CRC/C/100/D/189/2022

GE.26-01273 (E) 130426 130426

Committee on the Rights of the Child

Views adopted by the Committee under the Optional

Protocol to the Convention on the Rights of the Child on a

communications procedure, concerning communication

No. 189/2022*, **

Communication submitted by:

M.J.K. (represented by counsel, Franck Ozouf)

Alleged victim:

M.J.K.

State Party:

France

Date of communication:

15 July 2022

Date of adoption of Views:

20 January 2026

Subject matter:

Refusal by the French authorities to grant an

asylum-seeking unaccompanied migrant child

access to the child protection system on the

grounds that they considered him to be an adult;

determination of the age of a migrant child

Procedural issue:

Exhaustion of domestic remedies

Substantive issues:

Best interests of the child; right of the child to be

heard; protection of a child deprived of his family

environment; right to claim asylum; inhuman or

degrading treatment

Articles of the Convention:

3, 8, 12, 20, 22 and 37

Articles of the Optional Protocol:

6 and 7 (e)

1.1

The author of the communication is M.J.K., a national of Pakistan born on 10 October

2004. The author claims that the State Party violated his rights under articles 3, 8, 12, 20 and

22 of the Convention, because he was not recognized as an unaccompanied migrant child for

a long period during his time in France and because his application for asylum was not

registered. As a result, he was unable to gain access to social services or adequate housing.

He is represented by counsel. The Optional Protocol entered into force for the State Party on

7 April 2016.

* Adopted by the Committee at its 100th session (12–30 January 2026).

** The following members of the Committee participated in the examination of the communication:

Suzanne Aho, Thuwayba Al Barwani, Hynd Ayoubi Idrissi, Mary Beloff, Rosaria Correa, Timothy

Ekesa, Bragi Gudbrandsson, Mariana Ianachevici, Philip Jaffé, Sophie Kiladze, Cephas Lumina,

Benyam Dawit Mezmur, Juliana Scerri Ferrante, Aïssatou Alassane Sidikou, Zeinebou Taleb Moussa

and Benoit Van Keirsbilck.

United Nations

CRC/C/100/D/189/2022

Convention on the

Rights of the Child

Distr.: General

2 February 2026

English

Original: French

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1.2

On 22 July 2022, in accordance with article 6 of the Optional Protocol, the working

group on communications, acting on behalf of the Committee, requested the State Party to

place the author in a children’s home. On 18 January 2023, the Committee informed the

parties that the interim measures requested were no longer applicable, since these measures

are granted only to children and the author had reached the age of majority.

Facts as submitted by the author

2.1

On 6 October 2019, the author arrived in Paris after a difficult six-month migration

journey. He had left Pakistan because of fears of persecution linked to serious problems with

the Taliban.

2.2

The author applied to the Departmental Council of Paris for protection as an at-risk,

unaccompanied child, and he was given accommodation. On 17 October 2019, he underwent

an age assessment by the Paris Evaluation Unit for Unaccompanied Foreign Minors. He had

no identity papers. The assessment unit estimated that he was 17 years old, and not 15 as he

alleged. As part of a national system for allocating minors between departments, which is run

by the Ministry of Justice, the author was referred to the Departmental Council of

Maine-et-Loire.

2.3

On 28 October 2019, the author filed a petition with the public prosecutor for

placement under guardianship.

2.4

On 4 November 2019, the juvenile court judge of the Angers tribunal de grande

instance (court of major jurisdiction) issued a decision granting the author support services

and a protection measure for a period of six months.

2.5

On 29 November 2019, employees of the Departmental Council of Maine-et-Loire

carried out a further assessment, noting numerous inconsistencies in the author’s account

compared with the first assessment, a poorly substantiated story and a physical appearance

that made it possible to rule out his being a minor. They therefore concluded that the author

could not be recognized as a minor.

2.6

On 16 January 2020, the Departmental Council of Maine-et-Loire requested that the

author’s petition for placement under guardianship be dismissed.

2.7

On 17 June 2020, support services were extended by six months because the hearing

could not be held owing to the coronavirus disease (COVID-19) pandemic. During this period,

the author was provided with accommodation and schooling.

2.8

On 17 September 2020, at the hearing with the guardianship judge, the author stated

that he had been able to contact his family and was now in a position to obtain his original

civil status document; he showed a copy of this document on his phone.

2.9

On 19 October 2020, the juvenile guardianship judge at the Angers judicial court

rejected the author’s petition for placement under guardianship, finding that the author’s

minor age had not been established. The judge examined all the elements in the file, including

the statements that had been made by the author, with the assistance of his lawyer, before the

juvenile court judge at the author’s hearing on 17 September 2020. He found that the author

had been very imprecise and even completely contradictory about his personal history, that

he had not provided any original identity documents and that his statements about his ability

to obtain such a document were confused.

2.10

On 2 November 2020, the Departmental Council of Maine-et-Loire notified the author

of the termination of the support provided. The author continued to be housed in a hotel under

the care system for adults, but without any support services or food assistance.

2.11

On 9 November 2020, the author appealed the juvenile guardianship judge’s decision

of 19 October 2020 before the Angers Court of Appeal.

2.12

A few weeks later, the author was successfully sent his original family record book,

which contained his birth certificate, and copies of his parents’ identity cards. The author was

also able to obtain an “identity card for Pakistanis living abroad”.

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2.13

On 10 March 2021, the author filed an asylum application with the Maine-et-Loire

prefecture, in which he stated that he was in the process of having his minor age recognized

by the courts.

2.14

On 1 June 2021, the Maine-et-Loire prefecture indicated that it was unable to register

the asylum application of the author as a minor in the absence of the appointment of an ad

hoc administrator, given that the order of 19 October 2020 was considered res judicata. The

author sent several further communications to the prefecture, which were disregarded.

2.15

On 25 August 2021, the author applied to the juvenile court judge for care under the

child protection system, on the basis of his civil status documents. On 11 October 2021, the

author submitted his case anew, this time with the assistance of a lawyer.

2.16

On 11 February 2022, the juvenile court judge, declaring himself incompetent owing

to the appeal on guardianship matters pending before the Court of Appeal, rejected the

request to grant support services. On 11 October 2022, the author appealed this decision

before the Court of Appeal.

2.17

On 15 June 2022, a new application for asylum was submitted to the prefecture and

subsequently rejected. A detailed follow-up letter was sent but no response was received. On

4 July 2022, the guardianship hearing was held before the Angers Court of Appeal.

Complaint

3.1

The author claims that his rights under articles 3, 8, 12, 20 and 22 of the Convention

were violated by the State Party as a result of the age determination procedure he underwent

and the fact that he was not recognized and protected as an asylum-seeking unaccompanied

migrant child.

3.2

The author claims that the State Party did not take into consideration the principle of

the best interests of the child, enshrined in article 3 of the Convention, during the age

determination procedure.1 The State Party’s authorities failed to observe the principle of

presumption of minority and did not give the author the benefit of the doubt during the age

determination procedure. He claims that his rights under article 3 were violated, on the

grounds that he was referred to a department that was not the one that had first conducted an

age assessment and that reassessed his age in a way that contradicted the first assessment.

This practice of reassessment has since been banned under French law. The Department of

Maine-et-Loire asked that no guardianship measures should be instituted, and as a result the

author was housed in a hotel intended for adults, without any food assistance. The author did

not receive any assistance in re-establishing his civil status. The authorities failed to respect

the best interests of the child, even though the author presented official identity and civil

status documents from his country of origin: (a) when he was taken into care by the

Departmental Council of Maine-et-Loire, to which he provided a photocopy of his birth

certificate, and which provided him no help in obtaining the original birth certificate or in

taking steps towards re-establishing his civil status; (b) before the guardianship judge, who

did not take this document into consideration when making his decision of 19 October 2020;

(c) before the juvenile court judge, who did not take into consideration his original family

record book, which had been translated and also contained his birth certificate, the copies of

his parents’ identity cards or his own original identity card; (d) before the Department of

Maine-et-Loire, which did not respond to a new request for care submitted in August 2021

on the basis of the aforementioned documents; and (e) during the guardianship appeal, for

which the Court of Appeal took almost 21 months to organize a hearing and set a late

deliberation date of 22 September 2022, or 20 days before the author turned 18 years old.

The author claims that, by failing to take into consideration or analyse his civil status

documents, by failing to contact the Pakistani consular authorities in France and by failing to

formally contest the authenticity of these documents with the sovereign State that had issued

them, the State Party left him without protection for nearly two years.

1 The author refers to general comment No. 6 (2005) on the treatment of unaccompanied and separated

children outside their country of origin (CRC/GC/2005/6) and to the Committee’s decision, N.B.F. v.

Spain (CRC/C/79/D/11/2017), para. 12.3.

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3.3

The author claims a violation of article 3, read in conjunction with article 12, of the

Convention. He maintains that he was not assigned a legal representative or lawyer to defend

his interests either before or during the interview he was given with a view to assessing his

age and status as an unaccompanied child migrant, which was conducted by the Departmental

Council of Maine-et-Loire. The author was also not given the opportunity to review the

assessment report and identify any inconsistencies or errors and ask for them to be corrected.

3.4

The author also claims a violation of article 3, read in conjunction with article 20, of

the Convention. The State Party failed to protect him by denying him care under the French

child protection system, despite the fact that he had presented civil status and identity

documents, including during legal proceedings, and that he was in a situation of abandonment

and great vulnerability as an unaccompanied child migrant. The author has been living in a

hotel for nearly 21 months, as part of a State-run scheme intended for adults.

3.5

The author also claims a violation of article 3, read in conjunction with article 22, of

the Convention, on the grounds that his asylum application was not registered. He fled

Pakistan because of fears of persecution by the Taliban, who wanted to forcibly conscript

him. His account was prepared by the social workers who assisted him between November

2019 and October 2020. However, the Department of Maine-et-Loire called his age into

question and did not allow him to apply for asylum. After his access to child welfare services

was terminated, his situation did not improve, despite the many steps he took to have his

asylum application considered.

3.6

Lastly, the author, referring to the Committee’s established jurisprudence, claims a

violation of article 8 of the Convention.2 He emphasizes that the State Party’s authorities did

not seek to verify whether the information contained in the documents he had submitted was

accurate, for example by contacting the Pakistani authorities; this is in violation of the

Convention and national law. The author asserts that, under article 47 of the Civil Code, “any

civil status record … of a foreign national issued by a foreign country and drawn up in the

manner prescribed in that country is regarded as genuine unless other records or documents

held by such person, extrinsic information or elements drawn from the record itself establish,

if necessary upon verification, that the record is irregular or falsified or that the facts asserted

therein do not correspond to the actual circumstances”. The author also refers to article 1 of

Decree No. 2015-1740 of 24 December 2015, which provides that, in case of uncertainty

about a civil status document, only verification with the relevant foreign authority can

provide information suitable for determining the authenticity of the disputed civil status

record.

3.7

The author requests, by way of reparation, that the Committee ask the State Party to:

(a) allow him to apply for asylum as soon as possible; (b) provide him with care as a minor

under the child protection system; and (c) ensure that the entire age determination procedure

for young persons claiming to be minors is in conformity with the Convention, that they are

protected as children by the competent public authorities throughout the procedure and that

they are accorded all the rights deriving from their status as children.

Author’s additional comments

4.1

On 18 and 19 August 2022, 9 September 2022 and 29 November 2022, the author

submitted additional comments. He states that, despite several reminders, the interim

measures requested by the Committee were not implemented. It was only following his

appeal to the Nantes administrative court on 4 September 2022, which handed down a

decision on 7 September 2022, that he was approved to receive care from the child protection

authorities. However, the accommodation he was given was in a hotel in Angers. The author

received some money for toiletries, but was not offered any support services.

4.2

On 7 September 2022, the Nantes administrative court ordered the prefecture to

register the author’s asylum application within 48 hours. The prefecture abided by the

decision. However, since an ad hoc administrator had not been appointed to represent him as

a minor, the author was unable to finalize his application. He had to wait until he came of

age to apply for asylum with the French Office for the Protection of Refugees and Stateless

2 A.D. v. Spain (CRC/C/83/D/21/2017), para. 10.17.

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Persons. On 15 November 2022, he was issued a certification of submission of an asylum

application.

4.3

The author maintains that, on 20 October 2022, the Angers Court of Appeal rejected

the author’s claim and confirmed that he had reached the age of majority (see paras. 5.15–

5.20 above). The author also provides the Committee with information about his social

situation after turning 18 years old.

State Party’s observations on admissibility and the merits

5.1

In its observations dated 24 January 2023, the State Party argues that the

communication is inadmissible under article 7 (e) of the Optional Protocol, since the author

failed to exhaust domestic remedies. It points out that, at the date of submission of the

communication, two appeals were pending before the Angers Court of Appeal, one of these

having been reserved (see paras. 2.11 and 2.16).

5.2

The State Party maintains that these remedies were fully effective and able to remedy

the violations alleged before the Committee. The requirement to exhaust domestic remedies

must have been met at the time the communication is submitted. In this case, the author does

not explain why his applications to the Court of Appeal would have been ineffective.

5.3

With regard to the interim measures, the State Party recalls that such measures are not

binding. Article 6 of the Optional Protocol makes it clear that the Committee is transmitting

a request to, rather than imposing a binding measure on, the State Party. In addition, on the

date that the request for interim measures was transmitted to the Government, the court

rulings establishing that the author was not a minor had the force of res judicata and were

therefore binding on the Government, which was not entitled to call into question the facts

established by the rulings, in observance of the principle of the separation of powers.

5.4

With regard to the author’s allegation of a violation of article 3, read in conjunction

with article 12, of the Convention, the State Party maintains, contrary to the author’s claim,

that the authorities respected his right to be heard. The author was heard at all stages of the

age assessment process, during both administrative and judicial proceedings. He was heard

first by the Departmental Council of Paris and then by the Departmental Council of

Maine-et-Loire, which assessed his age and unaccompanied status.

5.5

The State Party notes the author’s claim that he was not assisted by counsel during

these interviews. However, the State Party notes that, under article 12 (2) of the Convention,

the assistance of “a representative or an appropriate body” must be provided “in a manner

consistent with the procedural rules of national law”. The State Party explains in this regard

that the age assessment interview is an administrative procedure during which the presence

of a lawyer is not mandatory. It points out that the presence of a lawyer is not prohibited and

that the author has not shown that he requested the presence of a lawyer during the interview

or that such a request was denied. In addition, the State Party points out that article 12 (2)

also provides that the child must be provided the opportunity to be heard “either directly or

through a representative or an appropriate body”. The alternative provided for under

article 12 is thus fully respected when children are heard directly in cases where this is

possible taking into account their age and capacity to form their own views. The State Party

notes that, according to the date of birth declared by the author, he was fully capable of

forming his own views and successfully taking part in that process. It adds that subsequently,

and throughout the judicial proceedings, the author was not only heard directly by the judges

considering his application but was also assisted by a lawyer.

5.6

With regard to the alleged violation of article 3, read in conjunction with article 20,

of the Convention, the State Party notes the author’s claim that he was left unprotected during

the age assessment procedure. The State Party contests this presentation of the facts. As soon

as he entered French territory, the author was given temporary emergency accommodation

while his age and status as an unaccompanied minor on French territory were assessed. On

21 October 2019, the Departmental Council of Paris declared him to be a minor and referred

the matter to the public prosecutor so that a protection measure could be granted. The author

was taken into care under the child welfare scheme and granted all related rights, including

schooling. On 4 November 2019, the juvenile court judge of the Angers tribunal de grande

instance granted the author temporary support services and a protection measure for a period

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of six months, which was subsequently extended by six months. Pursuant to this decision,

the author was given accommodation, food assistance, financial aid and schooling.

5.7

This arrangement continued until 19 October 2020, when the juvenile guardianship

judge at the Angers judicial court ruled that the author’s minor age had not been established.

This judge’s order was enforced on 2 November 2020.

5.8

The State Party states that, since 4 November 2020, the author has been provided with

emergency hotel accommodation. He was also supported by Secours Catholique in Angers

in his efforts to gain access to residency and food assistance. In September 2021, he was

enrolled in a certificat d’aptitude professionnelle (certificate of professional competence) in

electricity at the Lycée Ludovic Ménard (secondary school) in Angers. The State Party

maintains that it has taken all the necessary measures to provide support to the author, bearing

in mind his age of majority as established by a court decision.

5.9

As to the alleged violation of article 3 resulting from the author’s referral to a

department other than the one that had initially established that he was a minor, in

contravention of article 39 of the “Taquet” Act of 7 February 2022, the State Party states that

the Act in question did not enter into force until February 2022 and cannot be applied

retroactively.

5.10

With regard to the alleged violation of article 22 of the Convention, the State Party

contends that the author has not demonstrated that he sought to apply for asylum while in the

care of the child welfare authorities, nor that he was refused assistance in that context.

5.11

The State Party observes that it was only on 10 March 2021 that the author went to

the reception centre for asylum-seekers in order to submit an asylum application and that he

failed to mention the order of 19 October 2020 in which the juvenile guardianship judge had

found that his status as a minor had not been established. The public prosecutor was unable

to appoint him an ad hoc administrator as an unaccompanied child, given the res judicata

effect of the order of 19 October 2020. On 7 February 2022, the author resubmitted his

asylum application to the judicial authorities in the hope that an ad hoc administrator would

be appointed. These authorities maintained their refusal to appoint such an administrator,

given the res judicata effect of the 19 October 2020 order. On 19 August 2022, the author

again applied for asylum as a minor. On 24 August 2022, the administrative authorities

informed him that they could not register his application, in view of the guardianship judge’s

order and in the absence of an ad hoc administrator appointed by the public prosecutor. In an

order dated 7 September 2022, the interim relief judge ordered the Prefect of Maine-et-Loire

to register the author’s asylum application. On 23 September 2022, the author submitted his

application for asylum, which was registered in the information system for the administration

of foreigners in France. At the same time, he was given a summons to appear with his legal

representative, guardian or ad hoc administrator, once appointed, in order to complete the

registration of his asylum application. On 29 September 2022, the judicial authority informed

the Prefect of Maine-et-Loire that, pending the decision of the Court of Appeal regarding the

status of the author as a minor, the public prosecutor’s office was unable to appoint an ad hoc

administrator, given the res judicata effect of the order of 19 October 2020.

5.12

The State Party maintains that there was no violation of article 3, read in conjunction

with article 22, of the Convention, since the Prefect of Maine-et-Loire was unable to register

the author’s asylum application as that of a minor because his age of majority had been

established by a court decision with the force of res judicata and was binding on the

authorities.

5.13

With regard to the alleged violation of article 3, read in conjunction with article 8, of

the Convention, the State Party notes that the author complains that the French authorities

failed to take into account his original civil status and identity documents. It states that the

author had no identity papers when he arrived in France and during the social assessments.

The State Party adds that it is clear from the ruling of 20 October 2022 of the Angers Court

of Appeal that the author routinely transmitted the disputed documents late, preventing the

judges from ruling on the conformity of the documents he presented, and that he never made

any request to have the authenticity of the documents in his possession verified. At the

hearing on 17 September 2020, the author produced only a digital copy, on his phone, of his

civil status document. The guardianship judge cannot be reproached for ruling that the author

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had not produced documentary evidence of his status as a minor or for not waiting until the

author had received his civil status documents.

5.14

The author subsequently obtained new identity documents and produced them before

the courts and authorities. However, the State Party claims that the documents did not meet

the standard requirements and could not be used to certify the author’s status as a minor.

5.15

On 20 September 2022, the day before the Court of Appeal was due to deliberate, the

author submitted various documents, only two of which were submitted as originals for the

first time: his identity card, issued on 15 March 2021, and a document dated 3 December

2020, written in Arabic and translated as a “certificate of a person less than 18 years old”.

The court nevertheless ordered a technical examination of the documents, and deliberations

were consequently postponed. The document fraud unit of the Nantes border police deemed

the documents inadmissible. The documents submitted had not been printed using secure

methods, did not bear a government stamp, a usual security feature of this type of document,

and were not accompanied by a certificate of authenticity issued by the Pakistani authorities

or an additional certificate of authenticity (“super-legalization”) required by the French

authorities.

5.16

Lastly, the Court of Appeal examined the other elements in the file, in particular the

social assessment reports drawn up less than three months apart on 21 October 2019 and

13 January 2020, and found that they were such as to call into question the accuracy of the

facts set out in the documents produced by the author, and hence his status as a minor. The

Court of Appeal in particular noted that the Paris assessor, in a tersely worded report, had

clearly expressed doubts about the author’s real age, in line with the conclusions of the

Maine-et-Loire assessor, who had unreservedly ruled out the author’s status as a minor at the

end of a particularly thorough and well-documented interview, which had revealed obvious

inconsistencies in the author’s story, and unsubstantiated or confused statements regarding

key points. The Court of Appeal also pointed out that these elements, which led to the

conclusion that the author was an adult, were reinforced by the author’s statement at his

hearing, which was very imprecise and even completely contradictory regarding his personal

history.

5.17

In a particularly well-reasoned decision, taking into account all the information in the

file, the Court of Appeal upheld the order denying the author’s placement under guardianship

because he had reached the age of majority. The author does not demonstrate in what sense

the courts failed to examine the civil status documents, but merely states that the principle of

the child’s best interests was ignored, even though the domestic courts gave ample reason for

excluding the identity documents presented.

5.18

The State Party states that the persistent doubts and irregularities regarding the civil

status and identity documents submitted, as well as the differing accounts given before the

assessors in each department and before the courts, and, in addition, the lack of consistency

between the author’s alleged age and his physical appearance, formed the basis of the judges’

arguments on the merits. Therefore, the rejection of the guardianship and support services

requested was justified.

5.19

As early as the first assessment interview conducted by the Departmental Council of

Paris on 17 October 2019, the assessor took pains to point out that the author’s overall

demeanour, manner of expression and behaviour during the interview were those of a

17-year-old and not of a 15-year-old. These doubts as to the author’s age grew during the

second assessment interview – a particularly thorough and well-documented interview that

revealed obvious inconsistencies in the author’s story, which was unsubstantiated or

confused on key points such as his daily life with his family, the conditions of his departure

from Pakistan and his migration journey – at the end of which the Maine-et-Loire assessor

unreservedly ruled out his status as a minor. Moreover, physical appearance was taken into

account only as a secondary consideration, for the purpose of corroborating the lack of

consistency between the age claimed and the author’s actual age.

5.20

The State Party emphasizes the fact that, once the documents had been transmitted to

the Court of Appeal, the Court postponed its deliberations in order to carry out a scrupulous

examination of the documents. It is clear that the author did not fulfil the conditions for

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placement with the child welfare services, since he was considered an adult and the

documents he had submitted – very belatedly – did not serve to establish his status as a minor.

5.21

The State Party notes that the author believes that the State Party should have taken

additional steps, such as contacting the Pakistani Embassy in France. However, such steps

could have been taken only once the originals had been received and transmitted to the Court

of Appeal, that is, after the communication had been submitted to the Committee. What is

more, such a request is completely incompatible with the author’s claim to asylum-seeker

status, which prohibits any communication with the authorities in his country of origin.

5.22

The State Party states that the Court of Appeal noted that the author had submitted

two new documents two days before the decision was to be handed down. The Court excluded

these documents from the deliberations owing to their late submission. It considered that a

new documentary check would require the proceedings to be reopened, with a postponement

to a date when the appeal would have become moot. The State Party concludes that there has

been no violation of article 8, read in conjunction with article 3, of the Convention.

Third-party intervention

6.

On 11 July 2023, the Defender of Rights submitted a third-party intervention on her

findings and analysis of the difficulties that unaccompanied migrant children face in gaining

access to the child protection system in France. The Defender of Rights reiterates the

observations she made in previous interventions before the Committee concerning the state

of law and practice, as well as her analysis of the situation of unaccompanied minors in

France. She reiterates her concerns about the inadequacy of the safeguards surrounding the

age determination procedure, which the Committee has already noted in its Views, in

particular, the failure to respect the principle of presumption of minor age throughout the age

determination procedure; the failure to appoint a legal representative or a lawyer during the

procedure, as required under articles 3 and 12 of the Convention; and the failure to uphold

the right of unaccompanied children to respect for their identity, owing to the failure to apply

rules relating to the principle of presumption of authenticity of civil status documents and the

sharing of the burden of proof. The Defender of Rights invites the Committee to take this

worrying context into account when examining the present communication. She further

submits that the Department’s reassessment of the age of unaccompanied children is contrary

to the best interests of the child, to article 20 of the Convention, to the presumption of minor

age and to the right to respect for identity established in article 8 of the Convention. The

Defender maintains that the State Party must guarantee unaccompanied children seeking

asylum access to the asylum procedure from the moment they request it, notwithstanding

ongoing proceedings that contest their claimed status as a minor. She also stresses the fact

that unaccompanied minors do not benefit from an effective remedy, owing to the lack of

suspensive effect of referrals to the juvenile court and the Court of Appeal, as well as waiting

times for hearings that are sometimes excessive. Lastly, the Defender of Rights states that

failure to accede to a request for interim measures is contrary to article 6 of the Optional

Protocol.

State Party’s observations on the third-party intervention

7.

In its observations of 20 December 2023, the State Party submits that the Defender of

Rights does not refer specifically to the author’s personal situation and presents some general

information relating to the reception of unaccompanied minors or, in some cases, refers to

situations that are in no way connected to the present communication. It recalls that the author

of the communication was presumed to be a minor and was taken into care as such during

the age assessment phase. The State Party maintains that, during the age determination

process, it observed the relevant safeguards with regard to respect for the child’s right to an

identity, age assessment and the effectiveness of remedies.

Author’s comments on the State Party’s observations on admissibility and the merits

8.1

In his comments of 21 August 2023, the author states that the communication is

admissible since the appeals before the Court of Appeal were not effective. He submits that

under French law there is no provision for appeals with suspensive effect, with regard either

to guardianship or to support services. Referral either to the juvenile court judge or to the

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Court of Appeal does not suspend the Department’s decision to deny access to child welfare

services. The petition he filed with the juvenile court judge for interim care pending the

hearing was not granted. Furthermore, the courts that deal with such appeals are bound by

time limits for examining them. The waiting times for hearings can thus be excessively long.

The author states that the Angers Court of Appeal heard his case almost 21 months after the

guardianship judge’s decision.

8.2

Concerning the violation of articles 3 and 12 of the Convention, the author notes the

State Party’s argument that a lawyer could have been requested but mentions the presence of

several obstacles in practice. He was never informed of this possibility. If he had been so

informed, he would have had to find and pay for a lawyer himself, which would not have

been feasible given his lack of resources and situation as an unaccompanied minor. In

addition, the child welfare authorities, who are generally opposed to the presence of third

parties during interviews, likely would not have agreed to the presence of a lawyer. The

author points out that the practice of a second assessment interview, which was clearly

contrary to his interests, is currently illegal. Indeed, it was prohibited by Act No. 2022-140

of 7 February 2022, as reflected in article L.221-2-5 of the Social Welfare and Family Code.

The author was never referred to a third-party organization that could have provided him with

information and support, as the authorities did not wish to provide such support, which would

have gone against their own interests, namely to contest his minor age.

8.3

With regard to the violation of article 20 of the Convention, the author recalls that he

was not taken into care as an unaccompanied minor following his appeal before the Angers

Court of Appeal. He was simply given accommodation in a hotel for adults, with no

socioeducational support or financial or material assistance. The only assistance he was given

was a court-appointed lawyer and the help of charities such as Secours Catholique, which

have very limited resources (no financial assistance and no accommodation, with any support

provided mainly by volunteers).

8.4

With regard to article 22 of the Convention, the author states that his application for

asylum with the French Office for the Protection of Refugees and Stateless Persons is still

under examination. He also refers to the decision of the Nantes Administrative Court of

7 September 2022, which states that the prefect must first register the asylum application of

an unaccompanied minor, then request the judicial authority to appoint an ad hoc

administrator.

8.5

With regard to the violation of article 8 of the Convention, the author states that he

would like to make a few additional points. He explains that he obtained documents either

from his parents or from the Pakistani authorities with the help of Secours Catholique.

Moreover, even if only copies were submitted to the various courts, the author had always

made it clear that the originals were available to them. He adds that these identity documents

were translated to the best of his ability and that of the organizations that helped him.

8.6

With regard to the State Party’s argument concerning the referral of his case to the

Pakistani authorities and its incompatibility with his status as an asylum-seeker, the author

maintains that in his case he fled Pakistan not because the Pakistani authorities were

persecuting him but because the Taliban, a separate group, were persecuting him. He states

that, in this context, it did not seem incompatible to take steps to re-establish his civil status

and identity. He claims that he never received official assistance in establishing his civil

status.

8.7

The author claims that the fact that he was not recognized as a minor has had

repercussions on him as a young adult. He did not qualify for the care provided for under

article L.222-5 of the Social Welfare and Family Code for young adults between the ages

of 18 and 21, nor did he qualify for the residence permit provided for under article L.435-3

of the Code on the Entry and Stay of Aliens and the Right to Asylum.

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Issues and proceedings before the Committee

Consideration of admissibility

9.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 20 of the rules of procedure under the Optional Protocol,

whether the communication is admissible under the Optional Protocol.

9.2

The Committee takes note of the State Party’s argument that the author has not

exhausted the available domestic remedies, given that at the date of submission of the

communication to the Committee, two appeals – fully effective and likely to remedy the

alleged violations – were pending before the Angers Court of Appeal: an appeal against the

decision of the juvenile guardianship judge of 19 October 2020 and an appeal against the

decision of the juvenile court judge of 11 February 2022. The Committee notes, however, the

author’s contention that the appeals could not be considered effective because they did not

have suspensive effect and there were long waiting times for the hearings. In his case, the

Court of Appeal heard his case almost 21 months after he filed the appeal. The Committee is

of the view that, on account of the unreasonable time frames for the adjudication of appeals

by the State Party’s judicial authorities, particularly the Court of Appeal, the non-suspensive

nature of the appeal proceedings and the failure to adopt interim measures of protection in

respect of the author while his application was under consideration by the Court of Appeal,

the remedies in relation to the procedure for the determination of the author’s age and his

application for protection cannot be regarded as effective. 3 As a result, the Committee

concludes that article 7 (e) of the Optional Protocol does not constitute an obstacle to the

admissibility of the communication.

9.3

The Committee is of the view that the author has sufficiently substantiated his claims

under articles 3, 8, 12, 20 and 22 of the Convention, namely that his best interests were not

taken into account during the age determination procedure, he was not given the opportunity

to be heard, his right to an identity was not respected and he was not afforded the protection

he was entitled to as an asylum-seeking unaccompanied migrant child. It therefore declares

the communication admissible under article 7 (f) of the Optional Protocol and proceeds with

its consideration of the merits.

Consideration of the merits

10.1

The Committee has considered the communication in the light of all the information

submitted to it by the parties, in accordance with article 10 (1) of the Optional Protocol.

10.2

One of the issues before the Committee is whether, in the circumstances of the present

case, the age determination procedure undergone by the author, who stated that he was a

minor upon arrival and later produced several identity documents in support of this claim (a

photocopy of his birth certificate while he was in the care of the Departmental Council of

Maine-et-Loire and before the juvenile court judge; his original family record book, which

contained his birth certificate and was translated, copies of his parents’ identity cards and his

own original identity card before the juvenile court judge; and all the aforementioned

documents and, in addition, his original identity card and an original “certificate of a person

less than 18 years old”, written in Arabic, before the Court of Appeal), resulted in a violation

of his rights under the Convention.

10.3

The Committee recalls that the determination of the age of a young person who claims

to be a minor is of fundamental importance, as the outcome determines whether that person

will be entitled to or excluded from protection by the State as a child. Similarly, and this point

is of vital importance to the Committee, the enjoyment of the rights set out in the Convention

flows from that determination. It is therefore imperative that there be due process to

determine a person’s age, as well as the opportunity to challenge the outcome through a

suspensive appeals process. While that process is under way, the person should be given the

benefit of the doubt and treated as a child. Accordingly, the Committee considers that the

3 S.E.M.A. v. France (CRC/C/92/D/130/2020), para. 7.2; N.B.F. v. Spain, para. 11.3.

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GE.26-01273

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best interests of the child should be a primary consideration throughout the age determination

process.4

10.4

In the present case, the Committee notes that the State Party’s authorities considered

the author to be an adult because: (a) he produced no identity document with sufficient

probative force to demonstrate that he was a minor; (b) neither his attitude nor his physical

appearance, which were typical of an older age, was consistent with the age claimed; and

(c) numerous inconsistencies were noted during the initial assessment interview in the

Maine-et-Loire Department and the court hearings. The Committee also notes the State

Party’s claim that the author benefited from a temporary protection measure during the age

assessment process.

10.5

With regard to the assessment of the author’s identity documents, the Committee takes

note of the author’s assertion that the documents he submitted, including the originals, which

had been issued by competent authorities in his country of origin, were completely

disregarded. The Committee recalls that any available documents should be considered

genuine unless there is evidence to the contrary.5 It also recalls that the burden of proof does

not rest solely with the author of the communication, especially considering that the author

and the State Party do not have equal access to the evidence and that frequently the State

Party alone has access to the relevant information.6 The Committee further recalls that States

Parties may not act in a manner contrary to the facts established by an original and official

identity document issued by a sovereign country unless they have formally challenged the

validity of that document.7 In the present case, the Committee takes note of the State Party’s

statement that, at the appeals court’s request, the document fraud unit of the Nantes border

police examined the identity documents presented by the author and deemed them

inadmissible. The State Party further maintained that any contact with the Embassy of

Pakistan would be incompatible with the author’s application for asylum. However, the

Committee considers that the State Party has not proven that it requested the authorities of

the author’s country of origin to verify his identity before he submitted his application for

asylum.

10.6

The Committee recalls that it is only when identity documents or other appropriate

evidence is lacking, which is not the case in the present communication, that, “to make an

informed estimate of age, States should undertake a comprehensive assessment of the child’s

physical and psychological development, conducted by specialist paediatricians or other

professionals who are skilled in combining different aspects of development. Such

assessments should be carried out in a prompt, child-friendly, gender-sensitive and culturally

appropriate manner, including interviews of children ..., in a language the child

understands”.8 The Committee also recalls its general comment No. 6 (2005), which states

that age assessment should not only take into account the physical appearance of the

individual, but also his or her psychological maturity, should be conducted in a scientific,

safe, child- and gender-sensitive and fair manner and, in the event of remaining uncertainty,

should accord the individual the benefit of the doubt such that if there is a possibility that the

individual is a child, she or he should be treated as such.9

10.7

In the present case, the Committee notes that the author, who had no identity

documents upon arriving in the State Party, underwent a summary initial assessment, during

which it seems that no account was taken of his difficult migration journey or other factors

that could explain inconsistencies in his story, and that no legal representative was present.10

4 N.B.F. v. Spain (CRC/C/79/D/11/2017), para. 12.3, among others.

5 Joint general comment No. 4 of the Committee on the Protection of the Rights of All Migrant

Workers and Members of Their Families/No. 23 of the Committee on the Rights of the Child (2017)

on State obligations regarding the human rights of children in the context of international migration in

countries of origin, transit, destination and return, para. 4.

6 See, inter alia, Human Rights Committee, El Hassy v. Libyan Arab Jamahiriya

(CCPR/C/91/D/1422/2005), para. 6.7, and Medjnoune v. Algeria (CCPR/C/87/D/1297/2004),

para. 8.3.

7 M.B. v. Spain (CRC/C/85/D/28/2017), para. 9.13.

8 Joint general comment No. 4 (2017) and No. 23 (2017), para. 4.

9 General comment No. 6 (2005), para. 31 (i).

10 S.E.M.A. v. France, para. 8.7.

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12

GE.26-01273

The Committee notes in particular that, in the absence of a representative, the author did not

have the opportunity to review the assessment report and make corrections. The Committee

further notes the State Party’s argument that: (a) the age assessment interview is an

administrative procedure during which the presence of a lawyer is not mandatory; (b) in any

event, the author has not shown that he requested the presence of counsel during the interview

or that such a request was denied; and (c) the alternative provided for under article 12 is fully

respected when children are heard directly in cases where this is possible taking into account

their age and capacity to form their own views, as was the case with the author. However,

the Committee takes note of the author’s arguments, which remain unchallenged by the State

Party, concerning several obstacles that prevented him from requesting counsel, in particular,

the fact that he was not informed of this option, the fact that such a request would likely have

been denied, owing to the opposition of the child welfare services to the presence of third

parties during age assessment interviews, and the fact that the author would have had to pay

for any counsel services himself, which would not have been feasible in view of his situation

as an unaccompanied migrant child and lack of resources. The Committee recalls that States

Parties are obliged to appoint a qualified legal representative, and an interpreter where

necessary, for all young migrants claiming to be minors, as soon as possible on arrival and

free of charge.11 It is of the view that the appointment of a representative for such young

persons during the age determination process is essential for safeguarding their best interests

and their right to be heard. Failure to do so amounts to a violation of articles 3 and 12 of the

Convention, as the age determination procedure is the starting point for the application of the

Convention. The absence of timely representation can result in a substantial injustice.12

10.8

In the light of the foregoing, the Committee considers that the age determination

procedure undergone by the author, who claimed to be a minor and provided evidence to

support this claim, was not accompanied by the safeguards needed to protect his rights under

the Convention. In the circumstances of the present case, in particular the summary

assessment used to determine the author’s age, the fact that an administrator was not

appointed to represent him during the administrative proceedings and that the author was not

provided with assistance or the information which the situation required, the lack of

suspensive effect of the appeals proceedings and the fact that the State Party deemed the

documents he submitted to have no probative value without actually contesting the validity

of the documents, the Committee is of the view that the best interests of the child were not a

primary consideration in the age determination procedure undergone by the author, in

violation of articles 3 and 12 of the Convention.

10.9

The Committee further notes the author’s claims that the State Party violated his rights

by altering elements of his identity by attributing to him an age and a date of birth that did

not correspond to the information contained in the documents he had presented and that the

authorities never officially contested the validity of his identity documents. The Committee

recalls that a child’s date of birth forms part of his or her identity and that States Parties have

an obligation to respect the right of the child to preserve his or her identity without depriving

him or her of any elements of it.13 It observes that in the present case, although the author

produced several identity documents before the authorities, the State Party did not respect his

identity, since they decided that these documents had no probative value, even though it never

formally contested their validity. Consequently, the Committee finds that the State Party

violated article 8 of the Convention.

10.10 The Committee also takes note of the author’s claim that the State Party’s authorities

failed to protect him despite his situation of abandonment and extreme vulnerability, in

violation of article 20 (1) of the Convention. The Committee considers that these allegations

also raise, in substance, the issue of a violation of article 37 (a) of the Convention. The

Committee takes note of the State Party’s assertion that the author received protection as a

child from his arrival on French territory while his situation as an unaccompanied minor on

French territory was being assessed. The author was given accommodation, food assistance,

financial aid and schooling. The Committee notes, however, that the author was left without

11 A.L. v. Spain (CRC/C/81/D/16/2017), para. 12.8, and J.A.B. v. Spain (CRC/C/81/D/22/2017),

para. 13.7.

12 S.E.M.A. v. France, para. 8.8.

13 Ibid., para. 8.10.

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GE.26-01273

13

protection as a child between 2 November 2020 and 7 September 2022. The Committee

further notes that the author was housed in a hotel as part of the assistance provided to adults,

but without any support or food assistance. It notes the observation of the Defender of Rights

that, in practice, individuals claiming to be minors and producing proof to that effect are not

afforded the presumption of minority and are thus not considered eligible for protection

pending the completion of the age determination process by a final court decision.

10.11 The Committee recalls that States Parties are obliged to ensure the protection of every

migrant child deprived of his or her family environment, by guaranteeing, inter alia, access

to social services, education and adequate housing, and that during the age determination

process young migrants who claim to be children should be given the benefit of the doubt

and treated as such.14 In the present case, the Committee considers that the aforementioned

facts, in particular the insecurity of the author’s livelihood, the duration of the proceedings

and the failure to appoint a legal representative for the author, constitute acts or omissions

attributable to the State Party and amounting to cruel, inhuman or degrading treatment or

violation, in violation of articles 20 (1) and 37 (a) of the Convention.

10.12 With regard to the author’s claim that he was unable to apply for asylum as a minor

because he had not been appointed an ad hoc administrator, the Committee notes the State

Party’s argument that it was not possible to appoint an ad hoc administrator for him as an

unaccompanied child, given the res judicata effect of the order of 19 October 2020 by which

the guardianship judge had found that his minor age was not established. In this regard, the

Committee highlights general comment No. 6 (2005), in which it notes that States should

“appoint a guardian or adviser as soon as the unaccompanied or separated child is identified

and maintain such guardianship arrangements until the child has either reached the age of

majority or has permanently left the territory and/or jurisdiction of the State, in compliance

with the Convention and other international obligations” and that “in cases where children

are involved in asylum procedures or administrative or judicial proceedings, they should, in

addition to the appointment of a guardian, be provided with legal representation”.15

10.13 The Committee considers that the failure of the authorities to assign a guardian or ad

hoc administrator to the author so that he could apply for asylum as a minor, despite the fact

that he was in possession of official documents attesting to his minor age, resulted in his

being deprived of the special protection afforded to unaccompanied minors seeking asylum

and exposed him to a risk of irreparable harm if returned to his country of origin, in violation

of article 22 of the Convention.

10.14 Lastly, the Committee takes note of the author’s claims concerning the State Party’s

failure to apply the interim measures requested, namely his placement in a children’s home.

It observes that the author was given accommodation only from 7 September 2022 until he

came of age. The Committee notes that the State Party considers interim measures to be

non-binding. However, the Committee recalls that, by ratifying the Optional Protocol and

thus recognizing the Committee’s competence regarding interim measures, States Parties

have an international obligation to apply any interim measures requested under article 6 of

the Optional Protocol in order to prevent irreparable harm while a communication is pending,

thereby ensuring the effectiveness of the individual communications procedure. 16

Consequently, the Committee considers that the failure to implement the requested interim

measure in itself constitutes a violation of article 6 of the Optional Protocol.

10.15 The Committee, acting under article 10 (5) of the Optional Protocol on a

communications procedure, finds that the facts before it disclose a violation of articles 3, 8,

12, 20, 22 and 37 (a) of the Convention and article 6 of the Optional Protocol.

11.

The State Party is therefore obliged to provide the author with effective reparation for

the violations suffered, including by adequately compensating him and giving him the

opportunity to regularize his administrative status in the State Party and to benefit from the

protection provided for under domestic law, taking due account of the fact that he was an

14 General comment No. 6 (2005), para. 31.

15 Ibid., paras. 33 and 36.

16 N.B.F. v. Spain, para. 12.11.

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unaccompanied child upon his arrival in France. The State Party is also under an obligation

to prevent such violations in the future. In that regard, the Committee requests it to:

(a)

Ensure that any procedure for determining the age of young persons claiming

to be minors is in conformity with the Convention and relies on multidisciplinary methods,

and, in particular, that: (i) documents submitted by such persons are taken into account and

their authenticity is recognized when they have been issued or their validity has been

confirmed by States or their embassies; (ii) a qualified legal representative is appointed,

without delay and free of charge, and is allowed to assist the young persons concerned

throughout the proceedings, including with regard to requests for international protection and

residence permits; (iii) initial assessments are conducted in a manner consistent with the

Convention and with the Committee’s general comment No. 6 (2005) and joint general

comment No. 23 (2017) by qualified multidisciplinary personnel;

(b)

Ensure that any person claiming to be a minor is provided with information in

a manner that is appropriate to his or her maturity and understanding, in a language and

format that he or she understands;

(c)

Ensure that the age determination procedure is carried out with due dispatch

and adopt measures of protection for young persons claiming to be minors from the moment

they enter the territory and throughout the procedure, and treat them as children, observe the

principle of presumption of minority and uphold all their rights under the Convention;

(d)

Ensure that unaccompanied young persons claiming to be under 18 years of

age are assigned a competent guardian as soon as possible, even if the age determination

procedure is still ongoing;

(e)

Provide an accessible, rapid remedy with suspensive effect, ensuring that

children are informed of the existence of such remedy and that they enjoy the rights of

children throughout the appeals proceedings;

(f)

Provide training to immigration officers, police officers, members of the Public

Prosecution Service, judges and other relevant professionals on the rights of asylum-seeking

and other migrant children and, in particular, on the Committee’s general comment No. 6

(2005) and joint general comments Nos. 22 (2017) and 23 (2017).

12.

In accordance with article 11 of the Optional Protocol, the Committee wishes to

receive from the State Party, as soon as possible and within 180 days, information about the

measures it has taken to give effect to the Committee’s Views. The State Party is requested

to include information about any such measures in its reports to the Committee under

article 44 of the Convention. It is also requested to publish the present Views and to

disseminate them widely.