Transnational child protection refers to the protection of children from violence, exploitation, abuse and neglect in an international setting. When a non-national child comes into contact with public authorities and service providers, a series of checks, assessments and immediate measures sets in to identify the child and to assess her or his situation. Article 19 of the UN Convention on the Rights of the Child provides for the protection of children in and out of the home, including in their country of origin, residence or a third country. Article 2 of the Convention provides for the right to non-discrimination, meaning children have the right to protection regardless of the national origin or status of the child or his or her parents or legal guardians.
A child may become party to a transnational child protection case because of a need for protection, including: due to international adoption, being born to parents with different or multiple nationalities, being born in a different country than either parent's nationality, and migrating or being trafficked. Being an unaccompanied or separated minor comes with particular challenges.
Case assessment
Best interests’ assessment and determination Best interests, which derives from Article 3 of the UN Convention on the Rights of the Child, says 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”. Assessing the best interests of a child means to evaluate and balance “all the elements necessary to make a decision in a specific situation for a specific individual child or group of children”.
The right of the child to have her or his best interests taken as a primary consideration means that the child's interests have high priority and are not just one of several considerations. The assessment is specific to the child as an individual, making it important to establish a trust-based relationship with the child and to communicate effectively in a language that the girl or boy understands. The assessments should ideally involve a multi-disciplinary team of qualified professionals. Best interests’ assessments and determinations are two steps of a process that aims to identify the elements and facts relevant for a specific child.Committee on the Rights of the Child, General Comment No. 14 (2013), par. 46.
In transnational cases, risk and resilience assessments are a central component of the best interests’ determination process because they consider the context of destination and origin and also how the risks and resiliency of the child will change on the basis of any decision taken, including with regard to continued migration, transfer to another state or repatriation.
A comprehensive best interests’ assessment and determination process considers the following in transnational cases:
Establishing the child's identity and the identity of any accompanying persons and the quality of their relations Case assessment, including the following components: Hearing the child Assessment of the child's situation, background and needs Social situation and family assessment Gathering evidence including through forensic examinations and interviews with the child Risk and security assessments Mapping sources of support, skills, potentials and resources for empowerment Developing a life project Comprehensive child impact assessment of any potential decisions Identification of a durable solution Continued assessments during the implementation of the durable solution with due follow-up, review and monitoring, and adjustments to the durable solution arrangements, if and as required, according to the best interests of the child.
Assessments Best interests’ assessments can be conducted informally and ad hoc or as formalised processes. Assessments look at everyday matters and decisions with more or less severe implications for the child. The best interests of a child may change significantly over time as children grow and their situations and capacities evolve, so their best interests’ may need to be reassessed periodically.Committee on the Rights of the Child, General Comment No. 14 (2013), par. 47.
Determinations Best interests’ determinations are formal processes conducted with the involvement of public authorities and professional decision makers. The objective of the best interests’ determination is to reach a decision based on national law that safeguards the rights of the child and promotes her or his well-being, safety and development. Decision-makers weigh and balance all the relevant factors of the case, giving due consideration to all the rights of the child and the obligations of public authorities and service providers towards the child. The objective of the best interests’ determination process is the identification of a durable solution. Best interests’ determinations are carried out when the issues at stake are expected to have significant implications on the child's present and future life.
Sources of information Assessments leading to best interests’ determinations are based on diverse information sources which need to be verified and cross-checked in order to establish a reliable understanding of the child's situation and background. The central source of information is the child. It is fundamental that the story, the background, the views, needs and aspirations of the child are heard and taken into account. Professionals from different backgrounds should together take into account their perspectives, expert reports, and opinions, including with regard to the child's history and health, education, care, protection and developmental needs. When in migration or movement, information about the child's reasons for leaving and conditions and experiences during the journey should be collected and considered. National and local authorities in countries of origin and transit can be important sources of information. When contacting authorities in countries of transit and origin, professionals and officials in the country of destination consider best interests of the child and in respect of confidentiality rules, especially for children who are applying for asylum. Family tracing and assessment constitutes another important source of information. National central authorities, ministries, regional or local social services may provide relevant information and contacts established through international networks such as the International Committee of the Red Cross, the International Social Service or the International Organization for Migration. In some cases, local social services get directly in contact with their counterparts in the child's country of origin. The information gathering and sharing with these sources should respect national data protection laws and regulations and any matters of confidentiality related to the asylum procedure. Child-specific and gender-specific country of origin information needs to be developed and used and child-specific forms of persecution recognised. Country of origin information is available from national migration authorities and their networks, as well as the European Asylum Support Office, UNICEF and the United Nations High Commissioner for Refugees. Law enforcement agencies may be important sources of information in cases involving law enforcement investigations, in civil or criminal matters. Europol, Interpol and national police liaison officers based abroad, constitute important points of entry for law enforcement enquiries in international cases. Judges may seek regional and international networks of judges to gather information if a trial involves a transnational case that has been heard by a court of law in another country.European Union Agency for Fundamental Rights, Handbook on European Data Protection Law, 2014. KOK e.V, Data Protection Challenges in Anti-Trafficking Policies, A practical guide, 2015.
Data protection and confidentiality Caseworkers and officers are bound by the rules of data protection and confidentiality and have to respect the child's right to privacy, a requirement which can conflict with the need to share information about children with other authorities or professionals within countries of destination and across borders. National and international laws of the country of destination apply to the processing and use of personal information., Riga, November 2014, presentations by Philip Ishola, Independent Child Protection, Human Trafficking, Human Rights Consultant, UK and Aiga Balode, Deputy Director, Data State Inspectorate of Latvia.
In the case of asylum seekers, confidentiality rules are observed when information is sought from or transferred to countries of origin. The authorities that receive and assess an asylum application must not inform the authorities of the applicant's country of origin about the asylum claim and must not share any information about the applicant with the country of origin. Confidentiality rules apply also for the communication with countries of origin that are considered safe. When an asylum application has been rejected and all legal remedies are exhausted, the country of destination is authorised to share limited personal data with the authorities of the country of origin in order to facilitate return. This may be necessary when the person has no valid identity documents. The fact that the person has applied for asylum must however not be disclosed to the authorities in the country of origin.
Inter-agency and multi-disciplinary cooperation Best interests’ assessments and determination processes use the knowledge and perspectives from different professional groups in order to achieve a holistic understanding of the child’s situation and background. With the child at the center, officials and professionals from different backgrounds assess, plan and manage each case. The process benefits from trusted partnerships of multi-stakeholder and inter-disciplinary cooperation within countries and across borders. Free exchange of information among professionals, volunteers and caregivers provides an understanding of the different laws and regulations concerning the child as well as the child’s situation, experiences, needs and aspirations. A common understanding of key concepts, terms and definitions, familiarity with the mandates of each partner, clear regulations of working routines, including clear regulation of data protection and confidentiality, and rules for the division of tasks and leadership, ideally in an institutionalised context, enables good communication among stakeholders. The benefits of inter-agency and multi-disciplinary cooperation include:
a balanced and holistic approach to the assessment and determination of the child’s best interests; the views of the child inform the action of each professional or official while reducing the number of interviews or formal hearings with the child to a minimum; the work is conducted effectively and efficiently, especially when approaches are child-sensitive and child-centred, giving the child meaningful opportunities to be informed and heard, reducing risks of secondary victimisation during investigations and procedures, while also reducing the strain on individual professionals or agencies; decision making processes are safe and sound and lead to rights-based and sustainable outcomes.
Identification