On 25 January 2018 the Committee on the Rights of the Child for the very first time expressed its views pursuant to an individual complaint. The case concerns the risk that a young girl would undergo the practice of female genital mutilation (FGM) if she were expelled from Denmark to Somalia. Female genital mutilation, female circumcision or female genital cutting is the practice of partially or wholly removing the external female genitalia or otherwise injuring the female genital organs for non-medical or non-health reasons (See General Comment No. 18 of the Committee on the Rights of the Child). In this blog we will discuss the development of the individual complaint mechanism of the Committee on the Rights of the Child and the reasoning of the Committee in its first case.
The UN Convention on the Rights of the Child (CRC) was adopted twenty-eight years ago without an individual complaint mechanism. However, that changed with the entry into force of the Optional Protocol on a Communications Procedure in 2014. Since then, thirty-seven states have ratified the Optional Protocol. In states which have ratified the Optional Protocol, minors can submit a complaint to the Committee on the Rights of the Child in case they believe their rights under the CRC have been – or in the case at hand threaten to be – violated by a state party. A requirement for this is that domestic remedies have been exhausted and that no complaint has been issued with another international tribunal. Communications may be submitted by or on behalf of a child or a group of children. The views of the Committee are not legally binding, but the state party concerned shall give due consideration to it. Remarkably, the Netherlands has not (yet) ratified the Optional Protocol.
In the recent and very first views that were adopted in an individual complaint by the Committee which passes the admissibility stage, the Committee held that Denmark would violate the CRC if a young girl facing the practice of FGM in her country of origin would be forced to return. The applicant is a Somali woman from the Puntland region. At the time her asylum request was rejected, she was five months pregnant. She fears that her new-born daughter would be forced to undergo the practice of FGM if they were deported to Somalia. The Danish authorities dispute this. They argue that FGM is prohibited in Somalia and that it is possible for mothers to prevent their daughters from being subjected to FGM against their mother’s will. After exhausting domestic remedies and giving birth to her daughter, she submitted a complaint on behalf of her daughter to the Committee that their deportation would constitute a violation of Articles 3 and 19 of the CRC. According to Article 3 CRC, the best interests of the child should be a primary consideration in all actions concerning children. Pursuant to Article 19 CRC, states shall take all appropriate measures to protect the child from all forms of physical and mental violence.
It is not surprising that the Committee interprets Article 19 CRC as including a prohibition of refoulement – the prohibition not to return a person to a territory where (s)he has a well-founded fear to be subjected to persecution or inhuman treatment. The Committee had already stated in General Comment No. 6 that “States shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child.” The Committee notes that although FGM is prohibited by law in Somalia, the practice is still prevalent as legislation is not enforced (see also General Comment no. 18, para 19). Even though there are signs that FGM appears to have declined, its practice is deeply engrained in society. The finding of the Committee that the deportation of the applicant and her daughter would violate Articles 3 and 19 CRC is based on three arguments. Firstly, the Committee concludes that the assessment of the Danish authorities is based on a general report without assessing the specific and personal context in which the applicant and her daughter would be deported and without taking the best interests of the child into account. Secondly, the Danish authorities held that the mother, by fleeing to Denmark, had demonstrated that she is an independent woman with considerable personal strength and that she therefore would be able to prevent her daughter from undergoing FGM. The Committee notes that the rights of the child under Article 19 CRC cannot be made dependent on the mother’s ability to resist family and social pressure. Thirdly, the Committee holds that the evaluation of whether a child would undergo an irreversible harmful practice such as FGM upon return to the country of origin should be conducted following the principle of precaution. Where ‘reasonable doubt’ exists that the receiving state cannot protect the child, the sending state should refrain from returning the child, according to the Committee.
It is interesting to observe that the Committee seems to adopt a diametrically opposite approach to that of the European Court of Human Rights (ECtHR). In Collins and Akaziebie v Sweden (2007), the ECtHR held that it was difficult to see that the applicant, “considering that she has shown a considerable amount of strength and independence” cannot protect her child against being subjected to FGM upon return to Nigeria. In Ameh v United Kingdom (2011), the ECtHR held that the mother could rely on Nigerian authorities, women NGOs and her own family for protection against her daughter being forced to undergo FGM (para. 14). In RBAB v The Netherlands (2016), the Court concluded “that the question of whether a girl or young woman will be circumcised in Sudan is mainly one of parental choice and finds it established that when parents oppose FGM they are able to prevent their daughter(s) from being subjected to this practice against their wishes”(para. 57).
The fact that the practice of FGM remains widespread (see the WHO factsheet on FGM) means that there is potentially a large number of women and girls who could flee abroad to find protection against this harmful practice. It is in that context that we observe the very reserved approach of the European Court of Human Rights, which emphasises internal flight alternatives and the possibility of protection for minor girls provided for by their own families. In these views, the Committee adopts a much more principled approach, placing the protection of the child against irreparable and harmful practices at the heart of its reasoning. In doing so, the Committee suggests that in cases concerning children, domestic asylum authorities should run that extra mile and afford a higher level of protection. Instead of assessing the real risk of inhuman treatment based on Article 37(a) CRC, the Committee notes that in order to safeguard the protection of the child against physical and mental violence under Article 19 CRC, states must practice precaution in the deportation of minors and must refrain from deportation where reasonable doubt exists that the child will be protected by the receiving state. The child-centred approach of the Committee is an important step in safeguarding the protection of minor girls facing FGM. This first decision of the CRC Committee should be an incentive to the Netherlands to stop hesitating and to ratify the individual complaint protocol in order to improve the protection of (migrant) minors.