INTRODUCTION

In the past, the understanding of children being ‘rights holders’ has been widely criticised. The recognition that children have rights on their own, and that they should have the opportunity to – at least, partially – exercise them, was far from obvious. Indeed, children have long been treated as objects of protection rather than as subjects of rights. In the meantime, the idea of children as rights holders has been incorporated into the European legal order, following the example of the 1989 United Nations Convention on the Rights of the Child (UNCRC). Especially the right to be heard is one of the pivotal components of the idea of the child as a rights holder.

However, the practical implementation of this principle is open to criticism. Children are frequently not asked for their views or their consent in the performance of crucial acts and the taking of fundamental decisions affecting their lives. Migrant children – especially if unaccompanied – are particularly affected in this regard. To illustrate this by means of examples: in almost half of the Member States of the European Union medical examinations for age assessment may be carried out without asking the child to consent. Moreover, 14 states do not allow children to lodge an asylum application in their own right, requesting the child's legal representative to provide for it. However, legal representatives are often not appointed in a timely manner, while important deadlines are linked to the moment of the lodging of the asylum application. As a result, the child's access to crucial services such as the education system is gravely postponed.

This contribution deals with the practical implementation of the principle of children as rights holders in the field of migration. It will especially draw on the two mentioned aspects: the child's consent in the framework of medical tests for age assessment, as well as the subject(s) in charge of lodging the asylum application. While both topics are of critical relevance for most child applicants, the European acquis leaves a certain margin of appreciation to the Member States in this regard. After a brief exposition of the legal framework in which the principle of children as rights holders is enshrined (section 2) and of the relevant EU provisions affecting child migrants in this connection (section 3), this chapter will take a closer look at the migrant child's right to be heard (section 4).