The case of V.M.C. v. Denmark. Views of the Committee on the Rights of the Child dated 28 September 2020. Communication No. 31/2017.
In 2017, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Denmark.
As seen in the text of the Views, the author claimed that if she and her three children were deported to China, the State party would violate the rights of her children under articles 2, 3, 6, 7 and 8 of the Convention (paragraph 3.1 of the Views).
The Committee's legal position is 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 stipulated in articles 6 and 37 of the Convention on the Rights of the Child (paragraph 27); and that such obligations are non-refoulement (Non-refoulement (principle of non-refoulement)) They are applied 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 risk of such serious disorders should be assessed taking into account the factors of age and gender. Such an assessment should be carried out in accordance with the principle of prudence and, if there are reasonable doubts that the receiving State can protect the child from such risks, States parties should refrain from deporting the child (paragraph 8.3 of the Considerations) (I.A. M. v. Denmark (CRC/C/77/D/3/2016), item 11.8.).
One of the most important considerations to be taken into account when making decisions regarding the deportation of a child should be to ensure 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 for the exercise of his rights <16>. The Committee recalls that the burden of proof cannot be placed solely on the author of the communication, especially since the author and the State party do not always have equal access to evidence and often only the State party has relevant information (paragraph 8.6 of the Views) (See for more details: the case of M.T. v. Spain (CRC/C/82/D/17/2017), paragraph 13.4; the case of El-Hassi v. the Libyan Arab Jamahiriya (CCPR/C/91/D/1422/2005), paragraph 6.7; and the case of Majnoun v. Algeria (CCPR/C/87/D/1297/2004), Clause 8.3.).
The Committee's assessment of the factual circumstances of the case: the author's claims were taken into account that, in the event of deportation to China, her three children born out of wedlock could be taken away from their mother and that they would not be registered in hukou, which was necessary to ensure their access to health, education and social services (para. 8.4 Considerations).
The Committee noted that the State party had not verified, by means that would not endanger the position of the author and her children as asylum seekers, whether a Danish birth certificate would be sufficient for registration purposes under the Hukou system, and if not, what other procedures would be required for the children to obtain Chinese birth certificates; what is the probability of obtaining Chinese birth certificates and how long will the children have to wait until they manage to register at their place of residence. The Committee stressed that these issues are particularly relevant given the numerous administrative requirements for obtaining a birth certificate and complex registration procedures in China, and that birth registration is associated with hukou. The Committee considered that the State party had not considered how children's rights to education and health would be ensured pending their registration or in the absence thereof (paragraph 8.6 of the Views).
The Committee's conclusions: In assessing the alleged risk that, in the event of deportation to China, the author's children would not be able to register with Hukou, the State party failed to ensure the best interests of the child and did not provide adequate guarantees for the well-being of the child after his deportation, which violates article 3 of the Convention.