Summary of facts

S.E.M.A, a child of Pakistani nationality (born on 31 December 2002), entered France on 25 August 2019. He presented the authorities with a copy of his birth certificate, and declared he was an unaccompanied minor. He requested to be placed in temporary emergency accommodation, according to the French law. His request was rejected, and the applicant remained on the streets. On 28 August 2019, the applicant was interviewed by the authorities for an hour, without a lawyer or other representative, in the presence of an Urdu interpreter, although the applicant’s language was Punjabi. The authorities concluded that the circumstances of obtaining the birth document were unclear, and the document was not corroborated by S.E.M.A.’s bearing and physical appearance. The authorities decided that the author was not a child, and thus he did not benefit from any form of social assistance given to unaccompanied minors.

On 30 September 2019, S.E.M.A. approached a children’s judge (juge des enfants) requesting the application of protection measures. He produced the original birth certificate and his original identity card. The judge raised concerns about the authenticity of the applicant’s identity documents and their inconsistency with his physical appearance and concluded that he was an adult. The judge did not, however, verify the authenticity of the applicant’s documents with the Pakistani diplomatic representation in France. The applicant appealed, and on 29 September 2020, the appeal court ordered the verification of the authenticity of the documents presented by S.E.M.A., but did not order that he be taken charge of by the child protection services. The appeal court scheduled the age determination hearing for 12 January 2021, time by which S.E.M.A would have turned 18.

On 9 December 2020, S.E.M.A. (through a legal representative) lodged a communication with the Committee on the Rights of the Child (the Committee), and on 10 December 2020, the latter issued interim measures requesting the State to place the child under care until he reached the age of 18, on 31 December 2020. In his communication, S.E.M.A. argued that France has violated articles 3, 8, 12 and 20 of the CRC through the age determination procedure and its refusal to treat him as an unaccompanied child migrant.

The State argued that the communication was inadmissible because the applicant did not exhaust the available domestic remedies. Thus, in February 2021, the appeal court upheld S.E.M.A.’s appeal and confirmed the authenticity of his identity documents. The State denied that the applicant sought protection measures under CRC, article 20 in court. In relation to article 12, the State affirmed that the applicant was heard directly during the age determination process by administrative authorities, which was sufficient to satisfy CRC, article 12 (2). The absence of legal representation during the administrative process was justified because the domestic law did not require such representation before administrative decision-makers, and throughout the court processes, the applicant was legally represented. After the correct determination of his age, the applicant was housed by the Social Services and benefited from the protective measures that the French law extends to unaccompanied minors up to the age of 21.

Summary of the Committee’s Views

Admissibility

The State argued that communication was inadmissible because at the time of lodging the communication with the Committee, S.E.M.A.’s appeal was underway, and thus he did not exhaust the available domestic remedies. The Committee rejected the argument, pointing out that the appeal was not suspensive, which means the child was denied any protection measures; the decision was unreasonably late (18 months after lodging the appeal) and issued after the applicant turned 18. The remedies were, therefore, unduly prolonged and ineffective. Further, the Committee rejected, as unsupported by the facts, the State’s argument that the applicant did not request protection measures before the domestic courts.

Merits

Age determination process

The CRC Committee stressed the importance of the age determination process using words such as ‘capital importance’, ‘extremely important’ or ‘imperative’ (para 8.3). This heightened importance emerges because the enjoyment of the rights in the CRC depends on this process. Thus, during the age determination process, a person claiming to be a minor ought to be treated as a child and, if uncertainty exists, the benefit of the doubt should apply and the person should be treated as a child if it is likely that they are a child (paras 8.3 & 8.6). The Committee noted that French authorities gave no effect to the identity documents presented by the applicant, although they did not contest their authenticity or take steps to conform their authenticity (para 8.5).

The Committee further found that in the administrative process of age determination, the birth documents were not considered, and the relevant interview was conducted by only one official, without a translator or a legal representative. Further, the administrative decision was not translated for the applicant, and he was not informed of his right to legal representation and appeal (para 8.7).The absence of free legal representation and interpreter throughout the administrative process amounted to a breach of articles 3 and 12 of the CRC because age determination is the basis of the application of the CRC in this situation. The absence of timely representation can result in a substantial injustice, which cannot be avoided by listening to the child directly (para 8.8).

The Committee decided that articles 3 and 12 have been violated because: the initial age evaluation was superficial; during the administrative process, the applicant did not have legal representation and an interpreter; the appeal was not suspensive; and the State ignored the applicant’s identity documents despite not verifying their authenticity (para 8.9).

Age as an element of a child’s identity

The Committee also decided that a child’s date of birth is part of their identity, which States must respect. By not giving any effect to the applicant’s identity documents until after the appeal decision, France breached its obligations to preserve the identity of a child, under article 8 of the CRC (para 8.10).

Special protection for unaccompanied migrant children

S.E.M.A argued that by not providing him with alternative care, or social and education assistance from September 2019 (the moment he had contact with French authorities) to 31 December 2020, France breached article 20 (1) of the CRC. The Committee stressed that States have an obligation to give the benefit of the doubt to those claiming to be children and treat them as such, and thus provide them with access to social services, education and accommodation during the age determination process. These services need not be requested by the claimants, and the obligation to provide them is incurred ex officio by States because of the particular vulnerability of unaccompanied child migrants (para 8.11).

Upon raising ex officio article 37(a), the Committee found that the State breached its obligations under article 20 (para. 1) and article 37(a). The Committee is not explicit, but it is likely that it considered the failure of the State to provide protection to an unaccompanied minor living on the streets as a ‘degrading treatment’ under the latter article given its reference to ‘abandonment and extreme vulnerability’ of the complainant’s situation (para 8.11).

Violation of article 6 of the OPIC

In addition to finding several violations of the CRC, the Committee also found a violation of article 6 of the OPIC because of the State’s omission to provide S.E.M.A. with appropriate care prior to him turning 18, as requested by the Committee by way of interim measures on 10 December 2020. The Committee noted that France did not give a reason for its non-compliance, and reminded that States that ratified OPIC have an international obligation to comply with the interim measures in order to prevent irreparable harm while the communication is pending, in order to ensure the effectiveness of the complaints procedure (para 8.12).

Remedies

The Committee requested the State to provide an effective remedy, including offering the applicant the possibility to regularise his situation in the country and benefit from the protective legislation which applied until the age of 21. The Committee also requested that the State ensures that similar violations do not occur in the future, and made several recommendations in relation to the age determination process, legal representation, and the effectiveness of proceedings, to name but a few.

Commentary

The comments below focus on two issues wherein the Committee adds new approaches in its jurisprudence, namely regarding age determination and the preservation of the child’s identity; and the protection of unaccompanied migrant children in street situations. Brief comments are also offered in relation to the violation of article 6 of the OPIC.

Age determination and the preservation of identity

The age determination procedure has emerged as a central issue for the Committee in individual communications pertaining to migrant children. It is often dealt with under articles 3 and 12 of the CRC, as also followed in the current case, with a focus on the procedural guarantees provided during the age determination process (i.e. legal representation; interpreter; the consideration of identity documents; and the suspensive effect of appeals against age determination decisions) See previous Case Notes, Klaassen & Dorber, 2019 & Cernadas, 2020). Such procedure-oriented approaches, which do not impose a certain outcome on the State, enhance the flexibility of the application of the CRC. However, while they have enabled findings of CRC violations in the international sphere, concerns linger about their ability to deliver meaningful domestic recourse.

The Committee rejected the State’s argument that article 12 (2) of the CRC was complied with during the administrative process of age determination because the child (16 years and 8 months old at the time) was interviewed directly by the authorities, which is one of the alternatives for child participation in the mentioned article (para 8.8). For the Committee, direct participation even as a late adolescent, in the absence of an interpreter and legal representation was not effective participation, and did not satisfy article 12 (2) of the CRC. The fact that domestic law did not provide for legal representation during the administrative phase of the age determination process was irrelevant. Here the Committee gave effect to article 27 of the Vienna Convention on the Law of Treaties, without explicitly referring to it.

Prior cases revolved around the use of medical tests to determine age, (see previous Case Notes, Klaassen & Dorber, 2019 & Cernadas, 2020) but the current case concerns an age determination done exclusively based on the interview with the applicant and identity documents produced by him. The Committee position remains, however, the same as developed in its General Comments and applied in its earlier views. ¹ Thus, if there is doubt in relation to age, the applicant should be given the benefit of the doubt during the age determination process and be presumed a minor, with all the protective consequences that follow. In the current case, the Committee consolidated its earlier views that if the State has doubts about the age of the applicant, proof of age cannot be left entirely to him/her and the State should actively contribute to its verification. ²

In S.E.M.A. v France, the Committee confirms the date of birth as being a part of a child’s identity, which requires protection under article 8 of the CRC in the process of age determination. The findings of breach of articles 3 and 12 of the CRC during the age determination process are procedure-oriented, but the inclusion of article 8 of the CRC in the normative conglomerate applicable during this process introduces some substantive dimensions. The Committee initiated this approach in 2019, (see Cernadas, 2020) when finding that the age determination process breached articles 3 and 12 of the CRC and the author was a child during that process, the Committee also declared a breach of article 8 of the CRC. ³In the cases where article 8 violations have been found, the complainants presented some identity documents to the host State, which the latter ignored. In cases where the claimant did not present identification documents (N.B.F. v Spain, para 12.10.), the Committee did not consider article 8, although it is not clear why.

No other human rights body seems to have taken a similar approach with the Committee. For example, the UN Human Rights Committee does not refer to age in the context of privacy, and neither does the European Court of Human Rights. The Committee making the link between age and identity was enabled by a provision unique to the CRC – the right to preserve one’s identity under article 8. This highlights the value added by the CRC in the human rights space. With insufficient opportunities to be tested in judicial and quasi-judicial proceedings, the CRC has remained for some time an undervalued legal instrument. However, with increased engagement with its standards, the opportunities to fully discover what it has to offer have grown as illustrated by the application of article 8 to the age determination procedure.

An aspect that the Committee should refine further in relation to its jurisprudence on article 8 is a clearer disaggregation of violation findings in relation to the article’s two paragraphs, which contain distinct obligations.

Unaccompanied migrant children in street situations

The current case raised an issue still novel before the Committee, namely that of unaccompanied migrant children in street situations (a similar situation was, however, present in J.A.B. V Spain). The Committee addressed the relevant legal issues arising in this case under articles 20 (1) and 37(a) of the CRC respectively.

In some cases where a breach of article 20 of the CRC was found in the context of unaccompanied minors, the breach arose from the failure of the State to appoint a guardian to assist the child in accessing relevant protection (R.K. v Spain para 9.12; M.T. v Spain para 13.8.). In the current case, the Committee moved beyond this procedure-oriented approach, and found that the State violated articles 20 (1) and 37(a) by not providing the care which the applicant was entitled to as a child and leaving him in a dire situation, i.e. living on the streets, in the middle of a one-in-a-century pandemic, and seriously vulnerable as an unaccompanied minor.

Interestingly, so far, the Committee has not made a finding of violation of CRC article 20 (1) taken by itself or independently. Instead, it has found its joint violation with other articles, such as article 37(a) in the current case, article 24 in J.A.B. v Spain (paras 13.11-12) or article 22 in M.T. v Spain (para 13.8). It seems, therefore, that article 20 (1) has played an instrumental or enabling role, with findings of violation being made only when the absence of special protection has also endangered or breached other CRC rights. It would have been desirable for the Committee to address article 37(a) and its link with article 20 (1) of the CRC more extensively especially when it raised the former ex officio. In addition, the Committee extended the interpretation of article 37 in the context of children in street situations when compared to its approach in General Comment No. 21 (2017) on children in street situations (para 60), where its concerns pertained to police conduct and measures taken against children, rather than the living conditions of children in street situations.

The power of the Committee ex officio to consider legal grounds not raised by the parties themselves require some attention in the future. There is no indication in the current case that the Committee placed before the applicant and the State its intention to consider article 37(a) in the context of deciding on the potential violation of article 20(1). It may be that the auxiliary or vehicle role that article 20(1) has so far played in the Committee’s jurisprudence required it to consider a CRC article that gave a clearer contour to the State’s obligations to provide special protection and assistance in the current case. It remains, however, unclear (and an inevitable consequence of no arguments being presented by the parties) why article 37(a) was the most appropriate for this purpose rather than other articles, such as article 27.

The applicant’s situation is different from other immigration cases because he was not placed in immigration detention. Instead, he was left free, albeit in a difficult situation and without being offered any State protection. The French Defender of rights confirmed in its third-party submission that the applicant’s situation was not rare. Some unaccompanied young people declaring to be minors were not given the benefit of the doubt during the age determination process and did not benefit of the presumption of minority. Consequently, they were left to live on the streets without assistance. Therefore, this was a systemic problem to which the State itself contributed.

Disappointingly, the Committee gives it little attention. It did not refer to its most directly relevant document in relation to children living on the streets - General comment No. 21 - although it had an opportunity to demonstrate how the abstract statements therein apply to a concrete case. Further, the Committee missed an opportunity to demonstrate the relevance and versatility of its General Comment in the light of the diversity of situations that children in street situations find themselves in. The applicant in this case does not fit perfectly the image of the child in street situations envisaged by General Comment No. 21, i.e. of a child with an elevated level of autonomy who may resist protection interventions by the State. Instead, the child sought the protection of the State, which he was denied.

Violation of article 6 of the OPIC

As in previous cases, the Committee found that the failure to give effect to interim measures ordered by it amounted to a violation of article 6 of the OPIC. Thus, although article 6 (1) of the OPIC states that the Committee may send the State Party ‘a request’ for interim measures, the position of the Committee is that the requested interim measures must be complied with. In its 2019 Guidelines for Interim measures under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, the Committee stated that:

_{The Committee is of the view that interim measures issued under article 6 of the OPIC impose an international legal obligation on State parties to comply. A failure by the State party concerned to implement the interim measures would undermine the effectiveness of the individual communications procedure and render the case moot. Such non-compliance would entail a violation of article 6 of the OPIC, which expressly establishes the Committee’s competence to issue interim measures (para 9).}

While the Committee has been bolder than other treaty bodies in explicitly affirming the binding nature of its interim measures, its position articulates with that of other international bodies and courts that have held that interim measures must be complied with by the State Parties. ⁴A paradoxical situation arises therefore in that the merits decisions (i.e. views) of the Committee (and other treaty bodies) are not binding on States while the interim measures are. The explanation seems to reside in the very specific and narrow purpose of the interim measures, the prevention of an irreparable harm which, if eventuated, would render the individual communications process moot. ⁵A finding of a violation of article 6 of the OPIC has not led to the Committee granting an independent remedy for its breach. ⁶ Thus far, therefore, findings of non-compliance with interim measures have remained somewhat symbolic or simply declaratory in the practice of the Committee.