In the words of the CRC Committee, the principle of the child’s best interests is ‘aimed at ensuring both the full and effective enjoyment of all the rights recognised in the Convention and the holistic development of the child’ (39). Giving primary consideration to the BIC in each of the relevant decisions means starting with an assessment of the specific circumstances of each individual child (40), identifying and evaluating the relevant elements for that particular child, elaborating on them, and assigning a weight to each one in relation to the others (41)
The BIC is a primary consideration that may need to be balanced with the interests of others, including the state. The weight to be attached to the BIC will be part of the decision-maker’s analysis. It will have high priority and not just be one of several considerations (42). It should be kept in mind that in other contexts, by comparison, the BIC must be the paramount consideration meaning that the BIC is to be the determining factor when taking a decision.
| Examples of decisions affecting the child in the asylum procedures can be, inter alia: deciding to conduct a separate personal interview with the child without the presence of parents; deciding whether it is in the child’s best interests to be heard, in which location, when and how long the interview should take; choosing the interpreter/case officer/registration officer dealing with the child; deciding to conduct age assessment or begin family tracing for the child; deciding whether to separate the child’s application from that of the parent’s application, etc. |
The 2017 Joint General Comment of the CRC Committee and the Committee on Migrant Workers (CMW) on the implementation of General principles in the context of international migration (Comment No 22 CRC Committee and No 3 CMW) (43) also indicates concrete situations where a formal assessment/determination is needed (44). This extends further to all aspects of assessing the child’s application and substantive protectionrelated aspects of the BIC. Examples of such aspects are child-specific persecution, presence of family in country of origin or other countries, internal flight alternative for a child (if at all applicable), safe third country (if at all applicable), safeguards, and differentiated legal thresholds relevant to the situation of children, i.e. the burden of proof, the benefit of the doubt, etc.
| Findings of the EASO mapping on asylum procedures for children |
| 11 responding States (BE, BG, CH, CY, DK, EE, IE, ES (45), FR, LV and SE) have a formal process in place to assess the BIC regarding the asylum procedure. The BIC is a primary consideration within the asylum procedure in AT, DE, EL, PL, FI, IT, NO and SK, although these countries confirmed there is no formal process for assessing the BIC. Similarly, in FI, HU (46), LT, NL, PL, RO and SI there is not a formal process of assessing the BIC but some safeguards are in place. In the NL, if the need to assess the BIC arise, NIDOS and the Council for Child Protection will be involved. In PL, the BIC is assessed in a frame of assessment of needs for international protection. In SI, the BIC is to be considered a primary concern at all phases of the asylum procedure and by all authorities and personnel involved. |
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(38) CRC Committee, General comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14, para 84
(39) CRC Committee, General comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14, section I.A, paras. 4 and 5.
(40) CRC Committee, General comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14, Section V, paras. 46 and 48-51.
(41) CRC Committee, General comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14, Section V.2, para. 80; For more information, consult the EASO, Asylum Procedures for Children Report, 2017
(42) CRC Committee, General comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14, Section IV.A.4, paras. 36-40.
(45) Guaranteed by the guardian.
(46) Regulations to ensure the application of BIC will be extended by the next amendment of the Hungarian Act on Asylum.