Independent Children, Inconsistent Adults: International child migration and the legal framework

Abstract

Like adults, children migrate across borders for different reasons and in varying circumstances; and they face legal consequences as a result of their migration. Two of these consequences are common to all child migrants and have far-reaching implications: the child migrants become non-citizens or aliens once they cross a border, and they face a new social environment once they leave home. The existing legal framework does not directly address either of these consequences. Domestic child protection law, which addresses the problems facing children without satisfactory homes, does not often cover issues of foreign citizenship, including the risk of deportation and lack of entitlement to social benefits that non-citizen children can face. And migration law, which establishes the parameters of lawful status for recognized categories of migrant, does not deal with the needs and circumstances of most children who travel independently of their families. However, international law has long recognized the distinctive needs of some groups of child migrants. In the Declaration on the Rights of the Child, adopted by the League of Nations in 1924, the first ever international child rights declaration, two of the five principles articulated define rights relevant to child migrants: (1) the primacy of the child’s right to relief in times of distress (a precursor to attention to the special needs of refugee children) and (2) the imperative of protection for exploited children (prefiguring concern with child trafficking). More recent regional and domestic legislation regulating immigration has included provisions promoting family unity and by implication the migration of children with or to join their adult relatives. A broader engagement with the many other aspects of child migration however has been absent. There is no single piece of international or regional legislation that systematically and comprehensively addresses the issue. As a result the body of relevant legislation, though quite extensive and diverse, has an impact on child migrants which is inconsistent and incomplete.

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