preservation of the family environment, safety and care, health, education and the
child’s vulnerability.213 The latter is particularly relevant in cases of child victims, in
which case other potentially relevant rights must be considered (for example, those
under the UN Refugee Convention). The CRC has also highlighted that the best interests of a child in a specific situation of vulnerability are not the same as those of all
the children in the same vulnerable situation.214 In the context of the return of trafficked children, two points in particular need to be highlighted. First, parents have
primary decision-making responsibility on behalf of their children; however, if they
fail to make the child’s best interests a basic concern, for example by being complicit
in the trafficking of that child, the state may intervene to protect those interests. Second, states should not put other considerations, such as those related to immigration
control or public order, before the best interests of a child victim of trafficking.215
The concept of the best interest of the child is likewise reflected in the OSCE Action
Plan, as well the plan’s 2005 Addendum and 2013 Addendum.216 The EU Trafficking
Directive also stipulates that the best interests of the child be a primary consideration,217 and requires that member states take all necessary measures to ensure that
all activities to assist and support child victims in their physical and psycho-social
recovery, in the short and long terms, are undertaken following an individual assessment of the special circumstances of each child victim. In addition, assessments
must take due account of the child’s views, needs and concerns, with a view to finding a durable solution for the child.218 EU Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime requires that
member states ensure that, where the victim is a child, the child’s best interests are
made a primary consideration and are assessed on an individual basis.219 Likewise, it
213 CRC General Comment No. 14, paras. 52-79.
214 CRC General Comment No. 14, para. 75-76.
215 See CRC General Comment No. 6, para. 19-22; UN Office of the High Commissioner for Human Rights
(OHCHR), Commentary to the Recommended Principles and Guidelines on Human Rights and Human Trafficking, 20
May 2002, E/2002/68/Add.1 (hereafter: OHCHR Commentary to the Recommended Principles and Guidelines), pp.
165-166; CRC General comment No. 14.
216 See the 2005 Addendum of the OSCE Action Plan, preamble and Section V, 10(1), 13(1); and the 2013 Addendum to the OSCE Action Plan, Section III 1.3.
217 EU Trafficking Directive, art. 14(1)
218 In determining a durable solution, the views of the child should be taken into consideration. Forcing a trafficked child to return to her or his country of origin is unlikely to be a durable solution, since children who do not
wish to return home are likely to seek out new opportunities to leave, exposing them to the risk of being re-trafficked (UNICEF, Reference Guide on Protecting the Rights of Child Victims of Trafficking in Europe, 2006, pp. 80 and
86). In order for the child to have an informed view, he/she should be provided with relevant information suitable
to her/his age, and should have this information and relevant procedures explained to them in a language that they
can understand (see Separated Children in Europe Program, SCEP Statement of Good Practice, March 2010, 4th
Revised Edition, p. 18). The EU Action Plan on Unaccompanied Minors states that a durable solution should be based
on an individual assessment of the best interests of the child, and that return is only one of the options to be considered. The Plan further states that, “In all cases, the return must be conducted in a safe, child appropriate and
gender-sensitive manner” (see European Union: European Commission, Communication from the Commission to the
European Parliament and the Council. Action Plan on Unaccompanied Minors (2010 – 2014), 6 May 2010, COM(2010)
213/3 (hereafter: EU Action Plan on Unaccompanied Minors), para. 5).
219 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision
2001/220/JHA, 2012 OJ L 315/57.
Part 2: Explanatory Report to the Principles
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