Judicial implementation of article 3 of the Convention on the Rights of the Child in Europe : the case of migrant children including unaccompanied children

Abstract

The United Nations Convention on the Rights of the Child (CRC) and its Optional Protocols provide the basis for establishing effective mechanisms to address the multifaceted challenges faced by States and other actors, including regional organizations, in ensuring that children are able to access and enjoy their rights. Article 3 of the CRC states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. This principle is of particular relevance to the situation of migrant children, including unaccompanied migrant children, in regular or irregular situations that are the focus of this study. This study reviews judicial decisions from the CJEU and the ECtHR and from selected European national courts, which apply the principle of the best interests of the child to cases involving migrant children in irregular situations, including unaccompanied and separated children. The selected cases are meant to be illustrative of the type of issues that are raised before national courts and of the way in which these courts interpret their obligation under Article 3 of the CRC to treat the best interests of the child as a primary consideration. Finally, the study identifies a number of relevant cases which explicitly refer to the best interests of the child and that may serve as good practice in guiding future jurisprudence throughout Europe.