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Children and migration

Children receive a special form of protection in international law as well as in many national law systems.

Article 4 of the UN Convention on the rights of the Child requires States parties to take “all appropriate legislative, administrative and other measures” for implementation of the rights contained therein. While it is the State which takes on obligations under the Convention, its task of implementation - of making reality of the human rights of children - needs to engage all sectors of society and, of course, children themselves. Ensuring that all domestic legislation is fully compatible with the Convention and that the Convention’s principles and provisions can be directly applied and appropriately enforced is fundamental. Article 2 provides for the obligation of States to respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind. This non-discrimination obligation requires States actively to identify individual children and groups of children the recognition and realization of whose rights may demand special measures. For example, the UN Committee on the rights of the child highlights the need for data collection to be disaggregated to enable discrimination or potential discrimination to be identified. The Committee believes that effective implementation of the Convention requires visible cross-sectoral coordination to recognize and realize children’s rights across Government, between different levels of government and between Government and civil society Rigorous monitoring of implementation is required, which should be built into the process of government at all levels comprehensive national strategy or national plan of action for children, built on the framework of the Convention.

Economic circumstances or conflicting priorities in States budget allocation and spending can not detract from the need to give absolute priority to the rights of children. The Committee on the Rights of the Child has clearly and repeatedly affirmed that ”Whatever their economic circumstances, States are required to undertake all possible measures towards the realisation of the rights of the child, paying special attention to the most disadvantaged groups.” Migrants’ children suffer the disadvantage of the groups they belong and require specific protection.

More particularly on migrant workers and their families, the UN Convention on the Protection of all Migrant workers and members of their families states, amongst the most fundamental rights which must be recognised to migrants and members of their families, the right not to be deprived of life, liberty and not to be subjected to force labour etc.. Specific rights are provided for expressly children of migrants, for instance the right to a name, to registration of birth and to a nationality. Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of either parent or by reason of the irregularity of the child's stay in the State of employment. The Convention guarantees the right to freedom of thought, conscience and religion to migrants and their children. Moreover, States Parties are obliged to ensure the liberty of parents, at least one of whom is a migrant worker, and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Certainly the provisions of the UN Convention on the Rights of the Child and relevant other instruments are still far from being implemented. The very same UN Committee on the Rights of the Child recognises that the institution of specialised bodies at State and local administration level in certain countries may be purely cosmetic, however, such steps must be taken to start infusing a culture of prioritising the interest of the child at every level by State agents at all level of legislation and State action.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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