A recent study indicates that countries often struggle with gathering information on
the situation of a child, tracing family, restoring family links and assessing the family
situation for the purposes of reunification.204
Best interests of the child205
The best interests of the child must be the primary consideration in all decisions and
measures that concern child victims. This principle that applies to all branches of government, including those structures engaged in implementing returns and return-related processes.206 The CRC has underlined how the concept of a child’s best interest
is three-fold.207 First, it is a substantive right, meaning that the right of the child to
have her or his best interests assessed and treated as the primary consideration when
considering different interests to reach a decision on the issue at stake. According
to the CRC, the relevant provision (Art. 3(1)) of the convention is directly applicable
(self-executing) and can, therefore, be invoked before a court.208 Second, it is a legal
principle and, as such, if it is open to more than one interpretation, then the one that
most effectively serves the child’s best interests should be chosen.209 Third, it is a rule
of procedure and requires that the decision-making process include an evaluation of
the possible impact of the decision on the child or children concerned.210
An assessment of the child’s best interests should be conducted for each individual
case, and should consider the specific circumstances of each child. This includes circumstances relating to the individual characteristics of the child, such as age, sex,
level of maturity, experience, belonging to a minority group and having a physical,
sensory or intellectual disability, as well as the child’s social and cultural context,
such as the presence or absence of parents and the existence of quality alternative
means available to the family, extended family or caregivers, among other factors.211
An assessment of the best interests of the child should begin as soon as child victims
are identified as such, and should continue throughout the child’s displacement until
a durable solution is identified and implemented.212 Other elements that must be considered when assessing the child’s best interests include the child’s views, identity,
204 European Council on Refugees and Exiles, Comparative Study on Practices in the Field of Return of Minors, op.
cit., note 203, p. 13.
205 This section is drawn from the following: CRC General Comment No. 6; CRC General Comment No. 14; UN
High Commissioner for Refugees (UNHCR), UNHCR Guidelines on Determining the Best Interests of the Child, May
2008; UN High Commissioner for Refugees (UNHCR), Field Handbook for the Implementation of UNHCR BID Guidelines, November 2011; UN Children’s Fund (UNICEF), Reference Guide on Protecting the Rights of Child Victims of
Trafficking in Europe, 2006, Section 9.2. For a more detailed examination, see Gallagher, The International Law
of Human Trafficking, pp. 323-336; and the United Nations Office of the High Commissioner for Human Rights
(OHCHR), Commentary to the OHCHR Trafficking Principles and Guidelines, pp. 161-174.
206 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty
Series, vol. 1577 (hereafter: UNCRC), art. 3(1).
207 CRC General Comment No. 14, para. 6.
208 Ibid.
209 Ibid.
210 Ibid.
211 CRC General Comment No. 14, para. 48.
212 UNICEF Trafficking Guidelines, p. 25.
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Part 2: Explanatory Report to the Principles
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