The Child in International Refugee Law is the inaugural publication in a new series, Cambridge Asylum and Migration Studies, of the Cambridge University Press. This work is a skilful analysis of an urgent issue. Of the refugees who reached Europe's shores in 2015–16, 25% were children. As the author notes in his introduction, children are increasingly attempting to remove themselves from debilitating environments in which circumstances have placed them in. They may be accompanying their family or simply seeking sanctuary unaccompanied. They are crossing national boundaries, fleeing wars, poverty, natural and environmental disasters, and human rights violations inflicted upon them. How are children to be protected under the Refugee Convention 1951 (“Refugee Convention”) once they have crossed an international boundary? Is the relief offered sufficient?

A theme of this book is that the adjudication of claims under the Refugee Convention to date has missed opportunities to offer protection to the refugee child. A child's claim of refugee status has usually been subsumed in an application by the child's family; where the family's application for refugee status has been denied, the accompanying child's claim of refugee status is unrecognised. The child, in refugee law, has been invisible, unconsidered in her or his own right and has had insurmountable hurdles to overcome when trying to convince decision-makers of the authenticity of a claim. In response, the author attempts to situate the child at the heart of the Refugee Convention. He argues that a more child-centred reading of the Refugee Convention definition can be achieved through utilising the United Nations Convention on the Rights of the Child (“CRC”). Pobjoy contends that the CRC is a procedural safeguard, an interpretive tool and an independent source of status for the child when considering claims under the Refugee Convention. The Refugee Convention remains a valid source of protection for the child and, Pobjoy makes clear, this book is not seeking to rewrite it.

It is worth taking a moment to consider the methods employed. The author emphasises that he has painstakingly considered more than 2,500 domestic cases from all tiers of tribunals across five national common law jurisdictions: the UK, the US, Canada, Australia and New Zealand. It is a significant accomplishment. These are considered leading jurisdictions due to their engagement with definitional aspects of the Refugee Convention and the cross fertilisation between the courts. Though the author pledged to make this case law available on the Internet through www.childref.org (or www.childref.com) during 2017, that website is yet not operational. When it does become operational it would be helpful to understand whether the decision to focus on these jurisdictions was made after cases from both common law and civil law countries were explored and over what period were cases chosen for each jurisdiction. In addition, contextualising the case law by explaining the application, decision-making process and appeals hierarchy for each jurisdiction would assist understanding certain procedural points made later in the book. In particular this would assist legal practitioners representing child claimants seeking refugee status as well as decision-makers in a wide variety of jurisdictions.

Returning to the substantive work, ch. 1 starts by setting the scene for the analysis to follow. The author considers that the greatest opportunity to demonstrate the three main arguments advanced – that the CRC is a procedural guarantee, an interpretive aid and an independent source of refugee status – is at the stage of determining whether an applicant has the status of a refugee. The use of the CRC as a procedural guarantee and an independent source of status is relatively simple. It is a direct source of legal obligations to be fulfilled in good faith according to the maxim, pacta sunt servanda. The same cannot be said for the CRC as an interpretive aid. Here the author draws upon the use made of the Vienna Convention on the Law of Treaties (“VCLT”) in domestic jurisprudence. Article 31(2) thereof sets out permissible sources for treaty interpretation. Article 31(3)(c) requires this understanding to be supplemented by extrinsic sources including subsequent practice and relevant rules of international law, in this case the CRC and its accompanying norms.

The Refugee Convention leaves the procedure for deciding applications for refugee status to national jurisdictions. Practice across the jurisdictions examined suggests that an adult's refugee status can be transmitted to her or his family members, but Pobjoy notes that a child claimant has not been permitted to transmit refugee status to her or his parents. The author seeks to challenge this by arguing (in ch. 2) that the CRC offers procedural guarantees which need to be read into the Refugee Convention. Under Article 12 of the CRC (the child's right to be heard) the state has an obligation separately to assess the child's eligibility for refugee status. Under Article 9 of the CRC (the right to family unity) there is a positive legal obligation to preserve family unity, unless it is in the best interests of the child to be separated from a parent. Those articles work together with the duty of non-refoulement in the Refugee Convention (the duty not to return a person to where their life or freedom is threatened). Jurisdictions such as Canada and New Zealand require children to submit individual applications, to be heard alongside applications of their family members, especially if they arise out of the same circumstances. The author concludes that there is no principled reason why Article 9 of the CRC cannot enable transmission of refugee status from child to parent. However, current practice in Canada, New Zealand, the US and the UK is not to do so. Despite procedural guarantees incorporated from the CRC, the adjudicator may well still deny or confer refugee status for policy reasons. How is this to be overcome? There is scope for further academic exploration of what the policy reasons might be for procedurally utilising Articles 9 and 12 of the CRC, but not going further by allowing the transfer of status between child and parent.

A child claimant seeking refugee status needs to satisfy each element of the definition of the Refugee Convention, namely well-founded fear (ch. 3), at genuine risk of persecution (ch. 4) and that the reason is due to a causal connection with race, religion, nationality, political opinion or membership of a particular social group (ch. 5).

Taking each in turn. A “well-founded fear” has traditionally required that the applicant demonstrate that she or he subjectively fears persecution and that objectively she or he is at future risk of such persecution. The subjective element has often caused the greatest hurdle for children. A survey of the case law by the author concludes that a child who is unable to convince an adjudicator of her or his subjective fears is unlikely to establish a claim. Among the possible reasons for this lack of credibility, the memories of a child who suffers from post-traumatic stress disorder may be less coherent and detailed. Or the child may understand the dangers she or he faces but be unable to articulate a fear thereof. The author considers how adjudicators avoid denying refugee status to a child. The author shows that courts employ a variety of methods: imputing parental fear to the child, employing a shared duty of fact-finding between the adjudicator and child, focusing on information about the country of origin (the objective element) and, lastly, allowing for a liberal benefit of doubt in the child claimant's favour consistent with child's age and evolving developmental capacities. Several questions arise. Have these practices escaped correction by governments? Why have adjudicators developed such tactics? Placing the application process by claimants for refugee status within a greater societal and political context may provide an explanation. However, this is not explored.

In ch. 4, the author steps back to consider how international human rights law has deepened the understanding of “a risk of being persecuted” within the Refugee Convention. Pojboy uses an equation to explain this: persecution = serious harm + failure of state protection. How is a failure of state protection to be understood? Two theories are mentioned: the protection theory (whereby the state fails to protect a recognised human right) and the risk alleviation theory (whereby the state protects against the underlying risk, without a person's human rights having been violated). The author adopts the protection theory, owing to its widespread application in the UK, Canada and Australia, coupled with the CRC. The author correctly concludes that the CRC envisages situations in which the harm can only be inflicted upon a child, such as the risk of infanticide, forced military recruitment, forced child labour, forced underage marriage, child prostitution, child pornography, female genital mutilation and corporal punishment.

At its core, the Refugee Convention offers protection from discrimination on grounds of race, religion, nationality, political opinion and membership of a particular social group. The definition of “harm” implies that the harm must be intentional for a discriminatory reason. This, like the other elements of the Refugee Convention, has caused problems for child claimants where the harm inflicted is specific to the child without political motivation (e.g. sexual abuse) or without intention to harm (e.g. corporal punishment). The development of the “predicament approach” shifts the focus from the persecutor to the protected characteristic of the applicant to explain why the applicant is at risk of persecution. It offers decision-makers an alternative to the strict application of the intention approach.

Finally, what of the child claimant who is unprotected by the Refugee Convention who would nevertheless face serious harm if returned to her or his country of origin? If, as Pojboy creatively argues in ch. 6, Article 3 of the CRC (best interests of the child to be a primary consideration in all actions concerning the child) is an independent source of protection, such claimants may receive protection. The argument advances a new category of protected person: persons who hold “best interests status”. Domestic decision-makers have resisted considering Article 3 as an independent source of status. Why remains unclear in the work. Nevertheless, the author marshals examples, such case law on Article 8 (the right to family life) of the European Convention of Human Rights as a discretionary ground for the grant of protection to children on humanitarian grounds, to develop the argument of how Article 3 CRC can provide an independent source of status.

Important factors can affect the determination of status such as the availability of legal representation, psychosocial therapeutic support and assistance, and training of all official personnel involved in the process. Running through the CRC is a wider legal duty of creating a holistic systemic approach to children's rights including, “the obligation to establish national legislation; administrative structures; and the necessary research, information, data compilation and comprehensive training activities to support such measures” (see UN CRC, General Comment 6, Treatment of unaccompanied and separated children outside their country of origin 2005, para. 13). How this duty is implemented can taint the child claimant and the child's case by the time a court decides the matter. The opportunity to explain how those factors can affect the development of case law and can provide a corrective is not taken up in this book.

Pobjoy is ultimately interested in guaranteeing refugee protection for every eligible child and safety and sanctuary for those who fall outside the Refugee Convention but who face the prospect of harm upon return to their country of origin. He does so by advancing the complementary aims of the Refugee Convention and CRC. The legal interaction, a premise of which is that the CRC is a procedural guarantee, an interpretive tool and an independent source of status at the stage of determining whether an applicant has the status of a refugee, is practically useful and clearly demonstrated. It is not aspirational, rather entirely achievable.