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Edited by Mary Crock and Lenni B. Benson

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Savitri Taylor

The principal domestic mechanism through which Australia gives effect to its protection obligations under the UN Convention Relating to the Status of Refugees, and under other human rights treaties, is the protection visa. This chapter describes the procedural treatment of asylum-seeking children in Australia and considers whether it is compliant with Australia’s obligations under key provisions of the Convention on the Rights of the Child. This chapter adds to the existing literature by examining the treatment of all asylum-seeking children and by focusing on legislative and policy changes in 2014 and 2015 affecting procedural rights at the primary and merits review stage of the protection visa application process.

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Mary Crock and Lenni B. Benson

In this introductory chapter we identify themes that will be carried throughout the book. We begin in section 2 with a discussion of the human rights challenges presented by children on the move, posing questions that our contributors will address as they build on the themes we identify. This is followed by an examination of obstacles that have been created to recognizing child migrants as rights bearers. After setting out in section 4 a brief outline of the book’s structure, the chapter concludes with some comments on global initiatives that have been made to address the challenges associated with mass migration, on the one hand, and of forced movement of refugees, on the other. We will argue that the uncertainty and risks facing the world in the new millennium certainly constitute problems – but they also offer opportunities for positive change. Four foundational principles inform our discussion of how states should respond to children on the move. The first is that childhood is unique in that the status of being a child is transitory and (absent disabilities) the capacities of children evolve as children age. Second, it follows that children require special protection and assistance, most particularly in their younger and adolescent years, if they are to develop and thrive. The third point is that procedural accommodations should be made for children in recognition of the physical and cognitive stages of their development. The fourth and final principle both flows from and unites the three that precede it. It is that the treatment of child migrants matters because it has long-term consequences – both for the children themselves and for their host communities.

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Kathryn E. van Doore

Children are increasingly on the move in, through and out of South East Asia for independent voluntary migration, or due to forced migration, or trafficking. This chapter examines how the best interests principle embodied in the Convention on the Rights of the Child intersects with the issue of child migration and trafficking in the Association of South East Asian Nations (ASEAN) region. It asserts that South East Asia is in a unique position to adopt a child rights-based approach to child trafficking and migration policy regionally with the best interests of the child as the paramount consideration.

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Timnah Baker and Kate Bones

International and domestic jurisprudence and guidance on the definition of ‘refugee’ have largely developed around the adult applicant. Decision-makers and courts have often struggled to engage with the different experiences and vulnerabilities of children seeking asylum. This chapter examines the application of the refugee definition to children in the law of Australia and the United States, providing comparative case studies on two aspects of the definition that present particular issues in the jurisdictions: the level of harm required to amount to persecution, and ‘membership of a particular social group’. The chapter concludes by drawing on the two case studies to highlight the possibilities of transnational and cross-jurisdictional dialogue in the field of refugee law.

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Mary Crock and Phoebe Yule

The central argument in this chapter is that the Convention Relating to the Status of Refugees (‘Refugee Convention’) can and should be read in a manner that considers the experiences and particular vulnerabilities of children. We begin in section 2 with a (necessarily brief) examination of the Convention definition of the term ‘refugee’, exploring how the various elements can and should be read to accommodate the protection needs of children. Section 3 looks at the Convention’s exclusionary provisions and how these can affect children who have been embroiled in violence and conflict. We conclude with some reflections on the substantive rights that should flow in acknowledging the application of the Refugee Convention to children on the move as forced migrants.

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Carlos Holguín and Kavita Kapur

The ‘surge’ of Central American families and children arriving at the US southern border in the summer of 2014 prompted the United States to adopt a policy of detaining Central American families indefinitely in order to deter other youth and families fleeing violence in El Salvador, Honduras and Guatemala (known collectively as the Northern Triangle of Central America (NTCA)) from seeking refuge in the United States. This policy disproportionately affects youth who are particularly vulnerable to the endemic gang violence that plagues NTCA countries. In light of the limitations on challenging this policy in US courts, this chapter explores the role of the inter-American system in protecting the human rights of migrant children and youth. In this chapter, we summarize the inter-American Treaties and Conventions we think speak most forcefully to governments that would deny Central American children and youth the right to refuge or other international protection. We then discuss the jurisdiction and procedures of the institutions charged with promoting adherence to the inter-American human rights framework. Finally, we describe recent examples of advocacy within the inter-American system we hope will illustrate the potential and limitations of this system as a tool to advocate for adolescentes en el camino (migrant adolescents).

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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.