that States ensure that the child who is seeking refugee status, or who is considered a refugee
in accordance with applicable international or domestic law and procedures, receives appropriate
protection and humanitarian assistance to safeguard his or her rights.
220. Thus, the special protection derived from Article 19 should be extended to the judicial or
administrative proceedings in which a decision is taken on a child’s rights, which entails a more
rigorous protection of Article 8 and 25 of the Convention.255 Furthermore, the Court has already
established in other cases that there is a relationship between the right to be heard and the best
interests of the child, and it is this relationship that governs the essential role of children in all
decisions that affect their life.256
221. First, the Court finds it necessary to affirm that it has not been proved that a supposed
“error” was rectified in the second version of the above-mentioned SENAMIG decision No.
136/2001, as alleged by the State. To the contrary, this difference could suggest that the initial
intention of that organ was to expel the children also, and this was amended in the second
version, from which their names were excluded. In addition, the second document is not signed
by the same officials who signed the first document, which casts doubts on its authenticity. Even
though the State argued that the children were not expelled, but that “they were not separated
from [their parents]” in application of the principle of family unification, because it was
established that decision No. 136/2001 also included them in the expulsion decision. In other
words, it is clear that the children were indeed expelled from Bolivia by a decision implemented
by the SENAMIG immigration authorities (supra paras. 94 and 95).
222. The Court notes that, in this case, there are two different situations in which it is
necessary to define whether or not the children should have been heard in the above-mentioned
terms. The first relates to the processing of the asylum request presented by their parents,
while the second relates to the process to expel the Pacheco family as aliens in an irregular
situation.
223. Regarding the former aspect, the right of children to express their opinions and to play a
significant role is also important in the context of asylum proceedings,257 the scope of which
may depend on whether the child is an applicant, regardless of whether or not the child is
accompanied258 and/or separated259 from his or her parents or the persons responsible for
taking care of him or her.
accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a
representative or an appropriate body, in a manner consistent with the procedural rules of national law. Article 19: 1.
States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child
from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or
exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the
care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment
of social programmes to provide necessary support for the child and for those who have the care of the child, as well as
for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of
instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” Convention on the
Rights of the Child (hereinafter “CRC”), adopted and opened to signature and ratification by the General Assembly in its
resolution 44/25 of 20 November 1989, entry into force: 2 September 1990.
255
Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002, paras. 95 to
98.
256
Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002, para. 99, and
Case of Furlan and family members v. Argentina, para. 228.
257
Convention on the Rights of the Child, Art. 12. The CRC does not establish any lower limit of age for the right of
the child to express his or her views freely, because it is evident that children can and do have opinions at a very early
age.
258
“Unaccompanied children” are children who have been separated from both parents, and other relatives and are
not being cared for by an adult who, by law or custom, is responsible for doing so. United Nations High Commissioner
for Refugees. Guidelines on international protection No. 8: Child asylum under Articles 1(A)2 and 1(F) of the 1951
Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, 22 September 2009, para. 6.
69
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