Convention on the Rights of the Child describes
the family as “the fundamental group of society
and the natural environment for the growth and
well-being of all its members and particularly
children.”201 International law prohibits arbitrary or
unlawful interference with one’s family,202 even in
circumstances involving individuals with serious
criminal convictions.203 Children have the right to
preserve family relations as part of their identity
without unlawful interference.204 Children must not
be separated from their parents against their will,
unless a competent authority with judicial review
determines it to be in their best interests.205
109.
International humanitarian law also
requires the maintenance of the family life
as far as possible.206 In cases of displacement,
parties to conflict must take all possible measures
to ensure that members of the same family are not
separated.207 Under humanitarian law, children
who are deprived of their liberty must be held in
201 Convention on the Rights of the Child (1989), preamble.
202 International Covenant on Civil and Political Rights
(1966), art. 17(1).
203 European Court of Human Rights, Beldjoudi and
Beldjoudi née Teychene v France, Judgment, Merits and Just
Satisfaction, App No 12083/86, Case No 55/1990/246/317, 26
February 1992, para 79. Also, Moustaquim v Belgium, Merits
and Just Satisfaction, App. No 12313/86, A/193, 18 February
1991.
204 Convention on the Rights of the Child (1989), art. 8(1).
205
Ibid., art. 9(1).
206 See, among other things, Geneva Convention (IV)
relative to the Protection of Civilian Persons in Time of War
(1949), art. 27(1); ICRC, Customary International Humanitarian Law database, rule 105 on respect for the family life,
available at https://ihl-databases.icrc.org/customary-ihl/
eng/docs/v1_rul_rule105#Fn_2751A971_00008.
207 See, among other things, 1949 Fourth Geneva Convention, art. 49; ICRC, Customary International Humanitarian
Law database, rule 131 on treatment of displaced persons,
available at https://ihl-databases.icrc.org/customary-ihl/
eng/docs/v1_rul_rule131.
quarters separate from those of adults, except
when families are accommodated as family units.208
Example from France—Unity of siblings as the priority
As per the 23 February 2018 Prime
Minister instruction, the Government of
France prioritizes the unity of siblings
concerning children returning from
conflict areas. Children over 18 months are
placed with a foster family with siblings.
Usually a juvenile judge convenes a hearing to
review a foster order and to order a long-term
solution to prevent leaving the child in the
foster family’s care.
3.1.2 Preventing Family Separation
Facilitating Family Reunification
and
Preventing family separation
110.
Preventing family separation and preserving family unity, including maintenance of
sibling relationships, are considered to be important
components of the child protection system.209 The
Convention on the Rights of the Child stipulates that
a child cannot be separated from his or her parents
208 Geneva Convention (IV) relative to the Protection of
Civilian Persons in Time of War (1949), art. 82; Additional
Protocol I (1977) to the Geneva Conventions, art. 77 (4); ICRC,
Customary International Humanitarian Law database, rule
120 on accommodation for children deprived of their liberty,
available at https://ihl-databases.icrc.org/customary-ihl/
eng/docs/v1_rul_rule120, “Children who are deprived of
their liberty must be held in quarters separate from those of
adults, except where families are accommodated as family
units”.
209 Committee on the Rights of the Child, general comment
No. 14 (2013), para. 60
51.