C Explanatory memorandum by Ms Sibel
Arslan, rapporteur for opinion
1. First of all, allow me to congratulate
Ms Rósa Björk Brynjólfsdóttir (Iceland, UEL) on the excellent report she
has prepared for the Committee on Migration, Refugees and Displaced
Persons.
2. Unaccompanied and separated children are at a distinct disadvantage
without their parents or other caregivers and are consequently in
a situation of high vulnerability and risk. In accordance with the
United Nations Convention on the Rights of the Child (CRC), an unaccompanied
or separated child, no matter the child’s circumstances or immigration
status, is first and foremost a child and should be treated as such.
Note I
share Ms Brynjólfsdóttir’s concern that, although all Council of
Europe member States have ratified this convention, these children
are not given the necessary protection and assistance they are entitled
to. This protection and assistance should be provided without discrimination
(Amendment A).
3. The CRC General Comment No. 6 clarifies that States’ obligations
under the CRC apply within the borders of the State, including with
respect to children who come under the State’s jurisdiction while
attempting to enter the country’s territory.
Note The best interests principle applies to
all children, without discrimination, including to unaccompanied
and separated children at risk outside their country of origin
Note and
must always be the primary consideration, also in relation to guardianship
for unaccompanied and separated migrant children
(Amendment C).
4. Children who are temporarily or permanently deprived of their
supportive family environment are entitled to special protection
and assistance in accordance with Article 20 of the CRC. Mechanisms
established under national law in order to ensure alternative care
for children deprived of their family environment shall also cover unaccompanied
and separated children outside their country of origin.
Note Given that children seeking asylum
are in a particularly vulnerable situation, Article 22 of the CRC
specifies their rights to appropriate protection and humanitarian
assistance, including tracing of family members. Besides providing
for an obligation of co-operation, Article 22(2) expressly accords
to an asylum-seeking or refugee child whose parents or other family members
cannot be found, the right to the same protection as any other child
permanently or temporarily deprived of his or her family environment
as set forth in Article 20.
Note
5. Identified unaccompanied and separated children need prompt
appointment of a guardian and referral to child protection services
in order to meet their needs relating to care, safety, education
and health, and to have their legal entitlements safeguarded (Amendment D).
6. The best interest of the child must be assessed and determined
individually for each child and according to his or her needs. In
order for a guardian to assist, in particular, in the identification
and implementation of measures regarding the assessment and determination
of the child’s vulnerabilities and best interests, such as in relation
to mental and physical health, accommodation, care, educational
and recreational needs, it is necessary to have an enabling environment
for the guardian to develop a relationship of trust with the child. This
entails regular contacts and visits, clear confidentiality rules
applicable to communication and collection of information such as
on the child’s family situation, health status, specific vulnerabilities,
gender and gender identity, and ethnic and religious background.
The guardian should act as a link between the child and relevant officials,
and co-operate and coordinate with qualified professionals on issues
concerning the child, in particular with carers, the child’s legal
representative, education professionals, social workers and social
services, health professionals, police, migration officials, etc.
Guardians must be child-friendly, gender-sensitive, properly trained
and supported, and have knowledge in particular of asylum and migration
law, family reunification, as well as aspects of cultural and linguistic
diversity. (Amendments E, F and G).
7. Guardianship is crucial not only from the perspective of protecting
children from harm but also due to its central role in ensuring
children – who lack full legal capacity – can access their rights
and entitlements. The CRC General Comment No. 14 calls for comprehensive
and co-ordinated action in relation to the child.
Note Issues facing
an unaccompanied or separated child may fall under the jurisdiction
of several authorities and can often be time consuming. This calls
for a holistic approach with all relevant stakeholders. A guardian
is therefore key to ensure that the best interest of the child is
protected during the different encounters and procedures. The guardian
also complements the child’s limited legal capacity and safeguards
the child’s best interests and ensures the child’s right to be heard
throughout the process. The role of a guardian in acting as the
legal representative of these children should be distinguished from
that of a lawyer or legal professional who should be appointed in
addition to the guardian for the purpose of legal proceedings.
NoteNote(Amendment I).
8. Despite clear international obligations to do so, many member
States fail to ensure the same level of protection to all children.
It is regrettable that in some member States, the specific migration
and residence status of children determines the level and type of
protection granted to them, and their guardianship or representation
arrangements.
Note In
Norway, for example, migrant children who are above 15 years old,
are under the supervision of the immigration authorities instead
of the local child protection agency. In these cases, the care and
protection that is given to migrant children differs from what is
provided for national children. The Committee of Ministers CM/Rec(2019)11
Note recommends avoiding
the appointment of guardians with financial or institutional connections
with authorities or agencies responsible for care or immigration
proceedings, which may have conflicts of interests with those of
the child. Even though some member States might have more developed
child protection and asylum and immigration systems in place, which
are more favourable than what is called for by the Convention, if
a person or group is treated, without justification, less favourably
than another, this might be regarded as discrimination.
Note(Amendment B).
9. In many member States, national children who are temporarily
or permanently deprived of their supportive family environment are
provided with a guardian, or continued care and support through guardianship
or other means, for a transitional period after reaching 18 years
of age and up to the age of 21. Given that unaccompanied and separated
migrant children are particularly vulnerable, such extension of guardianship
or protection arrangements should also apply to them. Recommendation
CM/Rec(2019)4 opts for promoting the continuity of social support
services and of the relationship with the contact person after the age
of 18.
Note Such
an extension needs to be adjusted to the maturity level of each
individual and should not result in limiting the legal capacity
of young migrants but rather represent a form of additional support.
The committee is particularly concerned about the situation for
unaccompanied and separated migrant children with temporary residence
permits who will be returned to their country of origin when they
turn 18 years old. These children are at higher risk of going missing
from reception centres.
Note The uncertainty of their
future, together with the lack of proper care from a guardian, introduces
new stressors in the lives of these children while also worsening
pre-existing vulnerabilities. This practice is clearly not in the
best interest of the child and it deprives the child of possibilities
of successfully developing into adulthood. It is my opinion that
this practice is harming the member States’ obligations to ensure
the fundamental rights of the child in line with the CRC
(Amendment H).
10. In the current situation in some member States that are receiving
a high number of migrants, it is challenging to ensure effective
and rights-based guardianship for unaccompanied and separated migrant children,
especially in countries of transit. This was the case for the Moria
camp in Greece that hosted more than 12 000 migrants, including
more than 4 000 children, even though its capacity was less than
2 800 people.
Note As part
of the Action Plan for immediate measures to support Greece, the
European Commission had proposed to relocate up to 1 600 children
(before the camp burned down).
Note However, some States had stalled
their plans of relocation due to the Covid-19, but the displacement
of so many migrants by the fire does seem to have installed some
sense of urgency for relocation plans now.
11. The committee would like to stress that the situation remains
precarious despite the pandemic, and urgent action must be taken
together with member States to ensure that these children are given
the protection they are entitled to in line with the CRC. In addition,
the committee agrees that a more sustainable mechanism must be set
up to allow for the quick and safe relocation of unaccompanied migrant
children, taking into account the child’s opinion. The recent fires
in the Moria camp in Greece once again highlight the structural
problems of European migration policy. As stated by the Commissioner
for Human rights, the lack of solidarity and action from other member
States is responsible for the situation that has led to overcrowded,
inhumane and unsustainable living conditions for migrants.
Note As many unaccompanied
and separated migrant children find themselves in desperate and
unsafe situations, this calls for urgent action from member States
to collaborate on their relocation, in order to secure their future
and well-being.
(Amendments M and N).
12. Finally, some amendments have been included to achieve terminological
consistency throughout the text, and taking into account also other
Council of Europe and international legal standards, such as the Recommendation
CM/Rec(2019)11 of the Committee of Ministers to member States on
effective guardianship for unaccompanied and separated children
in the context of migration and Recommendation CM/Rec(2019)4 of
the Committee of Ministers to member States on supporting young
refugees in transition to adulthood, as well as referring to the
new Action Plan in the field of migration and human rights, currently
under preparation by the Special Representative of the Secretary
General on Migration and Refugees of the Council of Europe (rather
than the completed Action Plan on Protecting Refugee and Migrant
Children in Europe). (Amendments D,
J, K, L and M).
