Ines Medić

BEST INTERESTS OF UNACCOMPANIED CHILDREN IN RETURN PROCEEDINGS

Introduction

Best interests of unaccompanied children in return proceedings. Analyzes the best interests of unaccompanied children in EU return proceedings. Examines human rights challenges & protection under the new Return Regulation for asylum & migration.

Abstract

Ever since the adoption of the UN Convention on the Rights of the Child in 1989, the best interests of the child principle has become main tool for the protection of children in all proceedings. The centrality of this principle has been particularly emphasised in asylum and migration proceedings, however, after the CJEU judgment in 2021 it remains more of a wishfull thinking than the actual practice. In the meantime, parts of the 2018 Proposal for a recast of the Return Directive have been incorporated in other EU Acts (mainly Regulations, proposed by the Pact on Asylum and Migration). In the same vein, in March 2025 Proposal for the Directive has been replaced with the Proposal for a Return Regulation, establishing a Common European System for Returns. Many novelties are introduced, not all of them are welcomed. The new transfer procedure, despite more or less explicit statement on the protection of human rights, threatens to reduce procedural as well as human rights compared to the Return Directive. Combined asylum and return procedure, as already confirmed by the CJEU case law, manifests serious deficiences. Even the European Parliament recognised the risks, like „the risk of refoulment which is not systematically assessed by the authorities on their own initiative when contemplating the issuing of a return decision“, limitation of the rights of defence, broad detention grounds, etc. Also, the short deadline for the completion of the return border procedure is a risk in itself. Thus, the aim of this article is to explore the content and scope of protection of the best interests of the child in the new return procedure, as well as to articulate arguments either in favour or against the new regime.

Review

This article promises a timely and critical examination of the best interests of unaccompanied children within the evolving landscape of European return proceedings. Grounded in the foundational principle of the UN Convention on the Rights of the Child, the abstract effectively highlights the concerning disjuncture between this principle's declared centrality in asylum and migration proceedings and its practical implementation. The piece sets the stage by tracing the legislative shifts from the 2018 Proposal for a recast Return Directive to the more recent 2025 Proposal for a Return Regulation, establishing a Common European System for Returns. This context is crucial for understanding the potential implications for child protection, especially in light of the stated aim to explore the content and scope of best interests protection under this new, complex regime. The abstract effectively outlines the significant challenges and potential pitfalls introduced by the new legislative framework. It points to several "novelties" that are far from universally welcomed, notably a new transfer procedure that threatens to diminish both procedural and human rights compared to the previous Return Directive. The article will likely delve into the "serious deficiencies" of combined asylum and return procedures, already flagged by CJEU case law, and echo the European Parliament's concerns regarding the systemic assessment of refoulement risks, limitations on rights of defence, and broad detention grounds. The issue of short deadlines for return border procedures is also astutely identified as an inherent risk, further solidifying the premise that the best interests of the child may be significantly compromised. Given these identified concerns, the article's stated aim to "explore the content and scope of protection of the best interests of the child in the new return procedure" and to "articulate arguments either in favour or against the new regime" is highly pertinent. Such an analysis is vital for legal scholars, policymakers, and practitioners seeking to understand the real-world impact of these legislative changes on vulnerable unaccompanied children. The article's contribution lies in its potential to provide a comprehensive and critical assessment, offering valuable insights into whether the new Common European System for Returns adequately safeguards the fundamental rights and best interests of children, or if it indeed represents a step backwards in their protection.

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