Introduction
In early 2025, the Committee on the Rights of the Child (the Committee) gave important interpretative guidance on questions of admissibility of complaints as well as on its own role in assessing alleged (procedural) children’s rights violations in the sensitive political contexts of migration and criminal law enforcement. M.F. and L.B. v Switzerland. was about the removal of a convicted father from the Swiss territory to Algeria, A.M. and E.P. v. Switzerland, addressed the deprivation of liberty of a convicted mother.
Importantly, the Committee was not in agreement on some of the issues. Five members adopted a joint partly dissenting opinion to express their disagreement on questions of admissibility (in particular exhaustion of domestic remedies and whether children have procedural rights in criminal proceedings against a parent) and merits (in particular on the level of engagement of the Committee with alleged violations of articles 3 and 12 CRC). In what follows, I will first give some factual information on both cases. Next, I will identify the admissibility and substantive issues at stake and outline the Committee’s majority findings, as well as the dissenters’ views. I will then comment on two key issues.
Facts
Me. F., N.F., and I.F. v. Switzerland was about the removal of a convicted father from the Swiss territory to Algeria. M.F. and L.B. submitted the complaint on behalf of their three children. M.F. had entered Switzerland illegally in 2008 and started living as a couple with L.B. in 2011. He was sentenced for attempted murder and illegal entry and stay in Switzerland, and after his conditional release fined for driving a vehicle without a proper licence and consumption of illegal drugs, as well as for making false accusations concerning a prison official. In 2019, he was refused a residence permit on the grounds that the public interest of removal outweighed his and his family’s interest in being able to stay in the country. All appeals failed.
A.M. and E.P. v Switzerland dealt with the deprivation of liberty of a convicted mother. The complainants A.M. and E.P. were the children of A.P.W., who had been convicted for drugs related offenses and laundering. A.M. was placed in a boarding school. E.P. was initially taken in a foster home and afterwards lived with his maternal aunt. Visits of the children to their mother were infrequent and difficult due to the long travel distance to the prison. Contacts by telephone were costly. The children complained that they had not been involved in the domestic criminal proceedings (including concerning the enforcement of the sentence) against their mother.
Issues at stake
The two cases address three questions: (admissibility) questions regarding the right of the child to express one’s views; the Committee’s standard of review in criminal law and migration cases; and the nature of a best interests assessment in case of separation from parents.
As to the question of admissibility of the claims under article 12 CRC with regard to the children’s lack of involvement in the criminal procedures against their mother in A.M. and E.P. v Switzerland, the Committee holds that ‘the authors were not parties to the domestic criminal proceedings and therefore had no procedural rights’ (para. 8.8. A.M. and E.P. v Switzerland). It declares those claims therefore manifestly ill-founded. The dissenting members challenge this finding. They argue that the complaint under article 12 CRC should have been found admissible, for the proceedings regarding the execution of the sentence affected them, and that they therefore had procedural rights in those proceedings (para. 2 joint dissenting opinion A.M. and E.P. v Switzerland). In M.F. and L.B. v Switzerland, the Committee declares the complaints under article 12 CRC inadmissible because they had ‘not been raised explicitly or in substance before the domestic authorities’ (para. 6.2. M.F. and L.B. v Switzerland). The dissenters push back and argue that the federal courts, while assessing and determining the children’s best interests, had never heard the older children, notwithstanding the inextricable link between articles 3 and 12 CRC. They would therefore have declared the complaint under article 12 CRC admissible (para. 2 joint dissenting opinion M.F. and L.B. v Switzerland).
As to the merits in A.M. and E.P. v Switzerland, the Committee argues that although the children were not parties to the domestic criminal procedures against their mother, those proceedings were a matter concerning them, since they would ‘determine the extent to which they could maintain contact with their primary caregiver’ (para. 9.3. A.M. and E.P. v Switzerland). Hence, it assesses whether the Swiss authorities have taken into account the children’s best interests and heard them in the proceedings relating to the enforcement of the criminal sentence imposed on the mother. It concludes that neither article 3 nor article 12 CRC have been violated. As to the enforcement of the sentence, it holds that the children had been able to be heard indirectly by both their mother and their guardian. With regard to the choice of a prison far from their home, the Committee finds that the domestic authorities’ assessment was ‘not arbitrary or tantamount to a denial of justice and that the children’s best interests were a primary consideration in that assessment’ (para. 9.5. A.M. and E.P. v Switzerland). The dissenting members opine that any decisions in the context of the enforcement of sentences of children’s primary caregivers, concern and affect them, and that it is therefore essential to hear their views, directly or indirectly (para. 8 joint dissenting opinion A.M. and E.P. v Switzerland). Moreover, when a State’s actions (threaten to) remove the child’s primary caregiver, the State must ensure that the best interests of the child are considered: ‘a court cannot from the outset decide that the child’s rights are extinguished by the caregiver’s criminal behaviour.’ (para. 7 joint dissenting opinion A.M. and E.P. v Switzerland). The dissenters therefore find violations of articles 12 and 3 CRC.
In M.F. and L.B. v Switzerland the question under article 3 CRC was whether the children’s best interests had been a primary consideration in the proceedings leading to the removal of the father to Algeria. Drawing on its General Comment No. 14, the Committee submits that ‘the legal duty to assess the best interests of the child applies to all decisions and actions that directly or indirectly affect the child, even if they are not the direct target of the measure’. Moreover, it is considered ‘indispensable to carry out the assessment and determination of children’s best interests in the context of a potential separation of a child from their parents’, since such a decision would have a major impact on the children (para. 7.5. M.F. and L.B. v Switzerland). The standard of review the Committee applies is whether the domestic authorities’ assessment was ‘not arbitrary or tantamount to a denial of justice and that the children’s best interests were a primary consideration in that assessment’, echoing earlier Committee decisions on deportation procedures (para. 7.5. M.F. and L.B. v Switzerland). The other question in this case was whether the separation of the children from their father could be justified under article 9 CRC. The Committee then provides further details on how a State’s interest in enforcing its criminal and migration laws and decisions must be balanced against the right of children not to be separated from their parents: ‘In such balancing, particular weight should be given to the proportionality of the return order and the particular impact that the separation would have on the children, taking into account their views.’ (para. 7.6. M.F. and L.B. v Switzerland). It finds that in the case under review, Switzerland had assessed ‘the specific impact of the decisions on the children and considered whether continued contact with their father could be assured in practice’, and does not find therefore a violation of articles 3 and 12 CRC (para. 7.6. M.F. and L.B. v Switzerland). The dissenters on the contrary would have found a violation, not because they challenge the standard of review, but because ‘the judicial authorities did not conduct a detailed and case-specific examination of the consequences that the separation could have’ on the three children, including the psychological impact; the financial impact; the special impact on the youngest child; and the challenges for the children were they to follow their father to Algeria. They conclude that ‘[c]onsidering the five-year re-entry ban and the young age of the children, a detailed assessment of their best interests would have ensured that the decision makers were fully cognizant of all relevant factors before making their balancing decision.’ (para. 5 joint dissenting opinion M.F. and L.B. v Switzerland).
Commentary
The best interests of the child and the right to express one’s views, being considered general principles, are at the heart of children rights in general, and the CRC and the work of the Committee in particular. The Committee has also clarified its interpretation of those principles and its reading of the corresponding treaty provisions in fairly longstanding general comments, respectively on art. 3 and art. 12 CRC. Still, when engaging with those general principles and rights in the context of the complaints procedure, new and more detailed questions arise. Regrettably, the Committee has not been able to reach full agreement on the direction its interpretation and application needs to go.
With regard to the admissibility of art. 12 CRC complaints, the majority takes a more deferential approach: when children are not parties to domestic criminal proceedings, they have no procedural rights and article 12 CRC therefore does not apply. Quite rightly in my view, the dissenters argue that criminal proceedings against the primary caregiver do affect children, and that article 12 CRC must therefore be applied by domestic courts. Complaints about the lack of application of article 12 CRC domestically in such circumstances should indeed not be rejected as manifestly ill-founded and therefore inadmissible. The majority also argues that complaints about article 12 CRC are inadmissible if they have not been voiced at the domestic level, for lack of exhaustion of domestic remedies. This is a standard admissibility requirement. The dissenters argue that article 3 and 12 CRC are inextricably linked, and that the complaint about article 12 CRC should therefore have been declared admissible. Whereas I agree with the dissenters on the inextricable link, I am less convinced by the conclusion that such a link trumps the requirement of exhaustion of domestic remedies. Implicitly, the dissenters seem to argue that the domestic courts should have raised proprio motu the question of hearing the older children as part of their best interests assessment. Legally-technically, that matter would still fall under an article 3 CRC complaint rather than under article 12 CRC, I would argue.
A second issue the Committee had to decide on concerned the standard of review it applies. In both cases, it clearly takes ‘a procedural turn’: it defines its role as ensuring that the assessment by the national authorities is ‘not arbitrary or tantamount to a denial of justice and that the children’s best interests were a primary consideration in that assessment.’ It is therefore not for the Committee ‘to interpret domestic law or to assess the facts of the case and the evidence in place of the national authorities’ (para. 9.5 A.M. and E.P. v Switzerland; para. 7.5. M.F. and L.B. v Switzerland). As Collinson has pointed out in his discussion of O.M. v Denmark, this ‘procedural outcome’ for procedural rights ‘contrasts with the substantive outcome given’ in other cases about deportation (Case note 2023/08). The difference in migration cases may have to do with who is deported (although the Committee has not been fully consistent, see again Case note 2023/08): if children themselves are, the Committee opts for a substantive outcome, if their parent is removed, it prefers a procedural outcome. In A.M. and E.P. v Switzerland, the Committee transposes this approach to another type of separation case, i.e. separation due to imprisonment of a parent. It remains to be seen whether the Committee will extend this procedural outcome for procedural rights logic to all kinds of cases, beyond deportation and deprivation of liberty of parents. The dissenters seem to plead for a more robust procedural outcome (and therefore less deferential and less driven by subsidiarity), by pleading for a detailed and case-specific examination of the best interests of the child, and by providing concrete elements that should have informed the best interests assessment and the balancing of the general and the children’s best interests (para. 5 joint dissenting opinion M.F. and L.B. v Switzerland). I tend to agree.
At least for the two cases against Switzerland here under discussion, the influence of debates within the Council of Europe on subsidiarity and a procedural turn cannot be overlooked. In Switzerland’s submissions to the Committee, references to the European Court of Human Rights and its case-law are very explicit. Whereas it may make sense from a systemic integration perspective for the Committee to align itself with the European Court of Human Rights, there is also a risk of Europeanisation of the Committee’s caselaw (whereby European debates steer the Committee’s course) as well as one of backsliding (whereby pushback against human rights in the Council of Europe results in an overcautious and deferential Committee).
I cannot but wonder whether the Committee’s more thorough engagement with procedural rights obligations is at least partly informed by its current work on a new General Comment on children’s rights to access to justice and to an effective remedy. The consultation procedure on the concept note ended on 30 June 2025. As the concept note for that General Comment mentions, the new ‘General Comment will also address the procedural right of children such as their legal standing … the right to be heard and accompanied during all stages of the proceedings …’ (para. 13). I am curious to see how the dialogue between the Committee’s views in complaints procedures and General Comments will unfold.