C Explanatory memorandum by Ms Strik,
rapporteur for opinion
1. A child is first and foremost a child, but it is
not “only” a child. This term which seems to “reduce” children to
smaller human beings with smaller human rights should be avoided
to ensure that the text prepared by the Committee on Migration,
Refugees and Population, from the very start, assigns the appropriate
place and significance to children in our societies and sets out
on a positive note (see Amendment A). This could be further underlined
with a clear reference to the relevant article of the United Nations
Convention on the Rights of the Child (see Amendment B).
2. Apart from this small amendment suggested to the first line
of the draft recommendation, I very much welcome the way in which
the report prepared by my colleague Mr Agramunt Font de Mora advocates
the equal treatment of undocumented children with other children
in the areas essential for their well-being and development. I also
appreciate the comprehensive overview of detailed measures in favour
of undocumented children in the fields of education (including practical
training), health care and housing. However, before specifying some
of the areas in which the rights of undocumented children need to
be clarified and strengthened, a general reference should be introduced
to the International Covenant on Economic, Social and Cultural Rights
which guarantees the rights to social security and an adequate standard
of living, respectively, in its Articles 9 and 11. In its concluding
Observations and General Comments, the Committee on Economic, Social
and Cultural Rights had made it very clear that these rights should
also apply to non-citizens who are marginalised and extremely vulnerable,
especially in emergency cases (see Amendment C).
3. However, the draft recommendation as it stands remains almost
silent on undocumented children who are in need of a legal guardian,
for instance because their parents do not accompany them or are
not capable of taking care of them. The addition of references to
children in this particular situation is therefore suggested in
the appropriate paragraphs of the draft recommendation (see Amendments
D and F). I am also suggesting the deletion of the very general
reference to “unaccompanied children” in paragraph 4 (see Amendment
E) to avoid confusion. Not all undocumented children are unaccompanied,
and neither are all unaccompanied children undocumented. It is thus
not clear to me in which way unaccompanied children “are generally
treated differently by the authorities”.
4. The current paragraph 7.4.4 of the draft recommendation does
not specify that children may be detained in facilities intended
for adults if these establishments are meant to host adults and
their children together; a relevant addition to the text is thus
suggested (see Amendment G).
5. Regarding unaccompanied minors with a legal guardian, it is
also important to keep in mind the psychological implications of
their situation: the constant awareness of the fact that care and
protection provided to them will end at the age of majority and
that their future is not secured may already affect their well-being
as minors and their personal development. Such children know that
there is a high chance that they will end up living on the streets
or being sent back to their country of origin where no one feels
responsible for them either. In order to avoid the psychological
pressure linked to such uncertainty, mechanisms should be set up to
ensure that these children are given continuous and reliable support
as soon as they have been provided with some kind of official status
within a given country, also beyond the age of majority.
6. The association Defence for Children – ECPAT The Netherlands,
jointly with other European child protection agencies, has recently
undertaken comparative research on the situation of separated children which
was aimed at “closing a protection gap” and proposes “core standards”
for guardianship procedures based on eight distinct country reports
which can also be consulted individually (Belgium, Denmark, Germany, Ireland,
Italy, Netherlands, Slovenia, Sweden).
Note This
most interesting project, financed by the Daphne III programme of
the European Commission, could serve as a best practice example
and model methodology.
7. As rapporteur for the present opinion, I furthermore fully
agree with Thomas Hammarberg, Council of Europe Commissioner for
Human Rights, who – in the Preface to the report mentioned in paragraph
6 above – points out that the new “Core Standards for guardians”
drawn up at the level of the European Union add to the examples
of good practice and international tools, such as the Life projects
of the Council of Europe,
Note which are already available to European,
national and local authorities with a view to taking due care of
separated children and their needs.
8. The Social, Health and Family Affairs Committee should therefore
propose that a reference be made to these two important pieces of
work and that the Council of Europe strengthen its work on undocumented separated
children in the framework of its relevant intergovernmental activities,
with a view to harmonising the standards for guardians of separated
children at Council of Europe level, as already suggested by the Assembly
in its
Recommendation
1969 (2011) on unaccompanied children in Europe: issues
of arrival, stay and return. All these elements are reflected by
Amendment D proposed above.
