states that “a child-sensitive approach, taking due account of the child’s age, maturity, views, needs and concerns, shall prevail”.220
Presumption of age, young adults and affording a status
The best interest principle governs the order of priority of the protection needs in each
case, starting from a prioritized identification of the victim as a child.221 If the age is
uncertain, but there are reasons to believe that the person is a child, the person will
be presumed to be a child.222 Pending the verification of the victim’s age, the person
may not be removed from the state’s territory until the identification process has been
completed.223
In certain circumstances, the UN promotes undertaking formal best interests determination procedures for young adults – in this case, those living together with unaccompanied children, possibly sharing the same experiences of flight.224 In such cases,
the UNHCR may conduct a formal best interest determination procedure for young
adults of up to 21 years of age, should this be necessary to identify their protection
needs or a durable solution.225
OSCE participating States are committed to providing child victims of trafficking who
are not nationals or residents of the destination country with a status that entitles
them to stay, at least temporarily, in the country and be eligible to receive immediate
assistance, which should include safe shelter, medical and psychological care, legal
assistance, social services and education.226 In case the age of a victim is uncertain
and there are reasons to believe that the victim may be a child, the Council of Europe
Trafficking Convention foresees that the special protection and assistance measures
for child victims provided for in the convention shall be accorded to the victim pending
verification of her or his age.227 Although not explicitly stipulated in the UN Trafficking
Protocol, a similar principle is outlined in the UNODC Legislative Guides for the implementation of the United Nations Convention against Transnational Organized Crime and
the Protocol thereto.228 Similarly, EU legislation stipulates that, in cases where the age
220 Ibid., art. 1.2.
221 CRC General Comment No. 6, para. 31.
222 Ibid., also UNICEF Trafficking Guidelines, p. 15.
223 UNICEF Trafficking Guidelines, p. 15.
224 UN High Commissioner for Refugees (UNHCR), UNCHR Guidelines on Determining the Best Interests of the
Child, May 2008, p. 49.
225 Ibid., p. 49. The UNHCR highlights that efforts should be made to ensure that the best interest determination process is implemented before a child reaches 18 years of age. For more information on this and on best interest determination for young adults, see Field Handbook for the Implementation of UNHCR BID Guidelines, UNHCR,
2011, pp. 72-73.
226 2005 Addendum to the OSCE Action Plan, rec. 8.
227 Council of Europe Trafficking Convention, art. 10(3). An almost identical requirement is also found in: Council
of Europe, Council of Europe Convention on the Protection of children against sexual exploitation and sexual abuse, 12
July 2007, CETS No. 201, art. 11(2).
228 UN Office on Drugs and Crime (UNODC), Legislative Guides for the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto (New York: United Nations, 2004), part 2,
para. 65.
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Part 2: Explanatory Report to the Principles
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