di Enzo Rossi [*]
Introduction
The governance of migrant children in Europe is framed by a dense body of international, regional and domestic norms that, at least formally, place the Best Interests of the Child (BIC) at the centre of all decisions affecting minors. Recent data confirm both the scale and persistence of these dynamics: in 2023, more than 55,000 migrant children arrived in the EU, a substantial proportion of whom were unaccompanied or separated (UNHCR, UNICEF and IOM, 2024).
Mreover, Europe boasts a long-standing humanitarian tradition, reflected in the Treaty on the Functioning of the European Union (TFEU, 2009), which recognises the fundamental rights of migrants. The continent is therefore equipped with advanced protection instruments, such as the Charter of Fundamental Rights of the European Union (CFR, 2000) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, European Convention on Human Rights, 1950). Migration law, and even more strongly the provisions relating to migrant minors, deeply reflect this cultural tradition. In addition, two supranational courts with competence over the rights of migrant children play an active role in guidance and oversight: the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR).
Despite the existence of two supranational courts, extensive EU legislation and well-established child-rights standards, the actual implementation of the BIC continues to fall short of its promise. Much of the academic literature has already noted this gap, but explanations often remain confined either to legal-institutional shortcomings or to failures of administrative capacity.
This article approaches the problem differently. It argues that the gap between norms and realities is produced by two interacting forces that shape both the design and the everyday implementation of protection. The first is the structural tension between security-driven migration governance and child-centred protections. In contemporary European policy, border management and deterrence strategies frequently take precedence, even when legal instruments mandate individualised and child-sensitive assessments. The second force concerns the conceptual foundations of the child-protection framework itself. Even measures explicitly designed to protect children tend to rely on adult-centred categories that restrict participation, narrow the meaning of “vulnerability” and assume a uniform, nuclear model of the family. These categories, which appear neutral, often obscure the lived social worlds of migrant children and limit the transformative potential of the BIC.
It is at this conceptual level that the article introduces its original contribution. Drawing on the sociology of childhood, it proposes a broader epistemological reframing of child protection. Rather than viewing migrant children as passive subjects or incomplete adults, this field recognises them as social actors with their own cultures, capacities and forms of agency. Although childhood sociology has been widely applied in education, anthropology and ethnography, it has rarely been used to interrogate migration governance. The aim here is not to develop a full application of this framework, which would require a separate and more extensive investigation, but to position it as a conceptual lens that exposes adult-centred assumptions embedded in existing legal categories. The article therefore advances a programmatic argument: meaningful protection requires a shift from acting for children to acting with them, in line with the participatory logic already implicit in Article 12 of the Convention on the Rights of the Child.
Similar child-protection frameworks have been developed elsewhere, for instance through Brazil’s Estatuto da Criança e do Adolescente (ECA) and the African Charter on the Rights and Welfare of the Child (ACRWC), although their practical implementation raises comparable challenges. References to Brazil and Africa are included in this spirit. They do not constitute a comparative study, nor do they attempt to normalise extremely diverse legal landscapes. Instead, they function as heuristic counterpoints that reveal how structurally similar tensions emerge across different regions: sophisticated norms combined with weak implementation; protective rhetoric combined with exclusionary effects; and the persistent dominance of adult-centred notions of family, vulnerability and dependency. These cases help illuminate the broader relevance of the conceptual argument, without claiming analytical symmetry.
The article develops this reasoning in a structured manner. It first outlines the European legal and policy framework governing migrant children, highlighting the areas where the BIC is most constrained. It then examines how administrative practices, performance indicators and local discretion shape the everyday governance of unaccompanied minors. Subsequently, the article introduces the sociological literature on childhood and discusses its potential for rethinking the BIC as a dynamic and relational principle. Finally, the conclusion sketches a conceptual and practical agenda for integrating children’s agency and participatory capacities into future assessments of their best interests.
1. The Best Interests of the Child: The European Normative Framework
The Convention on the Rights of the Child (CRC) remains the primary international instrument shaping the contemporary understanding of the Best Interests of the Child (BIC). Article 3 states that in all decisions concerning children, their best interests must constitute “a primary consideration”, a formulation intended to bind administrative, judicial and legislative action alike. Articles 9, 10 and 22 further strengthen the child’s right to family life and family unity, particularly in contexts involving forced separations or cross-border movement. Earlier still, the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) had laid the conceptual foundations for today’s child-rights framework, emphasising the material and relational dimensions of childhood and the family. With regard specifically to migration, the CRC Committee’s General Comment No. 6 (2005) and General Comment No. 14 (2013) make clear that the BIC must serve as the decisive criterion in reception, asylum and family-reunification procedures concerning unaccompanied and separated children.
Within the European Union, the BIC has progressively acquired a central, though still uneven, role. Article 24(2) of the Charter of Fundamental Rights (CFR) reiterates that in all actions relating to children, their best interests must be “a primary consideration”. In the migration field, several legislative instruments operationalise this principle. The Asylum Procedures Directive (2013/32/EU) requires specific procedural safeguards for unaccompanied minors; the Dublin III Regulation (604/2013) states that family unity and the BIC must guide the determination of the responsible Member State; the Family Reunification Directive (2003/86/EC) recognises the right to family life for refugees and extends protection to unaccompanied minors; and the Qualification Directive (2011/95/EU) obliges Member States to ensure age-appropriate reception conditions. These instruments interact with Articles 7 and 24 of the CFR, which protect private and family life and children’s rights respectively, as well as with Article 8 of the European Convention on Human Rights (ECHR) and Article 10 ICESCR, both of which describe the family as the “natural and fundamental group unit of society”. This multi-level framework is anchored in the Treaty on the Functioning of the European Union, which sets out the Union’s competences in migration and asylum.
The consolidation of the BIC in Europe owes much to supranational jurisprudence. Both the Court of Justice of the European Union and the European Court of Human Rights have developed a substantial body of case law in this field; references to the main judgments are collected in the bibliography. The European Court of Human Rights, drawing on Articles 3, 5 and 8 ECHR, has shaped the principle through landmark rulings that have limited the detention of migrant children and challenged automatic transfers under the Dublin system. The Court of Justice of the European Union has likewise interpreted asylum, residence and child-protection rules in the light of Article 24 CFR, progressively giving the BIC a more concrete legal meaning. Nevertheless, judicial practice remains fragmented and heavily dependent on Member State discretion, which is itself influenced by restrictive political climates and capacities.
Two structural limitations emerge from this framework. The first concerns the tension between child-centred protections and security-oriented migration governance. While legislation affirms the BIC, implementation frequently reflects priorities of deterrence, border control and administrative efficiency, resulting in inconsistent or diluted protection. The second limitation lies in the conceptual design of the protective norms themselves. Even when explicitly framed around the BIC, some EU rules embody narrow assumptions and rigid categorisation about children and vulnerability, thereby constraining how the principle can be applied in practice. These two issues will be analysed in detail in Section 2.
A related dimension concerns the cultural understanding of childhood and family embedded in European norms. EU legislation tends to favour a nuclear, biological conception of the family, centred on marital and direct lineal relations. This approach is particularly visible in family-reunification and asylum provisions, which rely on restrictive definitions of who counts as “family”. The Family Reunification Directive (2003/86/EC) recognises an automatic right only for spouses and dependent minor children, leaving the admission of other relatives merely optional for Member States and subject to economic and accommodation requirements set out in Articles 4 and 5. The Qualification Directive (2011/95/EU, recast) and the Dublin III Regulation (604/2013, Article 2(g)) replicate this narrow definition for applicants for international protection, again limiting the family unit to married partners and unmarried minor children. Likewise, the Return Directive (2008/115/EC) and the Reception Conditions Directive (2013/33/EU) refer to “family unity” in strictly biological or legal terms, without recognising extended care networks or proximity-based ties (full references to the EU directives and regulations discussed above are provided in the bibliography).
Yet research in child studies and migration consistently shows that children’s care networks often include extended, social or functional families formed during migration journeys. By privileging the nuclear model, the legal system risks overlooking the relational structures that effectively sustain children’s wellbeing. These implications, and their effects on the interpretation of the BIC, will be examined in Section 3.
2. Implementation Challenges of the Best Interests of the Child in Europe
The implementation of the Best Interests of the Child (BIC) in Europe has become increasingly fraught in the post-2015 migration landscape. Following the Syrian displacement crisis, EU migration and asylum policies shifted markedly towards security-centred objectives and border control. This realignment has placed these policies in sustained tension with the Union’s own child-protection instruments, often relegating human-rights considerations to a secondary position (Bast, Endres de Oliveira and Wessels, 2023). The New Pact on Migration and Asylum (2020), together with the accompanying proposals on reception, return and accelerated border procedures, crystallises this trend. Although these measures are not formally directed at children, they shape the environment in which children move and are processed. Families may be separated at borders; unaccompanied children are held in temporary facilities or returned to so-called “safe” countries without meaningful individual assessment; and family reunification remains governed by procedurally complex and uneven rules. Mechanisms that were designed to increase administrative efficiency are, in practice, generating structural vulnerabilities and fragmented protection pathways.
The result is a multi-speed system in which international child-protection principles, particularly those relating to vulnerable groups, are applied inconsistently and frequently subordinated to deterrence logics (Gammeltoft-Hansen, 2016; Papoutsi, 2020). Extensive literature documents this pattern (Acosta Arcarazo and Geddes, 2014; Moreno-Lax, 2020, 2024; Iusmen, 2020; Beduschi, 2018). While European courts have introduced important developments, notably the concepts of enhanced vulnerability and context-sensitive BIC assessments, judicial standards often remain aspirational. They rarely translate into binding operational rules capable of reshaping national reception systems. There is therefore broad scholarly agreement that Europe’s evolving “non-access policy”, justified as a tool for managing flows, simultaneously produces exclusionary effects that fall disproportionately on migrant children, especially those who are unaccompanied.
A second layer of difficulty arises within the very norms and practices that purport to implement child protection. Here, the problem is not only one of inconsistent enforcement but also one of conceptual framing. Viterbo and Ioffe (2024) show how child-protection measures are frequently articulated through paternalistic, adult-centred language that portrays restrictive interventions as inherently protective. This rhetorical strategy may unintentionally drain the BIC of its emancipatory potential. Instead of working as a universal standard, the BIC is sometimes deployed in ways that produce discriminatory distinctions. Young children, particularly those who fit culturally dominant ideals of innocence, are treated as naturally deserving of protection, while adolescents, especially unaccompanied boys, are implicitly framed as quasi-adults or potential threats. Interventions that curtail rights and liberties are then recast as protective necessities. A striking example is the routine framing of administrative detention as being in the child’s own interest, which euphemises coercion as care.
Rather than facilitating inclusion, these practices can legitimise coercive measures ranging from detention and “assisted” return to restrictions on access to asylum. As Marchegiani (2020) observes, the European discourse of vulnerability, when absorbed into security-oriented logics, risks becoming an administrative label that neutralises children’s lived experiences. In bureaucratic settings, vulnerability is operationalised through checklists and standardised protocols that flatten the biographical, relational and cultural complexity of migration trajectories. This dynamic is particularly pronounced in the case of migrant children, whose personal histories rarely align with the procedural templates through which their cases are processed.
The interaction between the structural influence of general migration norms and the internal bureaucratisation of child-specific protections produces a paradoxical outcome: a legal system that appears sophisticated on paper yet struggles to deliver meaningful protection in practice. Procedures designed to safeguard children’s rights often become administrative filters that compress or silence children’s perspectives. The practical implementation of the BIC is thus reduced to a formal requirement, something to be demonstrated in documentation, rather than a substantive process of understanding, participation and relational assessment.
3. Transdisciplinary Solidarity and Bottom-Up Practices in the Protection of Migrant Children
Despite the formal prominence of the Best Interests of the Child (BIC) in European and national legislation, the practical implementation of this principle continues to reveal marked discrepancies between normative aspirations and everyday outcomes. These discrepancies create spaces of uncertainty in which public systems struggle to provide timely and adequate responses to the trajectories of migrant children, particularly unaccompanied minors. It is precisely in these institutional gaps that bottom-up practices emerge, developed by civic networks, NGOs, social workers, lawyers and volunteers, operating as forms of de facto subsidiarity. Rather than substituting the state, they compensate for its inconsistencies and help translate the BIC into routine practices of accompaniment, care and relational understanding. International literature on child protection consistently shows that, where public protection is fragmented, community-based mechanisms are often better placed to secure continuity of care, meaningful participation and educational inclusion (Délano Alonso, Moreno-Lax and Ramji-Nogales, 2025; Ceschi and Carbone, 2023).
The evidence is uneven and varies across jurisdictions. However, a distinctive feature of these practices is their transdisciplinary character. Legal support, social work, psychological and psychosocial interventions, educational guidance, linguistic mediation and knowledge of diasporic networks are woven together in ways that institutional frameworks rarely manage to achieve. This integrated mode of working allows for flexible pathways that correspond more closely to the discontinuous biographies of many migrant children, marked by multiple displacements, partial family reunifications, ruptured affective ties and interrupted schooling. NGOs and organised civil society typically intervene along three intersecting lines: enabling access to rights, including documentation, asylum procedures and reunification; supporting education, housing and social inclusion; and ensuring mental health and psychosocial support (MHPSS). These interventions do not replace state responsibilities; rather, they enhance the system’s capacity by aligning the child’s lived trajectory with the substantive demands of the BIC.
Effectiveness increases when these actors work in synergy and are responsive to each other’s methodologies. A genuinely child-centred approach requires a form of psychosocial accompaniment that operates simultaneously at individual, familial and community levels. For unaccompanied minors in particular, the impact of MHPSS interventions improves when clinical support is connected to peer networks, guardians, host families, flexible educational pathways and cultural-linguistic mediation. In this perspective, extended kin, fictive kinship and diasporic ties often represent primary sources of care and belonging (Brauzzi and Sodano, 2022). A transdisciplinary approach also counteracts narrow trauma-centric frameworks, allowing for the inclusion of social, cultural and relational dimensions of resilience, for example identity repertoires, linguistic resources and community practices, that are crucial for many migrant children.
3.1 De facto Subsidiarity: potentials and ambivalences
Although indispensable, de facto subsidiarity is not free from ambiguities. It often absorbs and subtly reproduces the cultural and institutional biases embedded within European child-protection regimes. On the one hand, bottom-up actors sometimes mirror the dominant representation of vulnerability, adopting the narrow nuclear conception of “family” implicit in EU law because this is the framework through which institutions recognise and fund their work. On the other hand, the operational need to interact with public administrations and comply with reporting obligations pushes many organisations to describe children’s relational worlds using predefined categories, which can inadvertently reproduce the same distortions that characterise administrative procedures.
As Marchegiani (2020) notes, “listening to the child” frequently means no more than registering the child’s statements within a pre-established procedural format, without acknowledging the epistemic value of their experience. The child’s voice is accepted as testimony, but rarely as knowledge. Empirical studies show that community-based practices may, in attenuated form, replicate the limitations observed in public systems. These limitations tend to crystallise along four interconnected lines.
First, participation may become merely formal. Children express their preferences, but these are then funnelled into predetermined solutions, such as reunification with a biological parent or placement in a European-style “educating family”, which narrows the transformative potential of Article 12 CRC. Second, educational trajectories are often standardised in ways misaligned with the interrupted biographies of unaccompanied children; more modular and child-chosen pathways would better reflect their lived circumstances (Ceschi and Carbone, 2023). Third, psychosocial support may become overly specialised and detached from the cultural, linguistic and ritual dimensions that sustain resilience (Brauzzi and Sodano, 2022). Fourth, family reunification can be interpreted in strictly biological terms, disregarding protective ties formed during migration and, in doing so, creating additional layers of vulnerability (Biondi, 2021; Iafrate, 2024).
These difficulties intensify in the interaction with public authorities. Outcome indicators imposed by funding schemes and monitoring systems, such as the number of children enrolled in school, reunited, provided with psychological services or legally assisted, tend to shape organisational priorities. Although designed to ensure accountability, these quantitative metrics favour administrative conformity and reduce the space for interventions grounded in individual biographies. In several European jurisdictions, solidarity practices may even be stigmatised or criminalised under provisions relating to the facilitation of irregular migration. This pressure generates a climate of uncertainty that weakens civic networks and, indirectly, undermines the protection of children (Scissa, 2021).
As Delgado (2019) argues, these dynamics contribute to a form of governance through compassion, a depoliticised humanitarianism that produces political legitimacy while incorporating critical NGOs into funding and monitoring arrangements that align them, albeit unintentionally, with prevailing institutional logics. In the absence of explicit legal safeguards for those acting in the child’s best interests, this tendency results in regulated forms of solidarity that reflect dominant narratives and ultimately reinforce the structural status quo.
4. Expanding the Epistemological Framework: Insights from Childhood Sociology
The difficulties highlighted in the previous sections reveal a deeper structural issue: current legal and administrative practices struggle to realise the Best Interests of the Child in a substantive and child-centred way. An adult-centred view prevails. Such a notion of “adult-centred” categories refers primarily to culturally embedded assumptions about childhood, dependency and protection, rather than to isolated legal definitions or administrative rules.
This is striking, because the United Nations Committee on the Rights of the Child has, since its earliest interpretations, emphasised that children must be treated as active participants in decisions that affect them. General Comment No. 6 (2005) shifted the focus from protection “for” the child to protection “with” the child. In this view, listening to the child is not an optional element of the BIC, but a precondition for its meaningful application.
This shift points to a broader epistemological challenge that remains underdeveloped in child-migration governance. It is not sufficient to acknowledge children’s social or cultural ties, or even to recognise non-nuclear family structures. Participation must be understood as a dynamic relational practice in which children’s values, biographies, aspirations and everyday interpretations shape the assessment of their interests. This requires recognition of childhood as a space with its own cultural and social logic, which is distinct from, although intertwined with, the adult world that seeks to interpret and regulate it.
Over the last three decades, the sociology of childhood has transformed the study of children by rejecting the traditional image of the child as an incomplete adult. It proposes instead that children are competent social actors, capable of interpreting and reshaping their environments (James and Prout, 1990; Qvortrup, 2009; Alanen, 2011; Spyrou, 2018). This theoretical shift carries significant implications for legal and policy frameworks. It suggests that meaningful protection requires dismantling adult-centred assumptions that obscure children’s knowledge, agency and cultural repertoires.
Despite its conceptual relevance, this sociological paradigm has rarely informed migration law or child-protection governance. It has been widely used in education, anthropology and ethnography, yet its potential to reframe the BIC within migration systems remains largely unexplored. Attempts at dialogue between childhood sociology and international child law exist, but they are partial. Scholars such as Stoecklin and Spyrou have linked Article 12 of the CRC to child agency, but without embedding this insight in a systematic rethinking of the BIC. Ethnographic work on marginalised childhoods, including research on street children, has exposed the limits of assistance or coercive policies (Lucchini, 1996; Rizzini et al., 1994; Butler and Rizzini, 2003; Rossi, 2011, 2012). More recent studies have begun to explore participation within decision-making processes (Crivello, 2015; White, 2019), although without developing an interdisciplinary platform capable of bridging sociological, legal and psychological perspectives.
Applied to the context of migrant children, childhood sociology offers a way to reframe the BIC not as a static formula but as a relational principle that must adapt to the plurality of childhoods produced through mobility. Vulnerability, in this perspective, is not only something to be protected, but also a source of epistemic insight. It forces institutions to reconsider the categories through which they understand and evaluate children’s lives.
It is at this conceptual junction that the article offers its specific contribution. By drawing on the sociology of childhood, it proposes an expanded epistemological framework through which the BIC can be interpreted. The intention is not to present a full analytical application of this framework, which would require a separate and more substantial investigation. The aim is instead to position childhood sociology as a conceptual lens capable of revealing the adult-centred assumptions embedded in migration governance. The argument is programmatic. Effective protection requires a move from acting for children to acting with them, a shift that is already implicit in Article 12 of the Convention on the Rights of the Child and consistent with contemporary understandings of children’s relational agency.
This conceptual reframing will be developed in a subsequent paper dedicated specifically to the implications of childhood sociology for migrant-child protection. That work will elaborate three analytical directions: repositioning the BIC within its social and cultural context rather than reducing it to a procedural test, establishing a stable platform of dialogue between social sciences and migration law in order to ground child protection in an understanding of children’s lived realities, and examining the risks that adult-centred categories reproduce forms of exclusion even when they claim to protect.
Seen in this light, protection becomes a transformative dialogue. It is no longer a unilateral intervention performed by institutions on behalf of children, but a relational practice that acknowledges children’s capacity to interpret themselves within their cultural and biographical contexts. This approach seeks to ensure that protection does not reproduce dependency, but fosters reciprocal recognition and meaningful participation.
Conclusion
The analysis presented in this article shows that the protection of migrant children, although firmly embedded in international and regional legal frameworks, continues to encounter persistent structural obstacles when translated into practice. The European Union provides a revealing illustration. It possesses a dense and sophisticated multi-level legal system, grounded in advanced human-rights standards and supported by two supranational courts. It is also one of the principal destinations for migrant children, particularly unaccompanied children. Yet the effective realisation of the Best Interests of the Child remains inconsistent and fragmented.
Several forces contribute to this gap. First, the attempt to reconcile child-centred protection with security-oriented migration governance produces recurring tensions that disproportionately affect children. Second, significant discretion remains in the hands of national or local authorities, which leads to divergent and sometimes contradictory practices. Third, the legal design and its implementation are often shaped by a protective rhetoric that can, in practice, legitimise exclusionary measures. Fourth, European norms and procedures continue to rely on a monocultural and nuclear understanding of the family, leaving little room for recognising the relational networks that many migrant children construct across mobility. Finally, meaningful participation is still narrowly understood as the child’s formal “hearing”, rather than as an active contribution to shaping the protection process itself.
The broader comparative lens confirms that these tensions are not unique to Europe. Brazil, despite its forward-looking Estatuto da Criança e do Adolescente, faces difficulties in ensuring consistent and effective protection for migrant children because of strong dependence on local resources, the persistence of adult-centred assumptions and uneven administrative coordination at multiple levels, as noted by Carolina Ferreira (2019). Brazilian scholarship further highlights how adult-centric assumptions shape the ways in which migrant children are categorised and governed. Abreu and Silva (2020), while focusing primarily on institutional fragmentation and unequal municipal capacities, show how these structural gaps often lead authorities to prioritise administrative compliance over the child’s own account of their relationships, affective ties and intentions. In the cases they analyse, decisions concerning housing, schooling or documentation are repeatedly taken for the child rather than with the child, reflecting an implicit hierarchy of knowledge in which adult professionals are regarded as the sole legitimate interpreters of the child’s best interests. Similarly, Santos and Silva (2018), analysing Venezuelan forced migration to Brazil, demonstrate how delays in documentation and discontinuities in care coexist with classificatory practices that alternately frame migrant children as dependent subjects to be protected or as future workers to be rapidly integrated into local systems. Such framings marginalise children’s narratives about kinship and belonging and reproduce a narrow conception of “family” that privileges biological ties, while neglecting fictive, affective or diasporic networks that are often central to the child’s wellbeing. Carvalho and Oliveira (2022) add that community-based and municipal responses, while often more attentive to children’s relational worlds, operate in the absence of the structural guarantees necessary to ensure continuity. Their findings suggest that, in the absence of a conceptual framework recognising children as social actors endowed with situated forms of knowledge, even well-intentioned initiatives risk falling back into bureaucratic routines. This reinforces a deficit – and dependency – oriented model of protection rather than one based on reciprocity and participation, thereby limiting the transformative potential of an authentically child-centred approach.
In various African contexts, the African Charter on the Rights and Welfare of the Child establishes an innovative framework, particularly with regard to refugee children and extended family systems, but its implementation is hampered by limited administrative capacity and enforcement (African Committee of Experts on the Rights and Welfare of the Child, 2021). African research highlights a recurrent critical picture. Abebe (2020) shows that child migration across African regions is shaped by weak implementation of the African Charter on the Rights and Welfare of the Child, limited administrative capacities and classificatory practices that do not fully reflect the cultural and relational realities within which children move. Hashim and Thorsen (2015) demonstrate that many African children migrate independently or within loosely structured kinship arrangements, a reality that contrasts sharply with adult-centred legal definitions of “family” and renders many protection systems ill-suited to children’s lived experiences. Mezmur (2017) similarly argues that the implementation of the ACRWC remains uneven, particularly with regard to the best interests of the child, where structural constraints and narrow family models limit the Charter’s transformative reach.
The references to Brazil and Africa are included with this purpose in mind. They do not pretend to constitute a comparative study, nor do they imply equivalence among deeply different legal and social settings. Rather, they serve as analytical signposts that illuminate the wider relevance of the argument developed in this article. Across diverse regions, we observe similar patterns: ambitious norms paired with weak implementation, a rhetoric of protection that may conceal exclusionary effects, and the enduring dominance of adult-defined notions of family, vulnerability and dependency.
Taken together, the analysis and the comparative discussion point towards a set of interconnected directions that are crucial for supporting more equitable and culturally sensitive systems of protection. A first and fundamental step concerns the need for a genuinely relational reading of the Best Interests of the Child. Assessments of the BIC should move beyond abstract or purely procedural evaluations and explicitly engage with the biographical, cultural and affective dimensions of migrant childhoods. Children’s trajectories, attachments and meanings cannot be treated as ancillary information, but must form a constitutive part of how their interests are identified and weighed.
A second, closely related aspect concerns the broader governance framework within which child protection operates. As long as security-oriented migration control remains the primary organising principle, the procedures ostensibly designed to protect children will continue to generate structural vulnerabilities. This is particularly evident in the case of unaccompanied minors, for whom accelerated procedures, border practices and deterrence-oriented measures systematically compress the space for individualised and child-sensitive assessments. A meaningful application of the BIC therefore requires a recalibration of priorities, in which protection is not subordinated to speed, efficiency or control.
Third, the analysis highlights the importance of recognising and supporting forms of community-based subsidiarity. Bottom-up practices developed by civic networks, NGOs, guardians, foster families and local actors should be understood as integral components of the protection architecture, rather than as marginal, residual or potentially suspect initiatives. These actors often provide the relational continuity and everyday support that formal systems fail to ensure. Excessive regulation or the criminalisation of solidarity risks undermining precisely those practices that render the BIC tangible in children’s daily lives.
A fourth, equally significant dimension concerns the need for a plural and contextual conception of “family”. Legal and administrative frameworks continue to privilege a narrow, nuclear and monocultural understanding of family life, which sits uneasily with the lived realities of migrant children. Along migration routes, care and belonging are frequently organised through extended kinship, fictive relations and diasporic networks. Recognising these relational forms as legitimate environments of care is essential if the BIC is to be applied in a way that reflects children’s actual social worlds rather than idealised normative models.
Finally, and most decisively, effective protection requires the recognition of children as social agents. Children’s interpretations, aspirations and situated forms of knowledge should be treated as structural inputs in decision-making processes, not as optional or symbolic additions. From this perspective, agency is not a rhetorical commitment but an epistemological requirement. Without it, the participatory rights enshrined in Article 12 of the Convention on the Rights of the Child, and the BIC itself, risk remaining largely formal and declaratory.
If taken seriously, these interconnected directions could contribute to narrowing the still considerable gap between an elaborate normative framework and protection practices that too often remain fragile, unequal or inconsistent. The challenge, however, is not purely technical or administrative. It is also cultural and epistemic, as it concerns the ways in which institutions and societies conceptualise childhood, vulnerability and migration. Interpreted in relational, plural and participatory terms, the Best Interests of the Child has the potential to become more than a legal formula. It can function as a genuinely transformative criterion for designing protection systems that are not only legally robust, but also attentive to the lived experiences of children on the move, in Europe and beyond.
The comparisons reveal a common element: the existence of advanced norms alone does not guarantee solid protection. In the absence of a coherent value framework, an epistemological approach capable of recognising the child as a social actor, and equitable and effective governance, even the most sophisticated legal systems risk producing weak protection. The challenge is therefore not only technical or administrative, but cultural and epistemic: it concerns the way institutions and societies interpret childhood, migration and vulnerability.
Dialoghi Mediterranei, n. 77, gennaio 2026
[*] Abstract
Questo articolo analizza come il principio del superiore interesse del minore (Best Interests of the Child, BIC) venga applicato nel contesto dei minori migranti, con particolare attenzione ai minori stranieri non accompagnati nell’Unione europea. Sul piano normativo, l’UE dispone di un sistema di protezione dell’infanzia denso e multilivello, fondato sulla Convenzione sui diritti del fanciullo, sulla Carta dei diritti fondamentali dell’Unione europea e sulla giurisprudenza delle corti sovranazionali. Nella pratica, tuttavia, la piena realizzazione del BIC è ostacolata da una combinazione ricorrente di fattori: una tensione strutturale tra politiche migratorie orientate alla sicurezza e tutela dei diritti, l’ampia discrezionalità riconosciuta agli Stati membri e una concezione adultocentrica della “protezione” che spesso riduce il diritto del minore ad essere ascoltato a un adempimento puramente formale. L’articolo sostiene che esistono due principali livelli di criticità. In primo luogo, le norme e le prassi generali in materia di migrazione entrano frequentemente in conflitto con i principi di protezione. In secondo luogo, anche le misure esplicitamente rivolte ai minori tendono a riprodurre categorie rigide di vulnerabilità e un modello di famiglia ristretto e monoculturale. Parallelamente, pratiche dal basso – reti civiche, ONG, tutori, mediatori – operano come forme di sussidiarietà de facto e riescono talvolta a garantire una protezione e una partecipazione più significative. Tuttavia, anche questi attori sono vincolati da logiche amministrative e da indicatori di performance, che possono trasformare la solidarietà in una forma regolata e depoliticizzata di umanitarismo. Richiamandosi alla sociologia dell’infanzia, l’articolo propone di interpretare il BIC come un principio dinamico e relazionale, che riconosce i bambini come attori sociali, dotati di proprie culture e forme di agency. Un breve confronto con il Brasile e l’Africa suggerisce che, in assenza di un adeguato quadro epistemologico e valoriale, anche i sistemi giuridici più avanzati tendono a produrre forme di protezione deboli e frammentate. L’articolo si conclude delineando alcune direzioni teoriche e pratiche per una protezione dei minori migranti più equa e culturalmente sensibile, capace di prendere sul serio il principio del superiore interesse del minore.
Una versione precedente più breve di questo articolo è stata distribuita come documento di lavoro su SSRN
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Enzo Rossi, già Professore Ordinario di Economia Politica presso l’Università di Roma “Tor Vergata”, è autore di pubblicazioni su riviste italiane ed internazionali su argomenti relativi allo sviluppo economico, le migrazioni, i diritti umani. Negli ultimi anni ha studiato le relazioni fra diritto ed economia, estendendo l’analisi alla intersezione con i fattori sociologici. Ha fondato il CREG (Centro di Ricerche Economiche e Giuridiche) ed il Master MEDIM (Master su Economia, Diritto e Intercultura delle Migrazioni), presso la stessa università, ove è professore a contratto di Economia e Regolamentazione delle Migrazioni. Ha svolto attività di ricerca, anche nell’ottica della terza missione, in Mozambico ed in Brasile, ove ha lavorato con Associazioni ed ONG, in concerto con alcune Università brasiliane, incentivando la partecipazione degli studenti di Tor Vergata. Da queste esperienze sono scaturite ricerche di campo sui bambini in condizione di strada di Rio de Janeiro e su alcune favelas nel Minas Gerais, con pubblicazioni in italiano e portoghese. Ha collaborato con il Governo dello Stato di Minas Gerais per l’implementazione di sistemi di microcredito.
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