CMW/C/GC/4-CRC/C/GC/23

organizations, national human rights institutions and other stakeholders from every region
of the world between November 2015 and August 2017.

II. Legal obligations of States parties to protect the rights of
children in the context of international migration in their
territory
A.

Age
3.
The definition of the child under the Convention on the Rights of the Child provides
rights and protection until the age of 18. The Committees are concerned that children
between 15 and 18 years tend to be provided much lower levels of protection, and are
sometimes considered as adults or left with an ambiguous migration status until they reach
18 years of age. States are urged to ensure that equal standards of protection are provided to
every child, including those above the age of 15 years and regardless of their migration
status. In accordance with the Guidelines for Alternative Care of Children, 2 States should
provide adequate follow-up, support and transition measures for children as they approach
18 years of age, particularly those leaving a care context, including by ensuring access to
long-term regular migration status and reasonable opportunities for completing education,
access to decent jobs and integrating into the society they live in. 3 The child should be
adequately prepared for independent living during this transition period, and competent
authorities shall ensure adequate follow-up of the individual situation. The Committees
additionally encourage States to take protective and support measures beyond the age of 18
years.
4.
To make an informed estimate of age, States should undertake a comprehensive
assessment of the child’s physical and psychological development, conducted by specialist
paediatricians or other professionals who are skilled in combining different aspects of
development. Such assessments should be carried out in a prompt, child-friendly, gendersensitive and culturally appropriate manner, including interviews of children and, as
appropriate, accompanying adults, in a language the child understands. Documents that are
available should be considered genuine unless there is proof to the contrary, and statements
by children and their parents or relatives must be considered. The benefit of the doubt
should be given to the individual being assessed. States should refrain from using medical
methods based on, inter alia, bone and dental exam analysis, which may be inaccurate, with
wide margins of error, and can also be traumatic and lead to unnecessary legal processes.
States should ensure that their determinations can be reviewed or appealed to a suitable
independent body.

B.

Right to liberty (articles 16 and 17 of the International Convention on
the Protection of the Rights of All Migrant Workers and Members of
Their Families; article 37 of the Convention on the Rights of the Child)
5.
Every child, at all times, has a fundamental right to liberty and freedom from
immigration detention. 4 The Committee on the Rights of the Child has asserted that the
detention of any child because of their or their parents’ migration status constitutes a child

2
3

4

2

General Assembly resolution 64/142, annex.
See Committee on the Rights of the Child, report of the 2012 day of general discussion on the rights
of all children in the context of international migration, paras. 68-69. Available from
www.ohchr.org/Documents/HRBodies/CRC/Discussions/2012/DGD2012ReportAndRecommendatio
ns.pdf.
Convention on the Rights of the Child, art. 37; International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families, arts. 16 and 17; Universal
Declaration of Human Rights, arts. 3 and 9; International Covenant on Civil and Political Rights, art.
9.

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