CMW/C/GC/3-CRC/C/GC/22
legal guardians, and decisions regarding family unity and child custody, where the best
interests of the child shall be a primary consideration and thus have high priority.
30.
In particular, the best interests of the child should be ensured explicitly through
individual procedures as an integral part of any administrative or judicial decision
concerning the entry, residence or return of a child, placement or care of a child, or the
detention or expulsion of a parent associated with his or her own migration status.
31.
In order to implement the best interests principle in migration-related procedures or
decisions that could affect children, the Committees stress the need to conduct
systematically best-interests assessments and determination procedures as part of, or to
inform, migration-related and other decisions that affect migrant children. As the
Committee on the Rights of the Child explains in its general comment No. 14, the child’s
best interests should be assessed and determined when a decision is to be made. A “bestinterests assessment” involves evaluating and balancing all the elements necessary to make
a decision in the specific situation for a specific individual child or group of children. A
“best-interests determination” is a formal process with strict procedural safeguards
designed to determine the child’s best interests on the basis of the best-interests assessment.
In addition, assessing the child’s best interests is a unique activity that should be undertaken
in each individual case and in the light of the specific circumstances of each child or group
of children, including age, sex, level of maturity, whether the child or children belong to a
minority group and the social and cultural context in which the child or children find
themselves.
32.
The Committees stress that States parties should:
(a)
practice;
Give high priority to the child’s best interests in their legislation, policy and
(b)
Ensure that the principle of the best interests of the child is appropriately
integrated, consistently interpreted and applied through robust, individualized procedures in
all legislative, administrative and judicial proceedings and decisions, and in all migration
policies and programmes that are relevant to and have an impact on children, including
consular protection policies and services. Adequate resources should be put in place in
order to ensure this principle is applied in practice;
(c)
Ensure that all best-interests assessments and determinations developed and
conducted give appropriate weight to fulfilling the rights of the child — in the short and
long terms — in the decision-making processes affecting children; and ensure due process
safeguards are established, including the right to free, qualified and independent legal
representation. The best-interests assessment should be carried out by actors independent of
the migration authorities in a multidisciplinary way, including a meaningful participation of
authorities responsible for child protection and welfare and other relevant actors, such as
parents, guardians and legal representatives, as well as the child;
(d)
Develop procedures and define criteria to provide guidance to all relevant
persons involved with migration procedures on determining the best interests of the child
and on giving them due weight as a primary consideration, including in entry, residence,
resettlement and return procedures, and develop mechanisms aimed at monitoring its proper
implementation in practice;
(e)
Assess and determine the best interests of the child at the different stages of
migration and asylum procedures that could result in the detention or deportation of the
parents due to their migration status. 7 Best-interests determination procedures should be put
in place in any decision that would separate children from their family, and the same
standards applied in child custody, when the best interests of the child should be a primary
consideration. In adoption cases, the best interests of the child shall be the paramount
consideration;
7
See Committee on the Rights of the Child, report of the 2012 day of general discussion on the rights
of all children in the context of international migration, paras. 73-74. Available from
www.ohchr.org/Documents/HRBodies/CRC/Discussions/2012/DGD2012ReportAndRecommendatio
ns.pdf.
7