Persecuting Children: How the Convention on the Rights of the Child has pushed the evolution of refugee law

The nature of modern warfare has made children increasingly vulnerable to conflict related injury, deprivation and displacement. International refugee law was slow to recognise children as being worthy of separate consideration: the only express references to children in the UN Convention relating to the Rights of Refugees are in Article 4, referring to refugee parents’ freedom to religious education of their offspring; and Article 17(2)(c) which relates to the working rights of refugee parents whose children are nationals of a host country). Pobjoy’s masterful review of the comparative jurisprudence on children as refugees confirms the nature and extent of the change that is occurring. Chapter 4 of his book examines an aspect of the Refugee Convention that remains un-defined, yet central to the protection of refugees. This is the concept of ‘being persecuted’. As many of us have documented, children can experience persecution both in the same way as adults and in ways that are particular to their identity as children: See, for example, see Pobjoy, section 4.3; J Bhabha and W Young, ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New US Guidelines’ (1999) 11 International Journal of Refugee Law 84, 103; J Bhabha and M Crock, Seeking Asylum Alone: A Comparative Study – Unaccompanied and Separated Children and Refugee Protection in Australia, the UK and the US (2007), Chapter 7; and G Sadoway, ‘Refugee children before the Immigration and Refugee Board’ (1996) 15(5) Refuge 17. Like adults, children can be killed, kidnapped, tortured and targeted for harm in ways that are readily identified as ‘persecution’. What has been harder for people to accept is that children also suffer harms that are peculiar to childhood. As Pobjoy writes at 117:

Only a child can be at risk of infanticide, underage military recruitment, forced child labour, forced underage marriage, child prostitution, child pornography, domestic child abuse, corporal punishment or pre-puberty FGC.

Moreover, children experience harm in ways that are different to adults. Because of their size and evolving capacities, they can be acutely susceptible to injury and harm.

Pobjoy explores these realities brilliantly. Noting the legislative and policies initiatives that have been taken in international, supra-national and domestic contexts, he argues nevertheless that more judges and policy makers should be taking the time to consider the different persecutory experiences of refugee children.

In this short reflection, I endorse fully Pobjoy’s argument that it is the Convention on the Rights of the Child (CRC) that has served as game changer for refugee children. At the most obvious level, the CRC and its four associated Protocols set out ‘the range of behaviours that states themselves have defined as unacceptable in the context of children’ (Pobjoy, 123). While Hathaway has used international human rights norms to construct something of a hierarchy of harms to identify persecutory harm (see discussion at 105ff), Pobjoy makes the point that the CRC places equal value on all aspects of children’s rights. He uses this to argue that the treaty ‘provides an automatic and principled means for adapting the persecutory threshold to take into account a child’s heightened sensitivities and distinct developmental needs’(at 123).

My interest is in particular aspects of the CRC that underscore the way in which this convention emphasizes the importance of respect and agency as integers of children’s human rights. In addition to mandating that the ‘best interests’ of the child be a primary consideration in all matters concerning children (Art 3), the Convention enshrines children’s rights to participate in decision making and to freedom of expression and religion (Arts 12 and 14). The twice repeated reference to children’s evolving capacities underscores the idea that children and childhood are not monolithic concepts. Rather, each child is unique, with needs and capacities determined by personal characteristics – and by context. Determining what amounts to the persecution of refugee children should start with the attributes, needs and situation of each individual child.

Acknowledging the significance and role of context is an idea that is adopted and extended in the more recent Convention on the Rights of Persons with Disabilities (CRPD). Article 1 states that:

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. [emphasis added]

The practical import of this definition is the acknowledgement that impairments alone do not create disability. Rather, it is the context – namely, the failure to accommodate, to adapt and assist – that creates disability.

The philosophical orientation of this approach aligns strongly with the equality and well-being theories propounded by Amartya Sen (Development as Freedom (Random House, 1999), Martha Nussbaum (Sex and Social Justice (Oxford University Press, 1999) and others (See for example Marcia Rioux et al., Critical perspectives on human rights and disability law (Martinus Nijhoff Publishers, 2011). This ‘capabilities’ approach is adopted in M Crock, L Smith-Khan, RC McCallum and B Saul The Legal Protection of Refugees with Disabilities (London: Elgar Publishing, 2017). Amartya Sen (at 75) represents a natural starting point because of his articulation of two concepts that must combine to achieve human well-being in the context of justice and development. These are the notions of functioning and capability. Functioning describes the mechanical ways that human beings go about their lives. It is what people do and what they want to do and be. Examples include basic things like staying alive, obtaining sufficient nutrition, shelter and access to adequate health care. Functioning also extends to more complex achievements such emotional happiness, pride and self-respect, and participating in social and political activities. The significance of adding ‘capabilities’ to any equation to measure well-being is that functions can be aspirational without the ability to actually put them into practice. In this respect capabilities align with freedom, or with the actual choices and options available to a person given his or her circumstances. Nussbaum (at 34) builds on Sen’s formulation of substantial freedom or ‘capabilities’ in her liberal theory of justice. She characterizes functioning’s as the right to be able to do basic and more complex things in society. Capabilities operate to illuminate what a person is actually able to achieve.

All of this is a rather long-winded way of saying that Pobjoy’s celebration of jurisprudence that adopts a nuanced and contextual approach to harms experienced by refugee children is to be applauded. This book contains a wealth of material distilled through meticulous analysis of case law from around the globe. Together with the website through which he will share the fruits of his doctrinal research, this book is a precious (foundational) addition to what is becoming a burgeoning field of international legal literature. For example, in 2017, Elgar Publishing has commissioned both a Research Handbook on Migrant Children and an edited collection, M Crock and L Benson (eds) Protecting the Migrant Child: Central Issues in the Search for Best Practice.