Pobjoy, 2013

PAPER NO.
27/2013
AUGUST 2013
A Child Rights Framework for Assessing the Status of

Refugee Children
Jason M Pobjoy
Further information about the University of Cambridge Faculty of Law Legal Studies
Research Paper Series can be found at http://www.law.cam.ac.uk/ssrn/
Pre-print version of chapter accepted for publication in S. Juss and C. Harvey (eds.), Contemporary Issues in
Refugee Law (Edward Elgar, 2013) 91-138. Please quote from final published version.
A child rights framework for assessing the status of refugee children

Jason M. Pobjoy
INTRODUCTION
International law has played an important role in advancing the rights of refugee
children.1 As Beth Simmonds has argued, international law provides a rights-based
framework to supplement the protective framework that has a much longer history in
many societies and a lever to give would-be advocates influence over policies likely
to have an important impact on the well-being of those who are not able to organize and
speak for themselves.2 Since the 1924 Declaration of the Rights of the Child3which
arose out of a concern about the particular problems faced by children during and
subsequent to war4the need to prioritize the protection of refugee children has been
repeatedly affirmed by the United Nations General Assembly (UNGA),5 the United
Sincere thanks to Guglielmo Verdirame, James Hathaway, John Tobin, Syd Bolton, Katie OByrne and
Alistair Fletcher for comments on earlier drafts of this chapter. All errors remain my own.
1 [A] child means every human being below the age of eighteen years unless, under the law applicable to
1 [A] child means every human being below the age of eighteen years unless, under the law applicable to
the child, majority is attained earlier: Convention on the Rights of the Child, opened for signature 20
November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (CRC), Art. 1. The masculine voice
is adopted throughout this chapter as an acknowledgment of the extraordinary influence that two
Congolese refugee childrenAime and Theophilehave had on this project and on my research
generally.
2 B.A. Simmons, Mobilizing for Human Rights (2009) 307.
3 Geneva Declaration of the Rights of the Child (adopted 26 September 1924) [1924] LN OJ Spec. Supp.
21, 43 (1924 Declaration).

4 The initial draft of the 1924 Declaration was drafted and submitted to the League of Nations in 1922 by
Eglantyne Jebb, an English schoolteacher and co-founder of the Save the Children International Union.
Jebb was of the view that all wars are waged against children: G. Van Bueren, The International Law on the
Rights of the Child (1998) 8. See further E. Jebb, International Responsibilities for Child Welfare (1927).
5 [The General Assembly] [a]ffirms that children, because of their age, social status and physical and mental
development, are often more vulnerable than adults in situations of forced displacement, recognizes that
forced displacement, return to post-conflict situations, integration in new societies, protracted situations of
displacement and statelessness can increase child protection risks, taking into account the particular
vulnerability of refugee children to forcible exposure to the risks of physical and psychological injury,
exploitation and death in connection with armed conflict, and acknowledges that wider environmental
factors and individual risk factors, particularly when combined, may generate different protection needs:
Assistance to Refugees, Returnees and Displaced Persons in Africa, GA Res. 65/193, UN Doc.
1
Nations Committee on the Rights of the Child (UNCRC),6 and the United Nations High
Commissioner for Refugees (UNHCR).7 The international community has also adopted
two treaties that respond independently to the particular difficulties occasioned by
involuntary alienage and to the special care and assistance required by children: the
Convention relating to the Status of Refugees 8 and the Convention on the Rights of the
Child.
Attentiveness at the international level to the distinct needs of refugee children

has not always found a counterpart in domestic practice. At the domestic level there has
been a tendency for states to focus on a childs status as a migrant (inevitably enlivening
discourses of suspicion and immigration control) rather than their status as a child (more
likely to evoke discourses of welfare and protection).9 The child refugee, by reason of his
asylum-seeking status, effectively ceases to be a child. The point is lucidly made by
Jacqueline Bhabha:
[S]tate intervention has been pulled in different directions because of a

clash between two opposing normative frameworksimmigration
A/RES/65/193 (10 February 2011) para. 10. [The General Assembly] [a]ffirms the importance of age,
gender and diversity mainstreaming in analysing protection needs and recognizing the importance of
addressing the protection needs of women and children in particular: Office of the United Nations High
Commissioner for Refugees, GA Res. 65/194, UN Doc. A/RES/65/194 (28 February 2011) para. 21. The
need to prioritize the protection of refugee children was affirmed in similar resolutions in 2010
(A/RES/64/129); 2009 (A/RES/63/149); 2008 (A/RES/62/125); 2007 (A/RES/61/139); 2006
(A/RES/60/128); 2005 (A/RES/59/172); 2004 (A/RES/58/149), 2003 (A/RES/57/1183), 2002
(A/RES/56/135), 2001 (A/RES/55/77); 2000 (A/RES/54/147); 1999 (A/RES/53/126); 1998
(A/RES/52/101); 1997 (A/RES/51/71); 1996 (A/RES/50/149); 1995 (A/RES/49/174); 1994
(A/RES/48/118); 1993 (A/RES/47/107). The UNGA has also adopted a number of resolutions
addressing the particular needs of unaccompanied refugee children: Assistance to Unaccompanied Refugee
Minors, GA Res. 58/150, UN Doc. A/RES/58/150 (24 February 2004); Assistance to Unaccompanied
Refugee Minors, GA Res. 56/136, UN Doc. A/RES/56/136 (15 February 2002); Assistance to
Unaccompanied Refugee Minors, GA Res. 54/145, UN Doc. A/RES/54/145 (22 February 2000);
Assistance to Unaccompanied Refugee Minors, GA Res. 53/122, UN Doc. A/RES/53/122 (10 February
1999); Assistance to Unaccompanied Refugee Minors, GA Res. 52/105, UN Doc. A/RES/52/105 (11
February 1998); Assistance to Unaccompanied Refugee Minors, GA Res. 51/73, UN Doc. A/RES/51/73
(12 February 1997); Assistance to Unaccompanied Refugee Minors, GA Res. 50/150, UN Doc.
A/RES/50/150 (9 February 1996); Assistance to Unaccompanied Refugee Minors, GA Res. 49/172, UN
Doc. A/RES/49/172 (24 February 1995).
6 See text below at notes 86131.
7 Ibid.
8 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered
into force 22 April 1954) and the attendant Protocol relating to the Status of Refugees, opened for
signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (hereafter referred to
individually as the 1951 Refugee Convention and the 1967 Protocol and collectively as the Refugee
Convention or the Convention).
9 In spite of the manifest vulnerability of unaccompanied and separated children, the tendency of all the
governments studied has been to treat them as migrants first, and children a distant second, placing the
issue of border control above that of child protection: J. Bhabha and M. Crock, Seeking Asylum Alone: A
Comparative Study (2007) 21.
2
control preoccupations on the one hand, and welfare protection
(including childs rights) concerns on the other. Immigration control
concerns focus on the childs alien and irregular status. Here children, like
adults, are viewed as illegal migrants, who have chosen, or consented to,
the evasion of immigration controls in order to gain access ... [C]hildrens
minority is a disqualification or, at best, an irrelevanceas the director of
Save the Children commented, these children are assumed to be bogus
before they are assumed to be in need of help.10
The tension between immigration control and the protection of children was evident
throughout the drafting of the CRC, when a number of states sought, unsuccessfully, to
limit the jurisdictional scope of the CRC to apply only to children lawfully within a
states territory.11
It has been suggested that resolution of this Janus-like12 tension lies in treating
each refugee child as child first and refugee second.13 The more critical point is that the
identity of a refugee child is layered and complex and it is important that protection is
tailored to respond both to the difficulties associated with refugeehood and the distinct
needs and vulnerabilities of childhood.14
10 J. Bhabha, Minors or Aliens? Inconsistent State Intervention and Separated Child Asylum-Seekers
(2001) 3 European Journal of Migration and Law 283, 2934.
11 The representative of the United States proposed that what is now Art. 2 of the CRC should read: Each
State Party to the present Covenant shall respect and extend all the rights set forth in this Convention to all
children lawfully in its territory (emphasis added). The representative later amended the proposal to read:
The State Parties to the present Covenant shall respect and extend all the rights set forth in this
Convention to all children (lawfully) in their territories without distinction of any kind. Report of the Working
Group on a Draft Convention on the Rights of the Child, UN Doc. E/CN.4/L.1575 (17 February 1981) paras 40,
44. Other delegates were evidently uncomfortable with the idea of limiting the application of the CRC to
children lawfully in the territory of a state party (E/CN.4/L.1575 at para. 40). Indeed, an earlier draft
submitted by the Polish representative contained an express provision (then Art. 5) emphasizing that [t]he
State parties recognize the right of alien children staying in their territories to enjoy the rights provided
for in this Convention: Note verbale dated 5 October 1979 addressed to the Division of Human Rights by
the Permanent Representation of the Polish Peoples Republic to the United Nations in Geneva, UN Doc.
E/CN.4/1349 (15 October 1979). The US representative ultimately agreed to withdraw the word lawfully
from its proposed text, but only on the understanding that the proposed Art. 5 would be deleted
(E/CN.4/L.1575 at para. 47). Throughout the drafting the UK and German representatives repeatedly
noted their concerns about the extension of the CRC to non-nationals: Report of the Working Group on a Draft
Convention on the Rights of the Child, UN Doc. E/CN.4/1984/71 (23 February 1984) paras 9, 11.
12 Melzac comments on the Janus-like position of our society in relation to children, looking in two
directions at once, having a sentimental approach to young vulnerable children and even laws to protect
the best interests of children, our next generation, but in fact more often acting against childrens planned
long term needs and best interests, choosing to protect the rights of governments, the military and adults:
S. Melzac, The Emotional Impact of Violence on Children in V. Varma (ed.), Violence in Children and
Adolescents (1996) 1, 4.
13 Refugee children are children first and foremost, and as children, they need special attention: UNHCR,
Preface to Refugee Children: Guidelines on Protection and Care (1994) (1994 Guidelines).
14 [C]hild refugees as a group are doubly vulnerable, as children and as refugees: G. Van Bueren, above
note 4, at 360. It is therefore vital to view the rights of child-asylum seekers not only in the context of the
Refugee Convention, but also in the specific framework of the CRC, in an attempt to fill the gaps and
3
This chapter situates the refugee child in international law. More specifically, the
chapter considers how international refugee law and international law on the rights of the
child might be more creatively aligned to respond to the reality that the at-risk individual
is both a child and a refugee. The focus of the chapter is on the capacity of the two legal
regimes to respond to the distinct needs of a refugee child in the context of the status
determination process. Notwithstanding this focus, the chapters central thesisthat
greater alignment between the two legal regimes has the capacity to enhance the
protection afforded to refugee childrenhas application well beyond the issue of
qualification for refugee status.15
Against this background, the first part of the chapter traces the development of
international law relating first to refugees and then to children. This exposition
introduces the two key international instruments operating within the respective fields.
The second part examines the manner in which the two international legal regimes have
spoken to or disregarded each other over the past century. This discussion evinces signs
of increased conversation between the two bodies of law, particularly at the international
institutional level. Finally, the third part sets out a framework for greater interaction
between international refugee law and international law on the rights of the child. It does
this by outlining three contextsdefined as modes of interactionwhere the CRC
might appropriately be engaged to assist in determining the status of a refugee child: first,
as a procedural guarantee to incorporate safeguards into the refugee status determination
process; secondly, as an interpretative aid to inform the interpretation of the Refugee
Convention definition; and finally, the CRC may give rise to an independent source of status
outside the international refugee protection regime. The three modes provide a child-
rights framework for assessing the status of a refugee child.
The ideas contained in this chapter form part of a broader research project that
examines the relationship between the Refugee Convention and the CRC and, in
particular, the application of the three modes of interaction set out above. The
discussion that follows is intended to provide a reasonably high-level outline of some of
achieve the best possible combination of protection measures available under international law: J.
McAdam, Seeking Asylum under the Convention on the Rights of the Child: A Case for Complementary
Protection (2006) 14 International Journal of Childrens Rights 251, 269.
15 It might, for example, assist in adumbrating the full range of rights that follow from recognition of a
childs Convention refugee status.
4
the key issues identified in that research, rather than a comprehensive account of the
relationship between the two legal regimes and the myriad legal issues that arise when
considering the interaction between distinct bodies of international law.16 It is hoped,
however, that the framework outlined here will provide a platform for further debate and
dialogue and may, in the longer term, contribute to enhanced protection for refugee
children.
THE CHILD AND THE REFUGEE: THE INTERNATIONAL LEGAL

FRAMEWORK
Refugee Convention
The 1951 Refugee Convention and the attendant 1967 Protocol are the primary
instruments governing refugee status under international law. The Refugee Convention
has been described as the cornerstone of the international refugee protection regime,17
an elevation hardly surprising given the extensive and continued endorsement of the
standards codified in the instrument. There are currently 148 states parties to either the
1951 Refugee Convention or the 1967 Protocol,18 with 87 states currently participating in
the work of the Executive Committee of the High Commissioners Program (ExCom),
responsible for the Conventions ongoing supervision. The Convention therefore
provides the appropriate platform from which to consider the manner in which
international law has attempted to address the challenges associated with the involuntary
migration of children.
The Refugee Convention defines a refugee as an individual who satisfies the

definition prescribed under Article 1A(2) and is not otherwise excluded by operation of
Article 1. Article 1A(2) defines a refugee as a person who:
16 The chapter does not, for example, touch on issues relating to fragmentation under international law;
nor does it examine, in detail, principles of international treaty interpretation under the Vienna Convention
on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January
1980).
17 ExCom, Conclusion on the Provision of International Protection including through Complementary
Forms of Protection No. 103 (LVI) (7 October 2005).

18 See United Nations Treaty Collection list of states parties, available at
http://treaties.un.org/Pages/ViewDetailsII.aspx?&src=UNTSONLINE&mtdsg_no=V~2&chapter=5&T
emp=mtdsg2&lang=en#Participants.
5
owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing
to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country
of his former habitual residence as a result of such events, is unable or,
owing to such fear, is unwilling to return to it.
A person will thus be a refugee only if there is a genuine risk of the applicant being
persecuted that is causally connected to one of five enumerated forms of civil or political
status. Article 1 also sets out a number of exclusion provisions: Articles 1D and 1E apply
to individuals who are already in receipt of protection from the United Nations or
another institution, while Article 1F provides for the mandatory exclusion of individuals
who are considered undeserving of protection. Articles 3 to 34 of the Refugee
Convention outline a comprehensive set of rights that attach to all refugees, including
freedom from discrimination,19 access to courts,20 access to housing,21 access to public
education,22 freedom of movement23 and a prohibition on refoulement.24
The mandate of the Refugee Convention is age-neutral, applying to all individuals

irrespective of age, and containing no express reference to or provision for refugee
children.25 A number of commentators have suggested that this deficiency is not
surprising in light of the Conventions historical context.26 While certainly true that the
Convention was strategically conceptualized to promote Western political values,27 it is
not altogether self-evident why this political context obviated a need to recognize the fact
19 Refugee Convention, Art. 3.

20 Ibid. Art. 16.
21 Ibid. Art. 21.
22 Ibid. Art. 22.
23 Ibid. Art. 33.
24 For a comprehensive discussion on the rights owed to refugees see J. C. Hathaway, The Rights of Refugees
under International Law (2005).

25 The only references to children in the Convention itself relate to refugee parents freedom as regards the
religious education of their children (Art. 4), and the effect on an adult refugees right to employment of
having one or more children possessing the nationality of the country of residence (Art. 17(2)(c)). Even the
article on public education fails to specifically mention age or childhood (Art. 22). See also discussion on
Recommendation B of the Final Act of the Conference of Plenipotentiaries at text below note 50.
26 G.S. Goodwin-Gill, Unaccompanied Refugee Minors: The Role and Place of International Law in the
Pursuit of Durable Solutions (1995) 3 International Journal of Child Rights 405, 406 ([c]onsidered in historical
context, this deficiency is not surprising); Bhabha and Crock, above note 9, at 22 ([The] Convention was
focused from its inception on problems and conflicts familiar to the Cold War era in Europe, where the
label of refugee was applied most readily to the political and intellectual dissidents escaping to the West
from the Communist Bloc countries).
27 J. C. Hathaway, The Law of Refuge Status (1991) 6; J. C. Hathaway, The Evolution of Refugee Status in
International Law: 19201950 (1984) 33 International and Comparative Law Quarterly 348.
6
that child refugees may require special protection.28 At the time the Convention was
drafted, a number of international instruments had already explicitly recognized the
special needs of children, specifically refugee children.29 Of particular salience, the
mandate of the International Refugee Organization (IRO) (the first international agency
created by the United Nations and the immediate predecessor to the UNHCR) made
express provision for unaccompanied children.30
An examination of the IRO Constitution and a review of the organizations

operations in the period 19471952 provide an interesting historical backdrop to the
drafting of the Refugee Convention and suggests that the omission of any special
protection measures for children within the Convention is not necessarily cognisant with
the documents historical context. The IRO was established in 1946 to coordinate the
international action then required to respond to the urgent problem31 generated by the
mass displacement and dislocation of populations following the Second World War.32
The IROs function was expressed in the following terms:
the repatriation; the identification, registration and classification; the care

and assistance; the legal and political protection; the transport; and the
resettlement and re-establishment, in countries able and willing to receive
them, of persons who are the concern of the Organization under the
provisions of Annex I.33
28 Indeed, it seems arguable that the omission of protection measures is surprising because of the historical
context, including the specific targeting of Jewish children during the Second World War. See E.D. Pask,
Unaccompanied Refugee and Displaced Children: Jurisdiction, Decision-Making and Representation
(1989) 1(2) International Journal of Refugee Law 199.
29 See text below at note 51 ff. The idea that refugee children are entitled to special protection was, for
example, firmly entrenched in the 1949 Geneva Conventions. Article 24(1) of the Geneva Convention
relative to the Protection of Civilian Persons in Time of War, opened for signature 21 April 1949, 75
UNTS 287 (entered into force 21 October 2000) (Fourth Geneva Convention) provides that the [p]arties
to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or
are separated from their families as a result of the war, are not left to their own resources, and that their
maintenance, the exercise of their religion and their education are facilitated in all circumstances and that
[p]arties to the conflict shall facilitate the reception of such children in a neutral country for the duration
of the conflict. The 1977 Additional Protocols go even further. In total, 25 articles in the 1949 Geneva
Conventions and the 1977 Additional Protocols deal specifically with children: Goodwin-Gill, above note
26, at 413. See further D. Plattner, Protection of Children in International Humanitarian Law (1984) 240
International Review of the Red Cross 140.
30 International Refugee Organization Constitution, UNGA Res. 77 of 15 December 1946, 18 UNTS 3
(entered into force 20 August 1948) (IRO Constitution), Annexure 2, Part I, para. 4.
31 IRO Constitution, Preamble.
32 Holborn describes the Second World War as causing the most formidable displacements of population
ever experienced: At its outbreak there had been more than a million refugees in various parts of Europe
and Asia. This number was swelled almost beyond calculation by mass movements which brought vast
human misery and suffering in their wake: L.W. Holborn, The International Refugee Organization: A Specialized
Agency of the United Nations: Its History and Work, 19461952 (1956) 15.
33 IRO Constitution, Art. 2.
7
A large number of children were separated from their families throughout the Second
World War: many were forcibly removed from non-Germanic families and sent to
special institutions for Germanization;34 others found themselves separated as a
consequence of the vicissitudes of the war and the deportation, kidnapping or execution
of their families.
The definition of the term refugee set out under Annexure 1, Part 1 of the IRO
Constitution included the following category:
(4) The term refugee also applies to unaccompanied children who

are war orphans or whose parents have disappeared, and who are
outside their countries of origin. Such children, sixteen years of
age or under, shall be given all possible priority assistance,
including, normally, assistance in repatriation in the case of those
whose nationality can be determined.
The IRO Convention thus established a priority obligation to render all possible assistance
to unaccompanied children. This proved to be one of the IROs most politically
contested tasks, with divergent interests and views as to who ultimately had jurisdiction
to make a determination about the repatriation or resettlement of an unaccompanied
child.35 Was it the IRO, the childs family (if they could be located), the government of
the country of origin or the government of the host country? And to what extent, if at
all, should the IRO take into account the wishes of any individual child? In August 1948
the Preparatory Commission of the IRO submitted a report to the UN Economic and
Social Council (ECOSOC) providing an account of the situation of children removed
from their country of origin, measures taken by the IRO on their behalf and
recommendations for future action.36 The discussions that followed illustrated the
divergent views regarding the best interests of unaccompanied children.37 The delegates
for the Soviet Union and Byelo-Russia considered that the reference to the best interests
of the individual child should be deleted from the draft resolution, expressing a concern
for children who had not been returned even where their parents had been identified and
had requested their return. The delegate for the United States considered the phrase
34 Holborn, above note 32, at 493.

35 Ibid. 495.
36 Ibid. 498.
37 The account below is taken from ibid. 499.
8
particularly important: The competent authorities would be dealing with defenceless and
feeble human beings, and in the settlement of their fate the best interest of the children
should be constantly borne in mind.38
The final resolution adopted by ECOSOC set out the policy in the following
terms:
(1) to unite children with their parents wherever the latter

may be; and
(2) in the case of orphans or unaccompanied children whose
nationality has been established beyond doubt, to return
them to their country, always provided that the best
interests of the individual child shall be the determining
factor.39
In accordance with the resolution, the IRO promoted repatriation where it was
considered in the best interests of the child and, where it was not, facilitated
arrangements for resettlement.40 Within the US-occupied zone in Germany, decisions
regarding a childs best interests were initially made through administrative channels,
however the role was later delegated to the High Commission for Occupied Germany
(HICOG) courts which established a more normal legal machinery for determination of
the best interests of the children.41 Article 14 of the governing law provided that in
determining a childs best interests, the court should be guided by the following factors:
(a) the existence or absence of a wholesome relationship between the

child and its foster-parents or other persons;
(b) the likelihood that the child would secure an adequate education;
(c) the physical and moral welfare of the child, including the
probability of its obtaining adequate food, clothing, medical care
and a desirable home atmosphere;
(d) the legal and economic protection of the child in the relation to
rights of citizenship, rights to future public care and maintenance,
including medical and nursing care, opportunity to earn a
livelihood, and the likelihood of discrimination or bias;
38 Cited in Holborn, ibid. at 499.

39 Resolution No. 157 (VII) of 24 August 1948 (E/1027).
41 Report to US HICOG on IRO, US zone of Germany (22 October 1951) 10. Cited in Holborn, above
note 32, at 500.
9
(e) the wishes of the child if it had sufficient maturity and had
formed its wishes without coercion;
(f) the desires of a natural parent, foster-parent, or other near relative
by consanguinity.42
The British authorities adopted a less formal approach, setting up a Child Welfare Board
in coordination with the IRO, which made recommendations for the future placement of
each child.43 In total, in the period 1 July 1947 to 31 December 1951, the IRO repatriated
1,898 unaccompanied children, and resettled a further 4,053.44
One of the key debates during the drafting of what became Article 1 of the
Refugee Convention was whether the Convention should list categories of known
refugee groups in a manner similar to the IRO Constitution, or whether a more general
definition should be adopted based on what was perceived, at the time, to reflect the
refugee experience.45 The United States was the lead proponent of the former approach,
proposing four categories of refugees that included, among others [a]ny unaccompanied
child sixteen years of age or under, who is a war orphan, or whose parents have
disappeared, who is unable or unwilling to avail himself of the protection of the
government of his country of nationality or former nationality, and who has not acquired
another nationality.46 A similar category was included in a provisional draft of the
Convention definition,47 but was removed after a cable from the then Director-General
of the IRO who noted his doubts about the continu[ed] usefulness of the express
inclusion of unaccompanied children as a category in the refugee definition.48 The
observer for the IRO expanded on the Director-Generals observation with the rather
curious statement that the inclusion of unaccompanied minors in the IRO Constitution
purported mainly to give priority assistance to this group, i.e., physical assistance with
regard to care and maintenance, repatriation and resettlement and that [t]he Director
General doubts the continued usefulness of including this group in the Convention and
42 HICOG, Law No. 11.

44 Ibid. 5134.
45 G.S. Goodwin-Gill, Refugees and their Human Rights, RSC Working Paper No. 17 (August 2004) 6.
46 Ad Hoc Committee on Statelessness and Related Problems (AHC), United States of America: Memorandum
on the Definition Article of the Preliminary Draft Convention Relating to the Status of Refugees (and Stateless Persons)
(E/AC.32.2), E/AC.32/L.4 (18 January 1950), Art. 1A(3)(b).
47 AHC, Provisional Draft of Parts of the Definition Article of the Preliminary Draft Convention Relating to the Status of
Refugees, Prepared by the Working Group on This Article, E/AC.32/L.6 (23 January 1950).
48 AHC, Memorandum from the Secretariat of the International Refugee Organization, E/AC.32/L.16 (30
January 1950).
10
in the mandate of the High Commissioner who will be concerned with international
protection only.49
Although the final text of the Refugee Convention contains no express provision
on refugee children, the drafters consideration of the special protection needs of this
particular category of refugee is reflected in the summary of conference proceedings
appended to the Convention. Recommendation B of the Final Act of the Conference of
Plenipotentiaries provides:
The Conference,
CONSIDERING that the unity of the family, the natural and
fundamental group of society, is an essential right of the refugee, and that
such unity is constantly threatened, and
NOTING with satisfaction that, according to the official commentary of
the Ad Hoc Committee on Statelessness and Related Problems the
rights granted to a refugee are extended to members of his family,
RECOMMENDS Governments to take the necessary measures for the
protection of the refugees family, especially with a view to:
(1) Ensuring that the unity of the refugees family is maintained
particularly in cases where the head of the family has fulfilled the
necessary conditions for admission to a particular country, [and]
(2) The protection of refugees who are minors, in particular unaccompanied
children and girls, with special reference to guardianship and adoption.50
Although not binding, the declaration contained in Recommendation B provides a

compelling affirmation of the responsibility of states to take special measures to protect
refugee children.
Convention on the Rights of the Child
In 1924 the League of Nations adopted the Declaration of the Rights of the Child which
provided that mankind owes to the [c]hild the best that it has to give. In 1959 the
United Nations adopted a more comprehensive declaration, which emphasized the
Ibid.
49
50UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Final Act of the
United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons,
A/CONF.2/108/Rev.1 (25 July 1951) (emphasis added).
11
special protection needs of children.51 The idea that children are entitled to special
protection was also firmly entrenched in the 1949 Geneva Conventions, with the Fourth
Geneva Convention comprising an extensive number of provisions pertaining to
children.52 And each of the Universal Declaration of Human Rights, (UDHR)53 the
International Covenant on Civil and Political Rights (ICCPR),54 and the International
Covenant on Economic and Social Rights (ICESCR)55 contain express provisions
emphasizing the obligations on states to provide special protection measures for
children.
Although earlier accords had addressed the particular protection needs of

children, the Convention on the Rights of the Child (adopted by the UN General
Assembly in 1989 and entered into force in 1990) was the first international instrument
to articulate the full set of rights applicable to children. The CRC was also the first
international instrument to recognize children as individual rights-bearers, active in the
construction and determination of their own social lives.56 In promoting a construction
of children as social actors and active holders of their own rights,57 the CRC represents
a radical shift away from the conception of a child as a passive dependant tethered to a
parent, evident in the earlier, largely protectionist, instruments which focused attention
on a childs need to be cared for.58 This attitudinal shift is most clearly illustrated by the
51 Declaration of the Rights of the Child, UNGA Res. 1386 (XIV) (20 November 1959) (1959
Declaration), Principle 2. See also the 1974 Declaration on the Protection of Women and Children in
Emergencies and Armed Conflict, UNGA Res. 3318 (XXIX) (14 December 1974). See generally P.
Veerman, The Rights of the Child and the Changing Image of Childhood (1992) 15580.
52 See above note 29.
53 Universal Declaration of Human Rights, UNGA Res. 217A(III) (10 December 1948). Article 25(2)
provides that motherhood and childhood are entitled to special care and assistance.
54 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999
UNTS 171 (entered into force 23 March 1976). Article 23(1) of the ICCPR recognizes that the family
should receive protection by society and the State. See Human Rights Committee, General Comment No.
17: Rights of the Child (4 July 1989).
55 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December
1966, 993 UNTS 3 (entered into force 3 January 1976). Article 10(3) recognizes that special measures of
protection and assistance should be taken on behalf of all children and young persons.
56 A. James and A. Prout, Constructing and Reconstructing Childhood (1990) 8.
57 UNICEF, The State of the Worlds Children: Celebrating 20 Years of the Convention on the Rights of the Child
(2009) 2.
58 Underlying this change in focus is the rejection of perceptions of children as partly formed human
beings and their acceptance in international law as individuals who are capable of being as rational as
adults: Van Bueren, above note 4, at 137. The [CRC] recognizes the child as a subject of rights, and the
nearly universal ratification of this international instrument by States parties emphasizes the status of the
child, which is clearly expressed in article 12: UNCRC, General Comment No. 12: The Right of the Child
to be Heard, CRC/GC/12 (20 July 2009) (General Comment No. 12) para. 18. This commitment was re-
affirmed at the 27th special session of the UN General Assembly: UNGA, A World Fit for Children, GA
Res. S-27/2, UN Doc. A/Res/S-27/2 (11 October 2002). This is not the place to trace the evolution of
childrens rights, nor to defend the concept of children as rights-bearers. Both issues have been addressed,
12
inclusion in the CRC of traditional civil and political rightsfreedom of expression,59
freedom of religion60 and freedom of association and assembly61absent in both the
1924 and 1959 Declarations. The CRC also gives children a voice, containing an express
provision affording a child the right to participate, and have his views respected, in all
matters that affect him.62
The CRC applies to each child within [a state partys] jurisdiction and prohibits
any discrimination irrespective of the childs or his or her parents or legal guardians
birth or other status.63 The rights contained in the CRC thus apply to all children in the
jurisdiction of a state party, including refugees, asylum seekers and refused asylum
seekers, and these sub-categories of children are entitled to benefit from the provisions
of the CRC to the same extent as a citizen-child.64 The point has been emphasized by the
UNCRC: [t]he principle of non-discrimination, in all its facets, applies in respect to all
dealings with separated and unaccompanied children. In particular, it prohibits any
discrimination on the basis of the status of a child as being unaccompanied or separated,
or as being a refugee, asylum seeker or migrant.65
The obligations enshrined in the CRC might be categorized in the following way.
First, the treaty re-affirms many of the core principles contained in the UDHR, ICCPR
and ICESCR, and applies these principles directly to children. In contrast to the ICCPR
and ICESCR, the CRC is unique in that it covers the full spectrum of civil, political,
in detail, elsewhere. The key point here is that the international community, through the CRC, has
recognized children as rights-holders. See generally M. Freeman, The Value and Values of Childrens
Rights in A. Invernizzi and J. Williams (eds), The Human Rights of Children (2011) 21; M. Freeman, The
Human Rights of Children (2010) 63(1) Current Legal Problems 1, 20; J. Fortin, Childrens Rights and the
Developing Law (2009) 332; M. Freeman, Why It Remains Important to Take Childrens Rights Seriously
(2007) 15 International Journal of Childrens Rights 5; J. Griffin, On Human Rights (2008) 8394; P. Alston and J.
Tobin, Laying the Foundations for Childrens Rights: An Independent Study of Some Key Legal and Institutional Aspects
of the Impact of the Convention on the Rights of the Child, UNICEF paper (2005) 38; Veerman, above note 51; J.
Eekelaar, The Emergence of Childrens Rights (1986) 6 Oxford Journal of Legal Studies 161; C.P. Cohen,
The Human Rights of Children (1983) 12 Capital University Law Review 369.
59 CRC, Art. 13.
60 Ibid. Art. 14.
61 Ibid. Art. 15.
62 Ibid. Art. 12.
63 Ibid. Art 2(1).
64 Article 2 emphasises that all the rights in the Convention on the Rights of the Child must apply to all
children in the State, including visitors, refugees, children or migrant workers and those in the State
illegally: UNICEF, Implementation Handbook for the Convention on the Rights of the Child (3rd edn, 2007) 23. See
also Art. 22 which provides that states shall take appropriate measures to ensure that a refugee child, or
child seeking refugee status, shall receive appropriate protection and humanitarian assistance in the
enjoyment of applicant rights set forth in [the CRC].
65 UNCRC, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside their
Country of Origin, CRC/GC/2005/6 (1 September 2005) (General Comment No. 6) para. 18.
13
economic, social and cultural rights in a single instrument. Secondly, the CRC strengthens
the nature of a states obligations to children, such that in some circumstances children
will be eligible for greater protection than adults. Most significantly, the CRC does not
permit derogation from any of its provisions at any time, including wartime situations.66
And in contrast to the ICESCR, the CRC does not allow developing states to limit the
extent to which economic rights would be guaranteed to non-nationals.67 Thirdly, the
CRC introduces a number of rights specifically tailored to children. This includes a right
for a child to participate in any decision involving them,68 and a requirement that the best
interests of the child be a primary consideration in any actions involving children.69 There
are also express provisions on the abduction and trafficking of children,70 the role of
parents, guardians and the state in the upbringing and development of children,71 harmful
traditional practices,72 the right to engage in play and recreational activities,73 child labor,74
sexual exploitation75 and the recruitment of children into armed forces.76
Throughout the drafting of the CRC there was acknowledgement of the specific
protection needs of refugee children.77 Although the first draft contained no express
provision relating to refugee children, in 1981 the delegate for Denmark submitted a
proposal to introduce a provision dealing specifically with protection and assistance to
refugee children.78 The proposal was generally well received, resulting in the inclusion of
what is now Article 22(1):
State parties shall take appropriate measures to ensure that a child who is
seeking refugee status or who is considered a refugee in accordance with
applicable international or domestic law and procedures shall, whether
unaccompanied or accompanied by his or her parents or by any other
66 Contra. ICCPR, Art. 4.

67 Contra. ICESCR, Art. 2(3).
68 CRC, Art. 12.
69 Ibid. Art. 3.
70 Ibid. Arts 11 and 35.
71 Ibid. Arts 7, 1921.
72 Ibid. Art. 24(3).
73 Ibid. Art. 30.
74 Ibid. Art. 32.
75 Ibid. Art. 34.
76 Ibid. Art. 38.
77 See e.g., UN Doc. E/CN.4/L.1366 (15 February 1978) para. 40; UN Doc. E/CN.4/L.J468 (12 March
1979) para. 6; UN Doc. E/CN.4/1985/SR.54/Add.1 (26 March 1985) paras 114, 117; UN Doc.
E/CN.4/1988/SR.56 (11 April 1988) para. 50; UN Doc. E/CN.4/1989/SR.54 (15 June 1989) para. 8.
78 This may have been prompted by a proposal submitted by the Womens International Democratic
federation that the text of the CRC contain articles on the protection of the children of migrant workers
and of the children of refugees: Written Statement Submitted by the Womens International Democratic Federation,
UN Doc E/CN.4/NGO/244 (19 February 1979) 4.
14
person, receive appropriate protection and humanitarian assistance in the
enjoyment of applicable rights set forth in the present Convention and in
other international human rights or humanitarian instruments to which
the said States are Parties.
Article 22(2) requires that where a refugee child has no family members, the
child shall be accorded the same protection as any other child permanently or
temporarily deprived of his or her family environment.79 Although significant in
mandating appropriate protection and humanitarian assistance to children that have
been recognized as refugees or have applied for refugee status, on its face the provision
provides no substantive guidance in relation to the assessment of whether or not, and on
what basis, a child qualifies for refugee status.80 There were suggestions from a number
of delegates that the provision be amended to contain a definition of the refugee child,
however these delegates appear to have been in the minority.81 Van Bueren, who was
involved in the drafting of the CRC, has suggested that a view was taken that any
expansion of the refugee definition within the CRC would have required a corresponding
amendment to the 1951 Refugee Convention and 1967 Protocol, which was something
for which states have not demonstrated any enthusiasm.82
The CRC has since been complemented by three Optional Protocols: the
Optional Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict,83 the Optional Protocol to the Convention on the Rights of
the Child on the Sale of Children, Child Prostitution and Child Pornography84 and, most
79 See further CRC, Arts 201.

80 This point is made in a statement made by Japan after the adoption of the CRC: As to article 22, the
delegation for Japan accepted 22 on the understanding that the provision was not intended to request the
States to take further measure in addition to present procedures for the recognition or refugees in
accordance with their international obligations and their national laws on refugees: Report of the Working
Group on a Draft Convention on the Rights of the Child, UN Doc. E/CNN.4/1989/48 (2 March 1989) para. 22.
The Government of the Kingdom of the Netherlands entered a declaration expressly providing that it
understands the term refugee in [Art. 22(1)] as having the same meaning as in article 1 of the [Refugee
Convention].
81 Report of the Informal Open-ended Working Group on the Rights of the Child, UN Doc. E/CN.4/1982/30/Add.1
(1982) para. 94.

82 Van Bueren, above note 4, at 361.
83 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in
Armed Conflict, opened for signature 24 May 2000, UNGA Res. 54/263 (entered into force 12 February
2002).
84 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, opened for signature 25 May 2000, UNGA Res. 54/263 (entered into
force 18 January 2002).
15
recently, the Optional Protocol to the Convention on the Rights of the Child on a
Communications Procedure.85
THE REFUGEE CHILD: SIGNS OF ALIGNMENT
There is no single instrument in international law that sets out the full range of
obligations that a state owes to a refugee child. Although the mandate of the Refugee
Convention extends to children, the Convention definition makes no express reference
to or concession for refugee children. And while the CRC contains a provision
guaranteeing appropriate protection and humanitarian assistance to refugee children, the
provision offers no guidance on the assessment of a childs refugee status. In
circumstances where neither the Refugee Convention nor the CRC independently
provide an adequate or satisfactory basis for the protection of refugee children,86 there
is clear merit in exploring the relationship between the two legal regimes and what this
relationship might mean in the context of determining refugee status of children.
This part examines the manner in which the international community, principally
in the form of guidance from the UNCRC and UNHCR,87 has treated the relationship
between international refugee law and international law on the rights of the child. The
discussion is separated into three phases, although there is inevitable overlap between
them. The first phase is referred to as the recognition phase, where the international
community recognizes that child refugees are entitled to special protection. The second
phase is the alignment phase where the international community acknowledges the
capacity for alignment between the Refugee Convention and the CRC. The third and
most recent phase is the operational phase, where the international community attempts
to provide guidance on the way in which the two legal regimes might substantively
interact with each other.
85 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure,
opened for signature 28 February 2012, UNGA Res. 66/138.
86 Goodwin-Gill, above note 26, at 407.
87 Although UNHCR and UNCRC guidance is soft law and not binding on states, it does have clear
persuasive value and, in the refugee context, is often afforded considerable deference. Goodwin-Gill,
above note 26; Hathaway, above note 24, at 11218; M. Foster, International Refugee Law and Socio-Economic
Rights: Refuge from Deprivation (2007) 725. Indeed, given the guidance is produced under the auspices of the
respective bodies supervisory mandates, there is a compelling argument that a state could be required to
explain treatment of child refugees that does not conform to the standards set by the two bodies.
16
The recognition phase occurred in the period prior to the adoption of the CRC.
Although children have always formed a substantial proportion of the demographic
falling within the UNHCRs mandate, prior to 1986 the organization had paid little
attention to the specific situation of younger refugees.88 The ExCom first turned its
attention to the situation of child refugees in 1986, noting that the situation of refugee
children required special consideration and calling on the High Commissioner to
report regularly to the ExCom on the needs of refugee children, and on existing and
proposed programmes for their benefit.89 Following that session the UNHCR
established a Working Group on Refugee Children at Risk (UNHCR Working Group)
and in 1987 published its first Note on Refugee Children.90 The opening paragraph of
that note states:
Refugee children comprise approximately one-half of the worlds refugee

population, and as such benefit from general efforts on behalf of all
refugees with respect to international protection, material assistance and
durable solutions. Children, however, have special needs which must be
identified and met. While refugee children have always been a major
concern of UNHCR, they have received increasing attention in recent
years. This is due both to the substantial number of children in the
various large-scale refugee situations in different parts of the world and to
the complexity of the problems to which their presence give rise, as well
as to the wider international attention now given to children in general
and refugee children in particular.91
The same year the ExCom published its first Conclusion specific to refugee children.92 In
that Conclusion the ExCom noted the special needs and vulnerability93 of children
within the broader refugee population and recognized that the situation in which
children live often gives rise to special protection and assistance problems as well as to
problems in the area of durable solutions.94 The Committee stressed that all action
taken on behalf of refugee children must be guided by the principle of the best interests
of the child as well as by the principle of family unity95 and re-affirmed the need to
88 J. Crisp, Meeting the Needs and Realising the Rights of Refugee Children and Adolescents: From Policy
to Practice (2006) 15(3) Refugee Survey Quarterly 1, 8.

89 ExCom, General Conclusion on International Protection, No. 41 (XXXVII) (13 October 1986) para. m.
90 UNHCR, Note on Refugee Children, EC/SCP/46 (9 July 1987).
91 Ibid. para. 1.
92 ExCom, Conclusion on Refugee Children, No. 47 (XXXVIII) (12 October 1987). The status of ExCom
Conclusions is discussed below.

93 Ibid. para. a.
94 Ibid. para. b.
95 Ibid para. d.
17
promote expanded cooperation between the UNHCR and other relevant organizations,
including through the development of legal and social standards.96 Finally, the
Committee called upon the High Commissioner to develop, in consultation with these
organizations, guidelines to promote cooperation between UNHCR and these
organizations to improve the international protection, physical security, well-being and
normal psychosocial development of refugee children.97
The UNHCR Working Group convened a consultation on refugee children in

March 1988, and in August 1988 issued the first edition of its Guidelines on Refugee
Children.98 The guidelines identify the major issues affecting refugee children, and
provide guidance on how the UNHCR will ensure that the special protection needs of
refugee children are met.99 In 1989 the ExCom issued a second Conclusion on refugee
children, re-affirming and expanding on the need for particular attention to be paid to
the special protection needs of refugee children.100
In the alignment phase, commencing immediately after the adoption of the CRC,
we see a number of international bodies (the UNHCR in particular) promote the CRC as
the appropriate framework for conceptualizing the special protection needs of refugee
children. Crisp, formerly a Senior Research Officer for the UNHCR, asserts that
UNHCR policies on refugee children owe a self-evident intellectual debt to the CRC:101
Indeed, the UNHCR policy can legitimately be described as an attempt to

operationalize the CRC in situations of human displacement. While only
states can be parties to the CRC, UNHCR applies the Convention to all
aspects of its work with refugee children and considers itself to be
accountable for the implementation of CRC standards.102
This intellectual debt is particularly evident in the UNHCR Policy on Refugee Children
issued in August 1993.103 The policy expressly states:
96 Ibid. para. s.
97 Ibid. para. u.
98 UNHCR, Guidelines on Refugee Children (August 1988).
99 Crisp, above note 88, at 12.
100 ExCom, Conclusion on Refugee Children, No. 59 (XL) (13 October 1989).
101 Crisp, above note 88, at 12.
102 Ibid.
103 UNHCR, UNHCR Policy on Refugee Children (6 August 1993). That document expressly provides (at para.
6): [a]lthough many of the components of this policy can be found in UNHCRs Guidelines on Refugee
Children [which predated the CRC] or derive from the [CRC], their assimilation into the global policy of the
18
The [CRC] provides a comprehensive framework for the responsibilities
of its State Parties to all children within their borders, including those
who are of concern to UNHCR. Moreover, as a United Nations
convention, it constitutes a normative frame of reference for UNHCRs
action.104
This relatively short document goes on to provide a set of organization goals, guiding
principles and objectives, which in large part derive from the language of the CRC. The
UNHCR Policy on Refugee Children was welcomed by the ExCom, which further
stressed the importance of the [CRC] as a normative framework for action to protect
and care for children.105
In 1994 the UNHCR issued a revised set of Guidelines, intended to incorporate

the obligations under the CRC and to combine the concept of childrens rights with
UNHCRs ongoing efforts to protect and assist refugee children.106 The introduction to
the revised Guidelines provides:
UNHCR [applies] the CRC to its own work by using the rights as guiding
principles At the beginning of each chapter of these Guidelines, the
rights in the CRC are stated as UNHCRs standards.
For the well-being of refugee children, UNHCR advocates the
observance of CRC standards by all States, international agencies and
non-governmental organizations.107
The position of the UNHCR is strengthened by Conclusions of the ExCom, which have
repeatedly emphasized the interconnection between the Refugee Convention and the
CRC. In 1997 the ExCom noted the fundamental importance of the [CRC] to the legal
framework for the protection of child and adolescent refugees and for promoting their
best interests108 and called upon the UNHCR to continue to integrate fully the rights of
Office reflects a new level of priority that the High Commissioner has come to meeting the specific
protection and assistance needs of refugee children (emphasis added).
104 Ibid. para. 17.
105 ExCom, General Conclusion on International Protection, No .71 (XLIV) (8 October 1993) para. w.
106 1994 Guidelines, 14. The opening remarks to the 1994 Guidelines state (at 13): This book of
Guidelines has its ancestors. On one side of the family tree is the human rights branch, which includes the
most recent forebear, the 1989 Convention on the Rights of the Child. On the other side is the UNHCR
branch.
107 Ibid. 1820 (emphasis added).
108 ExCom, Conclusion on Refuge Children and Adolescents, No. 84 (XLVIII) (17 October 1997).
19
the child into its policies and programmes.109 In its most recent Conclusion on refugee
children (No. 107 (LVIII)) the ExCom emphasized the need for a:
rights-based approach, which recognizes children as active subjects of rights,

and according to which all interventions are consistent with States
obligations under relevant international law, including, as applicable,
international refugee law, international human rights law and international
humanitarian law, and acknowledge that the CRC provides an important
legal and normative framework for the protection of children.110
The ExCom goes on to recommend the development of child and gender-sensitive

national asylum procedures,111 including consideration of an age and gender-sensitive
application of the 1951 Convention through the recognition of child-specific
manifestations and forms of persecution, including under-age recruitment, child
trafficking and female genital mutilation.112
In this second phase, the recognition of the relationship between international

refugee law and international law on the rights of the child rarely extended beyond the
articulation of broad policy recommendations. There was a failure to consider the actual
scope and nature of the rights enshrined within the CRC and to undertake an assessment
as to the manner in which those rights might impact on a states compliance with the
Convention. In other words, there were limited attempts to articulate legal standards
grounded in both the Refugee Convention and the CRC that might guide states in
circumscribing their international obligations. There was no attempt, for example, to
articulate precisely how the obligations under the CRC might inform an interpretation of
the Conventions refugee definition.
In the third operational phase we have seen the UNHCR and UNCRC begin to
operationalize the relationship between the Refugee Convention and the CRC and, in
particular, to provide guidance on how the CRC might be substantively relevant in the
refugee status determination context. This approach is the least developed, but only
109 Ibid. para. c.

110 ExCom, Conclusion on Children at Risk, No. 107 (LVIII) (5 October 2007) para. b(x) (emphasis
added).
111 Ibid. para. g(viiii).
112 Ibid. See also ExCom, Conclusion on Refuge Children and Adolescents, No. 84 (XLVIII) (17 October
1997).
20
because it is the most recently developed. Two recent publications can be used to
illustrate this shift in approach.113
First, in 2005 the UNCRC issued a General Comment specifically addressing the
treatment of unaccompanied and separated children outside their country of origin.114
The General Comment seeks to provide clear guidance to States on the obligations
deriving from the [CRC] with regard to this particular vulnerable group of children.115 In
the context of status determination, the General Comment provides that states must
adopt a [c]hild-sensitive assessment of protection needs, taking into account persecution
of a child-specific nature:116
When assessing refugee claims of unaccompanied or separated children,

States shall take into account the development of, and formative relationship
between, international human rights and refugee law, including positions
developed by UNHCR in exercising its supervisory functions under the
1951 Refugee Convention. In particular, the refugee definition in that
Convention must be interpreted in an age and gender-sensitive manner,
taking into account the particular motives for, and forms and
manifestations of, persecution experienced by children. Persecution of
kin; under-age recruitment; trafficking of children for prostitution; and
sexual exploitation or subjection to female genital mutilation, are some of
the child-specific forms and manifestations of persecution which may
justify the granting of refugee status if such acts are related to one of the
1951 Refugee Convention grounds. States should, therefore, give utmost
attention to such child-specific forms and manifestations of persecution
as well as gender-based violence in national refugee status determination
procedures.117
The General Comment provides that the rights of a refugee child are not limited to those
provided under the Refugee Convention but extend to all human rights granted to
children in the territory or subject to the jurisdiction of the State.118 In circumstances
where a child does not satisfy Article 1A(2) of the Convention, the General Comment
provides that the child shall benefit from available forms of complementary protection
to the extent determined by their protection needs.119
113 Two additional documents could have been considered here: UNHCR, Handbook on Women and Girls
(January 2008) and UNHCR, Guidelines on Determining the Best Interests of the Child (May 2008).
114 UNCRC, General Comment No. 6.
115 Ibid. para. 4.
116 Ibid. para. 74.
117 Ibid. para. 74 (emphasis added).
118 Ibid. para. 76.
119 Ibid. paras 778.
21
Secondly, and of more recent vintage, in 2009 the UNHCR issued Guidelines on
International Protection: Child Asylum Claims under Article 1A(2) and 1(F) of the 1951
Convention and/or 1967 Protocol relating to the Status of Refugees.120 The Guidelines
emphasize that the substantive and procedural aspects of the assessment of a childs
application for refugee status should be informed by the CRC, and in particular the four
guiding principles for its implementation identified by the UNCRC.121 The Guidelines go
on to provide substantive and procedural guidance on carrying out refugee status
determination in a child-sensitive manner,122 including guidance on the interpretation of
the definitional elements of Article 1A(2) and Article 1F of the Refugee Convention.
This includes the assessment of the well-founded fear of being persecuted standard;123
the relevant agents of persecution;124 the Refugee Convention grounds (race and
nationality or ethnicity,125 religion,126 political opinion,127 membership of a particular
social group);128 the issue of internal protection alternatives;129 and the application of the
exclusion provisions to children.130 The Guidelines also provide guidance on a number of
evidential and procedural issues.131
The above discussion evinces clear endorsement, at an institutional level, of

greater alignment between international refugee law and international law on the rights of
the child. This operational phase is particularly significant in that it reflects a
commitment by the UNHCR and the UNCRC not simply to the articulation of general
principles in support of alignment between the two regimes, but also to the substantive
operation of that alignment.
120 UNHCR, Guidelines on International Protection: Child Asylum Claims under Article 1A(2) and 1(F) of
the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (December 2009) (2009
Guidelines).
121 See UNCRC, General Comment No. 5: General Measures of Implementation of the Convention on the
Rights of the Child, CRC/GC/2003/5 (27 November 2003) para. 12.

122 2009 Guidelines, para. 1.
125 Ibid. para. 41.
22
A CHILD RIGHTS FRAMEWORK
The proposition that both the Refugee Convention and the CRC are relevant when
determining the status of a refugee child is not new. The argument for greater alignment
between the two regimes has for some time been advanced by scholars and advocates132
and, as the above discussion illustrates, by the UNHCR and the UNCRC.133 The
relationship between the two regimes has also been explicitly recognized in domestic
guidelines and policy documents.134 But notwithstanding this clear in-principle support,
decision-makers have been reluctant to engage with the CRC and associated
jurisprudence when considering the status of refugee children. A review of more than
1,700 national decisions involving children seeking international protection since the
adoption of the CRC revealed that the treaty was applied explicitly in a very limited
135
number of cases. There are certainly exceptions and, as this chapter will illustrate,
embryonic signs of a domestic refugee jurisprudence that draws on the CRCs normative
framework in assessing a childs refugee status. But these cases remain the exception
rather than the norm.
There are at least three ways in which the CRC may be relevant when considering
the status of a refugee child. First, the CRC may provide procedural guarantees not
otherwise provided under international refugee law. Secondly, the CRC may be invoked
as an interpretative aid to inform the interpretation of the Refugee Convention. Thirdly, the
CRC may give rise to an independent source of status outside the international refugee
132 The fact that [the CRC] reflects a near-universal consensus is a major advantage of child advocates
throughout the world, seeking to initiate protection and assistance programmes, to monitor existing
practices, and to reform those that do not work. The arguments from experience can now, in many cases,
be backed up or grounded in, this international set of rules, cogently and coherently supporting the work
of those who would bring effective protection to refugee children: Goodwin-Gill, above note 26, at 416.
For further examples see e.g., J. Bhabha and W. Young, Not Adults in Miniature: Unaccompanied Child
Asylum Seekers and the New U.S. Guidelines (1999) 11(1) International Journal of Refugee Law 84; Bhabha
and Crock, above note 9; Foster, above note 87, at 646, 20712; M. Crock, Re-thinking the Paradigms of
Protection: Children as Convention Refugees in Australia in J. McAdam (ed.), Forced Migration, Human
Rights and Security (2008) 155; T. Lhr, Die kinderspezifische Auslegung des vlkerrechtlichen Flchtlingsbegriffs
(2009); G. Sadoway, Refugee Children before the Immigration and Refugee Board (1996) 15(5) Refuge 17;
J. McAdam, Complementary Protection in International Refugee Law (2006) 17396; A. Edwards, Age and Gender
Dimensions in International Refugee Law in E. Feller, V. Trk and F. Nicholson (eds), Refugee Protection in
International Law: UNHCRs Global Consultations on International Protection (2003) 46.
133 See above.
134 For example, guidelines published by the governments in Canada, the United Kingdom and Australia all
make reference to the relevance of the CRC in the refugee status determination process. Even the United
Statesone of the two states that has not ratified the CRChas issued guidance noting the significance of
the obligations contained in the CRC in determining the status of a child refugee.
135 The case law review has been captured on a web database to be launched by the author, in collaboration
with Coram Childrens Legal Centre, in mid-2013. See www.childref.org.
23
protection regime. These three modes of interaction provide a child rights framework
for assessing the status of a refugee child. The balance of this chapter provides a brief
overview of each of the three modes of interaction.
CRC as a Procedural Guarantee
The Refugee Convention is silent on the procedures that a state should implement in
designing a domestic system of refugee status determination.136 In contrast, the CRC
contains a number of provisions that are relevant to the procedural dimension of the
international refugee protection regime. For example, Article 12 of the CRC provides:137
(1) State 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.
(2) For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative
proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent
with the procedural rules of national law.
In the refugee context, the language of Article 12(2) is wide enough to cover both the
original administrative decision-making process and any subsequent judicial review.138
The antecedent clause [f]or this purpose indicates that the components of Article 12(1)
carry through to Article 12(2); namely, that there can be no age barrier to the right to be
heard, and that decision-makers in courts or other administrative proceedings have a
duty not just to hear the childs views, but also to afford them due weight having regard
to age and maturity. If the child decides to be heard, he can be heard either directly, or
through a representative or appropriate body, although the UNCRC has recommended
that wherever possible, the child must be given the opportunity to be directly heard.139
136 J. C. Hathaway, A Reconsideration of the Underlying Premise of Refugee Law (1990) 31(1) Harvard
International Law Journal 129, 167.
137 Article 12 is recognized as one of the four guiding principles underpinning the interpretation of the
CRC. See UNCRC, General Comment No. 12, para. 2 (The right of all children to be heard and taken
seriously constitutes one of the fundamental values of the Convention); UNCRC, General Comment No.
5: General Measures of Implementation of the Convention on the Rights of the Child, CRC/GC/2003/5
(27 November 2003) para. 12.
138 This has been expressly affirmed by the UNCRC in its General Comment No. 12, paras 32, 123.
139 General Comment No. 12, para. 35.
24
In affording children the right to express views freely in matters affecting them,
and to be heard in judicial and administrative proceedings, Article 12 recognises the
dangers of wrapping [children] in silence.140 Article 12 emphasizes the importance of
addressing the needs of a child as a true legal person, and not just as an object of
protection.141 The provision thus both reflects and reinforces the paradigm shift away
from thinking about children as passive objects,142 and promotes the participation143 of
children in decision-making processes.144 Article 12 codifies a vision of children as
autonomous social actors with real hopes, fears, hurts and joys,145 and imposes a
procedural responsibility on states to ensure that such hopes, fears, hurts and joys are
taken into account in any matter affecting them.146 A decision to return a child to a
country where he may be at risk of harm almost certainly triggers that responsibility.
Both the UNHCR and the UNCRC have called attention to the significance of
Article 12 in determining the status of refugee child.147 In its 2009 Guidelines the
140 M. Freeman, The Human Rights of Children (2010) 63(1) Current Legal Problems 1, 20. This is also
reflected in the inclusion of traditional civil and political rights in the CRC, including freedom of
expression (Art. 13), freedom of religion (Art. 14) and freedom of association and assembly (Art. 15).
141 Inter-American Court of Human Rights, Juridical Condition and Human Rights of Children, Advisory
Opinion OC-17/2002 (28 August 2002) para. 28.

142 Underlying this change in focus is the rejection of perceptions of children as partly formed human
beings and their acceptance in international law as individuals who are capable of being as rational as
adults. Van Bueren, above note 4, at 137.
143 Article 12 is often referred to as codifying a right to participation, although that term is not actually
used in the CRC. See General Comment No. 12, para. 3. As Krappmann has noted, [p]articipation is a
very good term for that which results from expressing views, listening and giving due weight to the views,
interests and goals of the child: L. Krappmann, The Weight of the Childs Views (Article 12 of the
Convention on the Rights of the Child) (2010) 18 International Journal of Childrens Rights 501, 502.
144 To speak, to participate, to have their views taken into account: these three phases describe the
sequence of the enjoyment of the right to participate from a functional point of view. The new and deeper
meaning of this right is that it should establish a new social contract. One by which children are fully
recognized as rights-holders who are not only entitled to receive protection but also have the right to
participate in all matters affecting them, a right which can be considered as the symbol for their recognition
as rights-holders. This implies, in the long term, changes in political, social, institutional and cultural
structures: UNCRC, Preamble in Day of General Discussion on the Right to be Heard, Report on the 43rd Session
(29 September 2006).
145 M. Minow, Childrens Rights: Where Weve Been and Where Were Going (1995) 68 Temple Law Review
1573, 1583.
146 As agents, rights-bearers can participate. They can make their own lives, rather than having their lives
made for them. And participation is itself a fundamental human right. It enables us to demand rights: M.
Freeman, The Value and Values of Childrens Rights in A. Invernizzi and J. Williams (eds), The Human
Rights of Children (2011) 21, 22.
147 A number of commentators have also highlighted the relevance of Art. 12 in this context. See e.g.,
Bhabha and Young, above note 132, at 84, 96; E. Nykanen, Protecting Children? The European
Convention on Human Rights and Child Asylum Seekers (2001) 3 European Journal of Migration and Law
315, 3203; H. Lidn and H. Rusten, Asylum, Participation and the Best Interests of the Child: New
Lessons from Norway (2007) 21 Children and Society 273; E. Feller, Statement by Erika Feller at EU
Seminar on Children Affected by Armed Conflict and Displacement, Sweden, 1 March 2001, in (2004)
25
UNHCR provides that [e]ven at a young age, a child may still be considered the principal
asylum applicant,148 and that the right of children to express their views in all matters
affecting them, including to be heard in all judicial and administrative proceedings
needs to be taken into account.149 Similarly, in its General Comment No. 6, addressing
the treatment of unaccompanied and separated children, the UNCRC employs Article 12
to promote measures that ensure that the childs views and wishes [are] elicited and
taken into account.150 Particularly significantly, in its General Comment No. 12 the
UNCRC emphasizes that it is urgent to fully implement [a childs] right to express their
views on all aspects of the immigration and asylum proceedings and that the child must
have the opportunity to present her or his reasons leading to the asylum claim.151
Article 12 has also increasingly found favour at the national level, with domestic
legislation,152 guidelines153 and judicial decisions154 explicitly engaging with the
participatory obligations contained in the CRC.
23(2) Refugee Survey Quarterly 329; D. ODonnell, The Rights of Children to be Heard: Childrens Right to Have their
Views Taken into Account and to Participate in Legal and Administrative Proceedings, UNICEF, Innocenti Working
Paper IWP-2009-04 (April 2009) 2931; S. Bolton and K. Wylie, Vulnerable Persons Working Group: Workshop
Discussion Paper (International Association of Refugee Law Judges, World Conference, Slovenia, 2011) 13
8.
148 2009 Guidelines, 4.
149 Ibid. 5. The 2009 Guidelines further note (at 26) that [t]he right of children to express their views and to
participate in a meaningful way is important in the context of asylum procedures. A childs own account
of his/her experience is often essential for the identification of his/her individual protection requirements
and, in many cases, the child will be the only source of this information. The 2009 Guidelines
appropriately recognize that [t]he CRC does not set any lower age limit on childrens right to express their
views freely as it is clear that children can and do form views from a very early age.
150 UNCRC, General Comment No. 6, para. 25.
152 For instance, s. 11 of the first chapter of the Swedish Aliens Act (2005) states: In assessing questions of
permits under this Act when a child will be affected by a decision in the case, the child must be heard,
unless this is inappropriate. Account must be taken of what the child has said to the extent warranted by
the age and maturity of the child.
153 By way of example, in Canada, the relevant domestic guidelines explicitly refer to Art. 12 as affording
children the right to be heard in regard to his or her refugee claim, and outlining seven principles for
eliciting the evidence of a child: Immigration and Refugee Board, Guidelines Issued by the Chairperson
pursuant to Section 65(3) of the Immigration Act, Guideline 3: Child Refugee Claimants: Procedural and
Evidentiary Issues (30 September 1996) 46. In New Zealand, the applicable guidelines provide that [i]n
any claim by the minor to be recognised as a refugee or protected person, as far as practicable, the minor
must be given an opportunity to express their views on the matter, whether personally or through a
responsible adult and that [t]he refugee and protection officer must give due weight to those views, taking
into account the minors age and level of maturity and understanding: Immigration New Zealand,
Immigration New Zealand Operational Manual: Refugees and Protection (4 April 2011) para. C7.1.15. In Sweden the
Migration Boards official internal handbook instructs officers to interview very young children as they can
be understood as skilled story tellers from the age of four: Migration Board, Utlnningshandboken [Handbook
on Foreigners] (undated), cited in A. Lundberg, The Best Interests of the Child Principle in Swedish Asylum
Cases: The Marginalization of Childrens Rights (2011) 3(1) J Human Rights Practice 49, 567.
154 Of particular note, Baroness Hale of the UK Supreme Court has emphasized the importance of Art. 12
in immigration proceedings: Acknowledging that the best interests of the child must be a primary
consideration in these cases immediately raises the question of how these are to be discovered. An
important part of this is discovering the childs own views [T]he immigration authorities must be
prepared at least to consider hearing directly from a child who wishes to express a view and is old enough
26
The UNCRC has emphasized that certain procedural mechanisms and
concessions are required in order to ensure the effective and meaningful realization of
Article 12. In particular:
children have to be provided with all relevant information, in their own

language, on their entitlements, the services available, including means of
communication, and the immigration and asylum process, in order to
make their voice heard and to be given weight in the proceedings. A
guardian or adviser should be appointed, free of charge. Asylum-seeking
children may also need effective family tracing and relevant information
about the situation in their country of origin to determine their best
interests. Particular assistance may be needed for children formerly
involved in armed conflict to allow them to pronounce their needs.
Furthermore, attention is needed to ensure that stateless children are
included in decision-making processes within the territories where they
reside.155
Although consideration of each of these measures is beyond the scope of this chapter,
this passage illustrates the relevance of the CRC to the refugee status determination
process, and the capacity for the CRC to guarantee procedural safeguards not otherwise
guaranteed under the international refugee regime.156
to do so. While their interest may be the same as their parents this should not be taken for granted in
every case Children can sometimes surprise one. ZH (Tanzania) (FC) v Secretary of State for the Home
Department [2011] UKSC 4, at paras 34, 37. Article 12 has also been explicitly relied on by the Supreme
Court of Canada in Baker v Canada [1999] 2 SCR 817, at para. 7, and the Federal Court of Australia in X v
Minister for Immigration and Multicultural Affairs [1999] FCA 995, at para. 39.
155 General Comment No. 12, para. 124. See also General Comment No. 6, para. 25: To allow for a well-
informed expression of such views and wishes, it is imperative that such children are provided with all
relevant information concerning, for example, their entitlements, services available including means of
communication, the asylum process, family tracing and the situation in their country of origin (arts. 13, 17
and 22(2)). In guardianship, care and accommodation arrangements and legal representation, childrens
views should also be taken into account. Such information must be provided in a manner that is
appropriate to the maturity and level of understanding of each child. As participation is dependent on
reliable communication where necessary, interpreters should be made available at all stages of the
procedure.
156 See further Immigration Law Practitioners Association (ILPA), Working with Refugee Children: Current
Issues in Best Practice (2011); S. Mullally, Separated Children in Ireland: Responding to Terrible Wrongs
(2011) 23(4) International Journal of Refugee Law 632; European Migration Network, Policies on Reception, Return
and Integration Arrangements for, and Numbers of, Unaccompanied Minors: An EU Comparative Study (2010); C.
Watters, Refugee Children: Toward the Next Horizon (2008); Bhabha and Crock, above note 9; H. Crawley,
Child First, Migrant Second: Ensuring that Every Child Matters, ILPA policy paper (February 2006); H.E.
Andersson et al. (eds), The Asylum-seeking Child in Europe (2005).
27
CRC as an Interpretative Aid
International law, and in particular international human rights law, has grown
exponentially over the past 60 years. Many of the relatively nascent precepts contained
within the Refugee Convention have since been re-articulated, re-contextualized, and in
many cases expanded in a comprehensive suite of international human rights treaties.
There is widespread acceptance, both at an international and domestic level, that the
open-textured provisions of the Refugee Convention definition should be interpreted
taking into account this broader international human rights framework.157 In these
circumstances there is a clear, principled basis for drawing on the CRCthe most
authoritative articulation of the obligations that a state owes to a childas an aid to
inform the interpretation of the Convention definition in claims involving children.
The alignment of international refugee law with international human rights law is
generally attributed to the work of James Hathaway, who in The Law of Refugee Status
advances a vision of refugee law linked to the emerging corpus of international human
rights law.158 Although Hathaway advocates this vision in a more general sense,159 the link
157 The link between international human rights law and the interpretation of the Refugee Convention has
been endorsed by senior courts in the common law world and increasingly by decision-makers in the civil
law world, by the UNHCR, and by the majority of refugee scholars. For an excellent, comprehensive
discussion on the extent of this endorsement see Foster, above note 87, at 2735. For examples of case
law, see e.g., Canada (Attorney General) v Ward (1993) 2 SCR 689; R v Immigration Appeal Tribunal, ex parte Shah
[1999] 2 AC 629, 653 (Lord Hoffmann); Horvath v Secretary of State for the Home Department [2001] 1 AC 489,
495 (Lord Hope, for the majority), 512 (Lord Clyde); Sepet v Secretary of State for the Home Department [2003] 1
WLR 856, 8623 (Lord Bingham); R v Special Adjudicator, ex parte Ullah; Do (FC) v Secretary of State for the
Home Department [2004] 2 AC 323, 355 (Lord Steyn); HJ (Iran) and HT (Cameroon) v Secretary of State for the
Home Department [2010] UKSC 31, at para. 13 (Lord Hope); Minister of Immigration and Multicultural Affairs v
Khawar [2002] HCA 14, at para. 111 (Justice Kirby); Applicant NABD of 2002 v Minister for Immigration and
Multicultural and Indigenous Affairs (2005) 216 ALR 1, at paras 108111; Stenaj et al. v Alberto Gonzalez, 227
Fed. Appx. 429 (6th Cir. 2007).
158 Hathaway, The Law of Refuge Status, above note 27. It is important to acknowledge that the idea had in
fact been advanced as early as 1953 when Jacques Vernant equated the concept of persecution with severe
measures and sanctions of an arbitrary nature, incompatible with the principles set forth in the Universal
Declaration of Human Rights: J. Vernant, The Refugee in the Post-War World (1953) 8. Guy Goodwin-Gill
had also observed that comprehensive analysis requires the general notion [of persecution] to be related to
developments within the broad field of human rights: G.S. Goodwin-Gill, The Refugee in International Law
(1983) 38.
159 The argument that refugee law should be reconceived as human rights protection runs as a red thread
throughout Hathaways scholarship. See generally J. C. Hathaway, Reconceiving Refugee Law as Human
Rights Protection (1991) 4(2) Journal of Refugee Studies 113; J. C. Hathaway, The Relationship between
Human Rights and Refugee Law: What Refugee Judges Can Contribute in International Association of
Refugee Law Judges, The Realities of Refugee Determination on the Eve of a New Millennium: The Role of the Judiciary
(1998) 80. In addition to conceptualizing the being persecuted inquiry by reference to international human
rights law, Hathaway has drawn on international human rights standards to define the scope of the
membership of a particular group Convention ground (Hathaway, The Law of Refuge Status, above note 27,
at 161); to limit the reach of the internal protection alternative doctrines (J.C. Hathaway and M. Foster,
International Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination in
28
has been most readily embraced by domestic courts in the context of the being
persecuted inquiry. Hathaway considers that the phrase being persecuted should be
understood as the sustained or systemic violation of basic human rights demonstrative
of a failure of state protection,160 identifying the rights enumerated in the UDHR and
subsequently translated into the ICCPR and ICESCR as the appropriate reference points
for identifying the range of circumstances where the action or inaction of a state will
constitute persecutory harm. More recently, Hathaway has appropriately acknowledged
that other widely ratified treaties may be relevant in defining what might be appropriately
recognized as persecutory harm.161 Treaties that may be relevant include the CRC, the
International Convention on the Elimination of All Forms of Racial Discrimination,162
and the Convention on the Elimination of All Forms of Discrimination against
Women.163 Hathaway considers that the specialized treaties have the capacity to act as
valuable interpretive aids to decision-makers when applying the Convention definition.164
The CRC is particularly relevant to the identification of persecutory harms in

refugee claims involving children. The rights protected under the CRC are tailored to
take into account the fact that children experience harms in different ways to adults. The
treaty thus provides an automatic and principled means for adapting the persecutory
threshold to take into account a childs heightened sensitivities and distinct
developmental needs. Indeed, in circumstances where there is general agreement that
E. Feller et al. (eds), Refugee Protection in International Law: UNHCRs Global Consultations on International
Protection (2003) 353); to consider the circumstances when risk following from behavior will warrant refugee
status (J.C. Hathaway and J. Pobjoy, Queer Cases Make Bad Law (2012) 44(2) New York University Journal
of International Law and Politics 315); and to adumbrate the authentic scope of the obligations that a state
owes to refugees (Hathaway, above note 24).
160 Hathaway, The Law of Refuge Status, above note 27, at 1045.
161 J. C. Hathaway, The Relationship between Human Rights and Refugee Law, above note 159.
162 International Convention on the Elimination of All Forms of Racial Discrimination, opened for
signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).
163 Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature
18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).

164 Hathaway, The Relationship between Human Rights and Refugee Law, above note 159. Hathaway
adds a caveat, suggesting that these additional treaties merely contextualize and add meat to the
bonesof the human rights treaties already declared in the International Bill of Rights, and that,
notwithstanding the value of the specialized treaties as interpretative aids, he has yet to see a single
decision that grounds its understanding of unacceptably serious harm in one of the specialized treaties, that
could not equally have invoked the International Bill of Rights to achieve the same outcome. Hathaways
reluctance to fully embrace the normative value of the specialized treaties, and in particular the CRC, is
unfortunate. Although it is true that the CRC re-affirms many of the core principles contained in the
International Bill of Rights, the value of the treaty goes significantly beyond that, strengthening many of
these core principles, and introducing a number of rights specifically tailored to children. Hathaways claim
that he has not seen a result grounded in the CRC that could not have been reached by invoking the
International Bill of Rights should not be seen as a reflection on the nature of the rights themselves, but
rather a failure on the part of decision-makers to fully appreciate and engage with the vision of children
codified in the CRC.
29
international human rights law is relevant to the identification of persecutory harm, and
where an overwhelming majority of states have acknowledged that children have a
distinct set of human rights, it becomes difficult to justify a failure to engage with the
rights enshrined in the CRC when applying the being persecuted standard to children.
As the Federal Court of Canada has stated, [i]f the CRC recognizes that children have
human rights and that persecution amounts to the denial of basic human rights, then if
a childs rights under the CRC are violated in a sustained or systematic manner
demonstrative of a failure of state protection, that child may qualify for refugee status.165
Both the UNHCR and the UNCRC have issued guidance that promotes
interaction between the being persecuted definition and the CRC. In its 1997 Guidelines
on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum,
the UNHCR stated that in identifying persecutory harm in cases involving children [i]t
should be borne in mind that, under the [CRC], children are recognized [as having]
certain specific human rights, and that the manner in which those rights may be violated
as well as the nature of such violations may be different from those that may occur in the
case of adults.166 The point is re-articulated in the UNHCRs 2009 Guidelines:
A contemporary and child-sensitive understanding of persecution

encompasses many types of human rights violations, including violations
of child-specific rights. In determining the persecutory character of an act
inflicted against a child, it is essential to analyse the standards of the CRC
and other relevant international human rights instruments applicable to
children. Children are entitled to a range of child-specific rights set forth
in the CRC which recognize their young age and dependency and are
fundamental to their protection, development and survival.167
The UNCRC has similarly emphasized the need to take into account the development
of, and formative relationship between, international human rights and refugee law when
assessing the being persecuted definition.168 The link between the CRC and the being
165 Kim v Canada (Minister for Citizenship and Immigration) 2010 FC 149; [2011] 2 FCR 448, 467.
166 UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking
Asylum (February 1997) para. 8.7.
167 UNHCR, 2009 Guidelines, para. 13. At paras 1936, the Guidelines provide an overview of a number
of forms of child-specific persecution, drawing heavily on the provisions of the CRC. The Guidelines
suggest that in the context of Africa, the African Charter on the Rights and Welfare of the Child should
also be taken into account in interpreting the being persecuted standard. See also ExCom, Conclusion on
Children at Risk, No. 107 (LVIII) (5 October 2007) paras (b)(x), (g)(viii).
168 UNCRC, General Comment No. 6, para. 74. According to the UNCRC, the refugee definition must
be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and
forms and manifestations of, persecution experienced by children (ibid.). See also ibid. para. 59.
30
persecuted criterion has also been recognized by a number of scholars, each supporting
the general proposition that the child-centered and rights-based approach to children
contained in [the CRC] should inform the application of the concept of persecution to
children.169
The relationship between the being persecuted definition and the CRC has also
been acknowledged at the domestic level, both in guidelines produced by governments170
and in the jurisprudence of national courts and tribunals.171 The clearest endorsement is
found in Canadian jurisprudence. In Kim v Canada (Minister for Citizenship and
Immigration),172 the Canadian Federal Court was called upon to consider the impact of the
CRC on the definition of being persecuted. Although the court agreed with the
argument put forward by the government that [t]he [CRC] does not change the
definition by which a child can be found to be a Convention refugee173 it considered
that the government had failed to appreciate the nuances that the CRC added to the
being persecuted criterion:174
To acknowledge that children have distinctive rights is not to graft

additional rights onto the [refugee definition], but is instead to interpret
the definition of persecution in accordance with the distinctive rights
that children possess, as recognized in the CRC [T]herefore, when
determining whether a child claiming refugee status fits the definition
decision makers must inform themselves of the rights recognized in the
CRC. It is the denial of these rights which may determine whether or not
169 Bhabha and Young, above note 132, at 84, 103. For further support see Foster, above n 88, at 646,
20712; Bhabha and Crock, above note 9, at 15862; Crock, above note 132, at 155, 16671; Lhr, above
note 132, 18068; T. Lhr, Der Flchtlingsbegriff im Lichte der Kinderrechtskonvention in K. Barwig et
al. (eds), Hohenheimer Tage zum Auslnderrecht (2010) 30020; S. Russell, Unaccompanied Refugee Children
in the United Kingdom (1999) 11 International Journal of Refugee Law 126, 1403; G. Sadoway, Refugee
Children before the Immigration and Refugee Board (1996) 15(5) Refuge 17, 178.
170 For example, in Canada the relevant guidelines provide that [i]n determining the childs fear of
persecution, the international human rights instruments, such as the [CRC] should be considered in
determining whether the harm which the child fears amounts to persecution: Immigration and Refugee
Board, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, Guideline
3: Child Refugee Claimants: Procedural and Evidentiary Issues (30 September 1996) 8. In the United States
the training manual for asylum officers provides that fundamental rights of children listed in the CRC that
may rise to the level of persecution if violated include the rights to be registered with authorities upon birth
and acquire a nationality (Art. 7.1), to remain with ones family (Art. 9.1), to receive an education (Art. 28),
and to be protected from economic exploitation (Art. 32): USCIS Asylum Division, Asylum Officer Basic
Training Course: Guidelines for Childrens Asylum Claims (21 March 2009) 3940. In Australia, the domestic
guidelines state that the denial of a human right may constitute persecution, and expressly cites the CRC as
a relevant international treaty: Department of Immigration and Citizenship, Refugee Law Guidelines, para.
9.7.
171 See discussion below.
172 2010 FC 149; [2011] 2 FCR 448.
173 Ibid. 470.
174 Ibid.
31
a child has a well-founded fear of persecution if returned to his or her
country of origin.175
This approach has since been approved in a series of Federal Court decisions involving
child applicants.176 Decision-makers in New Zealand,177 the United Kingdom178 and the
United States179 have also on occasion demonstrated a willingness to draw on the
framework of the CRC to identify persecutory harms.
There are a number of principled benefits that flow from interpreting the
Refugee Convention definition by reference to authoritative international human rights
standards, including the CRC.180 First, it promotes objective and consistent decision-
making.181 In circumstances where the Convention is applied to thousands of individual
refugee claims every day,182 across more than 100 jurisdictions, without any overarching
supervision, the issue of consistent interpretation is invariably raised. The general
proposition that an international treaty should be accorded the same meaning by all who
are party to it183 is largely uncontroversial.184 The need for international uniformity is
175 Ibid. 469, 475.

176 See e.g., Voskovo v Canada (Minister of Citizenship and Immigration) 2011 FC 1376; [2011] FCJ No. 1682, at
para. 43; Bueckert v Canada (Minister of Citizenship and Immigration) 2011 FC 1042, at para. 17; Ruiz v Canada
(Minister of Citizenship and Immigration 2012 FC 258, at para. 60.
177 The Refugee Status Appeals Authority, and the recently established Immigration Protection Tribunal
regularly refer to the CRC in interpreting the being persecuted standard. See e.g., Refugee Appeal Nos 76226
and 76227 (12 January 2009), at paras 1115; Refugee Appeal Nos 75301, 75302 and 75303 (24 January 2006),
at paras 437; Refugee Appeal Nos 76494 and 76494 (23 November 2010); Refugee Appeal Nos 76380, 76381,
76382 and 76383 (30 June 2010). But contra Refugee Appeal Nos 72072/2000 and 72073/2000 (7 December
2000), at para. 43.
178 Fornah v Secretary of State for the Home Department [2007] 1 AC 412: [Female genital cutting] is a human
rights issue, not only because of the unequal treatment of men and women, but also because the procedure
will almost inevitably amount either to torture or to other cruel, inhuman or degrading treatment within
the meaning of article 37(a) of the Convention on the Rights of the Child (at para. 94 per Baroness
Hale). See e.g., FM (Afghanistan) v Secretary of State for the Home Department UTIAC AA/01079/2010 (27
February 2011).
179 See e.g., the dissenting decision of Pregerson J in Mansour v Ashcroft, 390 F.3d 667 (9th Cir. 2004):
[I]mpositions rise to the level of persecution if directed at a child because they implicate a childs
fundamental human rights [T]he [CRC] articulates a wide range of childrens rights and substantive
obligations imposed on states to protect children Among other obligations, the CRC requires states to
protect children from physical or mental abuse, maltreatment and exploitation (at 681). See also Abebe v
Ashcroft, 379 F.3d 755, 764 (9th Cir. 2004).
180 See generally Hathaway and Pobjoy, above note 159, at 3824.
181 Not only are states interpreting key criteria of the refugee definition in light of human rights principles,
but international human rights law is providing the unifying theory binding different bodies of national
jurisprudence: D. Anker, Boundaries in the Field of Human Rights: Refugee Law, Gender and the
Human Rights Paradigm (2002) 15 Harvard Human Rights Journal 133, 136.
182 In 2011 an estimated 441,300 asylum applications were recorded in 44 industrialized countries the
subject of a UNHCR study: UNHCR, Asylum Levels and Trends in Industrialized Countries 2011 (2012).
183 King v Bristow Helicopters [2002] 2 AC 628, at para. 81.
32
particularly evident in the context of the Convention, a treaty which by its very design is
intended to facilitate a minimum level of protection to a refugee regardless of the state
party in which they are seeking refuge.185 Notwithstanding practical difficulties,186 the
desirability of uniformity in the interpretation of the Convention has found favour in
superior domestic courts, particularly within the common law world.187 The framework
of international human rights law, particularly the core international human rights
treaties, provides a principled and objective anchor to assist decision-makers in the task
of ascertaining the international meaning of the key definitional elements of the
Convention.
Secondly, reliance on internationally agreed human rights treaties promotes an

interpretation of the Refugee Convention that is sensitive to the reality that states can
only be bound by what they themselves have agreed to. Apart from anything else,
interpreting the Convention by reference to the same extrinsic standards agreed to by
states is strategically wise188 and decision-makers are likely to be more comfortable
grounding an interpretation of the Convention definition in standards that states
themselves have agreed to.189 Consider, for example, the case of a 15-year-old girl
claiming refugee status on the basis that she will be subjected to female genital cutting if
returned to her country of origin. In circumstances where female genital cutting has been
184 Contra T. Endicott, The One True Interpretation in P. Comanducci and R. Guastini (eds), Analisi e
Diritto (2006) 127, 133. See also T. Endicott, International Meaning: Comity in Fundamental Rights
Adjudication (2001) 13 International Journal of Refugee Law 280.
185 Foster, above note 87, at 36.
186 [W]e may never know, or in some cases, we may not know for a time, which autointerpretation was
correct This is, for better or worse, the situation resulting from the organizational insufficiency of
international law: L. Gross, States as Organs of International Law and the Problem of Autointerpretation
in G.A. Lipsky (ed.), Law and Politics in the World Community: Essays on Hans Kelsens Pure Theory and Related
Problems in International Law (1953) 59, 767, cited in G.S. Goodwin-Gill, The Search for the One, True
Meaning in G.S. Goodwin-Gill and H. Lambert (eds), The Limits of Transnational Law: Refugee Law, Policy
Harmonization and Judicial Dialogue in the European Union (2010) 204, 208.
187 In Adan, the House of Lords expressly considered the question is there an autonomous meaning of
article 1A(2)?. Lord Steyn answered in the following terms: It follows that, as in the case of other
multilateral treaties, the Refugee Convention must be given an independent meaning derivable from the
sources mentioned in articles 31 and 32 [of the Vienna Convention on the Law of Treaties] and without
taking colour from distinctive features of the legal system of any individual contracting state In practice
it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it.
But in doing so it must search, untrammeled by notions of its national legal culture, for the true
autonomous and international meaning of the treaty. And there can only be one true meaning: R v Secretary
of State for the Home Department, ex parte Adan [2001] 2 AC 477, 51517 (emphasis added). See also R v
Immigration Appeal Tribunal and another, ex parte Shah [1999] 2 AC 629; R v Secretary of State for the Home
Department, ex parte Adan [1999] 3 WLR 1274, 1296; A and another v Minister for Immigration and Ethnic Affairs
and Another (1996) 190 CLR 225; X v RSAA and others [2009] NZCA 488.
188 Hathaway, The Relationship between Human Rights and Refugee Law, above note 159, at 85.
189 Sepet v Secretary of State for the Home Department [2001] EWCA (Civ) 681, at para. 66: However wide the
canvas facing the judges brush, the image he makes has to be firmly based on some conception of
objective principle which is recognized as a legitimate source of law).
33
widely condemned as a violation of international human rights law,190 it would be
incongruous for a government that claims to act consistently with its obligations under
international human rights law to assert that that the practice of female genital cutting
does not constitute persecutory harm for the purposes of the Convention definition.
Finally, recourse to internationally agreed standards enables the Refugee

Convention definition to evolve in a contextually sensitive way. By embracing the
interconnection between international refugee law and the increasingly sophisticated
body of international human rights law, decision-makers are provided with an external
point of reference that allows for the progressive development of international refugee
law through the medium of the Convention. This in turn allows the Convention to
respond to circumstances that may not have been apparent to its drafters. For example,
the recognition of the relationship between the Convention and the broader framework
of international human rights law has been critical in advancing claims involving gender-
related persecution,191 sexual orientation192 and social and economic deprivation.193 So
too, international human rights law, and in particular the CRC, now has a vital role to
play in advancing the protection of refugee children.
CRC as an Independent Source of Status
The CRC may also give rise to an independent, complementary source of protection.
The doctrine of complementary protection has been the subject of considerable debate
over the past decade.194 The term is generally used to refer to persons who fall outside
the scope of the protection provided under the Refugee Convention, but who otherwise
have a claim for protection based on the principle of non-refoulement at international
law. The doctrine is thus founded on the international protection obligations owed by a
state to an applicant that are complementary to the protection obligations assumed under
the Refugee Convention.
190 For example, CRC, Art. 24(3).

191 See Anker, above note 181; Edwards, above note 132, at 46; C. Dauvergne and J. Millbank, Forced
Marriage as a Harm in Domestic and International Law (2010) 73(1) Modern Law Review 57.
192 Hathaway and Pobjoy, above note 159; R. Goodman, The Incorporation of International Human
Rights Standards into Sexual Orientation Asylum Claims: Cases of Involuntary Medical Intervention
(1995) 105 Yale Law Journal 255; J. Millbank, From Discretion to Disbelief: Recent Trends in Refugee
Determinations on the Basis of Sexual Orientation in Australia and the United Kingdom (2009) 13(2)
International Journal of Human Rights 391.
193 Foster, above note 87.
194 See, in particular, McAdam, above note 132.
34
It is generally accepted that the CRC contains a complementary source of
protection via the principle of non-refoulement implicit in, at the very minimum, Articles
6 and 37 of the CRC. In that regard, the UNCRC has underlined that a state must not
return a child to his country of origin where there are substantial grounds for believing
that there is a real risk of irreparable harm to the child.195 The UNCRC does not provide
an exhaustive definition of irreparable harm but suggests that it includes, though is by
no means limited to, those harms contemplated under Articles 6 and 37 of the CRC. 196
The Committee goes on to suggest that underage military recruitment and participation
in armed conflict entails a high risk of irreparable harm involving fundamental human
rights, including the right to life.197 Accordingly, the Committee takes the view that the
obligations in Article 38 of the CRC, along with Articles 3 and 4 of the Optional
Protocol to the Convention on the Rights of the Child on the Involvement of Children
in Armed Conflict198 entail extraterritorial effects and States shall refrain from returning
a child in any manner whatsoever to the borders of a State where there is a real risk of
underage recruitment.199
Article 3 of the CRC, which specifies that the best interests of the child shall be a
primary consideration in all actions concerning children, provides a critical additional
safeguard for children seeking international protection.200 Article 3(1) mandates not only
that decision-makers consider the best interests of the child, but more specifically that
those interests are a primary consideration in any actions concerning the child. The
195 General Comment No. 6, para. 27. Similar to the ICCPR, this derives from a states obligation to
respect and ensure the rights set forth in the [CRC] (CRC, Art. 2(1)). In assessing the risk of irreparable
harm it is necessary to consider risks in the country to which removal is to be effected or in any country to
which the child may subsequently be removed (at para. 27).
196 Ibid. para. 27.
197 Ibid. para. 28.
198 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in
Armed Conflict, opened for signature 24 May 2000, UNGA 54/263 (entered into force 12 February 2002).
The implied non-refoulement obligation under the CRC has also been endorsed by the UNHCR: UNHCR,
Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating
to the Status of Refugees and its 1967 Protocol (26 January 2007) para. 19.
200 The best interests language appears on several occasions in the CRC (Arts 9, 18, 20, 21, 37, 40) though
Art. 3(1) is the core provision. That provision is based on Principle 2 of the Declaration of the Rights of
the Child, UNGA Res. 1386(XIV) (1959 Declaration). Further to Art. 3(1) of the CRC, Art. 3(2) places an
obligation on states 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.
35
obligation under Article 3 attaches to all children falling within a states jurisdiction,201
and a state cannot limit the application of the provision on the basis of a childs
citizenship or immigration status. This is made clear by the non-discrimination guarantee
in Article 2(1) of the CRC, in addition to Article 22 of the CRC, which emphasizes that
unaccompanied or accompanied children seeking refugee status are entitled to enjoy all
applicable rights in the CRC on a non-discriminatory basis.202 Although it is now
generally accepted that Article 3 is relevant to children seeking international protection,
this recognition has tended to focus on the influence of the obligation on the procedural
guarantees afforded to at-risk children and the treatment of children during and
subsequent to any status determination process.203 But while Article 3 is plainly relevant
to the procedures and treatment afforded children seeking international protection, the
best interests principle may also be relevant to the substantive determination as to
whether a child is in fact eligible for international protection. This aspect of the
obligation is often overlooked by states, despite the fact that the best interests principle
applies to all actions concerning children204 and must therefore be respected during all
stages of the displacement cycle.205
The argument that Article 3 provides a complementary basis for international

protection is not a novel one. Guy Goodwin-Gill has for some time underlined the
relevance of the best interests principle in determining whether or not a state owes a
child international protection.206 In a submission before the UK House of Lords Select
201 CRC, Art. 2(1).

202 See C.P. Cohen, The United Nations Convention on the Rights of the Child: Implications for Change
in the Care and Protection of Refugee Children (1992) 3(4) International Journal of Refugee Law 675, 689.
203 See e.g., UNHCR, Guidelines on Determining the Best Interests of the Child (May 2009). At a domestic
level, see e.g., Immigration and Refugee Board, Guidelines Issued by the Chairperson pursuant to Section
65(3) of the Immigration Act, Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues (30
September 1996) 2 (In determining the procedure to be followed when considering the refugee claim of a
child, the CRDD should give primary consideration to the best interests of the child); Memorandum
from Jeff Weiss, Acting Director, Office of International Affairs, US Department of Justice Immigration
and Naturalization Service, Guidelines for Childrens Asylum Claims (File No. 120/11.26) (10 December
1998) 3 .
204 CRC, Art. 3(1) (emphasis added).
205 General Comment No. 6, para. 19. As recent guidelines published by the UK Home Office have
acknowledged, the best principle requires a continuous assessment that starts from the moment the child
is encountered and continues until such time as a durable solution has been reached: UK Border Agency,
Asylum Process Guidance: Processing an Asylum Application from a Child (v. 5, 11 August 2010) para.
1.3. In the United Kingdom this is now reflected in the Borders, Citizenship and Immigration Act 2009, s.
55.
206 Goodwin-Gill, above note 26; G.S. Goodwin-Gill, Who to Protect, How and the Future? (1997) 9
International Journal of Refugee Law 1, 7; G.S. Goodwin-Gill, The United Nations Convention on the Rights
of the Child and its Application to Child Refugee Status Determination and Asylum Processes:
Introduction (2012) 26(3) Journal of Immigration Asylum and Nationality Law 226.
36
Committee on the European Union, Goodwin-Gill and Hurwitz criticized the draft EU
Qualification Directive for its failure to sufficiently acknowledge the significance of
Article 3 to the determination process. The authors submitted that [i]n every decision
affecting the child, the best interests of the child shall be a primary consideration, and
where children are concerned (particularly the unaccompanied), a duty to protect may
arise, absent any well-founded fear of persecution or possibly of serious harm.207 This
argument has since been taken up and developed by Jane McAdam in her seminal
monograph, Complementary Protection in International Refugee Law:
[T]he best interests of the child, reflecting an absolute principle of

international law, are highly relevant in determining whether or not a
child needs international protection. The principle applies to any
protection claim concerning children, irrespective of whether they are
unaccompanied, accompanied by family members (even where the child
is not the primary applicant), or seeking family reunion. In conjunction
with the principle of family unity in article 9 CRC, best interests are also
relevant to removal cases which will personally affect a child, such as
where the State seeks to deport a parent. 208
McAdam argues that the best interests principle adds an additional layer of consideration
to the interpretation and application of the Refugee Convention, in addition to
constitut[ing] a complementary ground of protection in its own right.209
Both the UNCRC and the UNHCR have also endorsed the proposition that
Article 3 creates a new category of protected persons. The clearest affirmation is found
in the UNCRCs General Comment No. 6 which provides that [r]eturn to the country of
origin shall in principle only be arranged if such return is in the best interests of the
child.210 According to the UNCRC this determination should take into account the views
207 G.S. Goodwin-Gill and A. Hurwitz, Memorandum in Minutes of Evidence Taken before the EU
Committee (Sub-Committee E) (10 April 2002), in House of Lords Select Committee on the EU, Defining
Refugee Status and Those in Need of International Protection (2002) 2, at para. 10.
208 McAdam, above note 132, at 173. See also McAdam, above note 14, at 251.
209 McAdam, above note 132, at 1734. For further endorsement of this argument see S. Bolton,
Promoting the Best Interests of the Child in UK Asylum Law and Procedures (2012) 26(3) Journal of
Immigration Asylum and Nationality Law 232; S. Bolton, Best interests: Safeguarding and Promoting the
Welfare of Children in Immigration Law and Practice in Immigration Law Practitioners Association,
Working with Refugee Children: Current Issues in Best Practice (2012) 1; N. Dicker and J. Mansfield, Filling the
Protection Gap: Current Trends in Complementary Protection in Canada, Mexico and Australia, UNHCR New Issues
in Refugee Research, Research Paper No. 238 (May 2012) 1922; B. Carr, Incorporating a Best Interests
of the Child Approach into Immigration Law and Procedure (2009) 12 Yale Human Rights and Development
Law Journal 120; J.K. Dalrymple, Seeking Asylum Alone: Using the Best Interests of the Child Principle to
Protect Unaccompanied Minors (2006) 26 Boston College Third World Law Journal 131.
37
of the child; the safety, security and socio-economic conditions awaiting the child upon
return; the availability of care arrangements for the child; the childs level of integration
in the host country; the childs right to preserve his identity, including his nationality,
name and family relationship; and the desirability of continuity in a childs upbringing.211
The Committee suggests that in exceptional circumstances other considerations may
override the best interests of the child, but emphasizes that such considerations must be
rights-based, and that [n]on-rights-based arguments such as those relating to general
migration control, cannot override best interest considerations.212
In recent years the UNCRC has, through its concluding observations,

underscored the need for states to set up a clear process at the national level to consider
and determine what constitutes the best interests of the child on an individual and case-
by-case basis.213 For example, in the most recent observations on Australia the
Committee counseled Australia to [e]nsure that its migration and asylum legislation and
procedures have the best interests of the child as the primary consideration in all
immigration and asylum processes and that determinations of the best interests are
consistently conducted by professionals who have been adequately trained in best
interests determination procedures.214 Further support for the approach taken by the
UNCRC can be found in the reports of the Special Rapporteur on the human rights of
migrants, who has stressed that children should be repatriated only if it is in their best
interests, namely, for the purpose of family reunification and after due process of law.215
This view also finds support in the work of the Office of the United Nations High
Commissioner for Human Rights.216
The UNHCR has similarly acknowledged the importance of Article 3 in

determining whether a child is eligible for international protection. In its Guidelines on
211 Ibid.
212 Ibid. para. 86. See also ibid. para. 20.
213 UNCRC, 2012 Day of Discussion: The Rights of All Children in the Context of International Migration,
Background Paper (August 2012) 21.

214 UNCRC, Concluding Observations, Australia, CRC/C/AUS/CO/4, para. 80.
215 UNGA, Report of the Special Rapporteur on the Human Rights of Migrants, A/64/213 (3 August 2009) paras
85,[97. See further, Human Rights Council, Report of the Special Rapporteur on the Human Rights of Migrants,
Jorge Bustamante, A/HRC/11/7 (14 May 2009), paras 57, 123.
216 Human Rights Council, Study of the Office of the United Nations High Commissioner for Human Rights on
Challenges and Best Practices in the Implementation of the International Framework for the Protection of the Rights of the
Child in the Context of Migration, A/HRC/15/29 (5 July 2010) ([T]he ability of States to return children in
the context of migrant is constrained by a number of factors The principle of the best interest of the
child should be a primary consideration in any decision to return, and in decisions on the deportation of
their parents, paras 467).
38
Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, the
UNHCR states that where a child is found not to qualify for refugee status, an
assessment of the solution that is in the best interests of the child should follow as soon
as practicable after the negative result.217 The UNHCR Executive Committee has also
emphasized that [t]he principle of the best interests of the child shall be a primary
consideration in regard to all actions concerning children218 and recommended that
states adopt appropriate procedures for the determination of the childs best interests
which facilitate adequate child participation without discrimination.219
Finally, Article 3 is beginning to play an increasingly important role at the

domestic level. Although, as noted earlier, there has been a general lack of enthusiasm
surrounding the idea that the best interests principle may provide an independent basis
for protection, there are signs that this is beginning to change. By way of illustration,
following the United Kingdoms withdrawal of its reservation to the CRCwhich
limited the entitlement of non-citizen children to claim CRC rights, including Article 3
the government enacted legislation requiring the state to make arrangements for
ensuring that [the UK Border Agencys] functions are discharged having regard to the
need to safeguard and promote the welfare of children who are in the United
Kingdom.220 The passage of the legislation provided an impetus for a series of decisions
considering the application of Article 3 to migration decisions involving children. The
most significant of these decisions is that of the UK Supreme Court in ZH (Tanzania) v
Secretary of State for the Home Department.221 The case concerned a decision to remove a
Tanzanian woman who had two children born in the United Kingdom, a daughter aged
12 and a son aged 9. In a majority opinion with which all Justices concurred, Lady Hale
underlined that the best interests principle is relevant not only to how children are
looked after in this country while decisions about immigration, deportation or removal
are being made, but also to the decisions themselves and that the decision-maker was
therefore required to take into account the best interests of the children in deciding
217 UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking
Asylum (February 1997) para. 9.2.

218 ExCom, Conclusion on Children at Risk, No. 107 (LVIII) (2007) para. (b).
219 Ibid. para. (g). See also ExCom, Conclusion on the Provision of International Protection including
through Complementary Forms of Protection, No. 103 (2005) para. (n).

220 Borders, Citizenship and Immigration Act 2009, s. 55. This duty is explained in statutory guidance
which provides that the the best interests of the child will be a primary consideration (although not
necessarily the only consideration) when making decisions affecting children: UK Border Agency, Every
Child Matters: Statutory Guidance to the UK Border Agency on Making Arrangements to Safeguard and Promote the
Welfare of Children (November 2009) para. 2.7.
221 [2011] UKSC 4.
39
whether or not the appellant could be removed.222 Although the decision in ZH
concerned the removal of a childs parent, the reasoning applies equally where the child
is directly at risk of removal. This has been made clear in subsequent decisions in the
United Kingdom.223
CONCLUSIONS
The Refugee Convention has grown up within and now constitutes part of a broader
international human rights legal regime. Within that regime the CRC provides the most
comprehensive articulation of the minimum obligations that a state owes to a child, both
generally and in the asylum context. The CRC is widely recognized as a critical milestone
for the protection of children,224 giving children a seat at the international law table,225
and promoting a construction of children as individual rights-bearers with distinct
problems and distinct needs. While the Refugee Convention may well remain the
cornerstone of the international refugee protection regime,226 it is clear that the CRC
provides a critical moral and legal benchmark for the treatment of children seeking
international protection.
This chapter has attempted to demonstrate the relevance of the CRC when
assessing the status of refugee children. An attempt has been made to move beyond
merely asserting the need for greater interaction between international refugee law and
international law on the rights of the child, and to provide a framework that outlines
what that relationship might look like in substantive terms. This chapter has suggested
that the CRC may be relevant in at least three contexts. First, the CRC may act as
procedural guarantee to incorporate safeguards into the refugee status determination
process. The above discussion demonstrated the way in which Article 12 might be
222 Ibid. para. 24 (Lady Hale). The Upper Tribunal has since elaborated on this point: [I]t is not helpful to
attempt to analyse the duty as being either procedural or substantive in effect. It applies to the
procedures involved in the decision-making process; but it will also apply to those aspects of the
substantive decision to which it is relevant: AA (Unattended Children) (Afghanistan) (CG) [2012] UKUT
00016, at para. 33.
223 As the UK Upper Tribunal has noted in the context of a decision involving an unaccompanied Afghan
boy, [w]hilst this case is about the expulsion of a lone child who is separated from his family, it is unlikely
that his best interests are to be treated as of less importance or significance than those of a child whom it is
proposed to expel accompanied by a family member or members: FM (Afghanistan) v Secretary of State for the
Home Department, UTIAC AA/01079/2010 (10 March 2011) para. 108. See also DS (Afghanistan) v Secretary
of State for the Home Department [2011] EWCA Civ 305.
224 Goodwin-Gill, above note 26, at 405.
225 Freeman, The Human Rights of Children, above note 58, at 20.
226 ExCom, Conclusion on the Provision of International Protection including through Complementary
Forms of Protection No. 103 (LVI) (7 October 2005).
40
invoked to guarantee a refugee child a right to be heard in judicial and administrative
proceedings. The CRC might similarly be relevant to age assessment procedures,
guardianship and care arrangements, interview and courtroom concessions, and the
provision of legal assistance. Article 37 of the CRC plainly speaks to the practice of
detaining children during the determination process. Secondly, the CRC may be invoked
as interpretative aid to inform the interpretation of the Refugee Convention definition. The
normative framework of the CRC is particularly relevant to the interpretation of the
being persecuted standard. The CRC may also, however, provide critical guidance in the
interpretation of other limbs of the Convention definition, including the alienage
criterion, the definition of particular social group and the exclusion provisions. Finally
the CRC may give rise to an independent source of status outside the traditional refugee
protection regime. Of particular consequence, the best interests principle codified in
Article 3 of the CRC may create a new category of protected persons227 whose claims will
need be assessed and evaluated by domestic decision-makers.
227This language is adopted by N. Blake, Current Problems in Asylum and Protection Law: The UK
Judicial Perspective, paper delivered at the Ninth World Conference of the International Association of
Refugee Law Judges, Bled, Slovenia, 2011, at 10.
41

Pobjoy, 2013

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Pobjoy, 2013

Uploaded by

Copyright:

Available Formats

PAPER NO.

A Child Rights Framework for Assessing the Status of

A child rights framework for assessing the status of refugee children

21, 43 (1924 Declaration).

Attentiveness at the international level to the distinct needs of refugee children

[S]tate intervention has been pulled in different directions because of a

childs Convention refugee status.

THE CHILD AND THE REFUGEE: THE INTERNATIONAL LEGAL

The Refugee Convention defines a refugee as an individual who satisfies the

Forms of Protection No. 103 (LVI) (7 October 2005).

The mandate of the Refugee Convention is age-neutral, applying to all individuals

19 Refugee Convention, Art. 3.

under International Law (2005).

An examination of the IRO Constitution and a review of the organizations

the repatriation; the identification, registration and classification; the care

(4) The term refugee also applies to unaccompanied children who

34 Holborn, above note 32, at 493.

(1) to unite children with their parents wherever the latter

(a) the existence or absence of a wholesome relationship between the

38 Cited in Holborn, ibid. at 499.

note 32, at 500.

42 HICOG, Law No. 11.

Although not binding, the declaration contained in Recommendation B provides a

Convention on the Rights of the Child

Although earlier accords had addressed the particular protection needs of

66 Contra. ICCPR, Art. 4.

79 See further CRC, Arts 201.

(1982) para. 94.

THE REFUGEE CHILD: SIGNS OF ALIGNMENT

Refugee children comprise approximately one-half of the worlds refugee

to Practice (2006) 15(3) Refugee Survey Quarterly 1, 8.

Conclusions is discussed below.

The UNHCR Working Group convened a consultation on refugee children in

Indeed, the UNHCR policy can legitimately be described as an attempt to

In 1994 the UNHCR issued a revised set of Guidelines, intended to incorporate

rights-based approach, which recognizes children as active subjects of rights,

The ExCom goes on to recommend the development of child and gender-sensitive

In this second phase, the recognition of the relationship between international

109 Ibid. para. c.

When assessing refugee claims of unaccompanied or separated children,

The above discussion evinces clear endorsement, at an institutional level, of

Rights of the Child, CRC/GC/2003/5 (27 November 2003) para. 12.

with Coram Childrens Legal Centre, in mid-2013. See www.childref.org.

CRC as a Procedural Guarantee

Opinion OC-17/2002 (28 August 2002) para. 28.

children have to be provided with all relevant information, in their own

The CRC is particularly relevant to the identification of persecutory harms in

18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).

A contemporary and child-sensitive understanding of persecution

To acknowledge that children have distinctive rights is not to graft

175 Ibid. 469, 475.

Secondly, reliance on internationally agreed human rights treaties promotes an

Finally, recourse to internationally agreed standards enables the Refugee

CRC as an Independent Source of Status

190 For example, CRC, Art. 24(3).

The argument that Article 3 provides a complementary basis for international

201 CRC, Art. 2(1).

[T]he best interests of the child, reflecting an absolute principle of

In recent years the UNCRC has, through its concluding observations,

The UNHCR has similarly acknowledged the importance of Article 3 in

Background Paper (August 2012) 21.

Finally, Article 3 is beginning to play an increasingly important role at the

Asylum (February 1997) para. 9.2.

through Complementary Forms of Protection, No. 103 (2005) para. (n).