Children's Rights and Refugee Law
Conceptualising Children within the Refugee Convention
Law and Migration Series

Children make up half of the world?s refugees and over 40 per cent of the world?s asylum seekers. However, children are largely invisible in historical and contemporary refugee law. Furthermore, there has been very limited interaction between the burgeoning children?s rights framework, in particular the Convention on the Rights of the Child (CRC), and the 1951 Convention relating to the Status of Refugees (Refugee Convention). This book explores the possibility of a children?s rights approach to the interpretation of the Refugee Convention and within that what such an approach might look like.

In order to construct a children?s rights approach, the conceptualisations of children outside the legal discipline, within international children?s rights law and then within refugee law and refugee discourse are analysed. The approach taken is socio-legal and comparative in nature and the suitability of the Refugee Convention as a framework for the interpretation of child claims is examined. The book analyses to what extent the Refugee Convention is capable of dealing with claims from children based on the modern conceptualisation of children, which is underscored by two competing ideologies: the child as a vulnerable object in law to be protected and the child as subject with rights and the capacity to exercise their agency. The influence each regime has had on the other is also analysed. The work discusses how a children?s rights approach might improve outcomes for child applicants.

The book makes an original contribution to child refugee discourse and as such will be an invaluable resource for academics, researchers and policymakers working in the areas of migration and asylum law, children?s rights and international human rights law.

Chapter 1 Introduction

Introduction

A dichotomy: children’s rights and refugee law

A children’s rights approach

Building upon the ‘human rights approach’

Invisibility in refugee law

Locating children’s rights in refugee law: Article 6 and the ‘Three Ps Approach’

Methodology of analysis

Chapter 2 Children, childhood and refugee law

Abstract

Introduction

Indicators of childhood and being a child and refugee law

A paradigm shift: the emergence of childhood

The modern children’s rights movement

The beginning of the Children’s Rights Movement

Global childhood

Conflicts within the paradigm shift: an externalisation of rights, romanticism and the role of the family

A conceptualisation of childhood

Limitation to the modern conceptualisation of children's rights

Conclusion

Chapter 3 International Children’s Rights Law

Abstract

Introduction

Origins of children’s rights in international law

Convention on the Rights of the Child 1989 and life, survival and development

Provisional rights

Health

Standard of living

Education

Non-discrimination

Protection rights

Labour exploitation

Other forms of economic exploitation

Involvement in other illicit trades

Military conscription

Child marriage

Other non-economic forms of harm

Participation rights

Agency in the Convention on the Right of the Child

Determining agency

Right to be heard

The role of the family in the Convention on the Rights of the Child and provisional, protection and participation rights

Children’s rights and refugee law – an indirect link?

Conclusions

Chapter 4 Children in the development of refugee law

Abstract

Introduction

Children and the beginnings of international human rights law (pre-1951)

Beginnings of refugee law

The historical trajectory of children in the refugee paradigm

Modern refugee law under the United Nations

Conclusion

Chapter 5 A children’s rights approach to refugee law?

Abstract

Introduction

Part I

Context setting

Children within the Refugee Convention and the need for a cross-treaty interpretive approach: some assumptions

Bridging the gap: treaty interpretation

The challenge of implementing international law

International law as national guidance

The object and purpose of the Refugee Convention

The object and purpose of the Convention on the Rights of the Child

Conclusion on objects and purposes

A children’s rights approach – justification through UN Guidance

United Nations High Commissioner for Refugees

Committee on the Rights of the Child

Challenges in the interpretation of the Refugee Convention in respect of children’s rights

Part II

A brief introduction to persecution

Persecution and children

Actors of persecution and protection and the role of the family

Children who are not eligible for protection: exclusion

Convention grounds

Conclusion

Chapter 6 Constructing a children’s rights approach: the application of children’s rights in refugee law

Abstract

Introduction

Challenges to consistency in the interpretation of child refugee claims

Part I

Provisional rights and refugee protection

Family

Education

Conclusion on provisional rights

Part II

Protection rights and refugee protection

Exploitation

Labour and trafficking

Forced military recruitment and protection of children during conflict

Involvement in illicit activities – gangs

Other forms of harm: Indiscriminate violence and torture

Family as persecutor and protector – unattached children

Conclusion on protection rights

Part III

Participation rights and refugee protection

Imputed beliefs

Religion

Political Opinion

Conclusions: participation rights

Conclusions

A Children’s Rights Approach

Chapter 7 Conclusions

Abstract

Introduction

Dichotomies

A children’s rights framework

Invisibility in refugee law

A bourgeoning children’s rights approach to the interpretation of the Refugee Convention

Limited case law

A children’s rights barometer for persecution: present day case law

A particular convention ground

The findings

The questions

Moving forward

Conclusion