European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria
Finally, before resorting to separation, States have an obligation to do
everything in their power to preserve personal relations between children
and their parents 509 and to support parents to restore or enhance the family’s
capacity to take care of the child. While authorities enjoy a wide margin of
appreciation when deciding on custody matters or the necessity of taking a
child into care, stricter scrutiny is called for when State actions risk
effectively curtailing family relations between parents and a young child. 510
While primary caregivers may face criminal proceedings upon repatriation,
a child’s physical proximity to them would allow them to maintain family
relationships in a way that would be practically impossible should their
primary caregivers not be repatriated. 511 In addition, consistent with States’
obligation to support parents to restore the family’s capacity to take care of
the child before resorting to separation, European States should prioritize the
rehabilitation and reintegration of the primary caregivers in their countries
of origin.
509 ECtHR, “Gnahoré v. France”, Application No. 40031/98, 17 January 2001, para. 59.
510 ECtHR, “Sahin v. Germany”, Application No. 30943/96, 8 July 2003, para. 65; ECtHR, “Elsholz v.
Germany”, Application No. 25735/94, 13 July 2000, para. 49.
511 UNCCT, “Handbook: Children Affected by the Foreign-fighter Phenomenon. Ensuring a Child Rights-
based Approach,” para. 126.
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