By Rachel Green
Professor Mary Crock, Professor of Public Law at the University of Sydney Law School, taught “Refugee Law in Australia: The Protection of Migrant Children” at the IALL Annual Course on October 29, 2019. Prof. Crock has co-authored two books relevant to this topic: Protecting Migrant Children: In Search of Best Practice (2018) and The Legal Protection of Refugees with Disabilities: Forgotten and Invisible? (2017).
The overarching takeaway was just how vulnerable migrant children are throughout the world. According to 2015 UNICEF statistics, children accounted for 31% of the world’s population but 51% of the global refugee population. The number of child refugees doubled from 2005 to 2015, particularly between 2011 to 2015 (likely due to the Syrian crisis).
Significantly, refugees do not typically begin by attempting international border crossing. Instead, refugees fleeing their communities usually attempt internal migration first. These “Internally Displaced Persons” (IDPs) numbered 41 million in 2015 (up from 28 million in 2010); 17 million (41%) were children. It is only when IDPs are unable to find safety anywhere within their home countries that they risk seeking refuge across international lines.
Unaccompanied asylum seeking children are especially vulnerable to exploitation and abuse. According to the UN Office on Drugs and Crime’s 2016 TIP Report, children represented 25-30% of trafficking victims (second to women). The research underlying this report showed that conflict can drive trafficking, because traffickers “leverage [refugees’] desperation to deceive them into exploitation.” Research also suggests that children are at greatest risk when moving along routes where they have to pay different smugglers for different legs of the journey.
Prof. Crock outlined international law agreements that are especially relevant to migrant children. The International Covenant on Economic, Social, and Cultural Rights, Article 12, recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The Convention on the Rights of the Child (CRC) offers one of the strongest protections for children and is the most subscribed of all human rights conventions, although Prof. Crock noted that the U.S. has not ratified it, and many countries are not complying with it. Traditional human rights treaties, as well as the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1995), also play a significant role.
The CRC is critically important for understanding the rights of migrant children. Of particular note, the CRC does not contain derogation clauses for emergencies, thus ensuring that migrant children retain their rights under all circumstances. Some of the most pertinent articles are: Article 3, establishing that “best interests of the child shall be a primary consideration”; Article 19, requiring that State Parties protect children “from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse . . .”; Article 22, requiring “appropriate protection and humanitarian assistance” to refugee (or refugee status-seeking) children; and Article 38, requiring State Parties to “take all feasible measures to ensure protection and care of children who are affected by an armed conflict.”
Unfortunately, while mechanisms exist to protect children in theory, in reality, there are major gaps. In Australia, an interest in deterrence has often prevailed over the need to protect children. Examples include the use of prolonged detention onshore, the establishment of detention centers offshore, forced separation of children from their families, and the denial of family reunification after separation.
Prof. Crock emphasized the important role lawyers play, as they will always find a way to fight, even looking outside of immigration law. For example, lawyers have made tort law claims on behalf of immigrants in detention camps.
Overall, this session was extremely informative, and Prof. Crock was a compelling speaker. The subject of migrant children is particularly meaningful to me, as I do pro bono work on behalf of minors seeking legal status in the United States. I wanted to be able to share this session with other FCIL members because I believe that it is a subject that resonates universally. While the stories and information were difficult to hear at times, I was inspired by Prof. Crock’s positive attitude and hopefulness for change. The lecture slides are available on the IALL website.