F.B. et al and D.A. et al. v France

Parties (including notable third parties)

The authors of the communications were: F.B., acting on behalf of her grandchildren S.B. (2015),1 A.B. (2016) and A.S.B. (2018); N.S., acting on behalf of her grandchildren K.A. (2015) and M.A. (2018); S.A., acting on behalf of her grandchildren H.K. (2010), S.K. (2013) and H.K. (2016); Z.B., acting on behalf of her grandson S.B. (2017); A.D., acting on behalf of her grandchildren A.S. (2015), S.S. (2016), A.S. (2017) and I.S. (2017); .N.R., acting on behalf of her grandchildren O.G. (2011), A.G. (2013), H.G. (2014), S.J.G. (2015), M.G. (2016) and S.G. (2018); S.D., acting on behalf of her niece I.J. (2008); M.D., acting on behalf of his niece S.D. (2013);2 L.L., acting on behalf of his grandchildren Q.L. (2010), H.L. (2014), I.L. (2016) and A.L. (2018); P.D., acting on behalf of her grandchildren E.C. (2009), A.H. (2012), I.H. (2014) and Y.D. (2018); A.E., acting on behalf of his nephews A.R.E. (2015) and H.E. (2017); S.G., acting on behalf of her grandson N.B. (2016); I.Z., acting on behalf of her nephew S.B. (2015);3 F.F., acting on behalf of her grandson Y.H. (2016); N.B., acting on behalf of her grandson S.B. (2017); N.B., acting on behalf of her nephews D.B. (2013), A.B. (2014) and S.B. (2015); L.H., L.H. and D.A., acting on behalf of their grandchildren M.A. (2013), A.A. (2014), J.A. (2016), A.A. (2017), S.H. (2017) and R.A. (2018); and C.D. and A.F., acting on behalf of their grandchildren L.F. (2003), A.F. (2006), S.F. (2011), N.F. (2014) and A.A. (2017). The State Party was France.

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Summary of Facts

The authors of the communications sought repatriation of their relatives, who were children of French Nationals held in camps in Syria and whose parents were linked to terrorist activities.

The authors alleged that France had not taken measures necessary to repatriate the children to France in violation of the Convention on the Rights of the Child, including by discriminating against the children due to their parents’ suspected terrorist links.

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Legal Arguments

State Party’s observations

The State Party argued that there was no evidence that the children had been subjected to the alleged violations of the Convention.

The State Party asserted that it does not have a positive obligation to repatriate its nationals who may be at risk of inhuman or degrading treatment and that the State Party did not have the “capability” to repatriate the children.

Author’s comments on State Party’s observations

Communication No. 77/2019

The authors disputed the perceived “obstacles” to repatriation and noted that the State Party did not contest the allegation that it failed to meet its obligations under the Convention. They argued that State Parties have a positive obligation to take measures to protect the rights of the child and that the French authorities’ decision not to repatriate the children violated their right to non-discrimination in article 2 of the Convention.

The authors also argued that there was disproportionate interference with the children’s right to life, survival and development (Convention, art. 6), their right to maintain family relations with close relatives (art. 16), their right to the highest attainable standard of health (art. 24) and their right not to be subjected to cruel, inhuman or degrading treatment or to be deprived of their liberty unlawfully or arbitrarily (art. 37).

The authors argued that the State Party had a positive obligation to repatriate the children which was inferred in this case from the State Party’s positive obligation to ensure the rights of the child.

Communications No. 79/2019 and No. 109/2019

The authors argued that the State Party knew where the children were located and the State Party could not refuse to take the measures necessary to protect its minor nationals without violating the Convention. They argued that the political and religious views of the children’s parents were evidently taken into account by the State Party in its decision not to ensure the children’s rights, in violation of articles 2 and 3 of the Convention.

The authors also argued that the State party’s inaction led to violations of multiple rights under the Convention, including the children's rights to life and development (art. 6), birth registration and identity (arts. 7–8), health and education (arts. 24, 28), protection from arbitrary detention (art. 37), and special protection and assistance from the State (art.  20).  The children were considered to be in such a dire situation that repatriation to French territory was the only measure that could effectively protect them.

Third party intervention on merits

The Defender of Rights submitted a third-party intervention and issued a decision on 22 May 2019 in which she found several violations of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) and the Convention on the Rights of the Child and made recommendations to the Government of France, citing Articles 3, 6, 7, 8, 19, 20, 24, 28 and 38 of the Convention.

The Defender of Rights considered that the only way to ensure the children were protected and to end the ongoing violations was for them to be returned to French territory.

Outcome

Admissibility

The Committee noted that some children had been repatriated to France and that for this reason communication No. 77/2019 was moot and that its consideration should be discontinued insofar as it related to the State Party’s failure to repatriate those children.

The Committee found some of the authors’ claims to be inadmissible under article 7(f) of the Optional Protocol, but that the authors’ claims under articles 2, 3, 6, 19, 20, 24 and 37 had been sufficiently substantiated and considered these claims on their merits.

Consideration of the merits

The Committee’s key factual findings were that the conditions of the children’s detention posed an imminent and foreseeable threat to the lives of the child victims and that the prolonged detention of the child victims in the conditions described had an impact on their development and constituted cruel, inhuman or degrading treatment or punishment. Further, the Committee found that the State Party had not shown that it gave due consideration to the best interests of the child victims when assessing the authors’ requests for their repatriation.

The Committee did not accept that the obstacles argued by the State party, namely consent of the Syrian authorities and the children’s mothers, did not limit the State party’s capability and power to protect the rights of the children in question.

The Committee concluded that the State Party’s failure to protect the child victims was a violation of their rights under articles 3 and 37 (a) of the Convention and that the State Party’s failure to protect the child victims from an imminent and foreseeable threat to their lives was a violation of article 6 (1) of the Convention.

The Committee did not consider it necessary to examine whether the same facts constituted a violation of articles 2, 6 (2), 19, 20, 24 and 37 (b) of the Convention.

The State Party was therefore found to be under an obligation to provide the authors and the child victims with effective reparation for the violations suffered. It was also found to be under an obligation to prevent similar violations in the future.

The Committee recommended the State Party “take urgent positive measures to repatriate the child victims, in good faith” and to take other specified steps to mitigate risks to their lives and protect their rights.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention on the Rights of the Child	2, 3, 6, 19, 20, 24 and 37
International	Optional Protocol to the Convention on the Rights of the Child on a communications procedure :1753	5 (1) and (2) and 7 (e) and (f)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Brian Gan, ‘The International Framework of Children’s Rights Fosters Discrimination against Young People’ (2024) 37(1) Harvard Human Rights Journal 315, 315-326.

• The article cites the case of F.B. et al and D.A. et al. v France as authority for the proposition that the UN Committee on the Rights of the Child has called on national governments of France and Finland to repatriate their children and to “take additional measures to mitigate the risks to life, survival and development of the children while they remain in Syria”.

Ton Liefaard, ‘A decade of the optional protocol to the CRC on a communications procedure’ (2024) 32(1) The International Journal of Children's Rights 1, 1-8.

• The article cites F.B. et al and D.A. et al. v France as an example of how the CRC Committee is an active and evolving treaty body. It also noted that “France has increased repatriations of children in Northern Syria following the Committee’s recommendations.”

Ton Liefaard, ‘Children's rights remedies under international human rights law: How to secure children's rights compliant outcomes in access to justice?’ (2025) 56(1) De Jure (Pretoria) 486, 486-504.

• The example of F.B. et al and D.A. et al. v France is used in support of an argument that the CRC Committee has an impact through jurisprudence of the regional human rights courts and that the Committee has provided an elaborated set of remedies to the children who were the subjects of this case.

Ann Skelton, ‘Child rights jurisprudence without borders: Developments in extraterritorial jurisdiction’, (2023) 56(1) De Jure (Pretoria) 606, 606-24.

• The article cites the case of F.B. et al and D.A. et al. v France at the and states: “the Committee found that France's argument that it did not have the capability to repatriate the children, because it would depend on the consent of the Kurdish authorities did not hold water, because France had previously managed to repatriate 30 children, and because the Kurdish authorities had indicated a general willingness to allow such repatriations”.
• The article also states that:“The Committee also found that France had an obligation to adopt positive measures - which was particularly strong given the conditions in the camps and the imminent risk of death facing the children.”