Accompanied migrant minors in detention

HLIANA PAPACHARALAMPOUS & WILLEM-JAN VAN DER WOLF

Accompanied and unaccompanied minors are a particularly vulnerable subset of migrants. Young and alone, they find themselves in a situation of ‘double vulnerability’: as children, and as children affected by migration.
According to the UNHCR, an estimated 50 million children are on the move in the world today, and the number of asylum-seeking and migrant children travelling alone has dramatically increased since 2010.
Despite a significant decline from data registered in previous years (in particular in 2015), the number of migrant and refugee children arriving in Europe is still high, and it puts significant strain on asylum systems, challenging governments to uphold their rights and to provide essential services.
On 2022, the European Court of Human Rights (ECtHR) issued two Chamber judgments, in which it reaffirmed that the respect for the double vulnerability of child asylum seekers must be a primary consideration, and not just an equal consideration to other factors (such as their irregular status).
In this monograph you will find the key cases related to this subject and some background information.

Children’s rights

HLIANA PAPACHARALAMPOUS & WILLEM-JAN VAN DER WOLF
Children’s rights are a subset of human rights with particular attention to the rights of special protection and care afforded to minors (Not to be confused with Youth rights). The 1989 Convention on the Rights of the Child (CRC) defines a child as “any human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier.” Children’s rights includes their right to association with both parents, human identity as well as the basic needs for physical protection, food, universal state-paid education, health care, and criminal laws appropriate for the age and development of the child, equal protection of the child’s civil rights, and freedom from discrimination on the basis of the child’s race, gender, sexual orientation, gender identity, national origin, religion, disability, color, ethnicity, or other characteristics.
Children have two types of human rights under international human rights law. They have the same fundamental general human rights as adults, although some human rights, such as the right to marry, are dormant until they are of age, Secondly, they have special human rights that are necessary to protect them during their minority.
General rights operative in childhood include the right to security of the person, to freedom from inhuman, cruel, or degrading treatment, and the right to special protection during childhood. Particular human rights of children include, among other rights, the right to life, the right to a name, the right to express his views in matters concerning the child, the right to freedom of thought, conscience and religion, the right to health care, the right to protection from economic and sexual exploitation, and the right to education.

Gestational surrogacy

KARINE KARAKI & WILLEM-JAN VAN DER WOLF
Gestational surrogacy, in which the surrogate is not related to the child she is carrying, is the most common type of surrogacy today. While gestational surrogacy statistics are difficult to find, this path to parenthood has helped thousands of couples and individuals grow their families, and it is becoming increasingly common.
If you are interested read on to learn more about how it works. In gestational surrogacy, the child is not biologically related to the surrogate mother, who is often referred to as a gestational carrier. Instead, the embryo is created via in vitro fertilization (IVF), using the eggs and sperm of the intended parents or donors, and is then transferred to the surrogate.
This form of surrogacy is sometimes also called “host surrogacy” or “full surrogacy.” In most cases, at least one intended parent is genetically related to the child, and the surrogate is not.
In this monograph you will find the key cases related to this subject and some background information.

International child abductions

VERA UGOLINI & WILLEM-JAN VAN DER WOLF
It is international child abduction if a child is transferred or kept behind in a different country by one of the parents (or by other relatives in exceptional cases). This is a criminal offence (section 279 of the Criminal Code).
There are incoming and outgoing international child abduction cases. If it is an incoming case, it concerns the abduction of a child by one of the parents from another country to the Netherlands. If it is an outgoing case, it concerns the abduction of a child by one of the parents from Europe to another country.
There are about 60 incoming cases on average per year with the request to lead the child or the children back to another country. There are about 110 outgoing cases of children having been abducted to another country with the parent who stayed behind asking for the child to be led back to Europe.
There are two international agreements to fight international child abduction: a European Convention and an international convention (the so called 1980 Hague international child abduction convention). Both conventions became effective in Europe on 1 September 1990. In addition the European Brussels IIbis Regulation has been effective since March 2005. The Brussels IIbis Regulation also contains provisions on international child abduction concurrent with the Hague Convention.

Parental rights

EFSTATHIA MARTARA & WILLEM-JAN VAN DER WOLF
All mothers and most fathers have legal rights and responsibilities as a parent - known as ‘parental responsibility’.
If you have parental responsibility, your most important roles are to:
• provide a home for the child
• protect and maintain the child
You’re also responsible for:
• disciplining the child
• choosing and providing for the child’s education
• agreeing to the child’s medical treatment
• naming the child and agreeing to any change of name
• looking after the child’s property
If you have parental responsibility for a child but you do not live with them, it does not mean you have a right to spend time with your children.
However, the other parent must include you when making important decisions about their lives. You do not always need to get the consent of the other parent for routine decisions, even if they also have parental responsibility. If it’s a major decision (for example, one of you wants to move abroad with your children) both parents with responsibility must agree in writing.
In this monograph you will find the key cases related to this subject and some background information.

Protection of minors

VERA UGOLINI & WILLEM-JAN VAN DER WOLF
In law, a minor is a person under a certain age, usually the age of majority, which legally demarcates childhood from adulthood. The age of majority depends upon jurisdiction and application, but it is commonly 18. Minor may also be used in contexts that are unconnected to the overall age of majority.
For example, the smoking and drinking age in the United States is 21, and younger people below this age are sometimes called minors in the context of tobacco and alcohol law, even if they are at least 18. The terms underage or minor often refers to those under the age of majority, but it may also refer to a person under other legal age limits, such as the drinking age, smoking age, age of consent, marriageable age, driving age, voting age, etc. Such age limits are often different from the age of majority.
The concept of minor is not sharply defined in most jurisdictions. The age of criminal responsibility and consent, the age at which school attendance is no longer compulsory, the age at which legally binding contracts can be entered into, and so on may be different from one another.
In many countries, including Australia, Serbia, India, Brazil, Croatia, and Colombia, a minor is defined as a person under the age of 18. In the United States, where the age of majority is set by individual states, minor usually refers to someone under 18 but can in some areas (such as alcohol, gambling, and handguns) mean under 21. In the criminal justice system a minor may be tried and punished either “as a juvenile” or “as an adult”.
In Japan, Taiwan, and Thailand, a minor is a person under 20 years of age, and, in South Korea, a person under 19 years of age. In New Zealand law, the age of majority is 20 years of age as well, but most of the rights of adulthood are assumed at lower ages: for example, entering contracts and having a will are allowed at 15, while the drinking and voting age are both at 18.
We have the cases all done with the Protection of Minors.

Reproductive rights

KARINE KARAKI & WILLEM-JAN VAN DER WOLF
All mothers and most fathers have legal rights and responsibilities as a parent - known as ‘parental responsibility’.
If you have parental responsibility, your most important roles are to:
• provide a home for the child
• protect and maintain the child
You’re also responsible for:
• disciplining the child
• choosing and providing for the child’s education
• agreeing to the child’s medical treatment
• naming the child and agreeing to any change of name
• looking after the child’s property
If you have parental responsibility for a child but you do not live with them, it does not mean you have a right to spend time with your children.
However, the other parent must include you when making important decisions about their lives. You do not always need to get the consent of the other parent for routine decisions, even if they also have parental responsibility. If it’s a major decision (for example, one of you wants to move abroad with your children) both parents with responsibility must agree in writing.
In this monograph you will find the key cases related to this subject and some background information.

Unaccompanied migrant minors in detention

IREM ARISOY & WILLEM-JAN VAN DER WOLF
An unaccompanied minor (sometimes “unaccompanied child” or “separated child”) is a child without the presence of a legal guardian.
The UN Committee on the Rights of the Child defines unaccompanied minors and unaccompanied children as those “who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.” The Committee defines separated children as those “who have been separated from both parents, or from their previous legal or customary primary care-giver, but not necessarily from other relatives. These may, therefore, include children accompanied by other adult family members.”
In immigration law unaccompanied minors, also known as separated children, are generally defined as foreign nationals or stateless persons below the age of 18, who arrive on the territory of a state unaccompanied by a responsible adult, and for as long as they are not effectively taken into care of such a person. It includes minors who are left unaccompanied after they entered the territory of state. A few countries have non-asylum procedures in place to adjudicate unaccompanied minor cases.
Family reunification is a core component of a durable solution for an unaccompanied child, wherever this is in the best interests of the child.Family reunification could take place in the country of destination or origin, or in a third country. Caseworkers and officers should inform unaccompanied children about the possibilities and procedures for family reunification. The child should have access to support when applying for family reunification.

Domestic violence

IREM ARISOY & WILLEM-JAN VAN DER WOLF
Domestic violence (also called domestic abuse or family violence) is violence or other abuse that occurs in a domestic setting, such as in a marriage or cohabitation. Domestic violence is often used as a synonym for intimate partner violence, which is committed by one of the people in an intimate relationship against the other person, and can take place in either heterosexual or same-sex relationships or between former spouses or partners. In its broadest sense, domestic violence also involves violence against children, parents, or the elderly. It can assume multiple forms, including physical, verbal, emotional, economic, religious, reproductive, or sexual abuse. It can range from subtle, coercive forms to marital rape and other violent physical abuse, such as choking, beating, female genital mutilation, and acid throwing that may result in disfigurement or death, and includes the use of technology to harass, control, monitor, stalk or hack. Domestic murder includes stoning, bride burning, honor killing, and dowry death, which sometimes involves non-cohabitating family members.
Domestic violence often occurs when the abuser believes that they are entitled to it, or that it is acceptable, justified, or unlikely to be reported. It may produce an intergenerational cycle of violence in children and other family members, who may feel that such violence is acceptable or condoned. Many people do not recognize themselves as abusers or victims, because they may consider their experiences as family conflicts that had gotten out of control. Awareness, perception, definition and documentation of domestic violence differs widely from country to country. Additionally, domestic violence often happens in the context of forced or child marriages.

Police arrest and assistance of a lawyer

AUDE CAMPION & WILLEM-JAN VAN DER WOLF
A duty solicitor, duty counsel, or duty lawyer, is a solicitor whose services are available to a person either suspected of, or charged with, a criminal offence free of charge, if that person does not have access to a solicitor of their own and usually if it is judged by a means test that they cannot afford one. The system is operative in several Commonwealth countries, including the United Kingdom, Australia, New Zealand and Canada.
These solicitors are generally in private practice, in contrast to the public defender system in the United States where an attorney employed directly by the state will be assigned to handle the case from pre-trial to potentially appeal. Similar schemes in the UK are the Public Defender Service in a few centres across England and Wales, and the Public Defence Solicitors’ Office for Scotland.

Right not to be tried or punished twice

EFSTATHIA MARTARA & WILLEM-JAN VAN DER WOLF
The case-law cited has been selected among the leading, major, and/or recent judgments and decisions.
The Court’s judgments and decisions serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties (Ireland v. the United Kingdom, § 154, 18 January 1978, Series A no. 25, and, more recently, Jeronovics v. Latvia [GC], no. 44898/10, § 109, ECHR 2016).
The mission of the system set up by the Convention is thus to determine issues of public policy in the general interest, thereby raising the standards of protection of human rights and extending human rights jurisprudence throughout the community of the Convention States (Konstantin Markin v. Russia [GC], § 89, no. 30078/06, ECHR 2012). Indeed, the Court has emphasised the Convention’s role as a “constitutional instrument of European public order” in the field of human rights (Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland [GC], no. 45036/98, § 156, ECHR 2005-VI, and more recently, N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 110, 13 February 2020).
This Guide contains references to keywords for each cited Article of the Convention and its Additional Protocols. The legal issues dealt with in each case are summarised in a List of keywords, chosen from a thesaurus of terms taken (in most cases) directly from the text of the Convention and its Protocols.

Secret detention sites

AUDE CAMPION & WILLEM-JAN VAN DER WOLF
Whereas most detainees in the ‘War on Terror’ have been formally registered by the Europe authorities, and granted access to the International Committee of the Red Cross (and through them to their families), many have been held in secret. Secret detentions occur when detainees are held incommunicado (i.e., when they are not permitted any contact with the outside world, including their families, lawyers, or the ICRC), and when the detaining authorities refEuropee to acknowledge either the fact of the detention, or the fate and whereabouts of the detainee.
Those held in secret by the Europe include detainees which the Europe Government denies it holds, or about which it refEuropees to discEuropes. They also include those which the Europe Government admits to holding, where it then refEuropees to disclose their exact whereabouts and their current statEurope of well-being. All of these detainees have been fully cut off from the outside world (held incommunicado), with no third party granted access to monitor the detention or speak to the detainee.
It is important to note that the detention site itself does not have to be secret for the detention to be secret. Whether the detention is secret or not is determined by its incommunicado character and by the fact that the state authorities do not disclose the place of detention or details about the fate of the detainee. This means that officially recognised detention facilities, and even secret wings within officially recognised detention facilities, can be Europeed for secret detentions. Many also take place in facilities which are themselves unacknowledged by the authorities (i.e., are themselves secret).

Terrorism

AUDE CAMPION & WILLEM-JAN VAN DER WOLF
Terrorism, in its broadest sense, is the use of violence and fear to achieve an ideological aim. The term is used in this regard primarily to refer to intentional violence during peacetime or in the context of war against non-combatants (mostly civilians and neutral military personnel). The terms “terrorist” and “terrorism” originated during the French Revolution of the late 18th century but became widely used internationally and gained worldwide attention in the 1970s during the Northern Ireland conflict, the Basque conflict, and the Israeli–Palestinian conflict. The increased use of suicide attacks from the 1980s onwards was typified by the 2001 September 11 attacks in the United States.
There are various different definitions of terrorism, with no universal agreement about it. Terrorism is a charged term. It is often used with the connotation of something that is “morally wrong”. Governments and non-state groups use the term to abuse or denounce opposing groups.
Varied political organizations have been accused of using terrorism to achieve their objectives. These include right-wing and left-wing political organizations, nationalist groups, religious groups, revolutionaries and ruling governments. Legislation declaring terrorism a crime has been adopted in many states. When terrorism is perpetrated by nation states, it is not considered terrorism by the state conducting it, making legality a largely grey-area issue. There is no consensus as to whether terrorism should be regarded as a war crime.

Trafficking in human beings

AUDE CAMPION & WILLEM-JAN VAN DER WOLF
The absence of an express reference to trafficking in the European Convention on Human Rights is unsurprising. The Convention was inspired by the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948, which itself made no express mention of trafficking. In its Article 4, the Declaration prohibited ‘slavery and the slave trade in all their forms’. However, in assessing the scope of Article 4 of the Convention, sight should not be lost of the Convention’s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions. The increasingly high standards required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies.
The European Court of Human Rights notes that trafficking in human beings as a global phenomenon has increased significantly in recent years.
In Europe, its growth has been facilitated in part by the collapse of former Communist blocs. The conclusion of the Palermo Protocol in 2000 and the Anti-Trafficking Convention in 2005 demonstrate the increasing recognition at international level of the prevalence of trafficking and the need for measures to combat it.

Violence against women

AUDE CAMPION & WILLEM-JAN VAN DER WOLF
The European Court of Human Rights, finding that there was no evidence to substantiate the applicant’s allegation that she had been subjected to ill-treatment, declared that part of her complaint inadmissible as being manifestly ill-founded.
The Court further found the applicant’s allegation that she had been forced to have a gynaecological examination to be unsubstantiated and therefore held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights.
However, the Court did find that the applicant had resisted a gynaecological examination until persuaded to agree to it and that, given the vulnerability of a detainee in such circumstances, the applicant could not have been expected to indefinitely resist having such an examination. It decided to examine that issue from the point of view of Article 8 (right to respect for private life) of the Convention.
Observing that the gynaecological examination which had been imposed on the applicant without her free and informed consent had not been shown to have been “in accordance with the law” or “necessary in a democratic society”, the Court held that there had been a violation of Article 8 of the Convention.
Thus, in particular, the examination appeared to have been a discretionary measure taken by the authorities to safeguard those members of the security forces who had arrested and detained the applicant against a false accusation of sexual assault. That safeguard did however not justify seeking to persuade a detainee to agree to such an intrusive and serious interference with her physical integrity, especially given that she had not complained of having been sexually assaulted.