural models of transition to adulthood and
the different conceptions of adolescence: the importance of living with one's
own family compared, for example, with the opportunity to work, is very
different for a child who comes from a country where boys start working at the
age of 12, and at the age of 14 they already feel grown-up, with the responsibility
of having to contribute to the supporting the family, with respect to a child
who lives in a country where boys live at home with their parents, and are
maintained by them up to the age of 30.
The need to consider the sense of autonomy of children is also
underlined in the Implementation Handbook for the Convention on the Rights of
the Child: “Today, most projects offering assistance to "street
children" take a more considered and careful approach, looking both at the children's need to maintain
relationships with their families and communities, and at the children's own
sense of independence and self-reliance. Such projects increasingly advocate
and support the principles of the Convention, which uphold children's autonomy
as individuals and their civil rights (such as in articles 5, 12-16, 19, 29 and 32) and those
which support the child's family (articles 5, 9, 18, 26, 27 and 30)”.[19]
The fundamental factors at the basis of the contradiction between the
child's right to family unity and the economic and social rights are the
conditions of poverty of the family and of the wider context of the origins of
the child.
With respect to the
conditions of poverty of the family, the
Convention on the Rights of the Child recognises the possibility that
the parents may not have sufficient economic resources to guarantee the
standard of living adequate for the child’s development: “The
parent(s) or others responsible for the child have the primary responsibility
to secure, within their abilities and financial capacities, the conditions of
living necessary for the child's development.” (art. 27, co. 2)
In cases where parents do not possess the means to provide for the
maintenance and the development of the child, the State must supply them with
assistance and support (Convention on the Rights of the Child, art. 18. 2 and
art. 27.3).
Here, too, however, the Convention on the Rights of the Child recognises
the possibility that the State may not dispose of sufficient resources to
respect this duty:
·
“States Parties shall
undertake all appropriate legislative, administrative and other measures for
the implementation of the rights recognized in the present Convention. With
regard to economic, social and cultural rights, States Parties shall undertake
such measures to the maximum extent of their available resources and, where
needed, within the framework of international co-operation.” (art. 4);
·
“States Parties, in
accordance with national conditions and within their means, shall take appropriate measures to assist parents and others
responsible for the child to implement this right and shall in case of need
provide material assistance and support programmes, particularly with regard to
nutrition, clothing and housing.” (art. 27. 3).
The impossibility for the family to guarantee the adequate standard of
living for the child's development, and the failure of the child's State of
origin to take action, or the insufficient nature of such action, to support
the family – a problem that is particularly widespread in poor countries
– determine the conditions, in many cases, which lead the child to leave
his or her family to go and look for a job and better living conditions in
another country.
Some States’ laws – such as Italian law – establish
that the conditions of poverty of the parents cannot be an obstacle to the
child's exercise of the right to live with his or her own family, and that the
State should provide support to the family. It is interesting to note that
these measures represent an extremely important step forward for the respect of
the rights of Italian children, but they risk turning into a
“boomerang” for separated children. The indigent Italian family,
which belongs to a rich society like the Italian one, will receive support from
the State, in order to succeed in providing adequately for the minor, who will
thus have his or her right to live with the family protected, independently of
the economic and social conditions of the family itself.
For separated children, on the contrary, these norms are referred to in
order to support the idea that economic conditions should not be considered in
the choice between repatriation and remaining in Italy: the conditions of
poverty cannot be a reason for the child to remain in Italy, separated from his
or her parents.
This position, however, does not take into consideration the fact that
these families live in poor countries, and that in general, therefore, they do
not succeed in obtaining sufficient economic support from their State; and
above all, it ignores the fact that it is the more general conditions of the
country that hinder a satisfactory level of life and opportunities of
development.
These more general conditions cannot be modified significantly or in a
brief period of time, either by possible measures of support granted by the
Italian State to families, or by vocational training courses financed by Italy
in the countries of origin, or by projects of community development carried out
within the framework of international cooperation: processes of development require
long periods of time, and depend on extremely complex factors which are only
marginally influenced by international cooperation.
This does not absolutely mean that for all children coming from poor
countries it in their best interests to remain in the host country: the
economic and social rights should be only one
of the criteria considered, along with the other criteria such as the right to
family unity, the opinion of the child, the opinion of the parents etc.
2.5) The right to participation
The right to participation, or in other words, the child’s right
to express his or her views freely in all matters affecting him or her, and
that those views are given due weight in accordance with the age and maturity
of the child (art. 12) is one of the four general principles of the Convention
on the Rights of the Child, and is of particular significance in the question
of the criteria of evaluation of the best interests of the child, in the choice
between remaining in the host country and repatriation.
“The Committee on the Rights of Child asserted early on the status
of article 12 as a general principle of fundamental importance relevant to all
aspects of implementation of the Convention of the Rights of the Child and to
the interpretation of all other articles.
[…] The Committee has constantly underlined that the child must be
considered to be an active subject possessing rights. […]”.[20]
As we have already seen, the Committee for the Rights of the Child
establishes a close connection betweem the principle of the best interests of
the child and the right to participation. This close connection is shown also
by the fact that “When originally introduced during the drafting of the
Convention on the Rights of Child, the proposal that children should have a right
to be heard in judicial and administrative proceedings was linked to the best
interests principle […] but it was then moved to take a more logical
place with the overall participation principle in what was to become article
12”.[21]
Only if the best interests of the child are evaluated while guaranteeing
the child's right to participation (and also, as we shall see in the next
section, that of his parents) it is possible to overcome a paternalistic
conception of this idea, and to allow it to truly become an instrument to
guarantee the rights of the child:
“In order to succeed in truly identifying the interests of the
child (going beyond the stereotypes and the ever-present temptations of
omnipotence of the judge) it is also necessary that the whole legal procedure
should not be inquisitorial in character, but should allow a truly complete
discussion between the parties. [...] It it important to ensure the
participation, not merely on the formal level, of all the parties interested in
the procedural debate, because this alone will allow truths to emerge from the
discussion, which might otherwise not transpire, and a judgement to be formed
in a less approximate and unilateral manner, as to what the best interests of
the child may be in that situation. [...] It should also be underlined that
when the expression 'the participation of the parties' is used, this does not
refer only to adult parties: the child must also be present in all the
proceedings, with the chance to make his or her voice heard, and to have his or
her observations and requests taken into consideration. He or she will have the
chance, if sufficiently mature, to be listened to, and to express freely his or
her own evaluation of the situation and expectations; the minor should,
however, be represented in the discussion by an adult figure capable of
following the development of the procedure, intervening to point out what
really corresponds to the best interests of the child, and if necessary
impugning a sentence that, in the name of the interests of the child, in
reality secretly protects the interests of adults, or fails to appreciate, or
tramples down, the fundamental interests of the weak subject.”[22]
The right to participation must be applied in every legal or
administrative procedure, including those that refer to immigration: “The
principles of article 12(1) and (2) should be applied in all immigration
procedures including asylum-seeking, in relation to articles 10 and 22”.[23]
In the procedure of choosing between remaining in the host country and
repatriation, then, in order to respect the child's right to participation
fully, he or she must not only be questioned about his or her preference
between repatriation and staying in the host country, but his or her will must
be taken into consideration by the deciding body (in accordance with the
child's age and maturity) for the purposes of evaluating which solution most
corresponds to his or her best interests.
This does not mean that the child’s consent is always necessary
for a repatriation order, seeing that the right to participation is not the
same thing as the right to self-determination: “the rights of the child
set out in the two paragraphs of article 12 do not in themselves amount to a
right to self-determination, but to involvement in decision-making.”[24]
There may undoubtedly be situations in which the body responsible for
deciding between remaining in the host country and repatriation will conclude
that a particular choice is in the best interests of the child, even if the
latter disagrees: e.g. for some children who are involved with criminal
networks in the host country, for whom repatriation means being separated from
these networks, this solution may well be in the best interests of the child,
even if he or she is totally opposed to repatriation.
2.6) The right to parental guidance and the evaluation of the opinion
of the parents
In deciding whether it is in the best interests of the child to be
repatriated or to stay in the host country, due consideration must be given to
the opinions expressed on the subject by the parents or other relatives.
Firstly, the will of the parents will undoubtedly be considered in the
evaluation of the interests of the minor, seeing that what they believe to be
best for their child, the responsibilities that they assign to him or her, and
their expectations are aspects that have a crucial importance for the child
from the psychological point of view, and the formation of his or her identity.
Secondly, a consideration of the will of the parents corresponds to a
concrete implementation of art. 5 of the Convention on the Rights of the Child,
on the basis of which “States Parties shall respect the responsibilities,
rights and duties of parents or, where applicable, the members of the extended
family or community as provided for by local custom, legal guardians or other
persons legally responsible for the child, to provide, in a manner consistent
with the evolving capacities of the child, appropriate direction and guidance
in the exercise by the child of the rights recognized in the present
Convention.”
The problem arises here, of course, of the violation of the laws on
immigration: that is to say, the parent must give the child guidance for the
legitimate exercise of the rights recognised by the Convention, while if the
parent encourages the child to emigrate clandestinely, thus inciting the child
to violate the law, this orientation cannot be considered as included among the
parent's rights and duties guaranteed by Art. 5.
Leaving aside this question here, which would open up an extremely
complex problem, let us consider not the parent's advice to emigrate
clandestinely, but only the opinion that is in favour of the child's permanence
in the host country rather than repatriation, a situation which, following the
issue of a residence permit (for asylum seekers or for minors), is not a
violation of the law.
This distinction, which may appear to be artificial, on the contrary has
a foundation of reality in many cases: many boys decide to emigrate
autonomously, and are not encouraged at all by their parents, who, indeed,
initially oppose their idea; however, once the child is in the host country,
these same parents almost always say that they prefer that their child should
stay there, and not be repatriated.
One crucial question to be faced is whether the fact that the parents
express their preference for the child to remain in the host country
corresponds to a correct exercise of their parental authority, or whether, on
the contrary, they are failing to perform their duties. In the former case, the
parents' will should be taken into consideration in the evaluation of the
choice between repatriation and staying in the host country; in the latter
case, instead, two hypotheses are possible: either the decision is taken not to
give importance to the parents' will, and to repatriate the minor, in contrast
with the preferences expressed by the parents; or, in more serious cases, in
which parents refuse to take the child back into their home, it will have to be
sentenced that they have lost their parental authority.
The problem is particularly important in cases of very poor families,
who live in situations which offer the child very little opportunity for
education, work, assistance, etc.: in these cases, can it be considered a
correct exercise of parental authority if parents prefer their child to stay in
the host country?
Let us try to examine this question, once again in the light of the
Convention on the Rights of the Child.
Parents have the duty of providing for the maintenance, upbringing and
education of the child and his or her development: in general, then, if they do
not provide for this, they fail in the duties connected with their parental
authority:
·
“ States Parties undertake to
ensure the child such protection and care as is necessary for his or her
well-being, taking into account the rights and duties of his or her parents,
legal guardians, or other individuals legally responsible for him or her, and,
to this end, shall take all appropriate legislative and administrative
measures.” (art. 3.2);
·
“States Parties shall use
their best efforts to ensure recognition of the principle that both parents
have common responsibilities for the upbringing and development of the child.
Parents or, as the case may be, legal guardians, have the primary
responsibility for the upbringing and development of the child. The best
interests of the child will be their basic concern.” (art. 18);
·
“ The parent(s) or others
responsible for the child have the primary responsibility to secure, within
their abilities and financial capacities, the conditions of living necessary
for the child's development. (art. 27. 2);
As we have already seen, however, the Convention on the Rights of the
Child expressly recognises the possibility that the parents may not succeed in
guaranteeing the necessary conditions for the child's development (art. 27. 2).
In these cases, the State should step in to support the family. But,
once again, the Convention recognises the possibility that the State may not
dispose of sufficient resources to respect this duty (art. 4 and art. 27. 3).
What happens, then, in cases in which parents do not have the
“abilities and financial capacities” to provide for the maintenance
and the development of the child, but the State in which they live “in
accordance with national conditions and within [its] means” cannot
provide them with the necessary assistance and support to assure for the child
“a standard of living adequate for the child's physical, mental,
spiritual, moral and social development”?
As seen above, the Convention on the Rights of the Child expresses
states that “The States Parties respect the responsibility, the right and
the duty of parents, to give the [child], in a manner corresponding to the
development of his abilities, an orientation and appropriate advice in order to
exercise the rights that are recognised by the present Convention.” (art.
5).
Thus, in the case of very poor families who live in situations which
offer very limited opportunities of education, work, assistance, etc., it
cannot be excluded (bearing in mind the age and maturity of the child, as well
as the conditions in which the child lives in the context of immigration) that
the will expressed by the parents that their child should stay in the host
country may be considered as a correct exercise of parental authority, since
they believe that in a richer country, he or she will find it easier to achieve
the standard of living adequate for his or her physical, mental, spiritual,
moral and social development.
2.7) The right to maintain one's own cultural identity, and,
implicitly, to live in one's country of origin
The Convention on the Rights of the Child does not explicitly establish
the right to live in one's own country of origin.
This right may only be considered to be implicitly established by the
Convention, in its articles regarding the maintenance of one's nationality and
cultural identity and in the article concerning international adoptions.
Firstly, the Convention establishes the child's right to maintain his or
her cultural identity, including nationality (art. 8) and the requirement that
ethnic, religious, cultural and linguistic origin be taken into consideration
in ordering measures of protection for children separated from their family
environment (art. 20, co. 3):
·
“Taking due account of the
importance of the traditions and cultural values of each people for the
protection and harmonious development of the child,” (preamble);
·
“States Parties undertake to
respect the right of the child to preserve his or her identity, including
nationality, name and family relations as recognized by law without unlawful
interference.” (art. 8);
·
“Such care could include,
inter alia, foster placement, kafalah of Islamic law, adoption or if necessary
placement in suitable institutions for the care of children. When considering
solutions, due regard shall be paid to the desirability of continuity in a
child's upbringing and to the child's ethnic, religious, cultural and
linguistic background.” (art. 20. 3)
Of course, these rights are generally guaranteed to a greater extent if
the child is in his or her country of origin. However, this is not a necessary
condition: the two articles quoted do not establish that the child must live in
his or her country of origin, but that the State where the minor lives should
ensure that he or she can maintain his or her national, religious, cultural,
and linguistic identity.
Secondly, as regards international adoptions, the Convention establishes
that: “[States Parties] recognize that inter-country adoption may be
considered as an alternative means of child's care, if the child cannot be
placed in a foster or an adoptive family or cannot in any suitable manner be
cared for in the child's country of origin” (art. 21).
International adoptions are thus seen as the last resort, when adoption
or custody is not possible in the country of origin. This may be seen as an
implicit recognition of the child's right not to be eradicated from his country
of origin, even if the two situations (that of an international adoption and
that of children who have emigrated abroad) are different from several points
of view, in particular because in the case of children who have emigrated, the
separation from the country of origin has already taken place and it often
corresponds to a family project.
Lastly, one article which is often referred to in order to sustain that
children must live in their country of origin is art. 11, on the basis of which
“States Parties shall take measures to combat the illicit transfer and
non-return of children abroad”. This article, however, refers not to
clandestine immigration, but to the international abduction of children,
generally carried out by one of the parents, which is regulated by the
Convention on the civil aspects of international child abduction and by the
European Convention on recognition and enforcement of decisions concerning
custody of children and on restoration of custody of children: “The
article [11] is primarily concerned with parental abductions or retention […] Children may be abducted by
one of the parents and are usually not permitted to return home, even when a
previous judicial authority had already decided on the custody and place of
residence of the child, as well as on the visiting rights of the parent with
whom the child should no longer live.”[25]
The right to live in one's country of origin, then, which is only
implicitly confirmed by the Convention, will not be considered as a fundamental
criterion in the evaluation of the best interests of the child between
remaining in the host country and repatriation. It will be considered, however,
but not with the same weight as the other criteria analysed above.
In particular, the fact that the Convention does not recognise the right
to live in one's own country as a fundamental right of the child makes the
legitimacy of repatriation questionable if its finality is not the reuniting of
the family, but restitution to the authorities of the country of origin, or if
the child will not return to live permanently with his or her family.
The legitimacy of repatriation for the purpose of restitution to the
authorities of the country of origin is particularly questionable in cases
where the child is placed in a foster family or in a family-type community in
the host country, while in the country of origin he or she should be placed in
an institution (for example, Albanian legislation does not contemplate foster
placement): art. 20 of the Convention on the Rights of the Child is very clear
in establishing that the State, in providing measures of protection to the
child separated from his or her family environment, must privilege measures
that imply the recreation of a family environment (such as foster placement or
adoption), having recourse to institutions only as the last resort.
The second situation, in which the child does not return to live
pemanently with his or her family, is created, for example, in the cases of
Albanian children who come from very poor, isolated mountain areas, and who
move to a large town, after repatriation, to attend the vocational training
courses included in the repatriation project. These children live in students'
residences and go home quite seldom, given the difficulties of transport: in
these cases it is difficult to sustain that repatriation really involves the
reuniting of the family.
Both in cases of repatriation for the purposes of restitution to the
authorities of the country of origin, and in cases where the child does not
return, all the same, to live permanently with his or her family, it is
sustained that repatriation corresponds to the best interests of the child,
because in this way the right to live in one's country of origin is guaranteed.
But as mentioned above, the consideration of this right must be a criterion
which is not only balanced with other criteria (opportunities offered in the
host country and in the country of origin, opinion of the child and of his or
her parents, etc.), but it must have less weight than these, seeing that it is
not a right explicitly laid down by the Convention.
3) The application of the criteria for the choice between staying in
the host country and repatriation: some examples
3.1) The case of Italy
3.1.1) Responsibility: the Committee for Foreign Minors
In Italy the body that is responsible for deciding whether the child
should be repatriated or stay in Italy is the Committee for Foreign Minors, a
central administrative body attached to the Ministry of Labour and Welfare,
whose general function is the defense of the foreign minors’ rights.
This system surely makes easier that the decision on repatriation is
taken in the best interests of the child, compared with the countries where the
decision is taken by the Police or the by Immigration Office or by the Ministry
of Home Affairs.
But, as the Committee for Foreign Minors is an administrative body
mainly composed of Ministry workers, it is largely influenced by the
orientation of the Government. Furthermore, the members of the Committee
include not only representatives of the Ministry of Labour and Welfare, but
also of the Ministries of Home Affairs, Foreign Affairs, and Justice: these
Ministries are more inclined to favour policies of control than policies aiming
to the best interests of the child.
There is thus a considerable risk that what prevails in the decisions of
the Committee for Foreign Minors may be not so much the principle of the
“best interests of the child”, but rather a desire to control
clandestine immigration.
A second problem is that the Committee for Foreign Minors is a central
body, in Rome: this makes impossibile that the Committee listens to the
separated child about his opinion on repatriation directly, and therefore the
right to participation of the child is not fully respected.
3.1.2) The criteria adopted by the Committee for Foreign Minors
In principle, the Committee for Foreign Minors decides whether the child
should be repatriated or stay in Italy on the basis of what it considers is in
the best interests of that child. The fact that the general criterion should be
the best interests of the child, instead of the criteria established by the UN
Convention relating to the status of refugees, makes easier that the decision
on repatriation or staying is in fact taken in the best interests of the child.
This system is surely more “child-friendly” and guarantees the
children’s rights much more than in the coutries where separated children
don’t have any opportunity to stay in the hos country different from
applying for asylum.
Moreover, the Committee takes the decision on the basis of the social
report made in the country of origin by one of the NGOs that have an agreement
with the Committee (International Social Service etc.): the NGO traces the
family, arranges a meeting with the parents, and assesses if there are opportunities
of education, vocational tranining and work in the context of origin.
Then, if the Committee for Foreign Minors decides that the child should
be repatriated, the NGO should organize the return project (vocational
tranining, school enrollment etc.).
These are very positive aspects of the Italian system, that help to
carry out the objective that the choice between repatriation and staying in the
host country is really taken in the best interests of the child .
But problems arise about the more specific criteria used by the
Committee to evaluate the best interests of the child.
The present orientation of the Committee for Foreign Minors is
tendentially to consider the option of repatriation as more in line with the
best interests of the child rather than staying in Italy, in order to guarantee
the child's right to live with his or her family, or at least in the country of
origin.
In general, then, if the minor has a family in the country of origin
that is prepared to accept him back with them, or if there are authorities in
the country of origin that are prepared to accept the custody, the Committee
should order the repatriation, except in cases in which repatriation entails
serious risks for the child (this is obviously a tendential orientation, given
that the Committee must always carry out an evaluation case by case).
According to the Committee for Foreign Minors, the conditions of poverty
of the family and of the context of origin must not be considered in the
evaluation of whether it corresponds more to the best interests of the child to
be repatriated or to stay in Italy, except in very serious cases of poverty.
Furthermore, although both the child and the family must be consulted as
regards their opinion about repatriation, it seems that the Committee does not
substantially give any weight to the opposition to repatriation, either by the
child or by the family. In several cases, the children are repatriated by the
Police, against their will and against their parents’ will (some parents
menace the NGOs’ workers to kill them if the child is repatriated).
It is not clear, lastly, whether, and to what extent, the integration of
the minor into Italian society is considered.
The present orientation of the Committee for Foreign Minors does not
allow a correct evaluation of the interests of the child, in accordance with
the principles laid down by the Convention on the Rights of the Child.
Firstly, the decision to consider the right to family unity and the
right to live in one's own country as the supreme rights to which all the other
rights are substantially to be subordinated does not correspond to the
indications supplied by the Committee for the Rights of the Child, on the basis
of which the interpretation of the rights of the child must be based on a
“holistic”, overall approach, seeing that no hierarchy exists in
the rights that are laid down in it, such that the respect of one right should
always prevail over that of the others.
Secondly, the affirmation that conditions of poverty in the country of
origin, the opportunities available for children and the conditions of
integration into the host country should not be taken into consideration (apart
from exceptional cases) goes against the indications of the Committee on the
Rights of the Child, according to which the evaluation of the interests of the
child must also consider, as a general principle, the right to the maximum
survival and development, and therefore also the opportunities to exercise the
economic and social rights (the right to a standard of living adequate for the
child’s development, the rights to health, education, etc.).
Furthermore, a failure to give due consideration to the opinion of the
child as regards repatriation is a serious violation of the child's right to
participation, which is a general principle of fundamental importance in the
Convention.
A failure to consider the parents' opinion is not consistent with the
right of the child to receive guidance from his or her family in the exercice
of the rights recognized by the Convention.
Lastly, though implicitly present in the Convention, the right to live
in one's own country is not explicitly mentioned, and cannot therefore be
considered as a fundamental criterion in the same way as the other rights
explicitly laid down by the Convention.
|
54 |
255 |
At the beginning of 2001 only 98 of the 256 repatriated children were still in Albania, while 155 children had emigrated again.
Some of the
children repatriated during 1998 and 1999 were repatriated two or three times.
|
106 |
68% |
|
|
19 |
12% |
|
|
12 |
8% |
|
|
2 |
1% |
|
|
1 |
1% |
|
|
1 |
1% |
|
|
1 |
1% |
|
|
1 |
1% |
|
|
12 |
8% |
|
|
155 |
100% |
3.2) Case studies
3.2.1) The case of A.
A. is a 16-year-old Albanian boy, who comes from a mountain village in the
area of Diber, one of the poorest areas of Albania. His family is composed of
his father, his mother and five brothers all younger than him. They possess one
hectare of land, which they cultivate by traditional techniques, and two cows.
A.'s father works on their small plot of land, and occasionally finds jobs as a
bricklayer; his mother is a housewife.
A. started to help his father in his work in the fields and as an
assistant-bricklayer at the age of 12. He went to school until the age of 14;
then, having finished his compulsory education, he stopped going to school,
because he would have had to attend a secondary school in the main town, two
hours away on foot, and if he wanted to attend a training course, he would have
had to move to Tirana, and he didn't have enough money to pay for the course
and for accommodation in Tirana. A. would like to work, in order to make a
contribution to the family balance, as is normal for a 15-year-old boy in
Diber; but in the area of Diber, there is no work.
Many of his friends left for Italy. Some came back during their summer
holidays, and told him about their experiences in Italy: they went to school,
they took vocational training courses, they found a job, and they succeeded in
sending some money home to their family.
A. could not see any future for himself in Diber, and decided to leave
for Italy. His parents gave their consent, although they were afraid of the
risks of the journey; they sold one of their two cows, and took out a loan to
pay for the journey. A. took the rubber dinghy, paid 700 euros for the
crossing, and landed on the Italian coast.
In Italy, A. was accommodated in a reception centre, and was enrolled in
a school. After a few months, he chose to follow a vocational training course
as a mechanic. At the end of the course, he was taken on by an artisan as an
apprentice mechanic: he started to earn 800 euros a month, and succeeded in
sending half of this to his parents.
In the meantime, the Committee for Foreign Minors asked the
International Social Service to carry out an investigation on the family in
Albania. The ISS workers contacted the family, which did not present any
particular problems: there were no cases of abuse, alcoholism, or problems with
the law; furthermore, although they were a very poor family, they were not
starving.
A:'s parents explained the reasons that had led him to leave for Italy
and said that they were definitely opposed to his return to Diber, because he
could not go to school there, and there was no work, and they wanted him to
find a future for himself in Italy. However, they confirmed that they were
prepared to accept him back if he should be repatriated.
The ISS also assessed the possibilities of a project of assisted
repatriation, evaluating the opportunities of education, training and work that
were available: there are no secondary schools in the area, or vocational
training centres, or firms that can offer a job.
The Committee for Foreign Minors asked the social services of the
Italian town where A. was living to explain to him what “assisted
repatriation” means, and to ask him if he preferred to stay in Italy or
to go back to Albania. A. answered that he was totally opposed to the idea of
going back to Albania; he wanted to stay in Italy, to study and find a job and
help his family. The social workers explained to him that if he accepted
repatriation, he could attend a vocational training course in Albania and
receive some limited economic support: A. answered that what was missing in
Albania was a job, and that financial support was of no use to him.
The Committee for Foreign Minors evaluated the social investigations
carried out by the ISS: as the family did not present any particular problems
and repatriation would not involve any risks for the child, they ordered him to
be repatriated.
A. was picked up by the Italian police and taken to the airport, where
he was put on a plane for Tirana. At Tirana, he was met by an ISS worker, who
accompanied him home.
A. felt that he was a loser. He refused to attend the vocational
training course at Tirana proposed by the ISS, and started helping his father
in his work in the fields again.
One month later, he took another rubber dinghy and returned to Italy.
Did the Committee for Foreign Minors take a decision in A.'s “best
interests”?
On the basis of the above reflections, the Committee should have borne
in mind not only the fact that A. would not run any risks if he was
repatriated, and that repatriation would allow the family to be reunited, but
also a series of other aspects:
·
A. was totally opposed to
repatriation (so much so that this had to be performed by the police);
·
A.'s family also expressed their
refusal of repatriation, even if they confirmed that they were ready to accept
him back;
·
A. said that he wanted to study and
find a job, so as to help to support his family; at Diber, however, there was
no possibility of education or vocational training, and consequently A. would
be forced to move to Tirana, far away from his parents; what's more, both at
Diber and at Tirana, the work opprtunities are very limited;
·
In Italy A. was able to attend a
school, and a vocational training course, and find a job that he liked, which
allowed him to send some money home to his family.
If these factors had been considered as well, the decision would
probably have been taken that it was in A.'s “best interests” to
stay in Italy rather than being repatriated.
3.2.2) The case of M.
M. is a 14-year-old Moroccan boy, who comes from the town of Khouribga.
He has got two brothers; his father is unemployed, and his mother is a
housewife.
Many of M.'s friends left for Italy, and some came back during their
summer holidays, narrating that they had gone to school, they had taken a
training course, and that they were now working. Thus M. decided to leave. At
the beginning, his parents opposed his decision, but then they gave their
consent.
Thus M. gave up the final year of primary school, and left for Italy.
In Italy, he was given hospitality at the house of a distant uncle of
his, who, however, asked him to pay for his board and lodging. As a result, M.
started to sell paper handkerchiefs and cigarette lighters as a street hawker,
to earn some money.
Life in Italy was very hard for M.: he had to stand out in the street
all day, in the middle of the traffic; furthermore, he was often approached by
older boys who offered him a “job” as a drug-pusher.
M. felt homesick, but did not want to go back because he would feel he
was a loser, a “sissy” who couldn't cope by himself.
In the meantime, the Committee for Foreign Minors had started its
investigations, and the social workers working for ISS in Morocco made contact
with M.'s family. After hearing about the conditions in which their son was
living, the parents said they would be happy if M. was repatriated; he could
then finish primary school, and then follow a training course, maybe as a
bricklayer, seeing that one of his father's brothers has a small building firm,
where M. could carry out his apprenticeship.
The social workers in Italy asked M. if he agreed to the idea of going
back home, but M. refused: he wanted to stay in Italy at all costs, and did not
want to go back. The social workers explained to him that in Khouribga he would
be able to attend a training course, and that in a few years, he might be able
to come back to Italy as an adult. M. continued to refuse.
The Committee for Foreign Minors ordered his repatriation. In the end,
M. accepted repatriation, albeit with highly mixed feelings. He was accompanied
home.
In the months following his
repatriation, M.'s parents enrolled him in the last year of primary school.
Subsequently, M. attended a training course for bricklayers, financed by the
repatriation project, and after this he carried out his apprenticeship with his
uncle.
In this case, repatriation was probably the solution that was most in
line with M.'s “best interests”.
4) Conclusions
In conclusion, then, the evaluation of the best interests of the child
between remaining in the host country and repatriation, in conformity with the
principles of the Convention on the Rights of the Child, must be based on a
consideration of the rights outlined by the Convention itself, following a
holistic approach and bearing in mind the three general principles of the right
to life and development, non-discrimination and participation.
A series of criteria should thus be considered, including:
·
the risks that repatriation may
involve for the child (right to life and protection from abandonment and
violence);
·
the opportunities of reuniting the
family in the country of origin (right to family unity);
·
the socio-economic conditions and
the opportunities available to the minor in the country of origin and in the
host country (economic and social rights);
·
the will of the child (right to
participation);
·
the will of his or her family (right
to receive guidance from one's own family);
·
the age and maturity of the child.
As we have seen, these different criteria are partly in conflict, in the
sense that satisfying one of these rights may involve the violation of another
one: in particular, there may be a conflict between the right to family unity
and the economic and social rights.
It must be assessed case by case (on the basis of the age and maturity
of the minor, the will of the minor and of his or her family, and the
opportunities available to him or her in the original situation and in the host
country) which solution represents the optimal balance between the various
rights in question, in order to achieve the “best interests of the
child”.
The adoption of the general criterion of the “best interests of
the child” and of these more specific criteria implies important
consequences from the procedural point of view: if these criteria are to be
fully respected, it will be necessary:
1. that the responsibility for deciding between repatriation and
remaining in the host country be assigned to a body whose composition,
functions and organization are such as to allow them to adopt, as their
fundamental criterion, the “best interests of the child”, instead of
other requirements such as the control of clandestine immigration, and to
respect the child’s right to participation: this body must therefore
·
have as its fundamental function the
defense and promotion of children’s rights;
·
be independent from the government:
above all, it must not include among its members representatives of the
Ministry for Home Affairs or the Ministry for Foreign Affairs;
·
have local branches, in order to
listen directly to the child about his opinion on repatriation or staying.
2. that children have the real possibility of freely expressing their
own opinions, as regards their preference between staying in the host country
or repatriation, their reasons for emigrating, their projects, their experience
in the host country, and the conditions un der which they would go back to
their home country.
The social workers who interview the child must not have any interest
(in particular of an economic nature) either in favouring or in hindering
repatriation[27], and they
must be adequately trained in listening to children, and in particular to
foreign children.
The child's opinions must be listened to directly or referred in detail
to the body responsible for deciding between repatriation and remaining in the
host country, so that they become a real element in the decision-making.
3. that a rapid, detailed social investigation be carried out in the
country of origin, in order to:
·
trace the family and contact them,
so as to understand the reasons for the child's emigration and the opinion of
the members of the family as regards the choice between staying in the host
country and repatriation, and to evaluate the family situation;
·
verify that repatriation does not
involve any risks for the child (risks of persecution, abandonment, abuse,
etc.);
·
evaluate the economic and social
conditions and the opportunities of education, training, work, health
assistance, etc. at the disposal of the child in his or her context of origin.
All these elements must be referred in full detail to the body
responsible for deciding between repatriation and remaining in the host
country, so that they become a real element in the decision-making.
4. that a social report be compiled on the conditions of integration of
the child into the host country (kind of accommodation; school, training, work;
psychological conditions, etc.).
The report should be compiled by social workers who are in contact with
the child (workers in the reception centres, teachers, etc.) and should be sent
to the body responsible for deciding between repatriation and remaining in the
host country, so that it becomes a real element in the decision-making.
5. the decision between repatriation or staying in the host country is
to be taken speedily, so as not to leave the child in a state of uncertainty
which may have serious consequences for his or her process of development.
[1] The
Resolution limits itself to recalling the principle of the “best
interests of the child” as a general principle laid down by the
Convention on the Rights of the Child, but it does not make any explicit
reference to it in the parts in which it speaks specifically of repatriation.
[2] “Having
regard to the Treaty on European Union, and in particular Article K.1 thereof,
Whereas, pursuant to Article K.1 (3) (a), (b) and (c) of the Treaty, the conditions
of entry of, and residence by, nationals of third countries on the territory of
Member States and measures to combat unauthorized immigration and residence by
nationals of third countries on the territory of Member States constitute
matters of common interest; Whereas Article K.1 (1) of the Treaty provides that
asylum policy is to be regarded as a matter of common interest for the Member
States; Whereas third-country
minors sometimes enter and stay in the territory of Member States without being
accompanied by a responsible person and without obtaining the necessary
authorization; Whereas unaccompanied minors who are nationals of third
countries can be the victims of facilitators, and it is important for Member
States to cooperate in combating such form of facilitating; Whereas
unaccompanied minors who are nationals of third countries generally are in a
vulnerable situation requiring special safeguards and care; Whereas recognition
of the vulnerable situation of unaccompanied minors in the territory of Member
States justifies the laying down of common principles for dealing with such
situations;” (Resolution of the Council of the European Union on
unaccompanied minors who are nationals of third countries, preamble)
[3] A. C. Moro, Diritti del minore e
nozione di interesse, in Cittadini in crescita 2-3/2000.
[4] M. Dogliotti, Che cosa è l'interesse del minore, in "Il diritto di famiglia e delle persone", 1992; G. Dosi, Dall'interesse ai diritti del minore: alcune riflessioni, in "Il diritto di famiglia e delle persone", 1995.
[5] A. C. Moro, Diritti del minore e
nozione di interesse, in Cittadini in crescita 2-3/2000.
[6] A. C. Moro, Diritti del minore e
nozione di interesse, in Cittadini in crescita 2-3/2000.
[7] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 40.
[8] “Art. 2 underlines that all the rights
laid down by the Convention on the Rights of the Child must be applied to all
the children present in the State, including […] those who are there
illegally”: UNICEF, Implementation Handbook for the Convention on the
Rights of the Child, Ginevra, 1998, p. 26.
[9] The legitimacy of repatriation which is not
ordered for the purpose of reuniting the family, but to entrust the child to
the authorities of his or her country of origin is discussed below (par. 2.7).
[10] On the contrary, the problem arises of whether
repatriation can be ordered for the purpose of entrusting the child to the
authorities of his or her country of origin: the question is discussed below
(par. 2.7.).
[11] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 287.
[12] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 107.
[13] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 121.
[14] The articles reported here are only the most
significant for the question of the choice between staying in the host country
and repatriation: it is clear that this list does not include exhaustively all
the rights that must be satisfied in order to fully guarantee the right to
maximum survival and development.
[15] The right to be protected from
economic exploitation is included among the economic and social rights as well
as among the rights of protection, privileging here a consideration of the
context of poverty which often gives rise to the exploitation of children's
work, compared with the consideration of the responsibility of those who
exploit them (in the following quotation, by Moro, we find the same
interpretation).
[16] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 94.
[17] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 355-6.
[18] A. C. Moro, Diritti del minore e
nozione di interesse, in Cittadini in crescita 2-3/2000.
[19] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 263.
[20] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 145.
[21] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 150.
[22] A. C. Moro, Diritti del minore e nozione di interesse, in Cittadini in crescita 2-3/2000.
[23] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 163.
[24] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 145.
[25] UNICEF,
Implementation Handbook for the Convention on the Rights of the Child, Ginevra,
1998, p. 139.
[26] Servizio Sociale Internazionale Sezione italiana, Istituto
Psicanalitico per le Ricerche Sociali, I minori albanesi non accompagnati
– Una ricerca coordinata fra Italia e Albania, Roma,
2001, pp. 35-51. The
report was funded by the Italian Department for Social Affairs.
[27] In Italy, for example, as the costs of
accommodation of foreign minors are charged to Communes, Commune workers may
tend to favour a reduction in the number of foreign children that receive
hospitality, and consequently to favour repatriation; vice versa, as the
reception centres receive subsidies for each child accommodated, the workers in
these centres may tend to discourage repatriation.