BEST INTERESTS OF UNACCOMPANIED CHILDREN IN RETURN PROCEEDINGS

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.