CRC: Violation of Article 3 and 12 CRC by failing to exercise children’s right to be heard pending a Dublin transfer

Friday, October 30, 2020

On 30 October 2020, the Committee on the Rights of the Child adopted its views, under Article 10(5) of the Optional Protocol to the Convention on the Rights of the Child (CRC), concerning the communication (CRC/C/85/D/56/2018) submitted by the author on behalf of her children, E.A and U.A.

The author, her husband and their children, E.A and U.A, fled from Azerbaijan to Switzerland. The first time, the family had to agree to return to Azerbaijan. However, after her husband’s arrest upon return, the author arranged to flee again to Switzerland via Italy, with E.A and U.A. While the Swiss authorities subsequently instituted a take back request to Italy under the Dublin III Regulation (Regulation 604/2013), the author unsuccessfully requested, under article 17 of Dublin III, that the Swiss authorities examine their asylum application, given that the transfer would be detrimental to the rights and best interests of the children in a vulnerable family. The author suffered panic and anxiety attacks during the removal operation and as a result the police abandoned the family at Zurich airport with no money and told them to make their own way back to their accommodation in Ticino. The author complained that the Swiss authorities violated their obligation to respect the rights set out in the CRC under, inter alia, articles 3 and 12.  
The Committee took note of the author’s allegation that the Swiss authorities violated article 12, guaranteeing the right of the child to be heard in any judicial or administrative proceedings affecting the child. It pointed out that this article imposes no age limit on the right of the child to express her or his views and stated that, in general, it discourages States parties from introducing age limits either in law or in practice that would restrict the child’s right to be heard in all matters affecting her or him. The Committee highlighted that determining the best interests of the children requires that their situation be assessed separately, notwithstanding the reasons for which their parents made their asylum application.  It adopted the view that the absence of a direct hearing of the children constituted a violation of article 12 CRC.
Moreover, the Committee noted the author’s argument that the Swiss authorities did not take into consideration the trauma experienced by the children, including twice fleeing their country of origin, once returning to their country of origin and attempting a second time at making them return under particularly traumatic conditions. It considered that the national  authorities, having failed to hear E.A and U.A, did not show due diligence in assessing the children’s best interests and thus violated article 3 CRC.

Photo: GPA Photo Archive, September 2010, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Best interest of the child
Child Specific Considerations
Dublin Transfer
Effective remedy (right to)