Children’s right to protection and care Figure 3: Scope of the principle of the best interests of the child Primary consideration to the best interests of the child In actions affecting (groups of) children in general In actions affecting an individual child Source: FRA, 2017 Tools and guidance: Assessing the best interests of the child The UN High Commissioner for Refugees (UNHCR) and the United Nations Children’s Fund (UNICEF) developed guidance to assess what the child’s best interests are. The guidance reflects the factors to consider for such assessments, as identified by the UN Committee on the Rights of the Child in its General Comment  No.  14  (2013). Factors to consider when assessing the best interests of the child are also listed in Article 23 (2) of the Reception Conditions Directive  (2013/33/ EU). The UNHCR and UNICEF tool also contains guidance on how to weigh the different factors that must be considered, as well as on balancing the best interests of the child with other interests. Source: UNHCR and UNICEF (2014), Safe and Sound: what States can do to ensure respect for the best interests of unaccompanied and separated children in Europe, October 2014 Deprivation of liberty is rarely in a child’s best interests. Exceptionally, it can be the case – for example, when necessary to protect the child’s health or safety. In the context of immigration, UN expert bodies have stated that immigration detention is never in the best interests of the child (see Chapter 2). The weight to give to the best interests of the child varies according to the type of decision involved. Decisions on parental rights, custody or adoption must follow what is in the best interests of the child, which in these cases is not just primary but paramount.45 For other decisions, including deprivation of liberty, the best interests of the child are a central but not the only factor to consider. Article 3 of the CRC and Article 24 of the Charter require that they be given primary consideration, which means that the child’s best interests must bear more weight than other factors. This does not exclude, however, balancing them against other legitimate interests or rights and, under specific circumstances, these other considerations – when rightsbased – could outweigh the best interests of the child.46 This requires a formal procedure to assess the different interests at stake when deciding on the necessity and proportionality of detaining a child for migration purposes. In this regard, the ECtHR ruled that the extreme vulnerability of a child takes precedence over the person’s status as a migrant in an irregular situation.47 45 Convention on the Rights of a Child (CRC), Articles 9 and 21. 46 UN, Committee on the Rights of a Child, General Comment No. 14, (2013) on the right of the child to have his or her best interests taken as a primary consideration (art.3, para. 1), 29 May 2013, CRC/C/GC/14,paras. 37 and 39; General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, CRC/ GC/2005/6, 1 September 2005, para. 82. 47 ECtHR, Muskhadzhiyeva and Others v. Belgium, No. 41442/07, 19 January 2010, para. 56; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, No. 13178/03, 12 October 2006, para. 55. 23