CRC/C/86/D/83/2019- advance unedited version
supporting network in Somalia, considering that her husband currently does not reside with
the author and her children;
(b)
The State party has argued that, as the author and her husband clearly oppose
female genital mutilation and the author is not returning to a rural area where she may be
more dependent on the surrounding community, she would be able to resist any social
pressure and thus protect her daughter from being subjected to female genital mutilation.
However, the Committee notes that the father’s position regarding female genital mutilation
alleged by the State party seems irrelevant in the present case, in light of the uncontested
information provided by the author that her husband currently resides in the Unites States of
America and is not returning to Somalia with the author and her children. As to the State
party’s reliance on the author’s ability to resist social pressure, 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, especially in light of the general reported
context, and that State parties should take measures to protect children from all forms of
physical or mental violence, injury or abuse in all circumstances. The Committee takes note
of the State party’s argument that it is relying on its interpretation of regional jurisprudence
on other similar cases. However, the Committee notes that this interpretation cannot exempt
the State party from complying with its obligations under the Convention as interpreted by
the Committee; neither can this interpretation justify the non-compliance with the
Committee’s Views under the Optional Protocol;
(c)
The evaluation of the risk that a child may be subjected to the irreversible
harmful practice of female genital mutilation, in the country to which the child is being
deported should be carried out 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 deporting the child. 31
8.8
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 being subjected
to female genital mutilation if deported to Somalia and to take proper safeguards to ensure
the child’s well-being upon return. The Committee therefore concludes that the return of the
author’s daughter to Somalia would amount to a violation of articles 3 and 19 of the
Convention.
8.9
The Committee, acting under article 10 (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 disclose a violation of articles 3 and 19 of the Convention.
9.
The State party is under an obligation to refrain from deporting the author’s daughter
to Somalia and to ensure that she is not separated from her mother and brother.32 The State
party is also under an obligation to take all steps necessary to prevent similar violations from
occurring in the future. In this regard, the State party is requested, in particular, to ensure that
asylum proceeding affecting children include a best interests analysis and that, where a risk
of a serious violation is invoked as a ground for non-refoulement, the specific circumstances
in which the children would be returned are duly taken into account.
10.
Pursuant to article 11 of the Optional Protocol on a communications procedure, the
Committee wishes to receive from the State party within 180 days, information about the
measures taken to give effect to the Committee’s Views. The State party is also requested to
include information about any such measures in its reports to the Committee under article 44
of the Convention. Finally, the State party is requested to publish the present Views and to
have them widely disseminated in the official language of the State party.
31
32
10
See Kaba v. Canada (CCPR/C/98/D/1465/2006), para. 10.1; and F.B. v. The Netherlands
(CAT/C/56/D/613/2014), para. 8.7.
See the joint general recommendation No. 31 (2014) of the Committee on the Elimination of
Discrimination against Women/general comment No. 18 (2014) of the Committee on the Rights of
the Child on harmful practices, para. 55 (m).