The case of U.A. v. France. Views of the UN Committee on the Rights of the Child dated July 5, 2024. Message No. 132/2020.
In 2020, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to France.
The author claimed to be a victim of a violation by the State party of his rights under the Convention on the Rights of the Child, as the French authorities did not recognize him as an unaccompanied migrant child during the long period of his stay in France. As a result, he did not have access to social services, education, and adequate housing. The Committee concluded that the facts presented to it indicated a violation of certain provisions of the Convention, as well as article 6 of the Optional Protocol to the Convention on the Rights of the Child.
The Committee's legal position: Determining the age of a young man who claimed to be a minor is of paramount importance, since the results of this procedure determine whether the person is entitled to State protection as a child. Similarly, and this is of paramount importance to the Committee, the enjoyment of the rights enshrined in the Convention is directly dependent on the outcome of the aforementioned age determination procedure. Therefore, it is important that the age determination procedure is justified and that the decisions taken can be appealed. While the age determination procedure is underway, this person should be treated like a child. In this regard, the Committee considers that at every stage of the age determination procedure, the best interests of the child should be given priority (paragraph 8.3 of the Views).
The Committee states that identity documents should be considered authentic unless proven otherwise. It also recalls that the burden of proof does not rest solely on the author of the communication, especially since the author and the State party do not have the same access to evidence and that the State party is often the only one with relevant information... The Committee notes that States parties cannot act contrary to what is established by the original and official identity document issued by a sovereign country without officially challenging the validity of this document (paragraph 8.5 of the Views).
Only in the absence of identity documents or other appropriate ways to reasonably assess age should States conduct a comprehensive analysis of a child's physical and psychological development by pediatricians or other specialists with skills in comprehensive analysis of various aspects of development. Such an analysis should be carried out promptly, taking into account an individual approach, gender aspects and cultural characteristics, including conducting interviews with children in a language they understand. The Committee also recalls its general comment No. 6 (2005), according to which the assessment of age should be based not only on the physical appearance of a person, but also on the degree of her or his psychological maturity, should be carried out on a scientific, safe, child-sensitive and gender-sensitive basis, as well as on a fair basis, and in In case of doubt, the issue should be resolved in favor of the person in question, i.e. if there is a possibility that the person in question is a child, then she or he should be treated as such (paragraph 8.6 of the Considerations).
The Committee notes that, in the context of best interests assessment procedures, children should be guaranteed the right to appeal a decision to a higher court or an independent body with a suspensive effect (paragraph 8.7 of the Views).
The Committee recalls that States parties should, as soon as possible upon arrival in the country, appoint a qualified legal representative and, if necessary, an interpreter for all young people claiming to be minors. The Committee considers that ensuring that these young people are represented during the age determination procedure is an important guarantee that their best interests and right to be heard are respected. Failure to comply with this requirement entails a violation of articles 3 and 12 of the Convention, since the age determination procedure is the basis for the application of the Convention. The lack of timely representation can lead to significant unfairness (paragraph 8.8 of the Considerations).
The date of birth of a child is part of his personality and States parties are obliged to respect the child's right to preserve and not deprive him of any of its elements (paragraph 8.10 of the Considerations).
The Committee recalls that States parties have an obligation to ensure the protection of all migrant children deprived of a family environment, guaranteeing them, inter alia, access to social services, education and adequate housing, and that during the age determination procedure, young migrants claiming to be children should enjoy the right to have doubts interpreted in their favor, and treated like children. In any case, the Committee considers that children should not be required to directly request temporary protection measures during the age determination procedure, as this is an ex officio responsibility of States parties, given the particular vulnerability of unaccompanied migrant children (paragraph 8.12 of the Views).
The Committee emphasizes that the obligation of States parties to exercise the right to education applies to all children under the age of 18, regardless of the age set for compulsory education (paragraph 8.13 of the Views).
The Committee recalls that States parties that have ratified the Optional Protocol have an international obligation to comply with the interim measures taken in accordance with article 6 of the Protocol to prevent irreparable harm while a communication is under consideration, in order to ensure the effectiveness of the individual communications procedure (paragraph 8.14 of the Views).
The Committee's assessment of the factual circumstances of the case: it has been established that, although the author's identity card was recognized by the border police as authentic, the judicial authorities did not take it into account. The Committee took note of the author's argument that if the State party had any doubts about the validity of the submitted documents, it should have formally challenged them (paragraph 8.5 of the Views).
The Committee noted that the author had been subjected to a brief initial assessment without examining the original of his birth certificate. This assessment was carried out by one expert without taking into account the difficulties of the author's migration history and other factors that could explain its inconsistencies, and without the presence of a legal representative. The Committee drew attention to the fact that the judicial appeal against the administrative decision concerning the determination of the author's age had no suspensive effect (paragraph 8.7 of the Views).
The Committee considered that the age determination procedure to which the author, who claimed to be a minor and provided evidence in support of his claim, was subjected was not accompanied by the necessary guarantees to protect his rights under the Convention. In the present case, especially in view of the brief initial assessment of the author's age and the fact that he was not accompanied by a representative during the administrative proceedings, that the judicial appeal had no suspensive effect, that the documents submitted by the author were found to have no evidentiary value and that the State party did not even challenge their validity, the Committee Acknowledged that the best interests of the child were not the main consideration in the age determination procedure to which the author was subjected, in violation of articles 3 and 12 of the Convention (paragraph 8.9 of the Views).
The Committee has noted the author's claim that the State party violated his rights when it altered elements of his identity, attributing to him an age and date of birth that did not correspond to the information contained in the documents presented by him, and that the authorities never formally challenged the validity of his identity documents. He noted that in the present case, although the author had submitted several identity documents to the French authorities, the State party had ignored his right to preserve his identity, considering that these documents had no evidentiary value, although the validity of the information contained in them had not been properly challenged (paragraph 8.10 of the Views).
The Committee has taken into account the State party's argument that the author did not apply to the Court of Appeal of Aix-en-Provence with a specific request for temporary measures related to placement in custody pending a court decision and that, on the contrary, he expressed a desire to leave his orphanage. The Committee drew attention to the author's lawyer's constant appeals to the authorities, in which he referred to the author's situation of insecurity and neglect and requested that he be referred to the child protection Service. The Committee also took note of the author's claim that he expressed a desire to leave his orphanage only because his caregivers did not consider him a child, and that he only wanted to change the orphanage, and not to give up his protection as a child, as the State party claims. The Committee noted that the author's lawyer had stated that, in practice, persons claiming to be minors and presenting evidence of their minor status did not enjoy the presumption of minor status and, consequently, protection, while the age determination process had not ended with a final court decision (paragraph 8.11 of the Views).
The Committee drew attention to the fact that the author had to interrupt his language courses because he was no longer considered a child and had to work to support himself. The Committee noted that, since the author was not recognized as an unaccompanied migrant child during a significant part of his stay in France, he was denied access to education, which negatively affected his ability to integrate into society (paragraph 8.13 of the Views).
The Committee considered that the State party had not provided any explanation as to why the requested interim measures had not been implemented (paragraph 8.14 of the Views).
The Committee's conclusions: The facts revealed violations of articles 3, 8, 12, 20, 28 and 37 (a) of the Convention, as well as article 6 of the Optional Protocol (paragraph 8.15 of the Views).