whether the child flees persecution or risks inhuman or degrading treatment upon
return is a flagrant disregard of international norms.
In the case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, which involved the
deportation of an unaccompanied girl to the Democratic Republic of Congo, the
European Court of Human Rights held that states parties to the European Convention
on Human Rights must take requisite measures and precautions against torture,
inhuman or degrading treatment when deporting a foreign national. The court stated
that Belgian authorities “did not seek to ensure that she [the child] would be
properly looked after or have regard to the real situation she was likely to encounter
on her return to her country of origin.”362 In Nsona v. The Netherlands, which also
involved the forced removal of an unaccompanied child, the court explained states
parties’ responsibility under Article 3 of the ECHR:
The responsibility under Article 3 in cases of this kind lies in the act of
exposing an individual to the risk of ill-treatment, the existence of the
risk must be assessed primarily with reference to those facts which
were known or ought to have been known to the Contracting States at
the time of the expulsion.363 (emphasis added)
Returns and Transfers to Greece
Given the systemic deficiencies in protecting unaccompanied children in Greece, EU
states should suspend the transfer of unaccompanied children to Greece under the
Dublin II regulation, and they should stop returning children summarily at ports of
entry. Instead, EU member states should refer unaccompanied children to their
national child protection services, and if a child seeks asylum, take responsibility to
assess the claim in a child-friendly, fair and expeditious manner.
International law stipulates that the child’s best interest is a primary consideration in
any decision affecting the child and that children deprived of their family
362
Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, (Application no. 13178/03), October 12, 2006, available at
www.echr.coe.int, para. 68.
363
Nsona v. The Netherlands, (23366/94), Judgment of 26 June and 26 October 1996; 63/1995/569/655, available at
www.echr.coe.int, para. 92(c).
Left to Survive
102
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