leidenchildren'srightsobservatory

On 14 October 2021, the UN Committee on the Rights of the Child published a new follow-up progress report on individual communications.

The UN Committee on the Rights of the Child submits reports on its activities to the General Assembly every two years. This includes a summary of its activities under CRC OP3 in a ‘follow-up progress report’. The Committee lists and reviews the information received from States Parties on measures taken to implement the Committee’s Views and recommendations on individual communications.

In October 2020, the Committee published its second follow-up progress report in which it maintained follow-up dialogue with Spain about the treatment of unaccompanied migrant children. In the latest - third - follow-up progress report of 14 October 2021, the Committee assesses the follow-up of 6 cases by using the following assessment criteria: compliance (A rating), partial compliance (B rating), non-compliance (C rating) or no reply (D rating). Similar to the second follow-up progress report, it only discusses the follow-up progress of cases lodged against Spain. In the latest report, the Committee decided to continue the follow-up dialogue in 5 cases: M.T. v. Spain, A.D. v. Spain, M.A.B. v. Spain, H.B. v. Spain and R.K. v. Spain.

In the other case, D.D. v. Spain, the Committee decided to discontinue the follow-up and assessed Spain with a C rating (non-compliance). This case was lodged by a Malian unaccompanied child. The child claimed that he was deported to Morocco without being subjected to any form of identity check or assessment of his situation, which exposed him to the risk of violence and cruel, inhuman and degrading treatment in Morocco. The Committee considered that Spain violated articles 3, 20 and 37 of the CRC. Spain thus had the obligation to provide the child adequate reparation, including financial compensation and rehabilitation for the harm suffered. In addition, Spain had the obligation to take all steps necessary to prevent similar violations in the future, in particular by revising the Organic Act No. 4/2015 on safeguarding the security of citizens. Moreover, the Committee requested Spain to revise the 10th additional provision of that law, which would authorize its practice of indiscriminate automatic deportations at the border.

Spain initially requested a deadline extension for reporting on the measures taken to comply with the decision. A few months later, Spain informed the Committee that it would be no longer appropriate to accept the Committee’s recommendations, including its request to provide reparations to the child. Spain referred to the judgement of the Grand Chamber of the European Court of Human Rights in which the Court recognized that Spanish law offered several possibilities to apply for admission to the national territory, and that Spain therefore provided a real and effective means of gaining access to Spanish territory. However, the author commented that the reading of the European Court of Human Rights judgement and its impact on this case is erroneous and misguided, as it refers to the expulsion of adults. The Committee concludes in the third follow-up progress report, two and a half years after the adoption of the Committee’s Views in this case, that Spain has failed to provide the child with a reparation. The State Party has also failed to amend the Organic Act No. 4/2015, and there is no indication that any measures will be adopted in that regard.

The Committee’s decision to discontinue the follow-up in this case and the prolongation of the follow-up of the other 5 cases against Spain further can fuel discussions around the impact of the Committee’s recommendations and whether it offers effective and timely remedies for children. It remains to be seen how the Committee will be able to use the follow up process to hold State Parties to account concerning the remedies provided under CRC OP3.