INTRODUCTION

It can be argued that refugee and migrant childrenare one of the most vulnerable groups in society, having experienced a dangerous journey, traumatic events in their home country and on the road and often lacking access to essential necessities, such as food, shelter, medical aid and a healthy and stimulating environment for growing up. Once having arrived in the host country, children are often not recognised and respected as individual rights holders and as active agents in the asylum application process. Thorburn Stern notes, however, that these children are mostly first considered as migrants, who pose risks to society, rather than vulnerable children who are exposed to risks themselves. Therefore, the vulnerability and precarious situation of refugee and migrant children calls for a strong legal position in asylum procedures. Effective participation in asylum procedures – based on child-friendly and age-appropriate communication and adapted procedures – can strengthen the legal position of refugee children.

Within the larger group of refugee and migrant children, subgroups can be identified of unaccompanied, separated and accompanied children. The UN Committee on the Rights of the Child (CRC Committee) has defined unaccompanied children as ‘children, as defined in article 1 of the Convention, who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so’. The CRC Committee defines separated children as: ‘children, as defined in article 1 of the Convention, who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. These may, therefore, include children accompanied by other adult family members.’ The third group of refugee children arrives with their separated as well as accompanied children are part of the analysis. First, the right to participation will be regarded from an international legal perspective, discussing this right first for children in general and second specifically relating to refugee and migrant children. Three related rights will be highlighted, i.e. the right to be heard, the right to information and the right to (legal) representation.