CMW/C/GC/3-CRC/C/GC/22
Considerations such as those relating to general migration control cannot override bestinterests considerations. The Committees stress that return is only one of the various
sustainable solutions for unaccompanied and separated children and children with their
families. Other solutions include integration in countries of residence — either temporarily
or permanently — according to each child’s circumstances, resettlement in a third country,
e.g. based on family reunification grounds, or other solutions that could be identified on a
case-by-case basis, by referring to existing cooperation mechanisms, such as the
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation
in respect of Parental Responsibility and Measures for the Protection of Children.
C.
Right to be heard, express his or her views and participation (artilce 12
of the Convention on the Rights of the Child)
34.
Article 12 of the Convention on the Rights of the Child underscores the importance
of children’s participation, providing for children to express their views freely and to have
those views taken into account with due weight, according to age, maturity and the
evolving capacity of the child.
35.
The Committee on the Rights of the Child, in its general comment No. 12,
underlines that adequate measures to guarantee the right to be heard should be implemented
in the context of international migration, as children who come to a country could be in a
particularly vulnerable and disadvantaged situation. 10 For that reason, it is critical to
implement fully their right to express their views on all aspects affecting their lives,
including as an integral part of immigration and asylum proceedings, and for their views to
be given due weight. Children may have their own migration projects and migration-driving
factors, and policies and decisions cannot be effective or appropriate without their
participation. The Committee also emphasizes that these children should be provided with
all relevant information, inter alia, on their rights, the services available, means of
communication, complaints mechanisms, the immigration and asylum processes and their
outcomes. Information should be provided in the child’s own language in a timely manner,
in a child-sensitive and age-appropriate manner, in order to make their voice heard and to
be given due weight in the proceedings.11
36.
States parties should appoint a qualified legal representative for all children,
including those with parental care, and a trained guardian for unaccompanied and separated
children, as soon as possible on arrival, free of charge. 12 Accessible complaints mechanisms
for children should be ensured. Throughout the process, children should be offered the
possibility to be provided with a translator in order that they may express themselves fully
in their native language and/or receive support from someone familiar with the child’s
ethnic, religious and cultural background. These professionals should be trained on the
specific needs of children in the context of international migration, including gender,
cultural, religious and other intersecting aspects.
37.
States parties should take all measures appropriate to fully promote and facilitate the
participation of children, including providing them with the opportunity to be heard in any
administrative or judicial proceeding related to their or their families’ cases, including any
decision on care, shelter or migration status. Children should be heard independently of
their parents, and their individual circumstances should be included in the consideration of
the family’s cases. Specific best-interests assessments should be carried out in those
procedures, and the child’s specific reasons for the migration should be taken into account.
Regarding the significant relationship between the right to be heard and the best interests of
the child, the Committee on the Rights of the Child has already stated that there can be no
correct application of article 3 if the components of article 12 are not respected. Likewise,
10
11
12
See Committee on the Rights of the Child, general comment No. 12, para. 123.
Ibid., para. 124.
Ibid., paras. 123-124.
9