Court/Judicial body:
European Committee of Social Rights
Date:
15 June 2018
CRC Provisions:
Article 3: Best interests of the child
Article 20: Protection of a child without family
Article 27: Standard of living
Article 37: Torture and deprivation of liberty
Other international provisions:
European Social Charter (Revised), Articles 7(10), 11, 13(1), 17, 30, 31(2) and E
Additional Protocol to the European Social Charter, Articles 6 and 7(1)
Domestic Provisions:
Social Welfare and Family Code, Articles L112-1 and L112-3
Civil Code, Articles 375 and 388
Code for Entry and Residence of Foreigners in France and the Right of Asylum, Article L221
Case summary
Background:
The European Committee for Home-Based Priority Action for the Child and Family (EUROCEF) brought a collective complaint directly to the European Committee of Social Rights in February 2015 alleging that France’s treatment of unaccompanied children violated the European Social Charter. The complaint related to the arrangements for the reception and support of unaccompanied children in France. The complaint made five specific allegations, that France had made defective arrangements for the reception of unaccompanied children; had detained unaccompanied children in waiting areas; had used abusive age assessment measures; had failed to provide access to education, health and social protection.
Issue and resolution:
Unaccompanied children. The Committee held that France’s treatment of unaccompanied children violated the rights to housing, health, social and medical protection, and to social, legal and economic protection.
Court reasoning:
Application of the Charter to children not legally present in the territory
The Committee found that the Charter is not only applicable to children who are legally present in the territory, adopting a means of interpretation that gave effect to the purpose of the treaty, rather than the interpretation that most restricts the obligations of States. The Committee found that a strict interpretation of the scope of the Charter would be incompatible with jus cogens and would not be in harmony with the Convention on the Rights of the Child, which all member states of the Council of Europe have ratified.
Article 17: the right of children and young persons to social, legal and economic protection
The Committee found that France’s treatment of unaccompanied children violated their right to social, legal and economic protection in five distinct ways.
The national shelter, assessment and allocation system fell short of the standards set by the Charter, particularly with regards to the housing of unaccompanied children in hotels for weeks or months without support from trained personnel and without access to basic services. The Committee also found that delays in appointing a guardian for children and the constituted a separate violation. The Committee found that the use of bone assessment to determine the age of unaccompanied children was inappropriate and unreliable.
The Committee highlighted the evidence of the Defender of Rights, National Medical Academy, National Public Health Board and National Consultative Commission for Human Rights on the unreliability of bone testing as a means of determining the age of children, particularly those aged 16 to 18, and evidence that civil status documents were being ignored in place of medical age assessment tests.
The Committee found that the failure to provide information about access to rights for people who are found to be adults as a result of an age assessment process and delays in appointing a guardian in these legal proceedings amounts a violation of the right to an effective remedy that is incompatible with Article 17(1).
The Committee also found that the failure to enrol unaccompanied children in schools, particularly those aged 16 or older, prevented them achieving social and professional integration in France and so violated Article 17(2).
Article 7(10): the right of children and young persons to protection
The Committee held that France had failed to take the necessary measures to guarantee children special protection against physical and moral hazards, causing a serious threat to their enjoyment of the most basic rights such as the right to life, to psychological and physical integrity and the respect for human dignity. In reaching this decision, the Committee considered evidence of France’s use of waiting areas, accommodation of minors in adult accommodation and overcrowding resulting in minors living on the streets, exposing them to trafficking, begging and sexual exploitation.
Article 11: the right to protection of health
The Committee held that France had violated the right to protection of health as children were forced to live on the streets with no access to health services and because of cases in which children were incorrectly declared adults, thereby preventing them from satisfying the residency requirements necessary to access to medical care.
Article 13(1): the right to social and medical assistance
The Committee held that France had violated the right to social and medical assistance based on the health-related factors discussed above and delays in conducting social assessments of unaccompanied foreign children and the failure to integrate these children without undue delay into the mainstream child protection system.
Article 31(2): the right to housing
The Committee interpreted the Charter as requiring France to provide adequate shelter to children unlawfully present in the territory for as long as these children remained in the jurisdiction. As France had failed to meet this standard, it had violated the right to housing
Article 30: the right to protection against poverty and social exclusion
The Committee held that France had not violated the right to protection against poverty and social exclusion. The Committee emphasised that States must give effect to this right by adopting measures aimed at preventing and removing obstacles to access fundamental social rights, and measures should include monitoring of persons affected by exclusion and poverty. The Committee found that France had put in place numerous measures to prevent poverty and to accompany and monitor people living in poverty and France had taken a series of new actions aimed at combating poverty and social exclusion.
Dissent:
Petros Stangos partially dissented from the majority decision, finding that France had violated the right to protection against poverty and social exclusion, as a result of the State’s failure to ensure sufficient protection when receiving and accommodating unaccompanied minors and the exclusion from educational services. The dissenting opinion also argued that the Committee should have considered whether there had been discrimination in the implementation of Charter rights, particularly with regards to the different educational rights of children based on age.
Excerpt citing CRC and other relevant human rights
54. “In addition, such a restrictive interpretation of the Appendix, which would deprive foreign minors unlawfully present in a country of the guarantee of their fundamental rights, would not be in harmony with the United Nations Convention on the Rights of the Child, which all member states of the Council of Europe have ratified. It is therefore justified for the Committee to have regard to this convention and its interpretation by the United Nations Committee on the Rights of the Child, when it rules on an alleged violation of any right conferred on children by the Charter (see World Organization against Torture v. Ireland, Complaint No. 18/2003, decision on the merits of 7 December 2004, § 61)”.
81. “The Committee notes that in French administrative practice the term “mineur isolé étranger” (isolated foreign minor) is often used to designate an unaccompanied foreign minor, who is defined in practice as a “person aged under 18 who is outside his or her country of origin but not accompanied by a person holding or exercising parental authority, i.e. without anyone to protect him or her and to take important decisions concerning him or her”. There are therefore three conditions which must apply for a young person to be considered an unaccompanied foreign minor: he or she must be a minor, lacking legal capacity, in other words a “child” within the meaning of Article 1 of the Convention on the Rights of the Child; he or she must be “isolated” or unaccompanied and hence vulnerable owing to the absence or physical distance of his or her legal representatives; and he or she must be a foreigner not enjoying the benefits granted exclusively to nationals”.
CRIN comments:
CRIN believes this decision is compatible with the Convention on the Rights of the Child. The Committee on the Rights of the Child has set out the extensive obligations owed to unaccompanied and separated children in its General Comment No. 6 as well as making specific recommendations to France with regards to its treatment of unaccompanied migrant children in its concluding observations to the State in 2016.
Citation:
Complaint No. 114/2015
Link to full judgment: https://rm.coe.int/cc-114-2015-dmerits-en/16808b372e
This case summary is provided by the Child Rights International network for educational and informational purposes only and should not be construed as legal advice.