CRC/GC/2005/6
page 22
VII.
(a)
FAMILY REUNIFICATION, RETURN AND OTHER FORMS
OF DURABLE SOLUTIONS
General
79.
The ultimate aim in addressing the fate of unaccompanied or separated children is to
identify a durable solution that addresses all their protection needs, takes into account the child’s
view and, wherever possible, leads to overcoming the situation of a child being unaccompanied
or separated. Efforts to find durable solutions for unaccompanied or separated children should
be initiated and implemented without undue delay and, wherever possible, immediately upon the
assessment of a child being unaccompanied or separated. Following a rights-based approach, the
search for a durable solution commences with analysing the possibility of family reunification.
80.
Tracing is an essential component of any search for a durable solution and should be
prioritized except where the act of tracing, or the way in which tracing is conducted, would be
contrary to the best interests of the child or jeopardize fundamental rights of those being traced.
In any case, in conducting tracing activities, no reference should be made to the status of the
child as an asylum-seeker or refugee. Subject to all of these conditions, such tracing efforts
should also be continued during the asylum procedure. For all children who remain in the
territory of the host State, whether on the basis of asylum, complementary forms of protection or
due to other legal or factual obstacles to removal, a durable solution must be sought.
(b)
Family reunification
81.
In order to pay full respect to the obligation of States under article 9 of the Convention to
ensure that a child shall not be separated from his or her parents against their will, all efforts
should be made to return an unaccompanied or separated child to his or her parents except where
further separation is necessary for the best interests of the child, taking full account of the right
of the child to express his or her views (art. 12) (see also section IV (e), “Right of the child to
express his or her views freely”). While the considerations explicitly listed in article 9,
paragraph 1, sentence 2, namely, cases involving abuse or neglect of the child by the parents,
may prohibit reunification at any location, other best-interests considerations can provide an
obstacle to reunification at specific locations only.
82.
Family reunification in the country of origin is not in the best interests of the child and
should therefore not be pursued where there is a “reasonable risk” that such a return would lead
to the violation of fundamental human rights of the child. Such risk is indisputably documented
in the granting of refugee status or in a decision of the competent authorities on the applicability
of non-refoulement obligations (including those deriving from article 3 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and articles 6
and 7 of the International Covenant on Civil and Political Rights). Accordingly, the granting of
refugee status constitutes a legally binding obstacle to return to the country of origin and,
consequently, to family reunification therein. Where the circumstances in the country of origin
contain lower level risks and there is concern, for example, of the child being affected by the
indiscriminate effects of generalized violence, such risks must be given full attention and
balanced against other rights-based considerations, including the consequences of further
separation. In this context, it must be recalled that the survival of the child is of paramount
importance and a precondition for the enjoyment of any other rights.
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