By Tamar Vardiashvili
How the Declaration’s Migration Frame Leaves Unaccompanied Minors Without Structural Protection
The Chișinău Declaration, a non-binding political declaration adopted by the Council of Europe’s Committee of Ministers on 15 May 2026, reframes migration disputes under Articles 3 and 8 of the European Convention on Human Rights (ECHR) as questions of state control, judicial deference and individual rights. However, while that frame may suit adult cases, it is unfit for unaccompanied minors. By omitting any focused treatment of children who migrate alone, the declaration risks privileging a migration management logic that should only operate after child-specific legal conditions have been resolved.
The declaration grew out of a May 2025 open letter penned by nine heads of state or government of the Council of Europe member states that criticized the European Court of Human Rights (“hereafter referred to as “the Court”) for expanding Convention protections in expulsion cases and urged a recalibration of the Convention system toward states’ sovereign prerogatives. The declaration speaks repeatedly of “undeniable sovereign right[s]” (para. 18), the instrumentalisation of migration (para. 37) and the need to restore balance across the Convention system (para. 9). Nowhere does it say how those themes apply to unaccompanied children. That silence is doctrinally significant.
What Strasbourg Has Already Said
In Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (2006), the Court held that the detention and treatment of a five-year-old unaccompanied child violated Article 3 and stressed the child’s extreme vulnerability. In Rahimi v. Greece (2011), it again treated the applicant’s minority and isolation as central to the Convention analysis. More recent case law makes the point more directly. Darboe and Camara v. Italy (2022) reaffirmed Recommendation 1985 (2011) by declaring: “a child is first, foremost and only, a child. Only after this may he or she be seen as a migrant’’ (para. 67). In the same case, the Court treated the presumption of minority, guardian appointment and fair age assessment as legal safeguards, not discretionary policy choices.
T.K. v. Greece (2024) pushes the same line further. The problem there was not simply an imperfect outcome of age assessment; it was the failure to treat the applicant as a minor during the pending assessment process and to provide the procedural safeguards that status required. Child status is not something a court discovers after the fact. It is something authorities must assume and protect while the legal uncertainty is being resolved. The Court’s child case law requires the child-specific inquiry to precede migration rationales, not follow them.
The same architecture appears in Khan v. France (2019) (paras. 44-45), where the Court described the provision of protection and care to an unaccompanied child as an automatic obligation imposed on domestic authorities. That formulation cuts directly against any suggestion that child protection can be absorbed into a general deference model. In unaccompanied child cases, the state’s duty begins before any proportionality balancing does. Across these decisions, four conditions emerge as prerequisites rather than considerations: presumption of minority, appointment of a guardian, procedurally fair age assessment and an individualised best-interests determination.
The Court’s own child rights guide treats these obligations as a structured analytical framework, not a set of case-specific outcomes.
What the CRC Adds
The child rights system reaches the same normative conclusion from a different legal source. Article 3(1) of the Convention on the Rights of the Child (CRC) requires that the best interests of the child be a primary consideration in all actions concerning children — including, explicitly, immigration enforcement and individual asylum decisions. The joint General Comment No. 3 (CRC) / No. 22 confirms that this applies to migration law, enforcement and individual decision-making. That requirement imposes the same sequencing the Court’s case law demands: child status determinations precede migration-control rationales, not the other way around.
Where the Collision Happens
Concrete procedural settings illustrate this point. Three recurrent scenarios are especially at risk if the declaration’s migration frame is treated as complete. First, screening and age assessment under the new EU Pact on Migration and Asylum: although unaccompanied children are generally exempt from mandatory border procedures, the Pact’s accelerated procedures may still apply to unaccompanied minors originating from countries with low EU recognition rates. Where age is disputed during screening, the sequencing failure identified in T.K. v. Greece (2024) — namely, the processing of a migration claim before determining whether the person is a child — remains an operative risk.
Second, detention of unaccompanied children pending Dublin transfers: detaining a child before guardianship and best-interests processes are in place inverts the sequencing Strasbourg requires.
Third, return decisions delivered before a guardian is appointed: issuing enforcement measures prior to establishing procedural safeguards converts child status into an afterthought.
In each of those situations, the Chișinău Declaration’s language of deference (para. 4) and migration control (paras. 16-19) converts a child-specific inquiry into a generic proportionality exercise. States do not lose migration control in unaccompanied child cases, but that control operates under a child rights regime the declaration does not spell out.
Why Silence Is Not Neutral
The risk is not that courts will openly refuse to apply child rights law. It is that a declaration which defines the migration frame without mentioning children gives domestic courts no structural prompt to depart from it. Silence in an interpretive text is not neutral; it signals completeness. A text that addresses migration without flagging exceptions implicitly communicates that its framework applies without modification to all cases within that domain.
That matters especially because the Chișinău Declaration is non-binding. Its authority is purely interpretive, which makes precision about who falls within its scope not a formality but the entire point.
One might argue that courts already know to apply Darboe (2022) and Khan (2019) regardless of what a non-binding declaration says or omits. That is true in principle. But declarations shape litigation by signalling which frame is operative, and a frame that says nothing about children will not prompt advocates or courts to ask the child-specific question first.
Research on how the Court responds to political declarations shows that such texts do influence judicial reasoning. Declarations shape which arguments are made, which are weighted and which are overlooked. A declaration that omits children does not merely fail to help; it actively structures the interpretive space in a way that makes child-specific departures harder to reach.
Sequencing, Not Substitution
The right response is sequencing, not substitution. Courts should first ask whether the person before them is an unaccompanied minor, whether a guardian has been appointed, whether the age assessment was fair and whether the best-interests assessment was individualized and real. Only then should they apply the declaration’s migration guidance. That order is not an act of judicial generosity. It is the method the child rights framework prescribes. This sequencing does not eliminate the margin of appreciation; it defines the floor below which that margin cannot operate.
It is where Darboe and Camara (2022) does the most work. The Court’s “child first, migrant second” (para. 67) formulation is not rhetorical flourish; it is a hierarchy of legal attention. It tells domestic authorities that the child status problem must be resolved before migration rationales are allowed to do substantive work. T.K. v Greece (2024) and Khan v France (2019) then show why that hierarchy matters in practice: without a guardian, without a presumption of minority and without an automatic duty of protection, the structural guarantee that child status will be identified before migration rationales operate is absent. That is the structural defect the Chișinău Declaration leaves unaddressed.
Conclusion
What the Chișinău Declaration leaves unsaid is not an incidental gap. It is the absence of the child from an interpretive text that will shape how migration cases are argued and decided. Once that text enters litigation, the predictable risk is that courts start from migration management and only later notice that the case concerns a child. The Court’s child-related jurisprudence requires a different sequencing. The declaration speaks fluently about migrants but not about children who migrate alone. In law, that distinction is not rhetorical — it is dispositive.
Tamar Vardiashvili is a Senior Consultant at the High Council of Justice of Georgia. She holds an LLM in International Law with Honours from Ivane Javakhishvili Tbilisi State University. The views expressed in this publication are solely those of the author in her personal capacity and do not represent the official position of any institution or organization with which she is or may be affiliated.
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