The Ashgate Research Companion to Migration Law, Theory and Policy by Satvinder S. Juss

Author:Satvinder S. Juss
Language: eng
Format: epub
Publisher: Ashgate Publishing Limited
Published: 2013-10-16T04:00:00+00:00

The Right to be Treated like the Receiving Country’s Children

It has already been pointed out that the cardinal rule of non-discrimination enunciated in Article 2(1) of the CRC obliges States to treat all children within their jurisdiction without discrimination based, among others, on the ethnic origin of the child or its guardians. This means that the receiving State must offer the same quality of treatment to the unaccompanied minor as it does in respect of its own children. How is this translated in practice and what type of obligation does it involve? If the State is bound to treat unaccompanied children in the same way it would the children of its own nationals, it is required that unaccompanied children have access not only to public institutions and facilities, but that such access be facilitated and enhanced as much as possible. Thus it is not enough to claim that unaccompanied minors have the right to free primary education and healthcare in the same manner as local children. Local children have parents or other guardians who are aware of the children’s rights and can lead them towards realizing their rights. Unaccompanied children, on the other hand, may not even have been discovered by the authorities and hence will not exercise the rights afforded to them, assuming that they were aware of these in the first place. Access to these rights must be pursued aggressively by the State, in much the same way that social services in developed countries do not allow parents to keep their children away from primary education. It would be unthinkable for the authorities in developed countries to turn a blind eye to non-trained parents offering medical services to their children, or refusing to allow them to go to school. If this is true, and it is, then why should the authorities make no effort to facilitate and impose schooling, health and other services upon unaccompanied children? In fact, the State must not only take a proactive stance in tracing and identifying unaccompanied minors on their territory, but should provide them with such guardianship that would allow them to realize their rights. Equally, the receiving State must not impose formalities upon unaccompanied children, such as particular documentation.45

This requires the receiving country to implement two further obligations incumbent upon it: (a) to enable the right to information, 46 and (b) to cater for the specific needs of each unaccompanied child through individual adaptation. The right to information is inherent in the operation of international human rights and is an intrinsic feature of the rights pertinent to children under international law.47 Unless a child is informed of its rights, it is untenable to speak of a right to participation in matters that affect the child. It is only when a child has the requisite information that it can decide whether a medical treatment is beneficial, whether a parent or a guardian is acting in his best interest, and whether it wants to remain with that person. If the right to information

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