The case of H.K. v. Denmark. Views of the Committee on the Rights of the Child dated June 1, 2022. Message No. 99/2019.
In 2019, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Denmark.
The UN Committee on the Rights of the Child concluded that the State party did not properly take into account the principle of the best interests of the child as the main consideration when considering the applications of the author of the communication and her daughter for asylum in order to protect S.K. (the author's daughter) from the real risk of irreparable harm to her after her return to India, in violation of the rights of S.K. enshrined in the Convention on the Rights of the Child.
As seen from the text of the Considerations, the author claimed that her daughter S.K.'s life would be in imminent danger if she were deported to India in violation of her rights under articles 3 and 22 of the Convention on the Rights of the Child, because of the threats that the author's husband had made against her and S.K., his ill-treatment of the author during her pregnancy and her lack of practical and legal opportunities to adequately protect S.K. from her husband. The author claimed that she had received numerous threats from her husband and that he had stated that he would kill her for having him arrested and deported from Denmark. She indicated that because of this, her life and S.K.'s life would be in danger upon her return to India. The husband of the author of the message also stated that, in his opinion, S.K. was born with Down syndrome. The author noted that in Indian culture it is considered a disgrace to have an illegitimate child, a child with disabilities and a girl. The author stated that her husband was capable of killing her and S.K. She claimed that her family would not give her any support because her parents disowned her for marrying against their will. Her father also threatened her because the family was against the marriage. The author stressed that in India she would not have had the opportunity to find asylum inside the country. In India, a divorced woman is stigmatized, and it is difficult or impossible for women to live alone. The author further noted that according to Indian law, the child's father has custody rights. Therefore, S.K. will run the risk of being separated from the author, since the latter wants to divorce A.S. (the husband of the author of the message), and such separation will be a trauma for S.K. and will cause her to feel that she has been abandoned. The author claimed that she did not have the opportunity to seek State protection in India because her husband and his family had political ties in India (paragraphs 3.1 - 3.4 of the Considerations).
The Committee's legal position: Referring to its general comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin, the UN Committee on the Rights of the Child indicated that States should not return a child to a particular country if there are serious grounds to believe that there is a real risk that irreparable harm may be caused to him, for example, but not exclusively, such as is stipulated in articles 6 and 37 of the Convention; and that such obligations to refrain from refoulement (non-refoulement) apply regardless of whether serious violations of the rights guaranteed in the Convention are committed by non-State actors and whether such violations are targeted or are an indirect consequence of certain actions or omissions. The degree of danger of such serious violations should be assessed taking into account the factors of age and gender. Such an assessment should be conducted in accordance with the principle of prudence and, if there is reasonable doubt that the receiving State can protect the child from such threats, States parties should refrain from deporting the child. The Committee recalls that one of the most important considerations to be taken into account when making decisions regarding the deportation of a child should be the best interests of the child and that such decisions should be made in accordance with a procedure providing due process guarantees that after the return of the child, he will be provided with safety and adequate care and opportunities to use his rights (paragraph 7.3 of the Considerations).
It is for the national authorities to examine facts and evidence and interpret and apply domestic legislation, unless their assessment was manifestly arbitrary or amounted to a denial of justice. Therefore, the Committee should not evaluate facts and evidence, but ensure that their assessment was not arbitrary or amounted to a denial of justice and that the best interests of the child or children were the main consideration in such an assessment (paragraph 7.4 of the Views).
The Committee's assessment of the factual circumstances of the case: the author's arguments have been taken into account that S.K.'s life would be in imminent danger if she returned to India due to the threats that the author's husband made against her and S.K., the violence to which he subjected the author, and the author's lack of practical and legal opportunities to ensure sufficient protection of S.K. from her husband; that the author's family did not provide her and S.K. with any support; that in India, the author would not have had the opportunity to seek asylum within the country due to the difficulties faced by divorced single women there; that S.K. would be at risk of being separated from her, since her husband could obtain custody; and that the author does not have the opportunity to seek State protection in India, since her husband and his family have political ties in India, as well as due to corruption in the country (paragraph 7.2 of the Considerations).
The Committee noted that in its decision of 19 June 2019, the Danish Refugee Appeals Board examined the author's complaints and agreed with her claim that she had been subjected to gender-based violence by her husband during their stay in Denmark. However, the Council concluded: the author will have access to State protection in India, if required, thanks to crisis centers for victims of domestic violence. The Committee recalled that in its Concluding Observations on the combined third and fourth periodic reports of India, it expressed deep concern about the widespread discrimination against girls and women in India and the persistence of patriarchal attitudes and deep-rooted stereotypes and practices that perpetuate discrimination against girls. In the same document, the Committee reiterated its concern about reports of widespread violence, ill-treatment, including sexual abuse, as well as neglect of children in India. The Committee noted that the Special Rapporteur on violence against women and girls, its causes and consequences, in his report on his visit to India, expressed concern about the non-compliance with the Law on the Protection of Women from Domestic Violence and the deeply rooted patriarchal attitudes of police officers, prosecutors, the judiciary and other relevant government officials regarding the handling of cases of gender-based violence, which contributes to the fact that victims do not report it, withdraw complaints and do not give evidence (paragraph 7.5 of the Considerations).
The Committee noted that in the present case it has been irrefutably proven that the author was subjected to gender-based violence by her husband. The Committee took note of the author's allegations that she feared repeated violence from her husband if she returned to India and that S.K. would also not be safe due to threats against the author and S.K. after the deportation of the author's husband. The Committee took note of the State party's contention that the author and her daughter would be granted State protection if they returned to India. However, in view of the concerns expressed by the Special Rapporteur on violence against women and girls, its causes and consequences regarding the availability of access to State protection in India in practice, the Committee decided that the authorities of the State party had not given sufficient importance and had not studied in detail the author's claim that State protection, if it and her daughter will return to India, will not be available to them in practice, especially given the author's claims that she will not be able to seek help from her family because she has disowned her, as well as for state protection, since her husband and his family have political ties in the country. Therefore, the Committee pointed out that the State party's authorities, in deciding to expel the author and her daughter, did not properly take into account these issues, as well as the real and personal risk of serious violation of S.K.'s rights (for example, that she might become a victim or witness of violence and suffer related injuries). The Committee concluded that the State party had not adequately taken into account the principle of the best interests of the child as a primary consideration when considering the author's and her daughter's asylum applications in order to protect S.K. from the real risk of irreparable harm upon her return to India, in violation of S.K.'s rights enshrined in the Convention on the rights of the child (paragraph 7.6 of the Views).
The Committee's conclusions: the facts presented testified to a violation of the rights of S.K., enshrined in articles 3, 6, 22, 37 of the Convention on the Rights of the Child. The State party is under an obligation to review the decision to deport S.K. and her mother to India, taking measures to ensure that the best interests of the child are the main consideration in its review, taking into account the specific circumstances of the case (paragraph 9 of the Views).