Protecting the interests of unaccompanied migrant children in Europe

This project is funded by the European Union Implemented by

Protecting the interests of unaccompanied migrant children in

EuropeBarbara Kőhalmi

Regional Workshop on Assistance and Protection of Unaccompanied Child Migrants

31 May 2016, Mexico City

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Content

• International Framework

• European Framework

• Hungarian guardianship system

International Framework

Convention on the Rights of the Child

Art. 18 2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

Art. 20 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

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CRC General Comment No. 6 (2005)Appointment of a guardian or adviser and legal representative

(Art. 18 2. and Art. 20 1.) States are required to create the underlying legal framework and take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests.

States should • appoint a guardian or adviser as soon as the unaccompanied or separated child is

identified • maintain such guardianship arrangements until the child has either reached the

age of majority or has permanently left the territory and/or jurisdiction of the State

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The guardian • should be consulted and informed regarding all actions taken in

relation to the child • should have the authority to be present in all planning and decision-

making processes (including immigration and appeal hearings, care arrangements and all efforts to search for a durable solution)

• should have the necessary expertise in the field of child care, so as to ensure that the interests of the child are safeguarded and that the child’s legal, social, health, psychological, material and educational needs are appropriately covered

• should be provided with legal representation if children are involved in asylum procedures or administrative or judicial proceedings, they

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• Agencies or individuals whose interests could potentially be in conflict with those of the child’s (e.g.non-related adults whose primary relationship to the child is that of an employer) should not be eligible for guardianship.

• Review mechanisms shall be introduced and implemented to monitor the quality of the exercise of guardianship in order to ensure the best interests of the child are being represented throughout the decision-making process and, in particular, to prevent abuse.

• Children should be informed of arrangements with respect to guardianship and legal representation and their opinions should be taken into consideration.

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International FrameworkInstrument Terminology used Reference

United Nations and Council of Europe instruments UN Committee on the Rights of the Child, General Comment No. 6 CRC/GC/2005/6

Guardian Legal representative

Paragraph 33

UN Alternative care guidelines A/HRC/11/L.13

Legal guardian Recognized responsible adult

Paragraph 100

2005 Council of Europe Convention on Action against Trafficking in Human Beings

Legal guardian Article 10 (4) (a)

European Union instruments Anti-Trafficking Directive (2011/36/EU)

Guardian Representative

Article 14 (2) Article 16 (3)

Reception Conditions Directive (2013/33/EU)

Representative Article 2 (j)

Asylum Procedures Directive (2013/32/EU)

Representative Article 2 (n)

Qualification Directive (2011/95/EU)

Legal guardian Representative

Article 31 (1) Article 31 (2)

Victims’ Directive (2012/29/EU)

Guardian Special/legal representative

Article 24 (b) Preamble (60)

Sexual exploitation of children Directive (2011/92/EU)

Special/legal representative

Article 20

Dublin Regulation (604/2013/EU)

Representative Article 2 (k)

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The mandate of the guardian

• Safeguard the best interest of the child• Ensure the child s overall well-beingˊ• Exercise legal representation and complement

the child s legal capacityˊ

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The four core principles of the CRC to guide the work of guardians

• The best interests of the child• The right of the child to be heard• The right to life and development • Non-discrimination

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European Framework

Legal sources

• Treaty on European Union (Art. 3 (3))• EU Charter of Fundamental Rights (Art. 24)• Recast Reception Conditions Directive(2013/33/EU)• Recast Asylum Procedures Directive (2013/32/EU)• Recast Qualification Directive (2011/95/EU)• Recast Dublin Regulation (EU Regulation 604/2013)• Anti-Trafficking Directive (2011/36/EU)• Directive on Residence permits for victims of human trafficking

(2004/81/EC)• Return Directive (2008/115/EC)

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European Framework

Guardianship for children deprived of parental care - A handbook to reinforce guardianship systems to cater for the specific needs of child victims of trafficking (FRA, 2014)

Guardians are a key element of a protection system for children who are temporarily or permanently deprived of their family environment and cannot have their interests represented by their parents.

This comparative report helps to understand better the strengths and weaknesses of national guardianship systems and may also assist decision makers to take measures to promote the effective protection of all children including unaccompanied children.

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European Framework

Fundamental principles of guardianship systems

1. Non-discrimination2. Independence and impartiality3. Quality4. Accountability5. Sustainability6. Child’s participation03/05/2023 12

European Framework

Who can act as a guardian?

• Professional qualifications• Gender and cultural considerations• Vetting• Conflict of interests

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European Framework

When should a guardian be appointed?

Prompt appointment of a guardian is a key safeguard for a child’s rights and overall well-being, protecting unaccompanied children and preventing child trafficking and other forms of child abuse and exploitation.

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European Framework

When does guardianship end?

• 18 years old• Reintegration in the family• Child leaves the country• Child is missing

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European Framework

Main tasks of the guardian • Safeguard the child’s best interests• Promote the child’s safety and well-being• Facilitate the child’s participation• Act as a link between the child and others• Assist in identifying a durable solution in the child’s best

interest• Exercise legal representation, support the child in legal

procedures and ensure access to legal assistance and counselling

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Hungarian Guardianship System for Unaccompanied Children

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Legal Framework• Act II of 2007 on the Admission and Right of Residence of Third-

country Nationals• Gvt. Decree 114/2007. (V. 24.) on the implementation of the TCN Act• Act LXXX of 2007 on Asylum• Gvt. Decree 301/2007 (XI.9.) on the implementation of the Act on

Asylum• Act XXXI. of 1997 on Child Protection• Gvt. Decree 149/1997. (IX. 10.) on child protection authorities and

guardianship and child protection procedures• NM. Ministerial Decree 15/1998. (IV. 30.) on the professional tasks

and management of child welfare and child protection institutions providing personal care

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Guardianship for UAMs in Hungary

• Since 1 January 2014, under Hungarian legislation the legal representatives of children who are placed in the child protection system – including unaccompanied minors who are placed in children’s homes – are child protection guardians.

• The main tasks of the child protection guardian is: – to be the children’s legal representative, – representing their rights and best interest. • Child protection guardians are autonomous in their jobs,

they have no legal relationship with the child protection institutions where the children are placed.

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• As from 1 August 2015, a child protection guardian has to be assigned within 8 days from the request of the asylum/immigration authority.

• As from 15 October 2015, the Child Protection Centre and Territorial Child Protection Specialized Service is the designated authority responsible for child protection guardianship cases of all unaccompanied minor asylum applicants and who are placed temporarily in children’s homes.

• Full board supply in the child care institutions and legal representation by a child protection guardian are provided for all unaccompanied minors irrespective of whether they applied for asylum in Hungary or not.

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Who can act as a guardian?• Requirements:

– clean criminal record– qualification requirements: shall hold at least one of the following

(university) qualifications: lawyer, BA in public administration, BA in social studies (including sociology, social pedagogy, social policy and social work), teacher, psychologist, mental health professional, child and youth care counsellor, or having a postgraduate diploma in family protection, nurse/health visitor, theologian, religious education teacher

– No reason for exclusion• The most significant challenge in practice for child protection guardians is

the language knowledge that is vital for establishing and maintaining personal contact with unaccompanied minors.

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Guardianship of UAMs in Hungary

When should a guardian be appointed?

• Child protection guardians have to be assigned for unaccompanied minors within eight days following the request of the asylum/immigration authority. (The general time limit for children who are not unaccompanied minors is 35 days. )

• Unaccompanied minors are also be informed on their assigned child protection guardians.

• Child protection guardians get in touch with the UAMs already during the assignment process (before the formal decision).

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When does guardianship end?

• 18 years old• Reintegration • Child leaves the country• Child is missing

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Main tasks of the guardian

• Promote the child’s safety and well-being

• Legal representationon

• Trustee

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Conclusion

• Hungarian legislation has very detailed rules on guardianship

• Legislation and practice is in line with the standards

• Child protection guardians – full representation of the child

• Challanges: language barriers, tranzit country feature

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Barbara Kőhalmi

[email protected]

Thank you very much for your kind attention!

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Government & Nonprofit

Protecting the interests of unaccompanied migrant children in Europe