Introduction

The Committee on the Rights of the Child ('CRC Committee') was requested to assess a communication of a minor (henceforth: the child) whose application for asylum in Switzerland was rejected. Mainly, the child asserted that her deportation to Georgia, her home country, would result in a violation of her right to health (Article 24(1) CRC) due to a lack of accessible and affordable health care. As will be described, the CRC Committee concluded that the facts did not disclose a violation of this right nor any of the other rights invoked by the child in her application. In its decision, the CRC Committee failed, in my view, to clarify the meaning of the right to health, reducing it to a right to health care, and did not adequately explain how a child can substantiate that its right to health was, in fact, violated. In this case, the mental health problems of the child were primarily caused by parental neglect and the health condition of her parents, and not by actions of the State Party, Switzerland, against which the communication was filed. In cases like these, we may wonder whether we should assess the health needs of a child as part of, or separate from, the responsibilities of parents and other care givers, and consider whether a failure to interfere in the relationship between a child and his or her parents, when this relationship harms the child's physical or mental health, can be classified as a violation of the right to health.

Summary of Facts

The child, K.K., who submitted the communication (‘complaint’) was born in Georgia in 2006. Initially, she lived with both her parents in Georgia. In 2011, her mother, who suffered from back and psychological problems, left for Italy for work, in order to pay off her loans for her medical treatments. The child continued living with her father and her paternal grandmother, while communicating with her mother in Italy via Skype.

After the mother left, the health situation of the father deteriorated. He started drinking alcohol and using drugs, became violent, turned into a drug dealer and incurred debts. He was also chased by criminals. The father physically abused his mother – the child’s grandmother – and damaged the household. The child and the grandmother found the father trying to commit suicide, and prevented that, and also otherwise noted the worsened mental and physical health status of the father.

In May 2017 the father, together with the child, joined the mother in Italy. After two months the family left for Switzerland where all family members applied for asylum. Even though a psychological assessment showed that the mother and the child suffered from mental health problems, the application for asylum for all family members was rejected. According to the Swiss State Secretariat for Migration there were insufficient grounds for believing that the family members would be persecuted in Georgia within the meaning of the Swiss Asylum Act. The fact that the child tried to commit suicide while in Switzerland did not make the Swiss State Secretary decide not to deport the child to Georgia.

The child and her parents appealed against this decision and submitted new medical evidence on the health problems the child and her parents suffered from, notably a stress disorder and a sleeping disorder. Even though the reports of medical specialists confirmed the child's health problems, and emphasised the need to provide her with a safe environment and emotional protection, the appeal was rejected. The Federal Administrative Court confirmed, in line with the opinion of the State Secretariat, that there was no medical emergency situation and that the child – as well as the parents – could receive access to medical care and adequate psychological treatment in Georgia. Moreover, it found that the fact that the child had tried to commit suicide in 2019 was no reason to decide otherwise.

Complaints

In January 2020, the child – who was then 14 years old – submitted a communication to the CRC Committee. The child alleged that her mental health problems could not be adequately addressed in Georgia, that there was a lack of treatment options in Georgia and that treatment was unaffordable. The child and the parents had also been away from Georgia for three to nine years, and claimed that returning to Georgia would lead to unwanted adjustments and that they would not have the support of the two grandmothers. In fact, the child argued that there were no individual and sufficient guarantees for her access to treatment.

The State Party, Switzerland, contested the communication. It rejected the admissibility of the communication, holding that the Swiss Federal Supreme Court, on another occasion, had denied the direct applicability of most of the rights enshrined in the CRC, including the right to health. But even if the CRC Committee would consider these provisions to be directly applicable, then Switzerland had not violated the right to health nor any of the other rights invoked by the child. The Swiss Federal Court had ruled that the State Secretariat had correctly and thoroughly assessed the child’s mental situation and best interests. It had noted that the child’s health situation was significantly affected by the family’s troubled situation and the disorders suffered by her parents, but that the mental disorders suffered by the child did not give rise to a real risk of a serious, rapid, and irreversible decline in her state of health that would cause her to experience intense suffering or a significant reduction in her life expectancy. Therefore, it held that the situation of the child is not similar to the judgment of the ECtHR in the case of Paposhvili, ¹ where the Grand Chamber ruled that in the absence of adequate medical care in the home country and in case of a medical emergency situation, a deportation would lead to a violation of Article 3 (prohibition of torture and ill treatment) and Article 8 (right to private and family life) ECHR.

Views adopted by the Committee

The CRC Committee first considered the admissibility of the communication submitted by the child. Firstly, the CRC Committee took note of the observations by the State Party that only Article 37(a) (prohibition of torture and ill treatment) is directly applicable in Switzerland. The CRC Committee also emphasised that the principle of the best interests of the child, as enshrined in Article 3 of the CRC, is relevant in this case, and that this notion is, at the same time, a substantive right, an interpretative principle, and a rule of procedure.

The CRC Committee agreed with the Swiss authorities that the child had insufficiently substantiated her claims that her right to be heard (Article 12 CRC), her right to protection from violence, injury or abuse (Article 19(1) CRC) and her right to recovery and social reintegration (Article 39 CRC) were violated. Instead, the CRC Committee found that the communication had raised substantive issues with respect to the right to health (Article 24(1) CRC) together with the best interests of the child (Article 3 CRC) and the right to prohibition of torture and ill treatment (Article 37(a) CRC).

As a next step in its assessment, the CRC Committee considered the merits of the communication. The CRC Committee noted that the child had contested that she would have access to adequate treatment in Georgia, and held that Switzerland could not guarantee individual and sufficient access to appropriate psychiatric treatment and child welfare services in Georgia. The right to health was thus, in the view of the child, violated.

Unfortunately, the CRC Committee did not explain how it interprets the right to health, at least in the context of asylum. ² The right to health is a rather broad right, amongst others covered by the CRC, that should not be restricted to a right to health care. ³ Instead, the CRC Committee confined itself to assessing the procedure followed by the Federal Administrative Court, in its latest judgment in appeal with respect to the request of asylum of 19 December 2019. It noted that the Court had based its judgment on the basis of the most recently produced medical reports, while examining the accessibility and availability of psychiatric treatment for the child and her parents in Georgia. The CRC Committee also noted that the Federal Administrative Court had assessed the functioning of the Georgian health care system and had concluded that the health needs of the child and her parents did not constitute an emergency situation. In addition, the CRC Committee found that the Federal Administrative Court had considered the consequences of the deportation and held that the child’s psychological difficulties could be addressed in a stable environment that her parents could provide. This, according to the CRC Committee, met the criteria of the provision of the child’s best interests as enshrined in Article 3 CRC.

With respect to the principle of non-refoulement, a principle not explicitly protected by the CRC but by the Convention relating to the Status of Refugees, the CRC Committee observed that this principle does not confer a right to remain in a State of asylum solely because of the better health care, if compared with the health care provided in the home country. This is only different if the treatment is essential for the life and proper development of the child, and the treatment is not available and accessible in the home country (G.R. et al. v. Switzerland (CRC/C/87/D/86/2019).

Subsequently, the CRC Committee held that the communication did not disclose a violation of the right to health or any other rights enshrined in the CRC.

Commentary

It does not come as a surprise that the CRC Committee concluded that the right to health, or more accurately, the right to health care, was not violated in this case. If that were the case, this would be the first time that the CRC Committee had decided in such a way on the basis of a communication submitted to the CRC Committee. The Swiss State Secretary and Federal Administrative Court had thoroughly and rapidly assessed the application for asylum of the child and her parents, and convincingly substantiated that the health care needs of the child did not prohibit Swiss authorities from returning the child to Georgia. As said before, the CRC Committee did not take into account the other, underlying factors that explained the challenges the child experienced with respect to her mental health. I consider this as a too narrow interpretation of the right to health.

Yet, and maybe the most amazing aspect of the views of the CRC Committee with respect to the communication is, that the CRC Committee found the complaint with respect to the right to health admissible. But this part of the views could have been better elaborated upon, as the assessment of this decision was above all superficial. Allow me to explain this opinion in greater detail.

From the data included in the communication it is sufficiently clear that the child’s mental health was challenged by a combination of factors. The mental health problems started already when the child lived with her father and grandmother in Georgia. Even though not specified, the child already received mental health treatment in Georgia, at least until 2017. The mental health issues continued in Italy and Switzerland. These mental health challenges were above all caused by the situation in which the parents of the child found themselves in and the parental neglect of the health and other needs of the child. It is obvious that it is not in the best interests of a child to live with a violent father, who had turned into a drug dealer, and who is threatened by criminals to the extent that he tried to commit suicide. Neither should a child be exposed to violence committed by her father towards the child’s grandmother in her presence, nor should she witness her father's suicide attempt and its aftermath. It is also not in the health interest of a child to move to another country – Italy and later Switzerland – because of fear that criminals might attack her father. This situation potentially amounts, in itself, to a violation of the child's right to health and protection.

Yet, the question that emerges is whether Switzerland should, based on the child's right to health, have granted the status of refugee to the child and her parents. As said, I do not think so, despite the too narrow interpretation of the CRC Committee on the right to health.

Above all, the interests of the child and her parents were not clearly distinguished in the asylum procedure and in the communication submitted to the CRC Committee. In fact, the legal procedures and decisions suggest that the interests of the child and of the parents were overlapping. I dare challenge this suggestion. In my view the parents, especially the father, did not provide appropriate direction and guidance to the child in the exercise of her rights (Article 5 CRC) and did not safeguard the rights and well-being of the child. See in that regard the guidance of the CRC Committee, in its General Comment no. 15 on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), which requires parents to fulfil their responsibilities in relation to children's health, while always acting in the best interests of the child (para. 78). It could be argued that the situation in which the child found herself in was caused, and may have been exacerbated, by the health problems of the mother, the need to pay off the debts and the lifestyle of the father, including his alcohol and drugs abuse, his violence and criminal behaviour, and his mental health problems. This parental behaviour is not at all in the best interests of a child and can challenge the emotional protection a child is entitled to. In fact, the absence of appropriate protection, and exposure to violence and stressful situations can be qualified as parental neglect, that in many countries requires the authorities to interfere.⁴ This, however, had not been done in Georgia, Italy, or Switzerland. The fact that the welfare authorities in Switzerland, where the child lived for many years, and where she received mental health assessments and care, did not interfere and take measures to protect the child is highly surprising, even problematic. The Swiss authorities have been aware of the health problems of the child since mid-2017, which included her attempt to commit suicide in 2019, and the lasting mental health problems afterwards. Here it should be recalled that the prohibition of torture and ill treatment (Article 37(a) CRC), which was one of the rights invoked by the child, requires States Parties not only to refrain from taking action but also to take protective measures. Thus, it seems that while the health complaints of the child and her parents may have similarities, they do have different causes, and their assessment should have taken into account the different roles of children and care givers.

In addition, it was surprising that the Swiss authorities, as well as the CRC Committee, expected a child to substantiate her health problems by asking her own medical practitioners to write medical reports. Apart from the fact that an own medical practitioner is not an objective source of information, in most countries such information can only be obtained with the permission (‘informed consent’) of the parents as legal guardians. The CRC Committee did not address a situation in which parents do not want the medical practitioner to provide information that is not in their interests as parents, nor did the CRC Committee comment on the requirements necessary to ensure the child's privacy in those cases.

Moreover, the communication does not mention the treatment the child received in Switzerland nor the welfare services offered to the child. As the asylum procedures, followed by the communication to the CRC Committee, lasted more than six years, I hope that the child received the necessary support during this period of time.

Last but not least, the views of the CRC Committee could have benefitted from a specific reference to General Comment No. 15 on the right to health. To what extent were the views of the CRC Committee that the communication did not disclose a violation of the CRC based on this text? Why did the CRC Committee not distinguish the situation of the child and the situation of the parents? Should the Swiss authorities have interfered to protect the life, health and well-being of the child? We do not know the answers of the CRC Committee on these and other questions. This reflects, in my opinion, the superficial nature of the views

Conclusion

It did not come as a surprise that the complaint of the child in this case against Switzerland was eventually not considered to have violated the right to health in the CRC. The Swiss State Secretary and Federal Court had thoroughly investigated the asylum application, studied recent medical reports and the functioning of the health care system in Georgia.

At the same time, the CRC Committee failed to provide more clarification on the right to health, narrowing it to a right to health care, or on the apparent causal relation between the health and other situations of the parents and the detrimental health effects on the child. In fact, the absence of emotional and health protection offered by the parents could have been qualified as serious neglect, potentially amounting to a violation of the child's right to protection, and the prohibition of torture and ill treatment. The CRC Committee also did not clarify how a child can substantiate the need to health care, being dependent on parental informed consent, nor how a State Party, or the CRC Committee itself, should act when there is a conflict of interests on this point. Above all, it is regrettable that the CRC Committee did not refer to General Comment No. 15 on the right to health to assess a communication referring to the right to (mental) health.