• Best Interest of the Child: Article 3 of the CRC sets out that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The best interest of the child should be mainstreamed into all aspects of procedural operations involving unaccompanied and separated children

• Identification: Identification of unaccompanied and separated children will depend on many factors, including the policy on the treatment of persons arriving or crossing borders and checkpoints, the policing structure in place at all points of entry into national borders and internal checkpoints, the training received by personnel policing all points of entry and checkpoints, and policies on detention and encampment. Unaccompanied and separated children within large influxes of asylum seekers and refugees, mixed migration flows, in camps and in urban settings pose significant challenges of identification. Identification procedures must include age-appropriate non-adversarial interviewing by trained personnel. The principle of the benefit of the doubt must operate in favor of the child such that in cases of uncertainty, there should be a presumption in favor of the child and the child should be provided with any available specialized protections. Practitioners should be particularly aware of the possibility that children may have been coached to provide a certain story. This should not lead to any punitive actions against the child. Practitioners may want to consult guidelines, research and other practitioners for assistance in designing or responding to difficult issues of identification.

• Age Assessment: Age assessment procedures have created great difficulties for unaccompanied and separated children seeking asylum. This has arisen particularly in response to the perception that people may be trying to access specialized services and protections only available to children. Holistic age assessment tools have been favored over biometric age assessment tools.

• Care and Custody: Unaccompanied and separated children should not be detained. The core of a care and custody regime should ensure safety, security, be the least restrictive and provide for basic needs such as food, clothing and shelter. The emergence of detention in prison-like conditions as a primary method for the care and custody of children has been widely criticized in Greece, Italy, Spain, France, Australia and the United States. There has been progress in some countries, such as the United States, towards a more humane and child-welfare oriented system. Yet, the law and order model of imprisonment and long-term encampment of unaccompanied and separated refugee and asylum seeking children continues to be used to the detriment of the children and their healthy development. Practitioners may want to consult child welfare materials for guidance on establishing humane, child-welfare oriented and rights-based systems for children.

• Appointment of a guardian ad litem and the provision of legal counsel: As systems have evolved into complex procedures and substantive law, it is critical that competent adults are in these systems to represent the child’s best interests and the child’s legal interests in a language and format that the child can understand. Legal counsel should be appointed to ensure that the child’s legal interests are protected in the administrative legal proceedings and for the protection of any other legal rights to which the child is entitled. The guardian ad litem model calls for a special child advocate to be appointed to represent the child’s best interests, which involves a broader analysis of the child’s developmental needs, point of view, safe environment and risk of harm, permanency, well-being, age and maturity, and history of flight or persecution.

• Mental Health Services: While children certainly have resiliencies, they may also have endured or witnessed violence, trauma, or exploitation. Children should be able to access specialized mental health services within any system if necessary.

• Registration and Documentation:  In all cases where unaccompanied and separated children are identified, they must be properly registered and provided with documentation. The registration process is a critical information-gathering process that should also be non-adversarial and the information collected from the minor must be kept confidential for their protection and safety. This means that those who complete the registration and documentation stage should not be personnel who are also tasked with deporting or removing children from the territory. The child’s first contact with enforcement agencies can be traumatic and the child may have extraordinary fear based on prior experiences or what they have been told by others in their country of origin or during the journey.

• Family Tracing and Reunification: During the registration and documentation stage, the family tracing process must begin. This means obtaining information from the child to initiate the process and also, very importantly, obtaining consent from the child to contact the International Committee for the Red Cross or any other family tracing organization or system available for assistance in the process. It is critical that this information not be used for purposes of enforcement against the parents or other caregivers of the child. Children may be reluctant to provide information about their families because of reasons such as fear of reprisal, coaching to stay silent, or belief in the possibility of resettlement, special benefits, or refugee status in a country as an unaccompanied child. There should be careful consideration in the family tracing process of these factors and a way to ensure safe reunification with the family based upon an analysis of the child’s best interests- whether the family reunification is occurring as a release into the country of asylum, camp setting, repatriation, or not at all. Additional information and guidance is described in more detail below.

• Access to refugee status determination procedures and complementary forms of protection: As systems of detention proliferate, it becomes more difficult for children to access refugee status determination procedures as well as possible complementary forms of protection. Expedited removal systems, placement of unaccompanied and separated children in adult detention centers, and other similar procedures can mean that children will not be able to access refugee status determination and other complementary forms of protection, and are summarily deported. Practitioners should work with government and quasi-government agencies to gain access to places where children may be held as a result of these procedures to ensure that unaccompanied and separated children are not deprived of their rights in contravention of the CRC and the 1951 Refugee Convention and 1967 Optional Protocol.

• Best Interest of the Child: UNHCR Executive Committee Conclusion No. 38 “Refugee Children” (1987) stresses that all action taken on behalf of refugee children must be guided by the principle of the best interests of the child. The UNHCR Guidelines on Best Interest Determination provides the most comprehensive outline and implementation of this key principle. The most recent Guidelines on International Protection on Child Asylum Claims similarly cite this key principle. In 2013, UNHCR published an audit of and recommendations for the U.K. Home Office in which they reviewed the application of the best interest of the child in the context of families seeking asylum. UNHCR found that, with some exceptions, children who are dependent on their parent’s claims do not consistently have their own protection needs identified and assessed. See the 2021 UNHCR Best Interests Procedure Guidelines: Assessing and Determining the Best Interests of the Child.

• Establishing a Well-Founded Fear: There is debate regarding the balance between the subjective and objective elements while the standard of reasonableness is noncontroversial. UNHCR and legal scholars have recognized that children may not be able to articulate subjective fear and adjudicators may need to rely more heavily on objective evidence. The application of this balance will depend upon the child’s maturity, capacity, understanding and developmental stage. Additionally, it may sometimes be difficult to identify sufficient objective evidence to make the determination of well-foundedness of future persecution. If an unaccompanied or separated child can still not meet this standard of well-foundedness on future persecution, practitioners can advocate for a broader humanitarian principle of asylum based on past persecution alone if there are compelling reasons why the child is unwilling to return or there is a reasonable possibility that the child may suffer other serious harm upon return.

• Credibility Determinations and Submission of Proof: Generally, the standard for credibility determinations is that the information is coherent and plausible. In the case of children, guidelines call for a liberal application of benefit of the doubt. Additionally, psychologists have indicated that asylum seekers generally may have difficulty recounting their story and incomplete versions should not be misinterpreted as detracting from credibility. Children may express experiences of abuse and exploitation in ways that are non-verbal. Children may have proof in the form of physical and psychological impact, but may not be able to provide other types of evidentiary proof and this also should not detract from their case.

• Persecution: The adjudicator should consider persecution from the child’s point of view and through the normative and legal framework applicable to children. Taking into consideration the child’s point of view would mean that the harm a child suffers or fears may be less than an adult but still qualify as persecution. Additionally, the specific developmental, psychological and neurobiological stage of the child can impact this analysis. Under the CRC, children are entitled to a range of child-specific rights that recognize their young age and dependency and are fundamental to their development and survival. A violation of any one of these rights could constitute persecution or if there are serious systematic or multiple violations of rights or a collection of harmful events, these taken together can constitute persecution. The UNHCR Guidelines on Children’s Asylum Claims released in December 2009 references child-specific forms of persecution such as under-age recruitment, domestic violence, female genital mutilation, child trafficking and labor, and violations of social, economic and cultural rights.

• Source or Agent of Persecution: Generally, the source or agent of persecution can be the government, a quasi-official government group, or persons, groups or organizations that the government is unwilling or unable to control. In the case of children, it is more common that non-state actors have inflicted persecution. This can often occur, for instance, in intra-family abuse, blood feuds, and gang-based violence. UNHCR guidelines indicate that in the cases where the alleged persecutor is not the government itself, the child can show that the government is unwilling or unable to control his persecutor. There should be a broad flexible framework in analyzing government unwillingness or inability to control that can include the absence of child welfare services, failure of states to intervene to protect, failure to effectively implement a protective law, and objective evidence of high rates of harms to children or patterns of persecution.

• On Account of One of the Protected Grounds: While children asylum seekers must establish persecution on one of the five grounds, a child may not always be able to establish direct or circumstantial evidence of motive, particularly for culturally accepted – but harmful- practices. The new UNHCR Guidelines on International Protection: Child Asylum Claims, released in December 2009, indicate that it is sufficient that one of five grounds be a factor relevant to persecution, but it is not necessary that it is the sole or dominant cause. 

  • Race: Race should be understood in the widest sense to include all kinds of ethnic groups referred to as races. Persecution based on race is irrespective of minority or majority status in society.

  • Nationality: Nationality includes citizenship membership in an ethnic or linguistic group. Persecution based on nationality is irrespective of minority or majority status in society.

  • Religion: Religion can be based upon belief or refusal to hold beliefs. UNHCR advises that a child need not know or understand anything about the religion only that others have identified her/him as belonging to that group and fears persecution as a result. The UNHCR Guidelines on International Protection No. 6: Religion-Based Refugee Claims also explain that claims can be based on religion as belief (including non-belief), identity, or a way of life, and are not limited to traditional religions.

  • Political opinion: In the UNHCR Guidelines on International Protection No. 1: Gender Related Persecution, UNHCR states that political opinion should be understood broadly to include any opinion on any matter in which the machinery of state, government, society, or policy may be engaged. It can be stated as opposition or neutrality and imputed to children by virtue of their relationship and dependency on family. Given this broad understanding of political opinion, children can manifest political opinions in a traditional political context, but also in response to culturally harmful practices, gender or other societal structured-roles, irregular armed groups and gangs.

  • Membership in a particular social group: UNHCR Guidelines on International Protection No. 2: Particular Social Group, provide for alternative approaches to the analysis such that a particular social group can be a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society.  The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights. UNHCR Guidelines on International Protection on Child Asylum Claims also note that being a child can be an immutable characteristic at any given time particularly given the fact that the consequences of having belonged to such a social group does not end. These guidelines also describe possible social groups as including children, abandoned children, orphans, children born outside coercive family practices, street children, children with HIV/AIDS, and children singled out for recruitment or use by an armed force or group.

• Internal relocation or fundamental change in circumstances: UNHCR Guidelines on International Protection: “Internal Flight or Relocation Alternative within the context of the Article 1(A)2 of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, indicate that there must be regard for the personal circumstances of the individual claimant and the conditions in the country for which the internal flight or relocation alternative is proposed. UNHCR Guidelines on Child Asylum Claims indicate that the child’s best interests inform both the relevance and reasonableness of internal flight or relocation.

• Exclusion: Exclusion clauses should be restrictively applied to children and in cases of young children, not at all. The best interest of the child, mens rea, mental competency, presence of duress, coercion, or self-defense, and proportionality are guiding principles in the analysis of exclusion for children.

• Local Integration: For unaccompanied and separated children who remain in the country of reception, local integration includes ensuring that these children have non-discriminatory access to education, housing and food, among other key rights, to ensure long-term security, safety and well-being. Many systems utilize the existing child welfare framework, such as foster care networks, to ensure safety and stability of the newly arrived or newly recognized unaccompanied and separated child asylee. While many systems are designed to support the unaccompanied and separated child in a local integration strategy until the age of eighteen, there should be provisions for continued assistance for certain children up until the age of twenty-one.

• Resettlement: Resettlement of unaccompanied and separated children is a complex process that requires a full best interest determination procedure in accordance with the most recently released UNHCR Guidelines on Best Interest Determination.

• Repatriation: Finally, and perhaps the most difficult, is the repatriation of unaccompanied and separated children to their countries of origin. There have been full-scale programs of voluntary repatriation of refugee populations conducted by international organizations that have included unaccompanied and separated children. However, there is discretion within these programs to refrain from repatriating certain vulnerable persons, including children, particularly when this would be contrary to the best interest of the child. There are also countries across the world that “repatriate” children, but in practice, this means a deportation system without ensuring safe repatriation. According to UNCHR Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997), the best interests of an unaccompanied child require that the child not be returned unless, prior to the return, a suitable care-giver such as a parent, other relative, other adult care-taker, a government agency, a child-care agency in the country of origin has agreed, and is able to take responsibility for the child and provide him/her with appropriate protection and care. The best interest analysis includes considering the developmental needs of the child, the child’s point of view, safe environment and risk of harm, permanency, well-being, assessment of the child’s age and maturity, and history of flight or persecution. However, to be truly effective, the repatriation process for unaccompanied and separated children must also look to reintegration to ensure that the child is a sustainable safety situation or the child will likely flee once again.

• In the European Union, the European Platform for the Return of Unaccompanied Minors (ERPUM) raised a number of legal, political and moral concerns related to the return of children to questionable and possibly dangerous environments. The Coventry Law Centre received funding to conduct research on the ERPUM and launched a website with resource links and reports, however the project was discontinued in June 2014.  The United States does not have any system similar to ERPUM.  However, the Trafficking Victims Protection and Reauthorization Act of 2008 required that the Secretary of State negotiate agreements for the repatriation of children from contiguous countries designed to protect children from severe forms of trafficking in persons and to create a pilot program to develop and implement the best practices to ensure the safe and sustainable repatriation and reintegration of unaccompanied children from all other countries to their country of nationality or of last habitual residence. 

When authorities and non-governmental organizations first encounter an unaccompanied and separated child, it is critical to assess in a child-sensitive confidential manner the child’s family structure, location of parents or traditional caregivers, if known, and nature of the relationship between the child and parents or traditional caregivers.  The information should be registered and documented appropriately and in accordance with international guidance and standards as highlighted by the Better Care Network. In addition, such assessments must incorporate different cultural and societal conceptions of family. 

In some situations, the child may be reluctant to share information regarding parents or caregivers, particularly when in the custody of government authorities, fearing that this may lead to adverse consequences for their parents or caregivers.  It may also be traumatic for the child to disclose the nature of separation from the parent if it occurred in the context of war, civil conflict, natural disaster, arrest by government authorities, and other similar events.  Finally, it may also be difficult for the child to discuss a parent or caregiver if there has been a history of abuse, abandonment, neglect or other similar mistreatment.  There are also children who will be unable, due to their age, to answer these questions and there are specific guidelines for children from birth to age five. For all of these reasons, it is critical that the child provide informed consent in a confidential manner and that information gathered must not be used against the child in any way contrary to their best interests.  For family tracing with organizations like the International Committee of the Red Cross, the child must provide consent to the family tracing process.

Throughout this process, the guiding principles should be to promote and ensure the child’s protection, safety, well-being, and best interests.  Children may need to be placed in temporary safe alternative care arrangements during the process of tracing, verification, and family reunification.  It should be recognized that a child should be placed in the least restrictive setting for such temporary arrangements and that this should not become an institutionalized system for the care of children. Such institutionalization has been generally deemed to be contrary to children’s best interests. Additionally, consideration should be made of children who have acquired legal status based on a grant of asylum or refugee protection or alternative forms of humanitarian protection or birthright citizenship.  Finally, the best interest determination guidelines should also be utilized when determining whether a child is not going to be reunified with a parent or caregiver for protection-related reasons. 

Canadian Council for Refugees , DNA Tests: A barrier to speedy family reunification, October 2011

Journal of International Migration and Integration , DNA Testing for Family Reunification in Canada: Points to Consider, May 2016

RapidFTR helped humanitarian workers in emergencies quickly collect vital information from children who have been separated from their caregivers, and to share it securely with people who can get them help and find their families. The goal was not to rethink the steps aid workers take in order to reunite families. Instead, RapidFTR focused on streamlining and speeding up a process that is already in place.