CRC/C/77/D/3/2016 advance unedited version
notes the arguments and information submitted to the Committee, including the assessment
of the mother’s ability to resist social pressure based on her past experience in the Puntland
region, and on reports on the specific situation of female genital mutilation in Puntland.
However, the Committee observes that:
a)
The RAB limited its assessment to a general reference to a report on central
and southern Somalia, without assessing the specific and personal context in which the author
and her daughter would be deported and without taking the best interests of the child into
account, in particular in light of the persistently high prevalence of female genital mutilation
in the Puntland State of Somalia and the fact that the author would be returned as a single
mother, without a male supporting network;
b)
The State party has argued that the author, by having left Somalia, appears to
be an independent woman with considerable personal strength who must be able to resist any
social pressure and thus be able to protect her daughter from female genital mutilation.
However, the Committee notes that the author’s departure could similarly be understood as
an inability to resist pressure. In any event, the Committee considers that the rights of the
child under article 19 of the Convention cannot be made dependent on the mother’s ability
to resist family and social pressure, and that State parties should take measures to protect the
child from all forms of physical or mental violence, injury or abuse in all circumstances, even
where the parent or guardian is unable to resist social pressure;
c)
The evaluation of a risk for a child to be submmited to an irreversible harmfull
practice such as female genital mutilation in the country to which he or she is being returned
should be adopted following the principle of precaution, and where reasonable doubts exist
that the receiving State cannot protect the child against such practices, State parties should
refrain from returning the child.
11.9 The Committee therefore concludes that the State party failed to consider the best
interests of the child when assessing the alleged risk of the author’s daughter to be subjected
to female genital mutilation if returned to the Puntland State of Somalia, and to take proper
safeguards to ensure the child’s wellbeing upon return, in violation of articles 3 and 19 of the
Convention.
11.10 The Committee on the Rights of the Child, acting under article 10, paragraph 5, of the
Optional Protocol to the Convention on the Rights of the Child on a communications
procedure, is of the view that the facts before it amount to a violation of articles 3 and 19 of
the Convention.
12
The State party is under an obligation to refrain from returning the author and her
daughter to the Puntland State of Somalia. The State party is also under an obligation to
prevent similar violations in the future, in accordance with the present Views.
13
The Committee recalls that, becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether or not there has been
a violation of the Convention or its two substantive Optional Protocols.
14
Pursuant to article 11 of the Optional Protocol, the Committee wishes to receive from
the State party, as soon as possible and within 180 days, information about the measures
undertaken to give effect to the Committee’s Views. The State party is also requested to
include information about any such measures in its reports under article 44 of the Convention.
Finally, the State party is requested to publish the Committee’s Views, to have them
translated into the official language of the State party and widely distributed.
12
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