Separated Minors or the Dilemma between General and Individual Interest in European Union Migration Law Compliance

Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao © Universidad de Deusto • http://ced.revistas.deusto.es Cuadernos Europeos de Deusto Núm. Especial 06 (Diciembre 2022) DOI: https://doi.org/10.18543/ced062022 ESTUDIOS Separated Minors or the Dilemma between General andIndividual Interest in European Union MigrationLawCompliance Menores separados: el dilema entre el interés general yelinterés individual en la aplicación del Derecho Migratorio delaUniónEuropea Eulalia W. Petit de Gabriel doi: https://doi.org/10.18543/ced.2585 Recibido el 31 de julio de 2022 • Aceptado el 5 de octubre de 2022 • Publicado en línea: diciembre de 2022 Derechos de autoría (©) Los derechos de autor (para la distribución, comunicación pública, reproducción e inclusión en bases de datos de indexación y repositorios institucionales) de esta publicación (Cuadernos Europeos de Deusto, CED) pertenecen a la editorial Universidad de Deusto. 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Any other use of its content in any medium or format, now known or developed in the future, requires prior written permission of the copyright holder. Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 http://ced.revistas.deusto.es 87 Separated Minors or the Dilemma between General and Individual Interest in European Union Migration Law Compliance Menores separados: el dilema entre el interés general y el interés individual en la aplicación del Derecho Migratorio de la Unión Europea Eulalia W. Petit de Gabriel1 Universidad de Sevilla [email protected] doi: https://doi.org/10.18543/ced.2585 Received on July 31, 2022 Accepted on October 5, 2022 E-published: December 2022 Summary: I. Separated Minors: A Distinct Situation among Migrant Children without a Specific Legal Framework.—II. A European Case Law– Based Approach to Separated Children’s Protection. 1. The Child’s Right to a Family Depends on the Definition of Family. 2. Separation Measures May Encroach on a Minor’s Family Life. 3. A Public Interest Can Be at Stake: Fighting against Human Trafficking and Abuses. —III. The Best Interests of the Child: A Solomon Sword between General and Specific Protection of Separated Minors for Enhanced Compliance.—IV. Filling the Void: Proposals Rooted in the EU Perception of Migration and Asylum 1 This work was supported by the Regional Government of Andalusia and the European Union ERDF 2014–2020, as part of the Research Project “Construyendo la gobernanza internacional: la interpretación de los tratados a través de la práctica ulterior (UHU-202037)”. The author sincerely acknowledges the comments on a preliminary version by Prof. Joana Abrisketa Uriarte, Prof. Casilda Rueda Fernández, Prof. Waldimeiry Correa da Silva, Dr. Iraida A. Giménez, and Dr, Cristina Zamora Gómez, as well as the enriching debate at the conference organized by the University of Deusto, “The EU Migration, Border Management and Asylum Reform in the Aftermath of the Refugee Crisis: Towards an Effective Enforcement”, held in Bilbao, June 2–3, 2022, in the framework of the Jean Monnet Network on enforcement of European Union law (EULEN). In the same vein, the author wishes to acknowledge the careful editing work done by Luigi Celentano. Disclaimer: The author has contributed academic legal support to the Ödos Program (https://programaodos.org/), an initiative of the Fundación Emet-Arco Iris (https://fundacionarcoiris.org/), which provides assistance to women and mi- nor migrants arriving in Andalusia. This cooperation and this paper have also benefited from the insights of Francisco Placín Vergillo into ECtHR case law on the “best interest of the mi- nor” during unaccompanied migration, which he analyzed in his graduating dissertation and to whom I convey my gratitude. All hyperlinks have been revisited on July 25, 2022. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 88 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es Abstract: Separating children traveling accompanied by a nonfamily adult is a current practice serving the general purpose of fighting against sexual exploitation, minor trafficking, or general crime prevention. However, such a routine response could violate a minor’s right to family life or preclude an attempted migration to reunification. Although no specific normative framework exists for this migratory category, we will draw our analysis of the conflicting interests by resorting to human rights case law. On the one hand, the expansion of the legally recognized concept of family must help protect interpersonal bonds not based on biological relationships, according to the European Court of Human Rights and the Court of Justice of the European Union. On the other hand, restrictions to the right to family life can be taken for fighting against crime, although a goal of general prevention may not comply with human rights standards on the limitation of rights. The required balance between conflicting interests can be established by resorting to the best interests of the minor. To conclude, we argue that this category could certainly benefit from a concerted, common legislative action at the level of the European Union when revisiting the migration legal regime, alongside operational measures at national, regional, and local levels. Keywords: migration law, separated minors, foreign unaccompanied minors, right to family life, best interests of the minor, human trafficking. Resumen: La separación de los niños que viajan acompañados de un adulto con el que no tienen un vínculo biológico o familiar en sentido legal supone una práctica habitual como forma de protección frente al tráfico de personas. Sin embargo, puede constituir una vulneración del derecho a la vida de familia de un menor o impedir un intento de reunificación familiar. Los menores separados constituyen una categoría no regulada jurídicamente de forma autónoma. Sin embargo, el examen de los intereses legales contrapuestos puede llevarse a cabo a partir de la jurisprudencia europea de derechos humanos. De un lado, la expansión del concepto de familia sancionado por el Tribunal Europeo de Derechos Humanos y el Tribunal de Justicia de la Unión Europea permite proteger vínculos no exclusivamente biológicos. De otro lado, el objetivo de prevención general —lucha contra el tráfico o la trata— no es suficiente por sí mismo para garantizar el respeto de los requisitos de las limitaciones de derechos. El equilibrio entre interés público e individual debe alcanzarse a través de la individualización del interés superior del menor. Para concluir, se proponen medidas normativas y de aplicación, tanto a nivel de la Unión Europea como nacional, regional y local. Palabras clave: Derecho migratorio, menores separados, menores no acompañados, derecho a la vida de familia, interés superior del menor, tráfico de personas. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es 89 I. Separated Minors: A Distinct Situation among Migrant Children without a Specific Legal Framework Unaccompanied foreign minors are a widely studied category in migration studies and law, while “separated minors” are not.2 Throughout this work, “separated minor” will be used to refer to an underage person migrating together with an adult who is not biologically or legally related as “parent” or “guardian”. Without a specialized regime, separated minors are generally considered part of the broader category of foreign unaccompanied migrant children in both international and domestic legal documents and practice. Hence, as current practice directions and policy, they are allegedly “protected” through separation from the accompanying adult when crossing the borders of European Union (EU) Member States (MMSS). This separation measure is generally meant to shield separated minors from human trafficking and similar crimes out of general public interest (public safety, crime prevention) while considering it an abstract realization of the best interests of the minor.3 While this grants a minor a specific and, apparently, more protective regime, which can be generally perceived as an individual gain, an automatic response endangers a proper consideration of the individual interests of the minor and rejects contemporary and structural changes in the concept of family. A more balanced approach to compliance should be stressed in order to avoid cases in which a minor, through this separation, suffers from a violation of their right to family life, as guaranteed both by article 8 of the European Convention of Human Rights (ECHR) and article 7 of the Charter of Fundamental Rights of the European Union (CFREU). Consequently, this research will highlight the need for a set of rules or, at the very least, clarifying guidelines, that could accompany the neverending reform of EU migration legislation to abide by human rights standards concerning separated migrant minors. 2 Some attention has been given to the topic by the European Union Agency for Fundamental Rights (FRA). See, for instance, Separated, Asylum-Seeking Children in European Union Member States (Luxembourg: Publications Office of the European Union, 2011) and Current Migration Situation in the EU: Separated Children (Luxembourg: Publications Office of the European Union, 2016). Nevertheless, neither policy definition nor legislative action has been adopted at EU or domestic level since. Academic literature on the specific concept of separated minors is nonexistent. 3 One of the few EU policy documents in which “separated minors” are mentioned strictly follows this approach. See Communication from the Commission to the European Parliament and the Council: The Protection of Children in Migration, COM (2017) 211 final (Apr. 12, 2017), 4. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 90 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es Some current cases may illustrate the specificity of the situation of these separated children. An immigrant man who lives illegally in France intends to reunite with his son. The child travels from Africa, where the minor lived with his mother, in the company of the father’s new partner, a legal immigrant woman. When crossing the Spanish border, the child and stepmother are separated because they do not have a legal or biological bond, despite the letter of acquiescence that the biological mother provided the son with for the purpose of traveling to France. The child currently remains under governmental custody, whereas the stepmother was allowed to continue her travel. The biological father and mother remain unable to reach their son, who lacks legal documents to travel, and there is no readmission agreement between the countries.4 A second situation is that of a minor and their family leaving their country of origin together: after all adults perish during a sea crossing, the minor is taken care of by a third fellow countryman or woman doing the same journey, with whom the minor is not biologically related. A third case is represented by those minors traveling with an adult considered, in a broad sense, “family” in their original culture, whom upon arrival to EU shores is found to be neither biologically nor legally related to the minor. A fourth case is that of minors traveling with an adult with whom they share a legal bond in the country of origin, which is not known or recognized in EU legislation, such as the Algerian kafala. A fifth case is that of a newborn traveling with their commissioning parents from a third country, where surrogate motherhood took place, to an EU country where the contract is void and surrogate parenthood is not yet recognized. As stated above, there is no legally binding definition of separated minors in international law. Nevertheless, the very concept has been clarified in international soft law documents. General Comment no. 6 (2005) of the United Nations Committee on the Rights of the Child (CRC) on the Treatment of Unaccompanied and Separated Children outside Their Country of Origin states that “Separated children” are 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 4 Recent Spanish practice is described in Cristina Manzanedo Negueruela, “Menores extranjeros acompañados. La problemática invisible de los niños y niñas migrantes acompañados que llegan a la frontera sur española”, in “La movilidad humana: entre los derechos y la criminalización”, ed. Margarita Martínez Escamilla and José Miguel Sánchez Tomás, special issue, Revista Crítica Penal y Poder 18 (2019): 260–26. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es 91 other relatives. These may, therefore, include children accompanied by other adult family members.5 As such, it is clearly differentiated from the concept of “unaccompanied children” (also called unaccompanied minors)—namely, “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”.6 The same differentiation is also made by the Inter-American Court of Human Rights7 and the United Nations High Commissioner for Refugees (UNHCR).8 Furthermore, the duality has been acknowledged in Joint General Comment no. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) and no. 22 (2017) of the CRC on the general principles regarding the human rights of children in the context of international migration;9 Joint General Comment no. 4 (2017) of the CMW and no. 23 (2017) of the CRC on state obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination, and return;10 and the United Nations’ 2018 Global Compact for Safe, Orderly and Regular Migration.11 Nevertheless, although “unaccompanied minors” 5 United Nations Committee on the Rights of the Child (CRC), General Comment no. 6 (2005) on Treatment of Unaccompanied and Separated Children outside Their Country of Origin, paragraph 8, U.N. Doc. CRC/GC/2005/6 (May 17–June 3, 2005). 6 Ibid., paragraph 7. 7 Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Advisory Opinion OC-21/14, Inter-Am. Ct. H.R. (Aug. 19, 2014), paragraph 49. 8 See U.N. High Commissioner for Refugees (UNHCR), 2021 UNHCR Best Interests Procedure Guidelines: Assessing and Determining the Best Interests of the Child (n. p.: United Nations High Commissioner for Refugees, 2021), 12. 9 U.N. Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), Joint General Comment no. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and no. 22 (2017) of the Committee on the Rights of the Child on the General Principles Regarding the Human Rights of Children in the Context of International Migration, paragraphs 5, 9, 32, 33, 36, 38, 40, and 42, U.N. Doc. CMW/C/GC/3-CRC/C/GC/22 (Nov. 16, 2017). 10 U.N. Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), Joint General Comment no. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and no. 23 (2017) of the Committee on the Rights of the Child on State Obligations Regarding the Human Rights of Children in the Context of International Migration in Countries of Origin, Transit, Destination and Return, paragraphs 8, 13, 16, 17, 27, 30, 34, 39, and 40, U.N. Doc. CMW/C/GC/4-CRC/C/GC/23 (Nov. 16, 2017). 11 G.A. Res. 73/195, paragraphs 15, 23, 24, 27, and 28 (Jan. 11, 2019). Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 92 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es and “separated minors” are presented as a duality of concepts, they are most often considered jointly when policy recommendations are worded.12 Divergently, domestic law—both state and EU law—lacks a specific definition or mention of separated minors, thus including the situation of separated children in the broader condition of unaccompanied minors as a protective and special regime, whether in the case of economic irregular migration or of mobility in search of a protection status.13 The normative exclusion of this duality hinders an appropriate recollection of diversified statistics on separated children,14 contrary to what the European Commission already proposed in 2017 in its communication on the protection of children in migration: Following their arrival in the European Union, children in migration should always be identified and registered as children, using a uniform data set across the European Union (for example, to indicate whether a child is unaccompanied, separated or travelling with family, nationality/ statelessness, age, sex, etc.).15 Moreover, the policy literature of different national and international stakeholders does not clearly consider these two situations apart.16 In this 12 For all, see Joint Report of the Special Rapporteur on the Sale and Sexual Exploitation of Children, including Child Prostitution, Child Pornography and Other Child Sexual Abuse Material, and the Special Rapporteur on Trafficking in Persons, Especially Women and Children, U.N. Doc. A/72/164 (July 18, 2017), paragraphs 14, 22, 31–32, 53–56, 59, 72–75, 80, and 83. See also G. A. Res. 76/266, Progress Declaration of the International Migration Review Forum, (June 14, 2022), convened to discuss and share progress on the implementation of all aspects of the Global Compact for Safe, Orderly and Regular Migration, paragraphs 11, 32, and 57. 13 For EU law, see Council Directive 2001/55, article 2.f, 2001 O.J. (L 212) (EC), on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001]; Council Directive 2011/95, article 2 (l), 2011 O.J. (L 337) (EU), on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast); Council Directive 2013/33, article 2.e, 2013 O.J. (L 180) (EU), laying down standards for the reception of applicants for international protection (recast). Other EU migration rules, outside the especial protection regime are equally restrictive. For Spanish legislation, see article 189, Real Decreto 557/2011, de 20 de abril, por el que se aprueba el Reglamento de la Ley Orgánica 4/2000, sobre derechos y libertades de los extranjeros en España y su integración social, tras su reforma por Ley Orgánica 2/2009, BOE 103, April 30, 2011. 14 European Union Agency for Fundamental Rights, Current Migration Situation in the EU, 2–3. 15 COM (2017) 211 final (Apr. 12, 2017). 16 Delegación de ACNUR en España, Menores no acompañados y la protección de asilo (Madrid: ACNUR-Ministerio de Empleo y Seguridad Social, n. d.); Anja Radjenovic, Vulnerability of Unaccompanied and Separated Child Migrants (Brussels: European Union, 2021). Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es 93 vein, most of the EU policy documents adopted after the 2017 Communication of the European Commission on the protection of children in migration do not mention this specific category anymore.17 Therefore, the undisputed application of the unaccompanied minors regime, generally transferring the child to the state care system, is elicited without verifying the precise nature and scope of the relationship between the minor and the accompanying adult.18 Separation from the accompanying adult can lead either to detention and expulsion to the country of origin or to public or private foster placement until the child comes of age in those cases where expulsion is not feasible in the absence of a readmission agreement. An unaccompanied minor’s application for a protection statute (asylum, subsidiary protection, or temporary protection) is possible according to the normative framework, although numbers speak of a very low use ratio.19 Furthermore, this option is hindered when the minor is separated and is dependent on the foster care institution or the guardianship appointment process. Were the bond with the accompanying adult to amount to a “family” relationship or put at risk the family ties of the child in a third country, a different action other than automatic separation should be adopted in order to avoid the aforementioned consequences. Therefore, attention needs to be given to the expanding case law updating interpersonal links as the cornerstone to determine the child’s right to a family and its limits. For this, we shall turn to the Court of Justice of the European Union’s (CJEU) and 17 See, for all, Conclusions of the Council of the European Union and the Representatives of the Governments of the Member States on the Protection of Children in Migration (June 8, 2017); Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum, COM (2020) 609 final (Sept. 23, 2020); Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Report on Migration and Asylum, COM (2021) 590 final (Sept. 29, 2021). In European Parliament resolution on the protection of children in migration, May 3, 2018, 2020 O.J. (C 41/41), there is an isolated mention illustrating that data on unaccompanied children encompass undifferentiated data on separated children. 18 Fundación Abogacía Española, La protección en Europa de “menores separados” de su acompañante adulto en movimientos migratorios (Iturria: Fundación Abogacía Española, 2019), 5–6. 19 María Teresa de Gasperis, Pablo Pérez Pérez, and Sonia Gruben, eds., Aproximación a la protección internacional de los menores no acompañados en España (Madrid: La Merced Migraciones, 2009), 30. At EU level, there are no comprehensive statistics of the share of unaccompanied minors lodging applications for protection, let alone separated children. See European Asylum Support Office (EASO), Annual Report 2018, section 4.10.1, “Unaccompanied Minors”. For information on the increasing trend in applications, see also Annual Report 2021, 253. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 94 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es the European Court of Human Rights’ (ECtHR) case law—their decisions being final and binding upon EU MMSS.20 II. A European Case Law–Based Approach to Separated Children’s Protection Both international and domestic law fail to provide a common definition of the family link requirement to consider a child “duly” accompanied or “travelling with family”. While General Comment no. 6 CRC refers to separated children as those accompanied by “other relatives”, “other family members” different from parents, or the “legal or customary primary caregiver”, EU law ignores the separated children concept and considers unaccompanied children any minor arriving without “an adult responsible for him or her whether by law or by the practice of the Member State concerned”. As such, and according to the restrictive concept in EU legislation, any other family relation as regards the state of origin is not to be considered at all when defining the status of a minor. Nevertheless, European Courts have broadened the family bond concept. This should restrain the application of the unaccompanied minor regime, excluding certain situations in which we are before “separated children” cases and not truly unaccompanied minors. 1. The Child’s Right to a Family Depends on the Definition of Family The European law concept of family is quite restrictive and conventional21 compared to the long tradition of a nonformal approach to family in ECtHR case law.22 For the last fifteen years, the ECtHR has 20 For an analysis of the concept of family in Article 17 ICCPR, see William Schabas and Manfred Nowak, U. N. Covenant on Civil and Political Rights: Nowak’s CCPR Commentary (Kehl, Germany: N. P. Engel, 2019), 475–84; and for its interpretation by human rights treaty bodies, mainly the Human Rights Committee (HRC) and the CRC, see Frances Nicholson, The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied (n. p.: United Nations High Commissioner for Refugees, 2018), 16–18. For the concept of family in UNHCR practice, see Ibid., 34–36. 21 Ibid., 19–20; European Union Agency for Fundamental Rights and Council of Europe, Handbook on European Law Relating to the Rights of the Child (Luxembourg: Publications Office of the European Union, 2022), 207–2012. 22 As a starting point, see Marckx v. Belgium, App. No. 6833/74, paragraphs 30–34 (June 19, 1979), https://hudoc.echr.coe.int/eng?i=001-57534. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es 101 Prevention probably represents the main goal for restrictive measures undertaken on unaccompanied and separated minors, which encompass several crimes as well as all modern forms of slavery (e.g., sexual exploitation, domestic servitude, forced labor, recruitment of soldier children, etc.) but could also include forced adoptions, forced marriage of underage girls, or organ trafficking.40 It truly constitutes an objective threat to migrant minors, especially those traveling alone, as stated in General Comment no. 6 CRC (2005, paragraphs 50–60); Joint General Comment no. 3 CMW, General Comment no. 22 CRC (2017, paragraphs 40–42); Joint General Comment no. 4 CMW, General Comment no. 23 CRC (2017, paragraphs 39–40); and Joint Report of the Special Rapporteur on the Sale and Sexual Exploitation of Children, including Child Prostitution, Child Pornography and Other Child Sexual Abuse Material, and the Special Rapporteur on Trafficking in Persons, Especially Women and Children.41 EU migration policy documents and legislation underline a risk approach to heavy human trafficking and other crimes when addressing the situation of migrant children, especially unaccompanied ones,42 as separated minors are not generally referred to on their own. Proposals for a new legislative framework on migration and asylum (see section IV) maintain this very approach,43 as submitted by the European Commission in 40 For a definition of human trafficking and discussions on the restricted versus broader concept encompassing a multiplicity of crimes, see Anne T. Gallagher, The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2012); Waldimeiry Correa da Silva, Regime Internacional de Enfrentamento ao Tráfico de Pessoas: avanços e desafios para a proteção dos direitos humanos (Rio de Janeiro: Lumen Juris, 2018). Specifically on the concept of child trafficking, see Helmut Sax, “Child Trafficking: A Call for Rights-Based Integrated Approaches”, in Routledge Handbook of Human Trafficking, ed., Ryszard Piotrowicz, Conny Rijken, and Baerbel Heide Uhl (New York: Routledge, 2017), 251–60; Kathryn E. Van Doore, Orphanage Trafficking in International Law (Cambridge: Cambridge University Press, 2022). 41 U.N. Doc. A/72/164 (July 18, 2017), paragraphs 17–45. 42 For all, see COM (2017) 211 final (Apr. 12, 2017); European Parliament resolution on the protection of children in migration, May 3, 2018, 2020 O.J. (C 41/41), paragraph J.3; and the very recent Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Report on Migration and Asylum, COM (2021) 590 final (Sept. 29, 2021). 43 Proposal for a Regulation of the European Parliament and of the Council on Asylum and Migration Management and Amending Council Directive (EC) 2003/109 and the Proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund], COM (2020) 610 final (Sept. 23, 2020). Article 13.4 (c) includes “safety and security considerations, in particular where there is a risk of the minor being a victim of any form of violence and exploitation, including trafficking in human beings” as a factor to be pondered for the assessment of the best interests of the child. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 102 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es the New Pact for Migration and Asylum 2020.44 The risks of trafficking along migration routes are high, notably for women and girls, who are exposed to becoming victims of trafficking for sexual exploitation or other forms of gender-based violence. Trafficking networks abuse asylum procedures and use reception centers to identify potential victims.45 The early identification of potential non-EU victims will be a specific theme of the European Commission’s forthcoming approach toward the eradication of trafficking in human beings, as set out in the recent Security Union Strategy.46 Nevertheless, neither the general fear of trafficking mafias nor the overall region/country information—i.e., a general prevention goal—can justify a restriction of individual rights (be it the right to family life or the right to security and freedom) as a routine and rigid scheme, even in the case of separated children—i.e., minors accompanied by an adult with whom they share no familial bond. The Inter-American Court of Human Rights set it straight in its advisory opinion on the rights and guarantees of children in the context of migration and/or in need of international protection: This does not mean, in any way, that in all cases in which a child is traveling independently and is accompanied by an adult who is not a relative, the corresponding authorities should automatically consider this to be a case of trafficking and return the child to her or his country of origin. In this regard, the strictest diligence is required of the border authorities to identify the different situations that require them to intervene in a timely, adequate and fair manner.47 Human rights instruments require, along with a general public interest justifying the nature and scope of the measure in abstract terms, a case-by- 44 Communication of the Commission on a New Pact on Migration and Asylum, COM (2020) 609 final (Sept. 23, 2020), 2.4 in fine. The new approach should strengthen the current rules of Council Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council framework decision 2002/629/JHA, 2011 O.J. (L 101), 1–11 (EU). For unaccompanied children, see Preamble, paragraph 23, and article 16 (“Assistance, Support and Protection for Unaccompanied Child Victims of Trafficking in Human Beings”). 45 European Union Agency for Law Enforcement Cooperation (Europol), European Migrant Smuggling Centre 4th Annual Report: 2020 (Luxembourg: Publications Office of the European Union, 2020). 46 Communication from the Commission on the EU Security Union Strategy, COM (2020) 605 final (July 24, 2020). 47 Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, Advisory Opinion OC-21/14, Inter-Am. Ct. H.R. (Aug. 19, 2014), paragraph 93. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es 103 case examination of the existence of the threat and the necessity and proportionality of the measure to protect a minor against that risk, assuming this measure is set out by the law establishing limits to the discretional powers of the state at both administrative and judicial levels.48 In that vein, the ECtHR has shown a very restrictive approach to the limitation of the right to family based on a “pressing social need” (e.g., a child’s separation from their family—once proved that a legally or de facto family link exists—in a migration context). The necessity requirement (restriction based on a public interest) does not accommodate other close concepts such as “reasonable”, “useful”, or “desirable” restrictions. The separation measure as a legal restriction becomes admissible only when required by a “pressing social need” and if proportionate to the aim pursued. Any restrictive measure at the national level must be subject to domestic judicial review, which should account for individual circumstances and risk assessment.49 Although a margin of appreciation is granted to the state, the ECtHR retains the right of review over the analyses made by the national authorities. Surprisingly, there is no extensive case law on “trafficking in human beings” as a legitimizing basis for restrictions with regard to minors in the HUDOC data base,50 while the ECtHR has found that a mother being a victim of trafficking is not sufficient reason per se to sever or impede a familial bond with her children, much less to give them up for adoption.51 When examining the specific case law concerning separated children, both the CJEU and the ECtHR have seldom been confronted with these public policy restrictions to the right to family life. The CJEU, in S. M. (GC 2019), stated that “it is also necessary to take account of possible tangible and personal risks that the child concerned will be the victim of abuse, exploitation or trafficking”.52 This pressing social need has been invoked by the parties before the ECtHR in Rahimi,53 although this court has not taken 48 On the requisite “in accordance with the law” for restrictions on the right to family life, see ECtHR, Guide on Article 8 of the European Convention on Human Rights, paragraphs 1–21, and the case law cited therein. 49 Ibid., paragraphs 28–30. 50 A search for “trafficking in human beings” showed fifty-three judgments, the oldest being Siliadin v. France, App. No. 73316/01 (July 26. 2005), https://hudoc.echr.coe.int/ eng?i=001-69891. There were seventy-five results for “human trafficking”, with the oldest case being Ramanauskas v Lithuania, App. No. 74420/01 ([GC], Feb. 5, 2008), https://hudoc. echr.coe.int/fre?i=001-84935. 51 Affaire A. I. c. Italie, App. No. 70896/17 (April 1, 2021), https://hudoc.echr.coe.int/ eng?i=001-208880. 52 Case C-129/18, S. M. v. Entry Clearance Officer, UK Visa Section, ECLI:EU:C:2019:248, paragraph 70 (Mar. 26. 2019). 53 Rahimi v. Greece, paragraph 58. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 104 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es any consideration into the argument. In Mubilanzila, instead, the ECtHR asserted that the detention of the minor could hypothetically be justified based on “the interests of national security or the economic well-being of the country or, just as equally, for the prevention of disorder or crime”, concluding however that this very detention provoked a violation of the minor’s right to family life: The effect of the second applicant’s detention was to separate her from the member of her family in whose care she had been placed and who was responsible for her welfare, with the result that she became an unaccompanied foreign minor, a category in respect of which there was a legal void at the time. Her detention significantly delayed the applicants’ reunification. The Court further notes that, far from assisting her reunification with her mother, the authorities’ actions in fact hindered it.54 In summary, European Courts have found violations of a minor’s right to a family in situations where family reunification was impeded either by not recognizing a non-European legal family bond (kafala) or by not respecting the accompanying adult relationship (extended family) as a caretaker in transit while the child was being safely transferred to or reunited with their legal or biological family, and whereby a separation measure based on a public interest—such as fighting organized crime—did not prove indispensable in the circumstances of the specific case. III. The Best Interests of the Child: A Solomon Sword between General and Individual Protection of Separated Minors for Enhanced Compliance The cornerstone of the 1989 United Nations Convention on the Rights of the Child (UNCRC) regarding children’s protection is the “best interests of the child” concept, embodied in article 3.1: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.55 54 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, paragraph 82. 55 United Nations, Treaty Series, vol. 1577 (New York: United Nations, 1999), 3. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es 105 Both the CRC56 and legal scholars57 have stated that the “best interests” clause is both a principle for children’s rights interpretation, from which new and specific rights arise, and a procedural rule.58 It is not an abstract notion, yet it gains significance when applied to the specific circumstances of a case.59 Although the “best interests” principle is not present in the ECHR, given that minors’ rights are not individualized and the convention dates back to 1950,60 it has been gaining ground in ECtHR case law since the 1990s61 as a criterion to be taken into account when pondering the need for separation against conflicting rights62 or when assessing the need in a democratic society for a measure such as the expulsion of a minor.63 On the other hand, the CFREU devotes article 24 to the rights of the child, building on the best interests of the child as a “primary consideration” in “all actions relating to children, whether taken by public authorities or private institutions”. Accordingly, EU secondary law includes specific and direct references to the best interests of the child—inspired by the 1989 UNCRC—to be considered when applying any measure concerning minors. 56 U.N. Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), Joint General Comment no. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and no. 22 (2017) of the Committee on the Rights of the Child on the General Principles Regarding the Human Rights of Children in the Context of International Migration, November 16, 2017, CMW/C/GC/3-CRC/C/GC/22, paragraph 32.f. 57 Legal literature on the concept is vast. Among Spanish scholars, attention must be paid to Jorge Cardona Llorens, former member of the CRC (2011–2018): “La Convención sobre los Derechos del Niño: significado, alcance y nuevos retos”, Educatio Siglo XXI 30, no. 2 (2012): 47–68, at 48, 53–54; and “El interés superior del niño a los 4 años de la aprobación de la observación general 14 del comité de derechos del niño”, in El interés superior del niño en la jurisprudencia internacional, comparada y española, ed. Susana Sanz Caballero (Navarra: Aranzadi Thomson Reuters, 2017), 99–110. 58 U.N. Committee on the Rights of the Child (CRC), General Comment no. 14 (2013) on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (article 3, paragraph 1), U.N. Doc. CRC/C/GC/14 (May 29, 2013). 59 G.A. Res. 73/195 (Jan. 11, 2019), paragraph 15 (h). 60 The only mention of minors’ rights in the European Convention on Human Rights appears in article 5.1.d, on special rules concerning a minor’s detention. Later, article 5 of the 1984 Additional Protocol 7 mentions children’s interests when addressing equality between spouses. 61 The term “best interests of the child” can be found in previous cases but only as a reference to national legislation or arguments put forward by the parties. The first mention in the European Court of Human Rights’ reasoning is found in Hokkanen v. Finland, App. no. 19823/92, paragraph 58 (Sept. 23, 1994), https://hudoc.echr.coe.int/eng?i=001-57911. 62 Johansen v. Norway, App. no. 17383/90, paragraph 78 (Aug. 7, 1996), https://hudoc. echr.coe.int/eng?i=001-58059. 63 Maslov v. Austria, App. No. 1638/03, paragraph 82 (June 23, 2008), https://hudoc. echr.coe.int/eng?i=001-87156. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 106 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es Nevertheless, this appears to be a time- and vulnerability-sensitive approach, as we barely find a general reference to the concept in the preamble of older and general migratory rules,64 whereas more modern and specific norms defining a protective status include detailed specifications on the best interests of the minor.65 At a political level, the “best interests of the child” approach is present in policy documents, although pointing at a general vulnerability approach concerning not only violence, exploitation, and trafficking but also the use of children by parents or other holders of parental responsibility to obtain the possibility of legal entry to the EU.66 The very essence of the concept of the best interests of the child lies on the question of determining its concrete meaning in a given case, so as to ponder a minor’s right to a family against the need of protection in a risky context. A triple level must be considered when defining and applying a methodology to assess the “best interests” of a certain child, as proposed by Krutzinna: a) the universal child, b) the categorical child, and c) the individual child. Each of these perspectives contributes in a different way to draw the protective conditions.67 Nevertheless, individualization must always reach the individual “best interest”: authorities should not rely on a general best interest approach when adopting specific decisions, but neither on a category-defined one. These should not be based on a general concept or perception of what must be best for a minor (the universal child), a migrant child, or even a separated migrant minor (the categorical child); rather, these decisions should be based on a minor’s needs (the individual child) to avoid presumptions about a child’s typical needs or assumptions about generally 64 See preamble to Council Directive 2003/86, 2003 O.J. (L 251/12), 12–18 (EC), on the right to family reunification. 65 See Council Directive 2011/95, 2011 O.J. (L 337/9) (EU), paragraphs 18, 19, 27, and 38 (Preamble), as well as articles 20 (General Rules) and 31 (Unaccompanied Minors); see also Council Directive 2013/33, 2013 O.J. (L 180/96) (EU), paragraphs 9 and 22 (Preamble) and articles 2.(j) (Definitions), 11 (Detention of Vulnerable Persons and of Applicants with Special Reception Needs), 23 (Minors), and 24 (Unaccompanied Minors); and paragraphs 13, 16, 24, and 35 of the Preamble, along with articles 2.(k), 6 (Guarantees for Minors), 8 (Minors), and 20 (Start of Procedure) in Regulation no. 604/2013 of the European Parliament and of the Council of 26 June 2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person, 2013 O.J. (L 180/31) (EU). 66 Council of the European Union, Conclusions of the Council of the European Union and the Representatives of the Governments of the Member States on the Protection of Children in Migration, Doc. no. 10085/17 (June 8, 2017). 67 Jenny Krutzinna, “Who is ‘The Child’? Best Interests and Individuality of Children in Discretionary Decision-Making”, International Journal of Children’s Rights 30 (2022): 120–45, proposing a “Model of Individual Child (MIC)” as “a tool for discretionary decisionmaking”. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es 107 perceived threatening situations for migrant children. The European Parliament has expressly acknowledged the need for individualization in its 2018 resolution on the protection of children in migration.68 Consequently, the separation decision should be weighed against the eventual risk arising out of organized crime—human trafficking or other—in an individualized manner, too. No general measure is acceptable without a risk assessment. Both the risk and the best interests analysis must be individualized for the minor affected by a potential separation measure.69 This idea is not clearly underlined by scholars when addressing the general obligations of the state to prevent human trafficking, as they tend to study “prevention through addressing vulnerability” as a general category, describing factors to be taken into account rather than individual situations.70 While the determination is undertaken, a separation measure from the accompanying adult is to be considered exceptional, as declared by the ECtHR (see section II.2 above) and the CRC.71 Nevertheless, accompanying measures such as observation through public services—either in public premises or through institutions (e.g., assisted housing with the help of collaborative NGOs)—should be in place.72 These very measures may contribute to clarifying the case, observing the relationship between the child and the accompanying adult while keeping the minor protected under control and surveillance. Yet no separation or internment measure should be automatically adopted without prior risk determination and assessment unless there is an imminent or actual danger of being held in a human trafficking network or any other form of criminal activity. In any event, neither the child’s right to be heard (article 12, 1989 UNCRC) nor respect for the non-refoulement principle should be forgotten.73 The best interests of the child require an individualized analysis of the relationship between the accompanying adult and the minor in order to determine whether it amounts to a de facto family bond, which immediately engages the minor’s right to family life, or whether the adult is a temporary guardian transferring the child to a family nucleus, guaranteeing 68 European Parliament resolution on the protection of children in migration, May 3, 2018, 2020 O.J. (C 41/41), paragraph J.3. 69 Clearly established in U.N. Doc. A/72/164 (July 18, 2017), paragraphs 80 (b) and 81 (a). 70 For all, see Gallagher, International Law of Human Trafficking, 415–32, and specifically on children, 427–30. 71 U.N. Committee on the Rights of the Child (CRC), General Comment no. 14 (2013) on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (article 3, paragraph 1), paragraphs 58–66, U.N. Doc. CRC/C/GC/14 (May 29, 2013). 72 This idea is supported, in the specific context of human trafficking cases, in U.N. Doc. A/72/164 (July 18, 2017), paragraph 81 (e). 73 U.N. Doc. CRC/GC/2005/6, paragraph 26. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 108 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es per se the access of the minor to their family as part of the minor’s right to family life according to the aforementioned case law. In the latter case specifically, we should stress the need for the EU Member State in which the child arrives to facilitate transit to the country where a family member is present, provided that it is in the best interest of the minor, mutatis mutandis what it is already foreseen for asylum seekers.74 Methodologies for risk assessment to identify the best interests of a child have been developed both at the universal level—by the UNHCR, with a periodic review last conducted in 202175—and at EU level—by the former European Asylum Support Office (EASO),76 replaced since February 2022 by the European Union Agency for Asylum (EUAA).77 Interestingly, the International Association of Refugee and Migration Judges78 has developed, under an EASO contract, a judicial analysis on vulnerability indicators. The proposed analysis is aimed at making “judicial training materials” available to courts and tribunals, thus facilitating “the involvement of judicial and other experts in a manner that respected the independence of the judiciary”.79 Yet involvement of special prosecutors for issues concerning minors and migration law at the national level should also be stressed.80 To date, a 2011 collection of best practices has been published by the EU Agency for Fundamental Rights (FRA).81 It is time to 74 See articles 8.1 and 2, Regulation no. 604/2013 of the European Parliament and of the Council of 26 June 2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person, 2013 O.J. (L 180/31) (EU). 75 UNHCR, 2021 UNHCR Best Interests Procedure Guidelines. 76 European Asylum Support Office (EASO), Practical Guide on the Best Interests of the Child in Asylum Procedures (Luxembourg: Publications Office of the European Union, 2019). 77 Council Regulation 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asylum and repealing Regulation No 439/2010, 2021 O.J. (L 468/1) (EU). 78 This non-for-profit organization is a worldwide association seeking “to foster recognition that protection from persecution on account of race, religion, nationality, membership in a particular social group, or political opinion is an individual right established under international law, and that the determination of refugee status and its cessation should be subject to the rule of law”. It is based in the Netherlands and works through a network of regional chapters. They publish a series of newsletters concerning EU migration, asylum, free movement, and CJEU cases where case law is systematized and updated regularly. For more information, see https://www.iarmj.org/. 79 IARMJ-Europe, Judicial Analysis Vulnerability in the Context of Applications for International Protection (Luxembourg: Publications Office of the European Union, 2021). 80 Spanish prosecution covers a variety of special areas, among them minors (“Menores”) and migration issues (“Extranjería”). 81 European Union Agency for Fundamental Rights (FRA), Separated, Asylum-Seeking Children in European Union Member States and Current Migration Situation in the EU. Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es 109 revisit the approach and practice of EU MMSS along with their regional and local authorities so as to develop a model based on the methodologies proposed by the UNHCR and the EUAA and the indicators developed for judicial authorities. IV. Filling a Void: Proposals Rooted in the EU Perception of Migration and Asylum Since 2017, awareness has been raised among EU institutions about the priority of “protecting all children in migration, regardless of status and at all stages of migration”.82 The 2017 European Commission communication on the protection of children in migration has been to date and by far the only policy document addressing the situation of separated minors, including references to the definition in General Comment no. 6 CRC and the UNHCR guidelines on best interests to individualize migration decisions. Nevertheless, opportunity for advancement in the normative protection of separated minors is also at hand. The EU is gaining momentum, as proposals for a new migratory compact in EU legislation are being discussed based on the New Pact for Migration and Asylum 2020 and the previous 2016 and 2018 proposals to reform the Common European Asylum System. The new 2020 compact announced by the President of the European Commission Ursula von der Leyen acknowledges the special vulnerability of migrant minors, calling for the best interests of the child and the right to be heard as primary considerations, specifically stressing the need for a more diligent appointment of legal representatives for migrant children (unaccompanied or separated).83 The new approach focuses on defining a comprehensive framework for all forms of migration, despite the cause and migratory status (ordinary migration versus qualified migration for a protective status), as can be seen in the EU’s proposal on asylum and migration management. Therefore, the new framework offers a unique opportunity for including the separated minors’ concept and a proposal for a differentiated regime in all migrant contexts.84 82 COM (2017) 211 final (Apr. 12, 2017). 83 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum, COM (2020) 609 final (Sept. 23, 2020), paragraph 2.4. 84 Proposal for a Regulation of the European Parliament and of the Council on Asylum and Migration Management and Amending Council Directive (EC) 2003/109 and the Proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund], COM (2020) 610 final (Sept. 23, 2020). Separated Minors or the Dilemma between General and Individual Interest… Eulalia W. Petit de Gabriel Cuadernos Europeos de Deusto ISSN: 1130-8354 • ISSN-e: 2445-3587, Núm. Especial 06 (Diciembre 2022), Bilbao, págs. 87-116 110 https://doi.org/10.18543/ced.2585 • http://ced.revistas.deusto.es The 2020 New Pact approach embodies a human rights–oriented perspective, which could help and serve our concept, although it fails to address or reference the situation of separated minors. This very avenue is generally followed in the new package of European Commission proposals. In that vein, the Proposal for a Regulation of the European Parliament and of the Council Introducing a Screening of Third Country Nationals at the External Borders avoids treating specifically any situation involving unaccompanied or separated minors. It only indirectly addresses this issue under the heading of vulnerabilities.85 In a more child-friendly perspective, the Proposal for a Regulation of the European Parliament and of the Council on Asylum and Migration Management sets out a number of different elements to be considered to define the best interests of a child under the heading of specific guarantees for minors. This proposal includes specific rules for determining the Member State responsible for an application of protection, entrusting the European Commission with the task of defining “the criteria for establishing the existence of proven family links”.86 If and when implemented, this would constitute a rare opportunity to reframe the family bonds protected, as per the contemporary approach of the ECtHR and the CJEU, and therefore set a legal basis for a specific regime for separated minors. For its part, the Proposal for a Regulation of the European Parliament and of the Council Addressing Situations of Crisis and Force Majeure in the Field of Migration and Asylum excludes unaccompanied children and children under twelve years of age traveling together with their families from being subject to the border procedure and confinement unless there are security concerns, yet no mention is made of separated minors. This undifferentiated approach, however, should be read as encompassing separated children also, clearly excluding them from detention.87 This represents another opportunity to clarify the specific treatment of children in this situation and in similar contexts, like the current Ukrainian displacements, where a significant number of separated minors have crossed borders seeking refuge and asylum. 85 Proposal for a Regulation of the European Parliament and of the Council Introducing a Screening of Third Country Nationals at the External Borders and Amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817, COM (2020) 612 final (Sept. 23, 2020), paragraphs 21, 22, 26, and 27 (Preamble) and articles 6.7 and 9.3. 86 COM (2020) 610 final (Sept. 23, 2020), articles 13 and 15. 87 Proposal for a Regulation of the European Parliament and of the Council Addressing Situations of Crisis and Force Majeure in the Field of Migration and Asylum, COM (2020) 613 final (Sept. 23, 2020), 12.