- Legal

Human Rights Council holds panel discussion on family reunification in the context of migration

Continues Interactive Dialogue with Special Rapporteur in the Field of Cultural Rights

The Human Rights Council this morning began its annual full-day meeting on the rights of the child on the theme of the rights of the child and family reunification, holding a panel discussion on family reunification in the context of migration. It also continued its interactive dialogue with the Special Rapporteur in the field of cultural rights.

Michelle Bachelet, United Nations High Commissioner for Human Rights, said today’s debate was an urgent one. When a child was separated from their parents or caregivers, they could suffer severe harm, emotional pain and potential lifelong damage to their mental or physical health. Yet each year, alarming numbers of children were torn apart from their families. A child who was separated from her or his family was at greater risk of suffering violence, abuse and neglect, was more susceptible to trafficking or exploitation, and the longer children were separated from their family, the more vulnerable they became. Current approaches to family reunification were failing children.

Eduardo, a child representative, said that he had migrated to South Africa with his mother in 2007 as they were seeking refuge due to the civil wars and political unrest. Later his mother passed away, which had affected him throughout his teenage years. He said family separation did not only affect him but also a lot of children whose circumstances were similar to his. Family separation hindered a lot of children from the opportunity of experiencing their basic rights to education, protection, love and the right to belonging. The main challenges that children separated from their families faced were lack of documentation, proper shelter, limited education opportunities, love and parental guidance.

Felipe González Morales, Special Rapporteur on the human rights of migrants, said he had observed how migrant children were separated from their parents or faced tremendous difficulties in reuniting with their families in migration related procedures that failed to respect the rights of the child, in particular the right to family life. Member States should strengthen existing national child protection and welfare systems and integrate unaccompanied migrant children into these systems without any discrimination to close these protection gaps.

Luis Ernesto Pedernera Reyna, Member of the Committee on the Rights of the Child, said family reunification was key to the enjoyment of the right to family life, and this was set out in various international instruments. In order to ensure this, both the country of origin and that of destination needed to take steps to ensure reunification. A rights-based approach meant that agencies responsible for children took charge, with not a bureaucratic or administrative approach, but one focusing on the rights of the child. States faced a challenge, reformulating their mechanisms to move to the rights of the child and a child-rights-based system, which needed to be created if there was not already such a system.

Daniela Reale, Global Lead Refugee, Migrant and Displaced Children, Save the Children, said millions of children around the world were denied their rights, simply because of who they were or where they were from or whether they had the right documentation or any documentation at all. Children were entitled to the enjoyment of all their rights without discrimination, including respect for family life and family reunification when in their best interests, regardless of their migration status or the migration status of their parents or carers.

In the ensuring interactive discussion, speakers said that children’s rights were human rights, and millions of them had been separated from their families due to, among other things, social and economic factors. All children had the right to a family environment, and to grow up in that environment. A child-sensitive, gender-sensitive approach was key to ensuring that the rights of all children were protected, especially girls. International cooperation was required to foster mechanisms that would allow children and their families to migrate together in a safe and orderly fashion. Listening to the voices of children was critical in addressing the impact of separation on children and their rights, which applied to them at all times, without discrimination.

At noon, the Council resumed its interactive dialogue with Alexandra Xanthaki, Special Rapporteur in the field of cultural rights. The dialogue started on Tuesday, 8 March and a summary can be found here.

Speakers said the recognition of the cultural rights of minorities was very important, as it was an important source of development for democracy. Preserving the richness of all cultures should be made a duty of all States. Calls were made to better protect cultural heritage from looting, pillage and theft during armed conflict. The impact of the COVID-19 pandemic on the enjoyment of cultural rights was regretted, as it limited the participation in cultural activities.

Speaking during the panel discussion were Guyana, European Union, Uruguay (on behalf of a group of country), Pakistan (on behalf of the Organization of Islamic Cooperation), Luxembourg (on behalf of a group of countries), Barbados (on behalf of a group of countries), Saudi Arabia (on behalf of the Gulf Cooperation Council), China (on behalf of a group of countries), Egypt, Lesotho, Bosnia and Herzegovina, Holy See, Romania, Turkey, Poland, Ukraine, Lao People’s Democratic Republic, Iraq, Sierra Leone, Mauritania, Iran, Senegal, United Arab Emirates and Namibia.

Also speaking were the following non-governmental organizations: Child Rights Connect, Terre des Hommes Federation Internationale and Defence for Children Internationale, Youth Parliament for SDG, Federation for Women and Family planning and the SIC Human Rights Group.

Speaking in the dialogue with the Special Rapporteur on cultural rights were Iraq, India, China, Ethiopia, Viet Nam, Namibia, Marshall Islands, Armenia, Cameroon, Pakistan, Indonesia, Russian Federation, Cambodia, Benin, South Africa, Bangladesh, United States, Afghanistan, Bahrain, Azerbaijan, Greece, Botswana, Italy, Georgia, Bolivia, Cyprus, Ukraine and Timor-Leste.

Also speaking were National Human Rights Commission of India, China Association for Preservation and Development of Tibetan Culture, International PEN, International Humanist and Ethical Union, Beijing NGO Association for International Exchanges, International Organization for the Right to Education and Freedom of Education, Americans for Democracy and Human Rights in Bahrain, and Association pour la defense des droits de l’homme et des revendication democratique/Culturelle du peuples Azerbaidjansis-Iran.

The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council’s forty-ninth regular session can be found here.

The next meeting of the Council will be at 3 p.m. this afternoon, when it will conclude its interactive dialogue with the Special Rapporteur in the field of cultural rights, and start an interactive dialogue with the Special Rapporteur on the sale and sexual exploitation of children, followed by the second panel of the annual full-day meeting on the rights of the child with a focus on family reunification in the context of armed conflict and counter terrorism.

Annual Full-Day Meeting on the Rights of the Child

Panel Discussion on the Rights of the Child and Family Reunification, with a Focus on Family Reunification in the Context of Migration

Documentation

The Council has before it the report (A/HRC/49/31) of the High Commissioner on the rights of the child and family reunification.

Keynote Statement

MICHELLE BACHELET, United Nations High Commissioner for Human Rights, said today’s debate was an urgent one. When a child was separated from their parents or caregivers, they could suffer severe harm, emotional pain and potential lifelong damage to their mental or physical health. Yet each year, alarming numbers of children were torn apart from their families. Many were displaced or were compelled to move within their own countries or across borders. They may have been separated due to climate change, or other factors driving migration. They may have lived through armed conflict or humanitarian crises. Whatever the circumstances, under international law, all children should enjoy the right to family life. Children had the right to grow up in an atmosphere of happiness, love and understanding, where they were nurtured and protected.

A child who was separated from her or his family was at greater risk of suffering violence, abuse and neglect, was more susceptible to trafficking or exploitation, and the longer children were separated from their family, the more vulnerable they became. Children who migrated were at higher risk of separation from their family. Each year, more than 300,000 children were detained during the migration process. Detaining children was never in their best interest, as it had a detrimental and long-lasting effect on their development and their physical and mental well-being. Current approaches to family reunification were failing children. National laws and policies rarely took children’s needs into account, and prolonged or overly complex procedures only served to worsen their situation. Children who had found themselves alone often did not have the appropriate support or a clear pathway to be able to reunite with their family. The separation of children from their families was a global crisis. It was the obligation of the Human Rights Council to play an immediate and active role in preventing an even further explosion of this crisis, and to find urgent solutions for the many children around the world today who found themselves without parents or caregivers.

In the approaches and solutions that were proposed, the rights of the child must come first. Regarding migrant children, families should migrate together, and stay together, and there should be child-sensitive family reunification procedures that responded to the specific needs of migrants. Keeping migrant families together must be a priority. States should prohibit child and family immigration detention by law, and abolish it in policy and practice. States must come together to develop and implement global, gender-responsive guiding principles on reunification based on the rights of the child, and when developing these guidelines, children’s own experience and opinions must be decisive in all procedures that affected them, and which may alter the course of their lives.

Statements by Panellists

EDUARDO, Child Representative, explained that he had migrated to South Africa with his mother in 2007 as they were seeking refuge due to the civil wars and political unrest. Later his mother passed away, which had affected him throughout his teenage years. He said family separation did not only affect him but also a lot of children whose circumstances were similar to his. Family separation hindered a lot of children from the opportunity of experiencing their basic rights to education, protection, love and the right to belonging. The main challenges that children separated from their families faced were lack of documentation, proper shelter, limited education opportunities, love and parental guidance.

Family separation was not prevalent only in South Africa; it was a global issue. Children from South Africa would like the United Nations and different governments to facilitate the process of voluntary reunification, and have programmes that assisted with positive parenting that would foster reconciliation, build relationships, and provide counselling or therapy to the affected families. This would help a lot of children deal with their mental health issues as most of them grew up angry and unable to understand why their parents had left them behind, and why governments were not addressing the social and political issues that often led people to migrate to other countries as a means to seek better living conditions.

In conclusion, he recommended, among other things, that Governments and the United Nations facilitate different governments coming together to address the factors that caused people to migrate as well as help the children that were separated from their families to reunite, bond and reconcile with their parents so that they knew what it was like to be raised in a family set up and have positive prospects on how they viewed life.

FELIPE GONZALEZ MORALES, Special Rapporteur on the human rights of migrants, said his mandate had paid particular attention to children on the move, including migrant children with families and those unaccompanied or separated children. He had observed how migrant children were separated from their parents or faced tremendous difficulties in reuniting with their families in migration-related procedures that failed to respect the rights of the child, in particular the right to a family life. These included the imposition of immigration detention on migrant children and their families; protection gaps due to legislation and policies that fell short of international human rights standards; and lack of regular pathways facilitating family reunification, etc.

In some countries, migrant children were separated from their family members against their will due to ill-designed reception and/or detention arrangements that failed to respect the right to family life. There was a gender impact: migrant boys, especially teenage boys, were more likely to be separated from their mothers in countries where facilities accommodating migrant families only accepted women, girls and young boys. Detention of any child for reasons related to their, their parents’ or their legal guardians’ migration status was always a child rights violation and constituted cruel, inhuman or degrading treatment of migrant children. Essentially, every migrant child, who was under the age of 18, regardless of his or her migration status, was to be considered as a child first and foremost.

In relation to return processes, he reiterated recommendations such as that children should be repatriated only if it was in their best interest, namely, for the purpose of family reunification. Where return was deemed not to be in the child’s best interests, families should be kept together in the country of residence. When unaccompanied and separated children were returned, countries of origin and destination would need to cooperate to continue family tracing efforts after return. In the case of families with children, the government authorities responsible for processing returns would have to ensure that children were not separated from immediate family members in the return process.

In conclusion, Mr. Gonzalez Morales said that in many countries, national child protection systems could provide family-based care options, including foster care, for unaccompanied or separated children. However, migrant children were often not integrated in such systems. He called on Member States to strengthen existing national child protection and welfare systems and integrate unaccompanied migrant children into these systems without any discrimination to close these protection gaps. The Special Rapporteur urged Member States to ensure that the child’s best interest was the guiding principle in the design and implementation of migration policies and a primary consideration in all actions and decisions that concern each migrant child.

LUIS ERNESTO PEDERNERA REYNA, Member of the Committee on the Rights of the Child, said family reunification was key to the enjoyment of the right to family life, and this was set out in various international instruments. In order to ensure this, both the country of origin and that of destination needed to take steps to ensure reunification. This was based on the responsibility of them being children, and should be based on a protection approach and on the needs of the child. There should be a regular rules-based procedure in this regard. There was a weakness on the part of most States, which did not have these mechanisms, or, if they did, worked from a migration point of view that was based on security and not on child-rights elements. A rights-based approach meant that agencies responsible for children took charge, with not a bureaucratic or administrative approach, but one focusing on the rights of the child. The right of the child to be heard must be ensured.

States faced a challenge, reformulating their mechanisms to move to the rights of the child and a child-rights-based system, which needed to be created if there was not already such a system. Family reunification was a way of ensuring that children grew up in a family environment and could be protected from vulnerable situations. The administrative approach aggravated the situation of these children, and pushed them to use dangerous routes where they were exposed to organized crime and other forms of violence. A rights-based approach was a preventive approach which avoided children migrating alone. Transit countries also had a responsibility for family reunification. The Committee had developed a lot of doctrine in concluding observations, in concert with the Committee on Migrant Workers, and had sought to provide States with guidelines to improve their response.

DANIELA REALE, Global Lead Refugee, Migrant and Displaced Children, Save the Children, said millions of children around the world were denied their rights, simply because of who they were or where they were from or whether they had the right documentation or any documentation at all. Children were entitled to the enjoyment of all their rights without discrimination, including respect for family life and family reunification when in their best interests, regardless of their migration status or the migration status of their parents or carers. Too often, families were torn apart, particularly when people were forced to go through irregular channels.

When people were forced to flee on short notice, children may be left behind or become separated on the way or they might escape on their own, or, in some other cases, it was laws, policies and practices that separated children from their families or kept them apart. Children might be forcibly removed from their parents or caregivers and transferred to different reception or, worse, detention facilities. Restrictive definitions of families meant that children were unable to join family members who could care for them, ending up either in State care facilities or, worse, to fend for themselves and at risk of abuse, violence and exploitation.

States, the United Nations and civil society actors should work together to, among other things, allocate further resources to adequately respond to and process family reunification requests, provide child-friendly information about family reunification to children by trained professionals in a language they could understand, and strengthen cooperation between relevant actors and across borders, based on a child protection agenda.

Discussion

In the ensuring interactive discussion, speakers noted that in the event that separation occurred, all children were entitled to express themselves freely when it came to possible reunification. The best interests of the child in that regard had to be ensured. Children’s rights were human rights, and millions of them had been separated from their families due to, among other things, social and economic factors. All children had the right to a family environment, and to grow up in that environment. The Convention on the Rights of the Child was universal, and its power and protection extended to all children, all the time; it included the right to remedy. A child-sensitive, gender-sensitive approach was key to ensuring that the rights of all children were protected, especially girls. All children had the right to quality education and training, including in emergency situations.

International cooperation was required to foster mechanisms that would allow children and their families to migrate together in a safe and orderly fashion. Children constituted 42 per cent of the global migrants. The family unit was an important unit within society, helping to protect children from all forms of violence. There should be positive, human and expeditious approaches to all matters linked to reunification: children required urgent steps to be taken to reunify them with their families. Steps should also be taken to protect them from abuse, gender-based violence, and trafficking, all of which could scar them for life, and had a devastating impact. Listening to the voices of children was critical in addressing the impact of separation on children and their rights, which applied to them at all times, without discrimination. Immediate action should be taken at the international level, and international initiatives should be supported in order to prevent the separation of children and their families, as they were at the heart of national cohesion, as laid down in international law.

The COVID-19 pandemic had had a significant impact on the enjoyment of the rights of children across the world, and the conflict in Ukraine was also having a dramatic impact. Dramatic world-wide increases in migration made it very urgent that steps be taken to ensure that national laws, mechanisms, and organizations of all States were in line with a clear and coherent rights-based approach to the rights of the child involved, with the aim of providing them with a family environment that guaranteed them a childhood in safety. Children should be at the heart of legislative and development plans, in order to provide them with the best environment in which to grow up. The world was still faced with multiple challenges, despite the Convention on the Rights of the Child being adopted more than 30 years ago. Investment should be made in the field of healthcare and education so as to ensure that migrant children did not lose out in these crucial areas.

Concluding Remarks

EDUARDO, Child Representative, said when children were separated from their families, they suffered mental issues which impeded them from growing and interacting with the world. Children were easily brought into difficult situations. Once returned to their families, it was hard for them to bond and reconcile, due to anger, and they needed therapy in order to help them re-establish the bonds. Training for children on child participation was important, and there should be more platforms allowing for the participation of children in global issues concerning them. Governments and the United Nations should make efforts to facilitate national authorities and other bodies to end child separation and restore family life.

LUIS ERNESTO PEDERNERA REYNA, Member of the Committee on the Rights of the Child, said the risks facing migrant children needed to be tackled in a specific and tangible way as children were most vulnerable to trafficking with a view to sexual exploitation. Specific policies should recognise this vulnerability and also aim to provide aid to children to whom this had happened. One could not exercise the best interests of the child without listening to them, and States should generate conditions to ensure that the voices of children were heard and taken into account. This meant their voices should be heard at all moments, the design stage, implementation and follow-up when designing policies around migration. Institutional structures needed to be adapted in that regard, and documents and procedures should be adapted with them in mind. The Committee on the Rights of the Child had developed guidelines and recommendations aimed at helping States to move forward in implementing the Convention on the Rights of the Child.

DANIELA REALE, Global Lead on Refugee, Migrant and Displaced Children, Save the Children, stated that all needed to remind themselves what it felt like to be separated from a loved one. The best interest of the child needed to be at the core of what everyone did. The solution was to expand the opportunity for families, and to prevent the risks that children faced when they were separated from their family. It was necessary to ensure that reunification was aligned with the child’s best interests. Everyone absolutely needed to listen to children, it was important to set up procedures that were based on their needs.

Interactive Dialogue with the Special Rapporteur in the Field of Cultural Rights

The interactive dialogue with Alexandra Xanthaki, Special Rapporteur in the field of cultural rights, started on Tuesday, 8 March and a summary can be found here.

Discussion

During the interactive dialogue, speakers said that they were convinced that the rights of minorities were an advantage for all societies as they provided the opportunity for different values to interact and prevent the emergence of extremist cultures. The importance of protecting the cultural rights of vulnerable groups was stated, among which in particular those of indigenous cultures. Therefore, the recognition of the cultural rights of minorities was very important as it was an important source of development for democracy. Preserving the richness of all cultures should be made a duty of all States. The use of information technology and communication tools to preserve cultural heritage, such as through the digitisation of museums, was suggested. The effects of war and nuclear testing on cultural heritage and their destruction were deplored, among others, in Iraq, in the Marshall Islands and in Armenia. Calls were made to better protect cultural heritage from looting, pillage and theft during armed conflict.

Other speakers mentioned that in the era of globalisation, individual cultures had to be preserved. In a world tending toward growing uniformisation of lifestyle and norms, access to culture by African people should be protected. A speaker noted the commitment by France and other former colonial countries to return cultural property to Africa and asked the Special Rapporteur to look at this question and elaborate a right to return for cultural artefacts. Another speaker insisted on the defence of linguistic rights as part of cultural rights. Defending and promoting the cultural rights of States, including customs and traditions derived from religious norms, morals and ethics had always been a cohesive factor. The growing need for collective work to protect spiritual values was noted. The Special Rapporteur was urged to keep paying attention to discriminations faced by Russian-speaking people in the Baltic countries. The work of the United Nations Educational, Scientific and Cultural Organization was praised and governments were asked to work on expanding cultural institutions. Speakers noted with appreciation the Special Rapporteur’s intentions to collaborate with States and non-governmental organizations at local, regional and international levels. A particular interest was stated in collaborating with the World Intellectual Property Organization to protect the intellectual property of traditional communities as well as to find better legal instruments to protect traditional knowledge against misappropriation and illegal use.

Interim Remarks

ALEXANDRA XANTHAKI, Special Rapporteur in the field of cultural rights, said she had already started collaborating with other United Nations Special Rapporteurs. The next report would be on sustainable development, and she had already had discussions with the United Nations Special Rapporteur on the environment. Beyond the thematic reports, the Office of the High Commissioner had already held communications with other mandate holders on how to move things forward in areas of common interest, such as academic freedom, and more engagement was being sought from civil society. Further dialogue was also necessary with the World Intellectual Property Organization. There was a gap between cultural rights and current understanding on standards of cultural rights, and some of the more individualistic instruments of the World Intellectual Property Organization could help in this regard, as could collaboration with the United Nations Educational, Scientific and Cultural Organization.

On practical steps to materialise and operationalise cultural rights, she suggested that international standards on cultural rights and cultural diversity should be used in this regard. Everyone had the right to participate in culture, not just citizens of States – they were the right of all human beings, and States had the obligation to ensure this. Practical steps in addition to looking at international law commitments and obligations would include creating spaces for interactions, possibilities and projects, as well as on increasing understanding and the volume of marginalized voices. The full participation of vulnerable and marginalised portions of the population should be supported and non-dominant cultural parts of society should not be marginalised further, instead being encouraged and supported. The restitution of cultural objects appeared to be a theme among speakers, and she would take that into account, as she would the intersection between the digital era and cultural rights, and would explore how technology could improve participation in cultural lives within States.

Discussion

Continuing the interactive dialogue, speakers all agreed with the fact that culture was a positive element in the realisation of human rights. Cultural rights were important for the realisation of human rights as they were the cornerstone for their full enjoyment. “Cultural diversity brings colour to our life”, a speaker said. Culture was said to be a tool for both identity and empowerment, and religious interpretation and patriarchal stances were often used to restrict cultural expression. The importance of preserving indigenous cultural rights was highlighted and the accrued risk of marginalised communities in facing additional obstacles in the enjoyment of their rights to artistic expression noted. Reports on threats on cultural heritage in Afghanistan, Myanmar, Cuba and Uganda, among others, were specified. Speakers welcomed the Special Rapporteur’s desire to interact with various actors. Some speakers mentioned the restoration of their cultural heritage in invaded territories where cultural goods were destroyed during occupation. Others regretted the impact of the COVID-19 pandemic on the enjoyment of cultural rights as it had limited participation in cultural activities. During the pandemic, improving online accessibility to cultural activities and content as well as specific initiatives to promote cultural participation in remote environments was needed. The funding of cultural activities was important.

Source: UN Human Rights Council