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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.

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Edited by Mary Crock and Lenni B. Benson

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Lenni B. Benson and Claire R. Thomas

In theory, United States immigration statutes offer many forms of protection and integration to foreign national youth. In practice, however, the ability of young people to access relevant special visa categories is frustrated by process barriers and the lack of adequate information and skilled counsel. Under US law, migrant children may seek protection as refugees; they may qualify for permanent residence if they have been abandoned, abused or neglected by a parent; they may be protected if victims of crimes or trafficking. In this chapter, we explore whether US domestic legal systems protect children’s procedural rights. We note at the outset that the US Constitution has been applied consistently to protect both citizen and foreign-born children with regard to fundamental rights such as education, safety and criminal punishment. Between October 2010 and October 2016, the US government initiated 177,561 removal or deportation cases against children. Of these, 41 per cent or 73,013 cases remained pending in mid-2017. This suggests that children are given time and process in removal proceedings. In this chapter we examine some of the reasons why ‘due process’ does indeed require time, as we explore measures that would greatly reduce the procedural protections that have been available.

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Protecting Migrant Children

In Search of Best Practice

Edited by Mary Crock and Lenni B. Benson

Unprecedented numbers of children are crossing international borders seeking safety. Framed around compelling case studies explaining why children are on the move in Africa, the Americas, Asia, Europe, the Middle East and Oceania, this book explores the jurisprudence and processes used by nations to adjudicate children’s protection claims. The book includes contributions from leading scholars in immigration, refugee law, children’s rights and human trafficking which critically examine the strengths and weaknesses of international and domestic laws with the aim of identifying best practice for migrant children.
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Catriona Jarvis and Syd Bolton

Case law, legislation and policies concerning migrant and refugee children have on the whole developed positively in the United Kingdom, particularly since the withdrawal in 2009 of its immigration reservations against the 1989 UN Convention on the Rights of the Child. In practice, however, the implementation of these standards and responsibilities has been undermined by the UK government’s ‘hostile environment’ approach to border control measures, restrictions on access to justice and legal aid. Laws intended to enable the admission of asylum-seeking children to the United Kingdom from continental Europe, including for family reunion, have been dilatory. A sceptical, contingent approach to child refugee status determination leaves children in a position of temporary rather than enduring protection. This approach conflicts with the rights, needs and interests of migrant and refugee children living in or seeking to enter the United Kingdom, who now also face an increasingly uncertain future as the United Kingdom embarks on the process to leave the European Union following the ‘Brexit’ referendum result in 2016.