interests with the rights-based considerations in question.247 When determining the
best interests, the following aspects shall be considered: 248
• The safety, security and other conditions, including socio-economic conditions,
awaiting the child upon return;
• The availability of care arrangements;
• The views of the child;249
• The child’s level of integration in the destination country, and the duration of her or
his absence from the home country;
• The child’s right “to preserve his or her identity, including nationality, name and
family relations”;250 and
• The “desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”.251
If it has been determined that family unification is not an option, then the return can
only take place if secure and concrete arrangements of care and custodial responsibilities upon return are established in advance.252
In the opinon of the CRC, the return may, exceptionally, go ahead if there are other
rights-based considerations that override the best interests of the child,253 including
situations in which the child constitutes a serious risk to the security of the state or to
the society.254 Non-rights-based arguments, such as those relating to general migration control, cannot override considerations of the child’s best interests.255
The 2005 Addendum to the OSCE Action Plan requires that participating States provide assistance and protection for return “when it is in the best interest of the child to
return her/him to the country of origin”. It also requires that states provide the child
with appropriate care during the return process, and that the child’s well-being upon
return is monitored by the authorities in the country of origin.256
The Council of Europe Trafficking Convention prevents states from returning a child
victim if there is an indication, following a risk and security assessment, that the
247 CRC General Comment No. 6, para. 85.
248 CRC General Comment No. 6, para. 84.
249 UNCRC, art. 12.
250 UNCRC, art. 8.
251 UNCRC, art. 20.
252 Ibid., para. 84.
253 Ibid., para. 85.
254 Ibid.
255 Ibid.
256 2005 Addendum to the OSCE Action Plan, para. 10.
Part 2: Explanatory Report to the Principles
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