Refugee Children in Crisis: Why this decision matters now
A cross-sectional analysis of the recent developments reveals that children are the worst affected in every crisis-ridden situation. International refugee statistics indicate that nearly half of the world's refugees are children. I write this at a time when UNICEF has described the children’s crisis in Gaza as the largest orphan crisis in modern history. Be it the current Iran situation, the Venezuelan crisis, the ongoing exigencies in Gaza, the Rohingya humanitarian emergency in South Asia, or the Syrian conflict, children suffer most during the process of displacement, in comparison with adults. This is due to long-term vulnerabilities—such as disruption of place of safety, education, malnutrition, and family support, resulting in socio-economic issues as well as psychological trauma. Refugee children being removed from their parents and their homes, they are deprived of food, water, shelter and education.
This blog highlights a significant decision by the Supreme Court of India that protects child rights in crises. Meanwhile, a thoughtful analysis of the decision indicates that, in the broader Indian legal and political refugee context, the orders of the Central Government and the Courts were marked by deportation practices. Within this context, my core argument is that the Indian Supreme Court’s decision to protect the right to education of Rohingya refugee children has implications worldwide: it may not amount to a settled rule of customary international law, yet it contributes to the evolving normative framework for the protection of refugee children globally.
Placing Child-centric judicial intervention in the Indian refugee law context
The Supreme Court orders set a child-centric trend by navigating the prevailing discriminatory hurdles and thereby protecting refugee children from structural violence due to socio-political and legal reasons. This order becomes significant because the Supreme Court of India directed that the Rohingya children should not be discriminated against in school admissions based on their refugee status. In a related order, the court had also directed that free health services, subsidised food and educational benefits be extended to these children. By recognising the right to food, education and health care, the Court sought to ensure a measure of humane existence for Rohingya children in the host state. Previously, only a very few High Court decisions have shown sensitivity to the plight of Rohingya refugees, as evident from various interim orders that refrain from recognising Rohingyas as refugees and continue to permit their detentions and deportations by classifying them as illegal migrants. Thus, the impugned orders depart from the broader pattern of judicial decisions, which aligned with the government’s refugee policy and its discretionary power in the absence of a binding refugee law framework at the international, regional, or national level in India. Having said that, even though judicial recognition exists, the right to education for Rohingya children requires effective coordination among administrative authorities to ensure that India’s National Education Policy becomes a reality for all children aged between 6 and 14 years.
Prior instances of interaction of law with refugee children
In the international refugee discourse, the care and protection of children has raised concern. Refugees who may not meet the litmus test of the Refugee Convention might still get protected [1] under broader human rights standards and vice versa. For instance, in the Ioane Teitiota v New Zealand case concerning climate displacement from the Kiribati island, special attention was given to the impact of the environmental crisis on children’s lives. While a gap persists between legal articulation and ground realities, narrating two scenarios will bring greater clarity, without distinguishing between the Global North and the Global South. In Europe, once regarded as the epitome of humanitarian virtues, responses to refugee crises have at times displayed indifference to gross violations affecting women and children. At one point, nearly two million Syrian children registered with UNHCR were left without education. Many of them were placed in detention centres and prohibited from reaching European territory. A short-lived humanitarian shift occurred as a result of the global outcry following the death of Aylan Kurdi, whose lifeless body was photographed washed ashore on a Turkish beach. Similarly, the repatriation process after the first exodus of the Rohingyas from Bangladesh to Myanmar was marked by the exclusion of the children born during their stay in Bangladesh from the registration process. Unless specifically included, the deliberate omissions reflect the extent of systemic violence prevailing in the migration and citizenship laws, resulting in denial, persecution and statelessness.
Legal Foundations Protecting the Refugee Children
Against this backdrop, it’s crucial to trace the international community’s longstanding commitment to protecting children’s rights. To begin with, this dates back to the League of Nations’ Declaration of the Rights of the Child in 1924, which was later adopted by the United Nations in 1959. The UN General Assembly established the International Children’s Emergency Fund in 1946, recognising the urgency of protecting children affected by aggression. Specific protection for refugee children is enshrined in Article 22 of the Convention on the Rights of the Child, 1989, monitored by the Committee on the Rights of the Child. With the agreement of 196 states, the Convention reflects a near-universal commitment to safeguarding children's interests. However, implementation requires more than ratification and adopting child-sensitive procedures. Protection should not depend on a country’s signatory status, developmental standing, or a child’s nationality, race, religion or refugee status. The commitments reiterated in the Global Compact on Refugees (2018) call for stronger political will and cooperative responses, but these must translate into tangible protection measures for children.
Concluding Observations
To sum up, the Indian Supreme Court’s child-centric approach highlights three key points. Firstly, this jurisprudence offers a normative model that could serve as a replicable judicial precedent with persuasive value; institutions such as the International Association of Refugee and Migration Judges could play a crucial role in disseminating such decisions as examples of best practice and in working towards soft harmonisation. Secondly, the essence of this is captured in the words of Chilean poet and Nobel Laureate Gabriel Mistral, an educator herself, which is translated as, “Many of the things we need can wait. The child cannot. Right now, is the time his bones are being formed, his blood is being made, and his senses are being developed. To him we cannot answer ‘Tomorrow,’ his name is today”. This poem, written by one of the founding members of UNICEF, is still a wake-up call for the governments, policy makers, institutions and academics to bridge the gap between law and the lived experience of refugee children, reiterating that refugee status or forced displacement cannot be an exception to the universal commitment proclaimed in the UN Charter, recognised in the UDHR and reaffirmed through the UNCRC. Finally, by directing that food, healthcare, and education be provided to Rohingya children, the Court prioritised the best interests of the child, thereby strongly demonstrating that humanitarian considerations are necessary and can coexist with complex political realities. This recognises that the lack of legal recognition of refugee status need not hinder the basic human dignity and the right to education of refugee children.
