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Gerald L. Neuman

Improper confinement of children in migration contexts – unnecessary, prolonged or in harmful conditions – is a severe and troubling phenomenon. In that regard, the UN Human Rights Committee’s General Comment No. 35 (2014) summarizes the treaty body’s interpretation of the right to liberty of person, including protection against arbitrary detention, under the International Covenant on Civil and Political Rights, one of the principal human rights treaties at the global level. This chapter describes the Human Rights Committee’s approach to detention of migrants, including child migrants. It explains why General Comment No. 35 employs a broad definition of ‘detention’, and the resulting need for a nuanced and non-absolutist approach to the ‘detention’ of children in migration contexts. Such ‘detention’ is not invariably arbitrary, but rather should be used only as a measure of last resort, and for the shortest appropriate period of time.

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Kasey Tyler and Shelly Whitman

This chapter reflects on children associated with armed groups or forces as a unique category of migrant children. The protection of these children under international humanitarian law, international human rights law and international principles is examined. The effectiveness of these legal protections, and the mechanism that has been developed by the international community to discourage states and non-government forces from recruiting children into combat or support roles, are also discussed . The two authors reflect on their experience in South Sudan to explore the challenges that exist in actualizing international protections in the context of ongoing conflict. 

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Mary Crock and Hannah Martin

In this chapter we discuss the evolution of international law relative to the protection of child migrants. After a brief historical account of the traditional protective frameworks of international humanitarian law (IHL), refugee law and general human rights law, section 3 turns to a closer analysis of the United Nations Convention on the Rights of the Child (CRC). We examine the ways in which this Convention has changed thinking about children on the move. In this context, two core legal precepts are explored. The first is the concept of the ‘best interests’ of the child (CRC, Article 3). The second is the injunction that affording a child dignity and respect must include allowing children to participate in relevant decision-making processes (CRC, Article 12). While the concept of best interests has a long lineage, we argue that it is the participation provisions that have been truly transformative in the discourse on children’s rights. Section 4 follows with a brief case study of the rights of children displaced by armed conflict and/or natural disasters enshrined in the more recent UN Convention on the Rights of Persons with Disabilities (CRPD). This Convention is modelled in more than one respect on the CRC (as shown, for example, in the parallels between CRC, Article 3 and CRPD, Article 7(2), and CRC, Article 12 and CRPD, Articles 7(3) and 12). The chapter concludes with an acknowledgement of the many ways that states have found to deny children the protective force of international human rights laws.

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Edited by Mary Crock and Lenni B. Benson

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Carmelo Danisi and Mary Crock

The number of children on the move in Europe is without historical precedent. In theory, these children should enjoy protections as rich as anywhere in the world. In reality, European practices have been based on minimum standards of protection with a focus on specific (often procedural) rights. By examining how the Council of Europe and the European Union operate to protect human rights, this chapter explores how notions of the best interests of the child have been embedded in these two systems while attempting to control migration flows. It argues that both systems have considered the Convention on the Rights of the Child (CRC) and the CRC Committee as guidance for every context involving children, including for asylum and migration. Acknowledging the vulnerability of migrant children as a group with special needs, they stress the importance of integrating the best interests principle at legislative and administrative levels to pursue the ‘social development’ of children whatever their immigration status. As a result, while controversies persist, ‘Europe’ does provide a common protective foundation for migrant children. If it will grant a consistent approach on the rights of the child as an indivisible catalogue, it also offers a common potential for more sophisticated best interests-friendly solutions to prevail over the need to protect ‘national’ boundaries.

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Gillian Triggs

Over the past decade, the Australian Human Rights Commission has conducted two National Inquiries into children in immigration detention in Australia. This chapter focuses on the second National Inquiry, conducted in 2014. The Inquiry found that prolonged detention was having profoundly negative impacts on the mental and emotional health and development of children. Following the Inquiry, all children were gradually released from closed immigration detention facilities in Australia. The Commission’s recommendation for legislative amendments to prevent prolonged detention of children in the future was not adopted.

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Pamela Goldberg

This chapter discusses efforts to address the crisis of unaccompanied children fleeing from the Northern Triangle of Central America (NTCA) by two key actors: the United Nations High Commissioner for Refugees (UNHCR), the UN agency charged with the responsibility of overseeing the protection of refugees worldwide, and the United States. The United States, where the large majority of these children attempt to migrate in the belief that it offers the greatest possibility for protection, has focused on short-term, small impact responses. UNHCR, true to its mandate and commitment, is undertaking a multilayered, multilateral, comprehensive approach that includes short-term programs to address the most immediate needs of the children and longer-term efforts that support addressing the root causes of the crisis. The background section of this chapter provides a snapshot of the often life-threatening reasons children are fleeing the region in such soaring numbers. The most compelling need for these children is to ensure they receive protection from harm. The meaning and sources of international and regional protection are presented next. UNHCR’s efforts to address the crisis of children from the region, followed by US programs, are discussed in sections 4 and 5. The chapter concludes with a discussion of the effectiveness of this work to meet the short-term and longer-term protection needs of unaccompanied children fleeing the NTCA.

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David B. Thronson

US immigration law’s substantive criteria for immigration relief, procedural frameworks and protections, expectations for evidence and proof, allocations of burdens and roles all have been crafted to address the needs and experiences of adults. Children, in this system, are afterthoughts. Even in the few instances where US immigration law focuses directly on children, it fails to shed antiquated and limited notions of children. The existing adult-oriented frameworks provide an inadequate set of responses to shifting patterns of child migration. Flows of child migrants create a challenge for existing US immigration laws and systems which are simply not designed for the arrival of unaccompanied children and multigenerational families without lawful immigration status. Although US immigration law has adapted over time to address other perceived inadequacies or problems in the way in which the law aligned with societal needs or intersected with tumultuous world events, substantive reforms to tailor US immigration law to the experiences and realities of the thousands of migrant children arriving in the United States are conspicuously absent. Unfortunately, this lack of action is consistent with the general disregard for children throughout US immigration law. By failing to develop and tailor immigration law to address the unique experiences of children, especially unaccompanied migrant children, US immigration law leaves children to navigate adult-oriented systems and laws that are not responsive to current patterns of child migration and lack adequate protections for children.

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Andreas Schloenhardt and Joseph Lelliott

Children who have been displaced by war, civil unrest, human rights violations, poverty, or who have been sent by their families to find safety and employment abroad are particularly vulnerable to exploitation and the many risks associated with irregular migration. Worldwide, irregular migration of children is on the rise, fuelling concerns about their safety and wellbeing, and their involvement in migrant smuggling and trafficking in persons. This chapter explores smuggling and trafficking in children, and the protection of migrant children under the United Nations Protocol Against the Smuggling of Migrants by Land, Sea and Air and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.

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Farrin R. Anello

This chapter focuses on a rare and complex situation: that of a child who flees a gang after having been actively involved in gang activities. Such a child falls into what researcher Thomas Boerman calls the ‘Trap of Gang Membership’. Gang leaders view renouncing gang membership as betrayal, and defectors from their ranks face imminent torture and murder. Conversely, having been marked (often tattooed) as a gang member, defectors cannot reintegrate into society in their countries of origin, and continue to be targeted for death by rival gangs and police. Like former child soldiers in more traditional armed conflicts, formerly gang-involved children are frequently survivors of extreme violence and trauma. Adolescents, moreover, share a particular susceptibility both to coercion and risk-taking, making them prime recruitment targets for both gang leaders and military leaders. On the other hand, young people also show a particular capacity for change and rehabilitation. Even in extreme cases, governments can both protect children and provide them with the support structures needed to become peaceful and contributing members of their communities.