A human rights organization admired Thailand for upholding principles to protect children fleeing from countries in conflict after a court ruled in favor of a Somali child who fled to Thailand illegally.

Photo courtesy of CRSP

On 30 November 2016, Chiang Rai Juvenile and Family Court ruled in favour of the right of child protection for Somali refugee child by using special measure under Section 132 Paragraph 1 of the Juvenile and Family Court and Juvenile and Family Case Procedure Act B.E. 2553 and providing restorative justice plan to the child, which is the first ever case that a refugee child enjoys the rights to protection under the national law and justice in a juvenile and family court.

Mohammad (Alias), 16, a refugee child from Somalia who has been recognized as refugee by UNHCR had fled Somalia for fear of persecution from being forced to become a child soldier in an armed group in Somalia when he was as young as 13. Following the arrest by Chiang Rai police. In February this year, he was prosecuted by a public prosecutor of Chiang Rai Juvenile and Family Case Department pursuant to Immigration Act B.E. 2522.

Chiang Rai Juvenile and Family Court considered the defendant’s petition and ruled that “the act of Defendant did not seriously harm the society beyond reasonable standard and was committed when he was at a very young age, due to necessity reason. Also, the Defendant has already been recognized by UNHCR as refugee and is now underway of being resettled in a safe third country. Due to these reasons, the Court deems inappropriate to render a judgment.” Chiang Rai Juvenile and Family Court further ordered the Defendant to follow the restorative justice plan for a period of 1 year and fixed the date to settle the case on 30 November 2017.

This case laid down important principles to protect children fleeing from conflicts. It is also the first time ever that the child recognized as refugee by UNHCR has the rights protected under the Section 132 Paragraph 1 of the Juvenile and Family Court and Juvenile and Family Case Procedure Act B.E. 2553. This is a milestone case to show that Thai juvenile court rules in favour of best interests of the child for all children, regardless of their immigration status.

For the hearing the decision of the court, Mohammad felt overwhelmed with joy. He said it was beyond his expectation. He had never thought that he would be able to have freedom, to live his life normally, to get back to school, to meet friends, and to participate in school activities again. Most importantly, he said now he did not have to live with fear of being arrest and prosecution under immigration law again.

Ms. Kohnwilai Teppunkoonngam, legal representative of Mohammad said that there are still many children who have already been recognized as refugees at risk of being arrest, detention, and prosecution. Significantly, prior to this case, refugee children were prosecuted before the normal court which is not familiar with concepts of child rights. This is due to the fact that the Immigration Act B.E. 2522 was passed in 1979 while the law that enshrines the rights of the child like Child Protection Act B.E. 2546 was enacted in 2003, several years after that, also Thailand does not have a clear policy to protect the rights of refugee children. Therefore, it is recommended that Thailand should amend the Immigration Act B.E. 2522 to encompass child rights principles and General Public Prosecutor together with Royal Thai Police should have clear guidelines for practitioners to protect child rights of refugee children in Thailand, who are underway of being resettled in a safe third country, as well as pass the resolution to relax immigration status and give temporary stay to the refugee children pursuant to Section 17 of Immigration Act B.E. 2522. To date, there are more than 2,000 refugee and asylum seeker children annually subject to arrest, detention and prosecution