The case concerned two Russians nationals, originally from Chechnya, who submitted the communication on behalf of their two children, M.S. and K.S. In April 2012, the applicants unsuccessfully applied for asylum before voluntarily returning to Russia and then moving back to Switzerland three years later. The family lodged a new application for asylum after which they were placed in the Seeben centre, where they argued they did not receive schooling or social assistance. The State Secretariat for Migration rejected their application and the Federal Administrative Court dismissed their appeal.

M.S. was from birth almost deaf in both ears and needed a cochlear implant. K.S. submitted a separate asylum application, and he was not heard, and the application was rejected on the grounds that his case had been examined in his parent’s proceedings. The family was detained and returned to Russia and subsequently brought their complaint to the Committee on the Rights of the Child, on the basis of violations of Articles 2, 3, 4, 6.2, 8.2, 11, 12, 13, 14, 16, 17, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 34, 36 and 37 a) of the Convention and Article 7 c), e) f) and g) of the Protocol.

The Committee considered that the Swiss authorities did not take all necessary steps to ensure that M.S. would receive appropriate medical care and support in the Russian Federation. Therefore, the State party did not comply to its obligation not to remove a child to a country where there are reasonable grounds to believe that there is a real risk of irreparable harm to the child and did not consider the best interest of the child. Accordingly, the Committee found that the State party had violated M.S.'s rights under article 24, read in conjunction with articles 3 and 6, paragraph 2, of the Convention.

As regards the argument that K. S. was not heard in asylum proceedings in contravention of Article 12 of the Convention, the Committee recalled that States parties must ensure that the views of the child are not only heard as a mere formality, but are taken seriously, in a separate assessment which is age and gender-appropriate. The Committee therefore found that the lack of a direct hearing with K.S. constituted a violation of Articles 3 and 12 of the Convention.