on consular protection services.275 Correspondingly, host States also have obligations under the
Vienna Convention on Consular Relations to ensure individuals the right to communicate with,
and be visited by, consular officers of their countries of nationality.276 When lack of access to consular services is a child’s primary obstacle to returning to his or her home country, the obligation
to provide consular services, together with the
aforementioned obligation to provide protection,
strongly encourages facilitation of repatriation to
the country of nationality, when it is deemed in
the best interests of the child.
4.1.2 Human Rights
Repatriating a Child
Considerations
in
Preserving family unity
138.
Any
family
separation
occasioned
by the repatriation of a child to his or her
country of origin must comply with article 9 of the
Convention on the Rights of the Child which
requires the best-interests determination by
a competent authority with judicial review.
Given the gravity of the impact on the child of
separation from his or her parents, such
separation
should
only
occur
as
measure of a last resort measure, and separation
should not take place if less intrusive measures
could protect the child. (See chapter 3 on preserving family unity.) This means that siblings should,
as far as possible, be repatriated together regardless of age, and children should be repatriated
with their parents, unless the parents give their
free and informed consent for the separation, or
275 Joint general comment No. 4 (2017) of the Committee on
the Protection of the Rights of All Migrant Workers and Members of Their Families /No. 23 (2017) of the Committee on the
Rights of the Child, para. 19.
276
Vienna Convention on Consular Relations (1963), art. 36.
a competent authority subject to judicial review
determines that it is in the best interests of the
child to be separated from his or her family. States
should therefore seek the free and informed
consent of parents before separating children for
repatriation. When possible, the consent of both
parents should be sought, unless it is not in the
child’s best interests to do so. When one parent
is unreachable or his or her location or identity is
unknown, the consent of the available parent or
legal guardian is sufficient to repatriate a child.
When it is not possible to obtain such consent,
including when the parent is in detention, at least
there should at minimum, to the extent possible,
meaningful consultation with the parent
concerned in a non-coercive setting. It should
be noted that, when States have opted to
repatriate children with their parents, the bestinterests determination for separation by a
competent authority is not required.
Child separated from a parent suspected of being
a foreign fighter
139.
When a child is separated from a
suspected foreign fighter who is detained outside of
his or her home country (following a best-interests
determination by a competent authority subject
to judicial review), the child should be repatriated
when it is in his or her best interests.277 This should
be done, to the extent possible, by an individual
assessment of the best interests of the child
if the parent consents, the child agrees and a
suitable family is willing to receive the child in the
country of origin. The parent concerned should be
consulted and be able to give free and informed
consent, unless this is not in the child’s best interests. The principle of non-refoulement must also
be ensured.
277 The Bangkok Rules (2010), rule 53(2).
63.
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