Human Rights Situation of Refugee and Migrant Families and Unaccompanied Children in the United States of America

vi.Principle of the Best Interests of the Child

46. 
    The American Declaration contains general provisions from which children and adolescents are entitled to benefit, such as Articles II (right to equality before law) and VII (right to protection for mothers and children). In light of developments in the field of international human rights law since the American Declaration was first composed, the Commission has previously held that in interpreting and applying the American Declaration, its provisions should be considered in the context of the broader international and Inter-American human rights systems to include the incorporation of the principle of the best interests of the child.⁴⁰
    

47. 
    In this regard, the IACHR has previously held that the international corpus juris on human rights embodied in other recognized international and regional human rights instruments can be a source when interpreting and applying the American Declaration, including the American Convention on Human Rights (“American Convention”). The Commission does not apply the American Convention in relation to Member States that have yet to ratify that treaty; nonetheless, the provisions of the American Convention may be regarded as an authoritative expression of the fundamental principles set forth in the American Declaration and therefore be particularly relevant in informing its interpretation.⁴¹  
    

48. 
    The Commission takes note that Article 17 of the American Convention establishes that in the case of the dissolution of a marriage, “provision shall be made for the necessary protection of any children solely on the basis of their own best interests (emphasis added).” Further, in Article 19, the American Convention sets forth the right of the child to measures of protection on the part of his family, society, and the State, as required by a child’s vulnerable situation. The Commission deems it pertinent to mention here that Article 19 of the American Convention (Rights of the Child) is non-derogable, as established in Article 27 (2) of the same instrument.
    

49. 
    The Commission shares the considerations established by the Inter-American Court in its most recent Advisory Opinion on the Rights and guarantees of children in the context of migration and/or in need of international protection:
    

In view of the special condition of vulnerability of child migrants in an irregular situation, States are obliged, under Articles 19 of the American Convention and VII of the Declaration, to choose measures⁴² that promote the care and well-being of the child to ensure its comprehensive protection, rather than the deprivation of her or his liberty⁴³ (infra Chapter X). The Court considers that the parameter for the State’s actions should, therefore, aim at ensuring, insofar as possible, the prevalence of the best interest of the child migrant and the guiding principle of respect for the child’s right to life, survival, and development [ ] by measures adapted to the child’s needs (emphasis added).⁴⁴

50. 
    Other developments in the corpus of international human rights law relevant to interpreting and applying the American Declaration may in turn be drawn from various sources of international law, including the provisions of other international and regional human rights instruments and customary international law.
    

51. 
    In this sense, the Commission finds it useful to take into account the United States’ obligations under the International Covenant on Civil and Political Rights (ICCPR), to which it is a State Party.⁴⁵ Article 2 provides that State Parties must “respect and ensure to all individuals within its territory and subject to its jurisdiction” the rights recognized in the ICCPR “without distinction of any kind.” Article 23 provides that the family is entitled to societal and state protection as well as for the protection of children upon the dissolution of a marriage. In turn, Article 24.1 provides that, “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society, and the State.”
    

52. 
    The Commission also takes note that the principle of the best interests of the child itself has been a guiding principle in U.S. law for more than 125 years, and that Article 3 of the UN Convention on the Rights of the Child (CRC) is said to have been cited from the “best interests of the child” standard in U.S. law.⁴⁶ In fact, the Commission observes that in all fifty states of the United States there are statutes in various areas of law that incorporate this principle, including: adoption, dependency proceedings, foster care, divorce, custody, criminal law, education, and labor, among others.⁴⁷
    

53. 
    Thus, in view of the above and the special condition of vulnerability of children – and particularly of child migrants in an irregular migratory situation, the Commission reaffirms the notion that the Member States of the OAS – including the United States – are obligated under Article VII of the American Declaration and as a norm of international law to uphold the principle of the best interests of the child in actions taken with respect to the child’s life, survival, and development, by measures adapted to the child’s needs.⁴⁸
    

54. 
    To this end, the IACHR considers that an accurate determination must be made of what the best interests of the child are in each specific context or situation, based on the objective assessment and verification of the conditions in which the child finds him or herself, and the effect that those conditions have on the enjoyment of his or her rights, well-being, and development.⁴⁹ Such a determination, consisting of the observance and evaluation of the conditions and circumstances that may affect the rights of the child, his/her well-being and protection, must be conducted by professional personnel duly trained for those purposes.⁵⁰ This requirement ensures that these evaluations are conducted by persons with the competence and experience to do so, as “analysis and assessments in the framework of special measures of protection require the use of expert opinions and technical criteria that objectively assess the welfare of the child and identify the most effective way of serving the child’s interest in a given case.”⁵¹
    

55. 
    In terms of procedural guarantees to uphold the best interests of the child principle, the Commission considers the recommendations developed by the United Nations Committee on the Rights of the Children very useful, specifically that: a non-exhaustive and non-hierarchical list of elements⁵² should be included in a best interests assessment to provide guidance for the decision-maker; that the weight each element carries depends on the specific circumstances in each case; assessments should be flexible and allow for re-adjustment as the child develops; and formal processes should have safeguards in place⁵³ to ensure that children are informed about processes that affect them and that their views are taken into consideration.⁵⁴
    

56. 
    Finally and importantly, the Commission has established that the best interests of the child cannot be used in an attempt to justify decisions that: (a) may be against a child’s rights⁵⁵; (b) discriminate against other persons and their rights⁵⁶; and/or (c) are based on nothing more than social stereotypes, preconceptions, and prejudices regarding certain behaviors or groups of people.⁵⁷