C Explanatory memorandum
by Ms Brynjólfsdóttir, rapporteur
1 Introduction
1. In a context where many unaccompanied
and separated migrant children arrive in Europe, the question of
the safeguard of their rights is primordial. All migrants are vulnerable,
but children and young people are even more likely to be subject
to violence – including sexual abuse – and therefore need specific
protection. Unaccompanied and separated children are more likely
to be victims of human trafficking or criminal networks that would
lead to prejudicial consequences. By offering them the protection
of a dedicated guardian, their rights will be safeguarded and solutions
concerning their future will be found.
2. Guardians’ priority should be to ensure unaccompanied migrant
children’s access to their rights and to consideration of their
best interests. They can build a relationship of trust with a child
and ensure his or her well-being, including during integration periods,
in co-operation with other actors. Guardians can also help prevent
children from going missing or being trafficked. Guardianship is
a key to the transition into adulthood and integration in a new
country.
3. The Parliamentary Assembly has touched upon the problem of
guardianship in several reports. Aware of the interests at stake,
it called for harmonised rules “concerning the designation of guardians
and legal representatives and a common definition of their mandate
and role” in its
Resolution
2136 (2016).
Note In its
Resolution 2243 (2018) on family reunification of refugees and migrants in
the Council of Europe member States,
Note the Assembly stressed that the appointment
of a guardian is a “vital measure”. The Assembly also called on
member States to “appoint a guardian to support each unaccompanied
migrant child individually during the age-assessment procedure
Note” (
Resolution 2195 (2017)).
4. For the purpose of this report, I will use the European Union
Asylum Procedures Regulation’s definition,
Note according to which a guardian is
“a person or an organisation appointed to assist and represent an unaccompanied
minor with a view to safeguarding the best interests of the child
and his or her general well-being in procedures provided for in
this Regulation and exercising legal capacity for the minor where necessary”.
Recalling this definition is crucial in order to compare it with
how the roles and responsibilities of guardians are defined in different
European Union member States.
2 Relevant international standards
5. Several international and European
legal instruments provide standards related to the rights of unaccompanied
and separated migrant children. United Nations provisions (see below)
are used as a reference in Europe and have an impact on national
policies. Nevertheless, each member State has established its own
provisions regarding the application of international laws on its
territory and they are not always in line with international standards.
This inconsistency undermines children’s rights in terms of access to
a comprehensive and harmonised system of guardianship.
2.1 The
United Nations
6. The United Nations Convention
on the Rights of the Child (CRC)
Note adopted in 1989 clearly puts the responsibility
on States for the protection of unaccompanied and separated migrant
children on their territory. The Committee on the Rights of the
Child provided four main principles which should guide all actions concerning
children: the best interest of the child as a primary consideration
in all actions concerning the child (Article 3), the principle of
non-discrimination on any ground ensuring equal treatment of all
children (Article 2), the right of the child to be heard and due
weight to be given to his or her views (Article 12) and the right
of the child to life, survival and development (Article 6).
7. Appointing a guardian is key to ensuring that unaccompanied
and separated children’s best interests are guaranteed. Guardians
are on equal terms with parents in their responsibilities in this
respect, as stated in Articles 18 of the CRC. More specifically,
Article 18.1 states that “parents or, as the case may be, guardians, have
the primary responsibility for the upbringing and development of
the child”.
8. Joint General Comment No. 3 (2017) of the UN Committee on
the Protection of the Rights of All Migrant Workers and Members
of Their Families and No. 22 (2017) of the Committee on the Rights
of the Child on the general principles regarding the human rights
of children (16 November 2017, CMW/C/GC/3-CRC/C/GC/22) stresses,
in paragraph 32, that States parties should: “(h): Ensure that children
are identified promptly in border controls and other migration-control
procedures within the State’s jurisdiction, and that anyone claiming
to be a child is treated as such, promptly referred to child protection
authorities and other relevant services, and appointed a guardian,
if unaccompanied or separated” and in paragraph 36, that “States
parties should appoint a […] trained guardian for unaccompanied
and separated children, as soon as possible on arrival, free of charge”.
Note
9. In
Joint General Comment
No. 4 (2017) of the Committee on the Protection of the Rights of
All Migrant Workers and Members of Their Families and No. 23 (2017)
of the Committee on the Rights of the Child on State obligations
regarding the human rights of children in the context of international
migration in countries of origin, transit, destination and return,
16 November 2017, CMW/C/GC/4-CRC/C/GC/23, paragraph 17 (i), it is
stated that: “[…] children should be guaranteed the right to […]
have appointed a competent guardian, as expeditiously as possible,
who serves as a key procedural safeguard to ensure respect for their
best interests”; and in paragraph 30, that “States should provide
appropriate assistance to […] legal guardians in the performance
of their child-rearing responsibilities, including by providing
social benefits and child allowances and other social support services
regardless of the migration status of the parents or the child”.
Note
10. General Comment No. 6 provides a clear time frame for the
appointment of a guardian. Paragraph 33 stipulates that “States
should appoint a guardian or adviser as soon as the unaccompanied
or separated child is identified and 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
[…]”.
11. The same paragraph 33 clearly defines the responsibilities
of the guardian, who should “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 by, inter alia, the guardian acting
as a link between the child and existing specialist agencies/individuals
who provide the continuum of care required by the child”.
12. According to theUNHCR, a guardian “is an independent person
who safeguards a child’s best interests and general well-being and
complements the limited legal capacity of the child.”
NoteAs stated
by the UNHCR, “an independent, qualified guardian needs to be appointed
immediately
Note [and] free of charge”.
Note In its Conclusion No. 107 (LVIII),
UNHCR’s Executive Committee called upon States to facilitate the
appointment of a guardian or adviser when an unaccompanied or separated
child is identified.
Note
13. Unaccompanied and separated migrant children often feel overwhelmed
by administrative procedures related to their asylum claim because
of the complexity of the process and the lack of knowledge of the language
in which it is conducted. The tasks guardians need to fulfil are
listed in paragraph 104 of the 2010 UN Resolution on Guidelines
for the Alternative Care of Children.
Note These responsibilities include:
“ensuring that the rights of the child are protected” and “ensuring
that the child has access to legal and other representation where
necessary”. Moreover, paragraph 36 of General Comment No. 6 includes
the necessity of appointing a legal representative for unaccompanied
minors in order to help them to fill in their asylum or residence
permit application, in case of legal proceedings involving the child.
14. To ensure sufficient protection of unaccompanied and separated
migrant children, States should respect their obligations and commitments,
especially those set out in the CRC, but also its optional protocols
and other related texts, including the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, especially Women and Children,
supplementing the Convention against Transnational Organized Crime
(2000), the Convention on the Rights of Persons with Disabilities
(2006), the Convention concerning the powers of authorities and
the law applicable in respect of the protection of infants (1961),
the Convention on Protection of Children and Co-operation in Respect
of Intercountry Adoption (1993) and the related Recommendation Concerning
the Application to Refugee Children and Other Internally Displaced
Children (1994), as well as the Convention on Jurisdiction, Applicable
Law, Recognition, Enforcement and Co-operation in respect of Parental
Responsibility and Measures for the Protection of Children (1996).
2.2 The
European Union
15. The protection of the rights
of children is one of the requirements of the European Union clearly underlined
in its treaties, as the supreme sources of EU law and the directives,
as secondary law. According to Article 3.3 of the consolidated version
of the Treaty on European Union
Note and the Charter of Fundamental Rights
of the European Union,
Note the rights of the child must be
protected within member States. Nevertheless, there is a lack of
enforcement of these regulations in national systems, especially
when it comes to the rights of unaccompanied and separated migrant
children.
16. Unaccompanied and separated migrant children are the most
vulnerable category of asylum seekers. Several European Union directives
refer to the necessity of appointing a guardian, including the 2011
Directive on standards for the qualification of third-country nationals
or stateless persons as beneficiaries of international protection,
for a uniform status for refugees or for persons eligible for subsidiary
protection, and for the content of the protection granted
Note which states that Member States
should as soon as possible, “take the necessary measures to ensure
the representation of unaccompanied minors by a legal guardian or,
where necessary, by an organisation responsible for the care and
well-being of minors, or by any other appropriate representation including
that based on legislation or court order.” (Article 31).
17. Procedural safeguards related to the appointment of a legal
representative are included in the Directive laying down standards
for the reception of applicants for international protection,
Note which states that unaccompanied
minors should be taken care of by a representative “in procedures
provided for in this Directive with a view to ensuring the best
interests of the child and exercising legal capacity for the minor
where necessary”.
18. The European Union has provided specific legislation for the
protection of children who are victims of trafficking in its European
Union Directive 2011/36 on Preventing and Combating Trafficking
in Human Beings and Protecting its Victims
Note. According to paragraph 23 of the
Preamble of the directive, “necessary measures should be taken to
ensure that, where appropriate, a guardian and/or a representative
are appointed in order to safeguard the minor’s best interests.”
Paragraph 24 specifies that the guardian and/or representative could be
“the same person
[both legal representative
and guardian], a legal person, an institution or an authority”.
19. It should be stressed that there is no consistency in the
use of the term “guardian” in European Union directives. The term
“legal (special or other) representative” is also used in different
contexts, without any apparent distinction.
2.3 Council
of Europe
20. Several Council of Europe legal
instruments set out the rights and obligations of member States
relating to children, including the Convention for the Protection
of Human Rights and Fundamental Freedoms (ETS No. 5) and the protocols
thereto, the European Social Charter (ETS No. 35) and the European
Social Charter (Revised) (ETS No. 163), the Convention for the Protection
of Individuals with regard to Automatic Processing of Personal Data
(ETS No. 108) and its protocol (CETS No. 223), the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (ETS No. 126) the European Convention on the Exercise
of Children’s Rights (ETS No. 160), the Convention on Action Against
Trafficking in Human Beings (CETS No. 197), the Convention on the
Protection of Children against Sexual Exploitation and Sexual Abuse (CETS
No. 201) and the Convention on Preventing and Combating Violence
against Women and Domestic Violence (CETS No. 210).
21. In particular, Article 10 paragraph 4 of the Council of Europe
Convention against Trafficking in Human Beings
Note clearly specifies that as soon as
an unaccompanied child is identified as a victim, the State should “provide
for representation of the child by a legal guardian, organisation
or authority which shall act in the best interests of that child”.
22. The Committee of the Parties to the Council of Europe Convention
on the protection of children against sexual exploitation and sexual
abuse (the “Lanzarote Committee”) addressed the issue of guardianship
in its Special report on protecting children affected by the refugee
crisis from sexual exploitation and sexual abuse, adopted on 3 March
2017. It recommends States parties to the convention to ensure that
unaccompanied children affected by the refugee crisis, regardless
of their age, are provided with a guardian in order to build trust
and enable disclosure of possible sexual exploitation and sexual
abuse.
Note
23. On 12 July 2007, the Committee of Ministers adopted Recommendation
CM/Rec(2007)9 on life projects for unaccompanied migrant minors,
Note which specifies that “The competent
authorities should undertake to ensure that the life project comprises
measures to protect the minors […]. These measures should include
[…] appointment of specially trained guardians and/or legal representatives.”
24. The Assembly adopted
Resolution
2136 (2016)Note to address the lack of harmonisation
in the protection of unaccompanied minors. It called for harmonisation
of the rules on the appointment of guardians and/or legal representatives
in reference to “their mandate and role”. As mentioned earlier,
the Assembly also referred to the issue of guardianship in its
Resolution 2243 (2018)Note and stressed the role of the guardian
during age-assessment procedures for the unaccompanied migrant child
in
Resolution 2195 (2017).
Note
25. The European Court of Human Rights has already proved the
vulnerability of unaccompanied and separated migrant children in
several cases (Rahimi v. Greece and Khan v. France for example), where
it underlined the necessity of appointing a guardian for these children. The Housein v. Greece case also mentions
the failure of the Greek State to appoint a guardian who could act
as a representative in a case which concerned a violation of article
5.1 of the Convention.
27. The adoption of this Recommendation by the 47 member States
of the Council of Europe illustrates that there is uniform agreement
that the specific needs of children in migration must be catered
for at every level.
28. It seeks to ensure that guardianship is effectively provided,
is appropriate to the rights and specific needs of the children
concerned and secure their best interests in line with international
and Council of Europe standards.
29. The instrument is based on nine essential principles and targets
both decision-makers and practitioners working to secure the protection,
reception, care and well-being of unaccompanied and separated children through
guardianship. It also provides concrete guidance for the formulation
of legislation, the planning of public policies and institutional
measures, ensuring these children’s access to justice and effective
remedies, and for the concrete aspects of co-operation and co-ordination
among relevant stakeholders, including at international level.
30. The Guidelines for an effective guardianship system recommend
the adoption of comprehensive frameworks whereby guardians are appointed
without delay, are adequately screened, qualified and supported throughout
their mandate by a competent authority. Governments should also
ensure that children are provided with information and advice that
they have access to an independent complaint mechanism and remedies
to exercise rights or act upon violations of their rights. Also,
through regular collection of data, and adequate institutional measures,
States should ensure that guardianship measures respond to changing needs,
including emergency situations.
31. The implementation of this recommendation will be promoted
through the Steering Committee for the Rights of the Child (CDENF)
which will also act as a regular pan-European forum for exchanges
of good practices in reinforcing the national guardianship systems.
2.4 Legal
basis in different member States
32. The challenges linked to the
increase in the number of unaccompanied and separated migrant children arriving
in Europe has pushed some countries to adapt their legal frameworks
to enhance the protection of these children. However, if many European
countries have legal frameworks specifying which national authority
should provide the necessary protection to unaccompanied migrant
children, legislative norms differ substantially from country to
country. Whereas most countries have legal provisions included in
the general child protection system, some States have recently passed
specific laws dedicated to the protection of unaccompanied and separated
migrant children.
33. In Malta, the 2017 Child Protection Act
Note includes
a clause that refers to the assignment of a “special guardian” in
the case of most vulnerable children, including unaccompanied migrant
children. The law provides that the residential care facility where
the migrant child resides could perform the role of a guardian,
in case there is no private person to take this position. Guardianship
is only managed at the national level in this country.
34. In Italy, unaccompanied and migrant children are protected
under the 2017 “Zampa Law”.
Note After having recognised that guardianship
was not effective in the country, the Italian Parliament passed
this law as the first comprehensive national act to promote the
appointment of guardians for children. The “Zampa Law” also seeks a
better uniformity of guardianship at national level. According to
this law, the guardianship system is decentralised in Italy and
is provided at the local level, involving individuals, local authorities
and Ombudspersons. The ordinary citizens could be appointed as volunteer
guardians. Regional Ombudspersons’ offices are in charge of the
selection and training of volunteer guardians, who are then formally
appointed by juvenile courts.
Note
35. In Belgium, the “Tabitha Law” on legal guardianship was passed
in 2004. It highlights the main criteria for legal guardians who
are individual persons and act under the responsibility of the Guardianship
Service of the Ministry of Justice. This law also defines the procedure
to appoint a guardian to unaccompanied migrant children and the
necessity to train guardians to better perform their tasks.
36. The Greek Law 4554/2018
Note was the first national framework
defending the necessity to appoint legal representatives to unaccompanied
migrant children. The law sets the terms of the appointment and replacement
of a Guardianship Commissioner for Unaccompanied Minors. It also
defines the responsibilities of a Supervisory Guardianship Board
ensuring the protection for unaccompanied minors with respect to disabilities,
religious beliefs and custody issues. It also establishes the Department
for the Protection of Unaccompanied Minors at the national Centre
for Social Solidarity responsible for safe accommodation for unaccompanied
minors.
37. In the United Kingdom, guardianship and legal representation
is regulated by the 1989 Children Act. Section 20 of the Act highlights
that “every local authority shall provide accommodation for any
child in need within their area”. It specifies the duties of local
authorities looking after a child and refers to care and supervision
of these children. Local and regional authorities are in charge
of guardianship but do not exercise legal representation for unaccompanied
children.
38. Turkey’s Law No.5395
Note on child protection provides for
the relevant procedures for protecting children on its territory.
The law refers to their fundamental rights, as well as measures
to protect them. In addition, according to the Civil Code, guardians
should be appointed to all children under the responsibility of
the State. This appointment is done by the courts and all matters
related to the guardianship itself are delegated to the Civil Courts.
The mandate of guardians has narrow time limitation, as re-appointment
is required every two years.
39. To sum up, it is obvious that there is a general consensus
at the international and European levels that all unaccompanied
migrant children should benefit from State protection in the form
of guardianship. However, at the national level the legal provisions
on guardianship vary significantly and are not properly enforced.
3 Examples
of guardianship practices in different Council of Europe member
States
40. Guardianship systems are not
harmonised across Europe and differ from country to country. There
is no single definition of a guardian nor of the functions he or
she should perform. Different countries apply the terms” guardian”,
“legal representative” and “representative”. In general terms, the
term “guardian” is used to define a person appointed to support
a child. The term “legal representative” is more often used to define
an organisation or a person who will represent the legal interests
of the child in all procedures.
41. In many member States, the guardianship system is decentralised,
and each local authority decides on the appointment of guardians.
In Germany
Note for example, local institutions
are the only entities responsible. In Poland,
Note guardianship systems exists at national,
regional and local levels. The decentralisation of guardianship
creates discrepancies within countries, where regions may have different
approaches. In Italy
Notefor example,
specific training is provided for guardians only in some regions.
42. Guardianship duties can be undertaken by different categories
of people, either a natural person or a legal entity (or an employee
of the guardianship institution, depending on the country). In many
countries, both categories of guardians coexist, but in some, as
in Poland,
Note only natural persons can be appointed
as guardians. Guardianship in Greece is provided by the public prosecutors,
but effective guardianship is ensured by the NGO METAdrasi.
43. Thus, guardians’ duties, such as legal representation, are
defined in national legislation, and the tasks entrusted to guardians
vary across countries. For example, in Denmark,
Note a guardian is legally responsible
for the child’s finances, whereas in the United Kingdom
Note social workers, appointed in some
cases, never have legal responsibility to represent a child.
44. One of the most common and serious problems is the delay in
the appointment of guardians. In some countries, they are appointed
as soon as children receive accommodation, but in other countries,
like in Germany
Note,
the appointment of a guardian can take up to four months. Bulgaria
Note is the only country that specifies
deadlines in its legislation, as the appointment must take maximum
seven days from the moment the child has been accommodated. The
lack of employees and structural equipment contributes to the increase
in delays.
45. Another problem is the absence of accommodation for children
on arrival. In Greece, about 260 children stay in police custody
in detention. More than 1 000 children live in the streets. Police
put unaccompanied migrant children in protective custody, as no
other facilities for accommodation of children are available. The NGOs,
whom I met in Greece, pointed out that the solution to this problem
could be the use of transitional accommodation, foster care and
independent apartment accommodation. The main challenge is the absence of
a social welfare system for children which should support the role
of guardians. It is also important that other European countries
react more responsively to the family reunification requests by
the unaccompanied and separated migrant children.
46. As regards temporary arrangements, most guardians are appointed
prior to the status determination of the migrant child, as is the
case in Belgium, while other States, like France, opt for the appointment
of an ad hoc administrator as a temporary guardian before the status
determination.
NoteAfter the
determination, a long-term guardian is chosen.
47. It is regrettable to stress that some European States do not
foresee the appointment of a guardian for unaccompanied or separated
migrant children. This is often the case when it is believed that
the child will turn 18 before the decision on his or her asylum
claim is made. In addition, some member States consider that unaccompanied
children have the legal capacity to complete administrative formalities
related to their asylum or residence permit application by themselves
before they turn 18. It is the case in Germany,
Note where children are considered capable
to complete these formalities from the age of 16. These States use
this argument to avoid the appointment of guardians.
48. Independence and impartiality of guardianship systems are
not always ensured at national level, despite applicable international
standards. In Latvia, when no guardian is appointed to a child,
national legislation obliges the head of the care institution to
fulfil guardianship duties.
Note This, however, raises the question
of his/her impartiality and poses a risk of a conflict of interests.
In Finland
Note for example, the Immigration Service
is responsible for the guardianship of unaccompanied migrant children.
To avoid this problem, States like Denmark
Noteprovide
that guardians cannot be related to any national migration and asylum
institutions.
49. Practices of guardianship in Europe reveal a lack of quality
standards. It is reported that guardians are often overloaded, with
sometimes more than a hundred children under their responsibility.
According to the METAdrasi NGO, 6375 unaccompanied migrant children
arrived in Greece in 2019, and only 1300 of them had received the
guardianship protection. It is difficult to talk about effective
guardianship in the absence of necessary infrastructure and accommodation
conditions. In some countries the ratio of guardian to children
is 1:20. In these cases, guardians cannot carry out the entrusted
tasks efficiently to ensure the well-being of unaccompanied migrant
children.
50. In only a few Council of Europe member States, such as the
Netherlands,
Note Finland
Note and recently Greece the national
legislation foresees a minimum qualification to perform guardianship
tasks. The common requirements for guardians working for an institution
are to have educational and professional experiences related to
unaccompanied children.
51. Many European countries do not provide training for guardians.
In Finland
Note for example, training is not compulsory.
Even if the national legislation of some countries obliges guardians
to undertake training, this is not always the case in practice.
52. Monitoring of guardians’ work is not provided in all member
States either. Even if some States apply both external and internal
monitoring, as it is the case in Estonia, many of them do not use
external monitoring procedures, which are essential to an independent
and neutral assessment of effective protection of the children concerned.
It has also been pointed out that children’s opinions are not sufficiently
taken into account in the process of monitoring guardians, whereas
their point of view is crucial to a proper assessment of the quality
of guardianship. In many countries, this lack of consideration goes
hand in hand with a lack of effective complaint mechanisms for unaccompanied
and separated migrant children
Note and this is a barrier to efficient monitoring.
Only a few member States apply such system, among them the Netherlands
Note through
the Nidos Foundation.
53. One of the major challenges unaccompanied and separated migrant
children face when they reach majority is that safeguards for children
no longer apply. It is the case in Austria, where unaccompanied
children lose their designated social worker when they turn 18.
This sudden change is a barrier to the transition to adulthood and
is against the principle of the well-being of unaccompanied migrants.
Nevertheless, in most Council of Europe member States, guardianship
continues to be provided to the person at the beginning of his or
her adulthood. In Sweden,
Note a guardian can assist an unaccompanied
young person until he or she turns 21.
54. Many member States do not invest enough financial resources
in supporting guardians. Guardians do not systematically receive
financial compensation for their work. Even when they do, as it
is the case in Germany,
Note it does not allow them to earn a
decent living from it.
55. To sum-up, each Council of Europe member State faces difficulties
with regards to the process of guardianship. Provisions specified
in national legislation are only partially applied, which results
in gaps between what is done and what should be done to ensure that
unaccompanied and separated migrant children are well protected
in the receiving country.
56. Differences in national guardianship systems exacerbate the
lack of a uniform approach in Europe. In addition, disparities in
terms of knowledge and skills of guardians, appointment procedures
and their tasks are noticeable on the ground. All those factors
are not in line with the child’s best interests’ principle and neglect the
well-being of unaccompanied children in Europe.
4 The
need for a holistic European guardianship system
57. In a context of increasing
arrivals in Europe, member States do not ensure effective guardianship systems
to provide unaccompanied migrant children the protection they deserve
and have the right to.
58. As has also been pointed out by the European Commission
Note the
major shortcomings in the functioning of guardianship systems in
European countries concern the number of suitably qualified guardians
available and the speed at which they are appointed. It is very
important to strengthen the guardianship institutions in the countries
concerned and to train enough specialists, who can perform the tasks
of guardians. Their appointment should not be delayed, and they
should be adequately prepared to perform their tasks. The guardianship
authorities should provide clear guidance to guardians and monitor
their performance.
59. One of the solutions to enhancing protection of the rights
of unaccompanied and separated migrant children is to elaborate
a holistic and effective guardianship system in Europe and to empower
the relevant expert committee of the Council of Europe to monitor
its implementation. This would help member States to implement guidelines,
exchange good practices, reinforce their national guardianship systems
and increase cross-border co-operation, including on family reunification.
Measures must be taken to review domestic and European legislations,
policies and practices, to share the progress made and learn from
such an exchange of good practices.
61. Finally, monitoring guardianship processes must be compulsory
in order to assess the quality of guardianship in Europe. No progress
can be made without an analysis of proper quantitative and qualitative data.
There is a need to work on a case-by-case study to make sure every
unaccompanied or separate migrant child will receive the care he
or she deserves. All parties involved in working with unaccompanied
children must be included in the monitoring process.
