Children and Disappearances
Children can be both the material victims and the relatives of the material victims of a disappearance. In both cases, children are particularly vulnerable and the impact of such a traumatic experience can affect them in that development and growth.
The legal definition of a “child”
According to international law, “child” means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier (e.g. in certain countries majority is attained at sixteen years).
Under international law, the best interests of the child shall be a primary consideration in all actions taken concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. In this sense, States must always make sure that the child who is capable of forming his or her own views has the right to express those views freely in all matters affecting them. The views of a child will be considered in light of their age and maturity. Children must be given the opportunity to be heard in any judicial and administrative proceedings affecting them, either directly, or through a representative or an appropriate body.
The impact of disappearances on children
A child can be the material victim of an act of enforced disappearance by:
- being wrongfully removed from his or her family.
- if their father, mother or their legal guardian is the victim of enforced disappearance.
- if they are born during the captivity of a mother subjected to enforced disappearance.
Often, children that have been subjected to enforced disappearance are subsequently adopted nationally or internationally. Frequently their original identity documents are forged, concealed or destroyed.
Human rights violated by the enforced disappearance of a child
In an enforced disappearance of a child the same rights are violated as those of an adult, some of them being:
- the right to personal liberty,
- the right to be free from torture, inhuman and degrading treatment and the right to, the right to privacy and family life,
- the right to dignity and honour,
- the right to a name,
- the right to be recognized as a person before the law,
- the right not to be subjected to the trafficking of human beings and, in general, the right to know the truth.
In certain cases the right to life of the child is also violated. Relatives of disappeared children are themselves victims of inhuman and degrading treatment.There may be additional rights violated because the victim is a child. A disappearance can violate the rights of the child as expressly recognized under certain human rights treaties that provide for a higher standard of protection required by the special condition of the child as a minor.
Disappeared children have:
- the right to recover the memory of their natural parents,
- the right to know that those parents never abandoned them.
- the right to be in contact with their natural family so that they can nurture and provide continuity to memory.
State obligations and children’s rights
States must:
- prevent and suppress the disappearance of children and the practice of abduction of children born during their mothers’ captivity. They must
- actively search for, identify, locate and return disappeared children to their families of origin.
- prevent and punish the falsification, concealment or destruction of documents attesting to the true identity of the disappeared children.
In case the disappearance involves multiple countries, all the countries involved must give each other mutual assistance in the search for, identification, location and return of disappeared children.
States Parties shall respect and ensure the rights to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
In countries where there is a system of adoption or other form of child placement it must make sure that there is an opportunity for a review of the adoption of disappeared children and annulment of adoptions that originated in an enforced disappearance (always taking into account the best interests of the child).
There are a number of specific measures that states can take to help prevent the disappearance of children and their illegal adoption. In particular:
- The creation of “genetic banks” where all available data regarding disappeared children and their relatives are collected
- The establishment of severe penalties for the crimes of suppression and misrepresentation of civil status and abduction of minors. If the crime was committed under the protection, or taking advantage of, the enforced disappearance of the true parents, this should be considered as an aggravating circumstance.
- The establishment of laws of adoption allowing for possible annulment of an adoption generated by an enforced disappearance
- The facilitation of the introduction of scientific evidence in proceedings to clarify cases of child disappearance, to speed up processing of actions to establish familial relationships.
- Magistrates should be allowed to grant injunctive relief to prevent the flight of persons, the hiding of children or the destruction of evidence.
