Guardianship Provision Systems for Unaccompanied and Separated Children Seeking Asylum in Europe Initial Mapping

Transcription

1 Guardianship Provision Systems for Unaccompanied and Separated Children Seeking Asylum in Europe Initial Mapping Sajid Alikhan and Malika Floor Bureau for Europe

2 GUARDIANSHIP PROVISION SYSTEMS FOR UNACCOMPANIED AND SEPARATED CHILDREN SEEKING ASYLUM IN EUROPE 1. INTRODUCTION AND EXECUTIVE SUMMARY The present overview of European countries documents the guardianship systems, legislation and practices for unaccompanied and separated children (UASC) seeking asylum in the 42 countries covered by UNHCR s Bureau for Europe. 1 This overview was initiated and undertaken jointly by the Separated Children in Europe Programme (SCEP) and the Bureau for Europe in recognition of the lack of information regarding guardianships in Europe and the crucial role that guardians are expected to play in ensuring appropriate and adequate protection and care of UASC. In a number of countries, including Belarus, Ireland, the Russian Federation and Ukraine, guardians play a key role in the asylum procedure. In these countries, it is the guardians who decide and initiate the asylum application on behalf of the minor since, without a guardian, the child cannot apply for asylum. In countries where the guardian is primarily the child s legal representative and adviser, the lack of access to guardianship would leave the UASC unassisted and unrepresented in legal asylum proceedings. The aim of the overview is to draw attention to the particularly vulnerable situation of the UASC and, through a protection gaps analysis, to flag areas of guardianship provision that may need further regularization and standardization, based on the relevant international and regional standards of protection and care for asylum-seeker and refugee children and adolescents. The review of the national legal frameworks and practices was undertaken as part of UNHCR s protection monitoring and collection of data for evidence-based advocacy to ensure appropriate treatment and care of asylum-seeking and refugee children who have been separated from their parents and customary care givers. In addition to reviewing legal frameworks and their implementation practices, information was collected through a regional survey questionnaire on national standards and procedures for the selection and appointment of guardians, including their required competencies. Other issues mapped in this exercise comprise the guardians tasks and duties, monitoring the guardians, and the support and guidance provided to guardians. The initial mapping of guardianships was done through a survey questionnaire, with replies mainly from UNHCR s country offices in Europe as well as national non-governmental organization (NGO) partners of the SCEP network. In a number of countries, the respondents were government agencies, such as child ombudsmen or authorities in charge of guardianship issues and provision. The survey questionnaire is attached as Annex A to this report. 1 These countries include Albania, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Montenegro, Netherlands, Norway, Poland, Romania, Russian Federation (including Chechnya and Ingushetia), Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. 2

3 The main limitation of the survey is that its results do not provide any assessment of the quality of guardianship or how the different systems and standards impact on the well-being, protection and care of UASC. To bridge this gap, this initial mapping exercise will be complemented by interviews with key stakeholders in selected European countries. The interviews and focus group discussions are meant to obtain feedback and collect the views of the children and their guardians, as well as of children who have not been provided with a guardian. Asylum and childcare authorities, and NGOs specialized in this field, will also be included in the qualitative assessments. The focus groups and interviews will be held in Belgium, Germany, Ireland, Malta and the United Kingdom (UK), where SCEP national partners have agreed to cooperate with this study. Although this small sample of countries may not be sufficient to draw far-reaching or general conclusions for all of Europe, the outcomes of the qualitative assessments will provide further insights and indications of the impact of different guardianship systems through the views and opinions of key stakeholders, and help identify areas in need of regularization and improvement. The preliminary view among UNHCR and its SCEP partners of the significant variations in guardianship systems, both among and within countries, was confirmed by this survey. In all areas of the study, country policies and practices varied widely. Starting with the different understandings of the functions of guardians, the latter were in about half of the countries primarily legal representatives and counsellors of the children, whose main responsibility was to assist their wards in asylum applications and procedures during the process of refugee status determination. In some cases, these guardians were also expected to arrange for the child s education, accommodation and health. Again, in about half of the countries, the guardians as the main adults in the child s life were expected primarily to ensure the child s physical and psychosocial well-being. This ambiguity in the role of the guardians exists among national actors too. In a number of countries, it was not uncommon for a legal representative to be expected to ensure appropriate schooling for the child, or for a social worker to assist the child legally in the asylum procedure. Interestingly, the participation of guardians in the best interests determination, identification of durable solutions and integration support were the areas in which they were least involved. Another area of great difference is that of professionalized, as opposed to benevolent or voluntary, guardianship systems. In a few countries, such as Belgium or Germany, both types of systems exist in parallel. Professionalized guardians are employees of government agencies and NGOs who work in the social and legal sectors, while benevolent guardians are private persons who volunteer to become guardians. The question of which arrangement is best for the child could not be conclusively answered in this mapping exercise, and will depend greatly on the child s specific needs, as well as the competencies and motivation of the guardians. It is noteworthy that professionalized guardians had much better access to guidance and training, and were more systematically monitored, than private guardians. However, the professionalized as well as institutional guardians had less personal contact with their wards, and usually more limited functions and time, than private persons. The difference between professionalized and benevolent or voluntary guardianship systems, and the ambiguity of the guardians role, also influences the competency requirements of the guardians. For professionals, the educational requirements are well-defined, whereas for benevolent and private volunteer guardians, the requirements are linked more to personal attributes and character. Whether the competencies of volunteer guardians need to be further regulated and standardized is a controversial issue, in the sense that the strictly defined 3

4 competencies and attributes of guardians may exclude from guardianship those persons who are not professionals but who, for other reasons, are suitable and have a genuine commitment, and perhaps an existing relationship, with the ward. On the basis of the responses from the European countries, the tendency is perceptibly in favour of professionalized, rather than personalized, guardianships. In only six countries of the region was any weight given explicitly to the quality of the relationship between the child and the guardian, and whether the guardian and the ward could get along with each other. In professionalized guardianships, the emphasis is on educational qualifications, either in the social or legal fields. In personalized guardianships, the competencies of the guardians are related mainly to their personal characteristics and suitability, and their competencies and suitability are often defined negatively, that is, who as a guardian would not be suitable (because of a conflict of interest, immorality, substance abuse, and so on). In a number of countries, the guardianship provision systems for national and non-national children were different. In these countries, it was common either for managers of refugee reception centres and their staff to be delegated guardianship functions by the local child welfare agency, or for the guardians to be selected from among the refugee and asylum-seeker community. In Central and Eastern European countries, in particular, the role of the NGOs in providing guardianship to asylum-seeking and refugee minors was common, while national children were placed in the care of government institutions. Among the key constraints in providing guardianship for asylum-seeking and refugee children were the lack of guidance and training for guardians on asylum, as well as on cultural and psychosocial issues of displaced children. A shortage of guardians with relevant language skills was also identified as a constraint in the newer asylum countries of Eastern and Central Europe. A lack of training for guardians was a major constraint and obstacle for ensuring appropriate standards of care and protection for children and adolescents, and the necessary guidance and support for guardians. In only five of the countries surveyed were guardians required to participate in compulsory training prior to taking up guardianship. Some respondents indicated that, in their view, training was inadequate and of poor quality. An even smaller number of countries (7 per cent) provided access to continuous training for the guardians, or organized regular workshops, seminars and discussions where guardians could meet and obtain support and advice for the proper execution of their duties. An area with a clear need for improvement is the monitoring, reporting and supervision of guardians. There is an almost total absence of any involvement of children and adolescents under guardianship, and the children do not, in any country, have channels for their feedback and views. The most regular monitoring mechanism is the mainly financial reporting that is required of guardians annually. In only 20 countries were guardians required to monitor and report on the situation of the child, according to the answers to the questionnaire. Where the guardianship was provided by a professional institution or agency, the monitoring and reporting on and by the guardians was nearly always a part of the standard supervision of staff in the office, and had little to do, specifically, in regard to the well-being or the quality of guardianship of an individual child. Finally, in response to whether the guardianship system was working well in the 42 European countries covered by this survey, 17 per cent of the respondents described the system as working well; 10 per cent replied that the system worked adequately; while a majority 26 per cent indicated that it was inadequate. For further details, please see Annex B, Table I: Does the 4

5 guardianship system work well? Please also note that the figures, percentages and other information in the five tables in the paper and nine tables in the annex (which are derived from the survey questionnaire in Annex A), are based on a 100 per cent response rate to the survey while, in fact, the overall average response rate to the questionnaire is only 79 per cent. 2. ASYLUM-SEEKING AND REFUGEE UASC IN EUROPE Addressing the separation of children from their care givers is one of UNHCR s global priorities for refugee children. In situations of displacement, conflict and persecution, families often break-up, and children and adults become separated from each other. Family separation puts children at heightened risk of exploitation and abuse, usually entails disruption of education, and requires children to take up responsibilities for themselves, their siblings and other family members. Asylumseeking and refugee children are in a more vulnerable position without a responsible adult, often unable to understand the language, culture and way of life of the new country. Without access to appropriate reception and legal assistance, they are at further risk of exploitation, marginalization and discrimination. The overall number of asylum-seekers in all the European countries has dropped dramatically since the beginning of The reduction in the numbers of asylum applications is believed to intersect with the restrictive asylum and migration policies of Europe, and the growing global economic inequalities that contribute to conflict, lack of livelihood and displacement. The mixed and irregular movements of populations for reasons of persecution, human rights violations, inadequate protection in the countries of origin and transit, environmental degradation and lack of livelihood are composed of economic migrants and refugees. Not only are the populations sometimes mixed, but the irregular movers may have a mixed motivation for displacement that are linked to both economic and persecutory reasons. With the emphasis on border control and the containment of irregular migration, it is increasingly difficult to reach Europe without the assistance of smugglers and traffickers. The lack of access to territory and asylum impact disproportionately on children. The fees and bribes for assisted travel and entry into Europe are less costly for children than for adults. The chances of a child being allowed to stay in Europe are better than for an adult asylum applicant or irregular migrant. It is easier for children to engage undetected in street-based activities and petty crimes, and criminal prosecution and charges are less likely, and lower, than for adults. The lifetime capacity to earn a living and provide remittances to family members in the countries of origin is higher than for adult migrants. The exploitation of children for labour and subversive activities particularly affects young boys who are sent abroad by their families or other adults, and is based on gender-differentiated perceptions of income-earning capacity and vulnerability. Boys are perceived to be generally better earners, and less vulnerable, than girls. This has resulted in a situation where most asylum-seeking UASC arriving in Europe today are adolescent boys. The above factors are likely to explain why the number of asylumseeking children has not dropped as dramatically as the number of adult applicants. According to the available data, the number of asylum claims lodged by UASC in the 42 European countries between 2001 and 2003 was 12, While the total number of asylum applications by 2 United Nations High Commissioner For Refugees. Trends in Unaccompanied and Separated Children Seeking Asylum in Industrialized Countries, Population Data Unit, in consultation with the Bureau For Europe. Geneva. July

6 adults was halved between 2002 and 2005, the number of applications by UASC in 2005 had only dropped by one-quarter, to a total of 9,800. Despite this seemingly large number, the proportion of asylum applications lodged by UASC remains small, averaging about 3-4 per cent of all asylum applications. There are considerable country differences, and the countries that receive a majority of the child applicants are Sweden and the UK. When countries are compared for the share of UASC applications as a proportion of all asylum claims, the largest share of UASC is in Bulgaria, where children seeking asylum alone make up ten per cent of all asylum-seekers. The most common countries of origin for child applicants are Afghanistan, Angola, Iraq, Sierra Leone and Somalia, followed by China, Democratic Republic of the Congo, Guinea, Nigeria and Serbia and Montenegro. The countries of origin for UASC arriving in Europe have changed remarkably, with a shift in arrivals from other European as well as Asian and Middle Eastern countries to an increase in those arriving (increasingly) from Sub-Saharan Africa. In 2005, Sub- Saharan African children and adolescents comprised an estimated 45 per cent of all UASC in Europe, with most applications in Europe coming from adolescent boys aged years. One of the main constraints of UNHCR and other organizations in monitoring the protection of UASC is the pervasive lack of data. Most Western European countries do not produce age- and sex-segregated statistics on asylum applications and decisions. To the extent that it is possible to draw conclusions on the basis of scarce data, recognition rates for UASC are generally much lower than those for adult applicants. In the absence of guidance and clearly instated policies to assess asylum claims child-sensitively, most UASC are granted humanitarian or other complementary protection status. For example, in 2004, a total of 2,990 UASC sought asylum in the UK. While the majority of the children (72 per cent) were granted the right to remain in the UK, only two per cent were recognized as refugees and one per cent on humanitarian grounds. Since 2005, most child applicants are subject to age assessment, of which the results are not available to UNHCR. If the UASC are found to be over 18 years of age, they may not be admitted to the territory or the asylum procedure, or the refugee status determination decision may be linked to the results of the age assessment. In this way, the authorities do not need to pay attention to the international and regional standards of protection and care that would be applicable to minors. 3. STANDARDS ON GUARDIANSHIP PROVISION FOR UASC 3.1 INTERNATIONAL LEGISLATIVE FRAMEWORK The relevant international legislative framework is based on the 1989 United Nations Convention on the Rights of the Child (CRC) that provides for children s fundamental rights in the areas of civil, political, economic, social and cultural rights. The CRC is the most widely ratified Convention and, in Europe, all countries are states parties to it. However, some of the countries, including Germany and the UK, have entered specific reservations in relation to age, nationality, immigration status and application of the CRC domestically. The Committee on the Rights of the Child has provided further authoritative guidance for states parties on to how to apply the CRC s standards to asylumseeking and refugee children. 6

7 On the issue of legal guardians, enshrined in several articles of the CRC, states are required to create a legal framework and ensure proper representation of the UASC s best interests. General Comment 6 of the Committee on the Rights of the Child requires that states appoint a guardian or adviser as soon as the UASC is identified. The Committee further stipulates that the guardian should be involved in all actions taken in regard to the child. It specifically mentions the importance of the participation of the guardian in asylum proceedings, the identification of durable solutions, and the education and care arrangements for the child, and also for the guardian to have the necessary expertise and authority for these functions. If in some areas the guardian does not have the necessary expertise, supplementary measures, including the appointment of an adviser or legal representative, should be secured. Moreover, the Committee requires that states parties have review mechanisms in place to monitor the quality of the guardians to ensure that the best interests of the child are being represented, and to prevent abuse. 3 While the 1951 Convention relating to the Status of Refugees is mostly silent on children, its standards apply to children in the same way as they do to adults. Article 22 of the Convention sets standards that are of special importance to children: refugees must receive the same treatment as nationals with respect to primary education, and treatment at least as favourable as possible as that given to non-refugee aliens in secondary education EUROPEAN LEGISLATIVE FRAMEWORK The Council of Europe has set several regional standards which are derived from the international instruments and standards related to children. Among them, the European Parliament Resolution of 1992 on a European Charter of Rights of the Child requests, among other things, that Every child has the right to life. If the parents or persons responsible for the child are not in a position to ensure his survival and development, the State must guarantee him the necessary protection and care and a decent minimum of resources and take steps to encourage and facilitate the provision of this care by individuals or families willing to do so, or if this is impossible, via direct intervention by the authorities 5. The Resolution also states that a child in the territory of a Community state cannot be the subject of any discrimination based on the parents nationality, family background, sexual orientation, race, colour, sex, language, social origin, religion, belief, state of health or other circumstance 6. Particularly in regard to refugee children, the European Parliament states that 3 Committee on the Rights of the Child. General Comment No. 6 (2005): Treatment of unaccompanied and separated children outside their country of origin. Thirty-ninth session. Crc/Gc/2005/6. Geneva. 17 May-3 June United Nations. Convention relating to the Status of Refugees. Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December Entered into force on 22 April 1954, in accordance with article European Parliament. Resolution on a European Charter of Rights of the Child. 8 July Article Idem, Article

8 Children from third countries who apply for refugee status in a Member State must be given due protection and assistance in that State whilst their application is being considered. 7 On the issues of best interests, children s participation and parental role, the European Convention on the Exercise of Children s Rights (1996) building on the Parliamentary Assembly of the Council of Europe Recommendation 1121 (1990) on the rights of children states as follows: Convinced that the rights and best interests of children should be promoted and to that end children should have the opportunity to exercise their rights, in particular in family proceedings affecting them; Recognizing that children should be provided with relevant information to enable such rights and best interests to be promoted and that due weight should be given to the views of children; Recognizing the importance of the parental role in protecting and promoting the rights and best interests of the children and considering that, where necessary, States should also engage in such protection and promotion. The Parliamentary Assembly of the Council of Europe issued in 2005 its Recommendation 1703 on asylum-seeking and separated children. 8 Although not legally-binding, the standard in its Article 5 on guardianships is clearly defined, and advises that: As they are without their parents or legal or customary primary care-givers, separated children seeking asylum should benefit from the prompt appointment of a legal guardian to defend their interests and ensure their well-being and they should also be placed in care and reception structures in keeping with their age and maturity. By contrast, the legislation of Council of Europe member states often does not provide for an appropriate system of guardianship on behalf of foreign children. Even when an adequate legal framework is in place, administrative delays pose a serious threat to the safety of children, leaving them more exposed to a risk of trafficking or other abuses. Furthermore, the detention of separated children in the asylum process is a widespread practice in the vast majority of Council of Europe member states, in open disregard of the obligation to provide care and reception in structures suitable for children and in violation of Article 37 of the United Nations Convention on the Rights of the Child, which states that detention shall only be used as a measure of last resort and for the shortest appropriate period of time. The recommendation further instructs the Committee of Ministers of the Council of Europe and its member states to: 7 Idem, Article Parliamentary Assembly of the Council of Europe. Recommendation 1703 (2005) on the protection and assistance for separated children seeking asylum. Strasbourg. 28 April

9 [A]mend their legislation and remove any administrative obstacle so as to ensure that separated children can have a legal guardian and a legal representative appointed as a matter of urgency and not later than two weeks of their presence coming to the knowledge of the authorities The European Union Law Two asylum-related European Union (EU) directives addressing the reception of asylum-seekers and the processing of asylum claims make specific reference to guardianships for UASC where the European Commission requires its member states to appoint, as soon as possible, a legal guardian to ensure the care and well-being of asylum-seeking children, and the appropriate legal representation and assistance for children to articulate their asylum claim. In practice, as verified by the regional survey questionnaire, there are considerable delays and gaps in the appointment of guardians and legal representatives. In some countries, asylum-seeking children are denied both guardians and legal representatives. It is not uncommon for a legal representative to be expected to provide for the care and well-being of the child, or for a social worker to be the main representative of the child in the asylum procedure. For example, in Poland, it is the NGOs and law students who with UNHCR s financial support represent and assist the child asylum-seekers in legal proceedings. The social institutions in charge of accommodation and care of the child and social workers are uninformed about asylum procedures, although they are expected to assist the child in the asylum application. 10 On unaccompanied minors, Article 19 of the EU Reception Directive 11 legislates that Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation. Regular assessments shall be made by the appropriate authorities. And, in accordance with Article 17 (a) of the EU Procedures Directive 12, Member States shall: as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor with respect to the examination of the application. This representative can also be the representative referred to in Article 19 of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. 9 Idem. 10 Menon, Rekha and Floor, Malika. Profiling of Unaccompanied and Separated Children. United Nations High Commissioner for Refugees, Bureau for Europe. Unpublished research paper. Geneva Council of the European Union. Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. (Reception Directive) Council of the European Union. Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. 9

10 3.2.2 The SCEP-UNHCR Statement of Good Practice The SCEP-UNHCR Statement of Good Practice 13 provides a comprehensive policy framework and good practice standard for the protection and care of UASC in Europe. The good practices are directly informed by the work of SCEP partners and UNHCR country offices in Europe, and its third edition was updated in 2004 to reflect the current protection issues of UASC in the rapidly developing area of European asylum and migration policies. The Statement of Good Practice is also informed by, and based on, the international and European instruments and standards on the rights of the child and on the rights of refugees and asylum-seekers, and draws especially on the Convention on the Rights of the Child, EU directives on reception and asylum procedures, and UNHCR guidelines related to refugee children. Section C6 of the Statement on the appointment of a guardian or adviser recommends that: As soon as a separated child is identified, an independent guardian or adviser should be appointed in a long-term perspective to advise and protect separated children. Regardless of the legal status of this person (e.g. legal guardian, NGO worker) their responsibilities should be as follows: to ensure that all decisions taken are in the child s best interests to ensure that a separated child has suitable care, accommodation, education, language support and health care provision to ensure that the child has suitable legal representation to deal with her or his immigration status or asylum claim to consult with and advise the child to contribute to a durable solution in the child s best interests to provide a link between the child and various organizations who may provide services to the child to advocate on the child s behalf where necessary to explore the possibility of family tracing and reunification with the child to help the child keep in touch with his / her family. In order to ensure necessary protection for separated children, appointments of guardians / advisers should be made within one month of a child being notified to the relevant authorities. The individuals carrying out these responsibilities may be drawn from a range of specialist backgrounds. However, in order to carry out their role effectively, advisers or guardians should have relevant childcare expertise and an understanding of the special and cultural needs of separated children. They should receive training and professional support, and undergo police reference checks. 4. TYPES OF GUARDIANSHIP, APPOINTMENT PROCEDURES AND REMUNERATION 13 Separated Children In Europe Programme. Statement Of Good Practice. Third Edition,

11 The types of guardianship and appointment procedures vary widely from one country to another. Usually, it is either the government institutions in charge of child welfare and social services, or specialized NGOs, that serve as guardians for UASC seeking asylum in Europe. The actual care can be further delegated to a specialized organization or to a private person whose activities are monitored by governmental or non-governmental agencies. In the survey questionnaire, respondents were asked to describe the guardianship system as either professionalized, benevolent (or voluntary), or remunerated but reliant on individuals who are not professionals. If the guardians were remunerated, the questionnaire asked that the amount of remuneration be specified. The results show that in one half of the countries, guardianship systems were described by the respondents as professionalized, and in the other half as voluntary. In a number of countries, the system was a combination of both professional and voluntary guardianships, as the nominal guardian was usually a governmental institution, which then delegated the practical care of the child to a specialized NGO or private individual. Some remuneration for the guardians is provided in about a quarter of the European countries. However, it is not possible to draw far-reaching conclusions about remuneration on the basis of the data collected. When institutions or childcare authorities serve as guardians, there is no additional remuneration, although their guardianship work is part of their usual duties. Remuneration is more common among the specialized NGOs or private individuals. Often, the remuneration is a nominal compensation for the guardian, and the guardian can, in addition, request for further compensation for tasks that entail costs or that are particularly demanding in terms of time or expertise. Guardians are remunerated in 24 per cent of the countries, with their remuneration or nominal fee being paid by the state. This is usually the case where guardians are remunerated as employees of administrative or professional service providers. In a number of countries, especially where the guardians are primarily the legal representatives of the child in the asylum procedure, the remuneration, salary or fee is paid by the courts. For example, in Germany, the courts may pay the professional guardians (who are lawyers or social workers), an hourly wage. In Belgium, Finland, the Former Yugoslav Republic of Macedonia, Sweden, Switzerland and Turkey, the guardianship system is remunerated, but reliant on individuals who are not professionals. In Finland, guardians work independently and receive a fee, not a salary. In Croatia, in accordance with the Croatian Family Law, guardians have a right to monthly compensation for their duties, which is paid on request. The system of guardianship is professionalized in 31 per cent of the countries in this review. In Germany, the system of guardianship is partly professionalized and partly voluntary, with four types of guardians. The system is professionalized in Austria as well, but only in cases where youth welfare agencies are appointed as guardians. In Croatia, the legal framework provides for a professionalized guardianship system, although there are gaps in current practice. Bosnia and Herzegovina, as well as Switzerland, have all three categories of guardianship, depending on the municipality or canton. In the Swiss cantons of Geneva or Zurich, however, the system is professionalized and remunerated. The professionalization of guardianship in Spain does not extend to foreign UASC seeking asylum, since guardians are not trained on specific rights of nonnational UASC and, in addition, rarely speak foreign languages. And in Greece, legal provisions 11

12 especially for UASC not seeking asylum are inadequate, as is the implementation of the already existing legal framework. Guardianship systems are voluntary or benevolent in 31 per cent of the countries, and guardians or custodians take on their responsibility free of charge, as in Belarus, for example. In Luxembourg, guardians are professionals working for the refugee service, Caritas, and do not receive any special allowance for their work. For further details, please see Annex B, Table II: Types of guardianship. 4.1 TYPES OF GUARDIANSHIP SYSTEMS Institutional guardianship Most countries included in this survey have systems of guardianship. The guardians are either individual persons or institutions. Although the names of institutions may vary, guardians are appointed by local courts or tribunals in 29 per cent of the countries under review and by centres for social or child welfare in 12 per cent of the countries, mainly in Southeastern Europe (including Bosnia and Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, Serbia and Slovenia). In Spain, the Protection of Minors Department of the corresponding autonomous community or city is responsible for the appointment of a legal guardian, while in the UK no real system of guardianship exists. In Greece, because of a lack of appropriate reception facilities, UASC asylum-seekers are lodged in private institutions and, in Romania, guardians can be appointed from the staff of authorized private institutions when cleared by the Directorate for Child Protection. Meanwhile, in Slovenia, a new family law is being prepared that will empower courts to appoint guardians. In a number of countries where institutions serve as guardians, the practical care of the children is delegated to NGOs (for example, in Spain) Private guardianship Private, independent persons act as guardians in Belgium, Finland, Germany and Luxembourg. Private families can also accept UASC as in Finland at the behest of local social authorities. In the UK, despite the absence of a formal guardianship system, private fostering arrangements exist for UASC, in accordance with the Children Act of However, to ensure local authority oversight of such arrangements, it has been suggested that a mandatory registration scheme for privately fostered children should be introduced Non-governmental organizations Individual guardians work for NGOs in Belgium, Luxembourg (Caritas/le Service pour Réfugiés); Slovenia (Slovene Philanthropy, which is also an implementing partner of UNHCR); and Switzerland outside of the canton of Geneva. An independent and competent guardianship of NGOs exists in Germany. Legal and social counsellors from NGOs in the Czech Republic, such as the Organization for Aid to Refugees, assume guardianship for UASC for the duration of the 14 Bhabha, Jacqueline and Finch, Nadine. Seeking Asylum Alone: Unaccompanied and Separated Children and Refugee Protection in the U.K

13 asylum procedure. In Norway, the Norwegian People s Aid is developing a pilot project to improve the recruitment and training of guardians which is to be implemented nationwide. 4.2 APPOINTMENT PROCEDURES AND AFFILIATION OF GUARDIANS As in the other attributes of guardianship systems, the appointment and affiliation of guardians varies in the European countries. In the case of asylum-seeking children and adolescents, the guardians, legal representatives and legal counsellors in a number of countries are sometimes the same institution or individual. It is assumed that where guardians are affiliated, or under the supervision of childcare or social welfare authorities, their tasks are more closely linked with the care and overall well-being of the child. Where the guardians are affiliated with asylum authorities, they are better equipped to provide legal support for the asylum application of the minor and less concerned with the day-to-day care and coordination of different stakeholders and actors. In some countries, there is a multi-sectoral guardianship system in place for example, in Germany with the appointment of both legal representatives and advisers, as well as guardians concerned with the child s care arrangements, coordination and ensuring that the child s best interests are met. The information on types of guardianship and their affiliation were not available for Denmark, France, Iceland, Latvia and Montenegro. Information on the affiliation of guardians was not available for Albania, Azerbaijan, Belarus, Bulgaria, Cyprus, Estonia, Russian Federation, Ukraine and the UK. For further details, please see Annex B, Table III: Appointment of guardians and their institutional affiliation. 5. DUTIES OF GUARDIANS 5.1 DUTIES While a guardian is expected to fulfil a key role in the overall well-being of the child, there is considerable variation in practice in the areas of care and the extent of the guardian s involvement. The most common duties of guardians are summarized in the synopsis in Table 1, below. In a majority of the countries, the most common duties relate to care arrangements, accommodation, education and health. The least common duties of guardians are the identification of durable solutions and participation in decisions concerning the Dublin II Regulation transfers. Interestingly, only in 20 of the 42 countries surveyed were guardians expected to assist the minor to integrate into the new country and environment. As discussed earlier and depending on how guardianship is contextualized guardians in a number of countries serve mainly as legal representatives or counsellors to the children. In 57 per cent of the European countries, guardians are legal representatives whose role is to advise, support and represent the child in the asylum procedure. In these cases, guardianship is usually limited to the duration of the asylum procedure. The duties of guardians may also vary for other reasons, according to the duration of the guardianship. Where there is a system of temporary guardianships, the temporary guardian is usually the person or institution in charge of the initial reception and care of the child. For example, in countries where newly arrived asylum-seeking UASC are accommodated in a temporary facility or detained, they may be assigned a temporary guardian. Upon identification of a municipality where the child will be living during the asylum procedure, the municipal childcare or asylum 13

14 authorities, such as the reception centre management, takes over the guardianship of the child. In some countries, if the child is granted asylum or a permit to stay in the country, the guardianship may change again, especially in cases where the guardian is a legal representative, or an authority linked to asylum. For further details, please see Annex B, Table IV: Duties of guardians; and also Annex C, Chart I: Duties of guardians. Table 1: Guardians duties, a synopsis GUARDIANS DUTIES IMPLEMENTED IN NO. OF COUNTRIES AS PERCENTAGE 1. Accommodation Care arrangements Education Integration support Health services Monitoring / reporting on the situation of the child Best Interests of the Child (Best Interests Determination) Family tracing and reunification Dublin II Regulation transfers Refugee Status Determination (RSD) procedures Access to legal counselling Legal representation Identification of durable solutions: voluntary repatriation / local integration / resettlement The duties of guardians are often defined in law in a general manner. It may not be feasible to determine at the legislative level the precise functions to allow for sufficient flexibility to meet the needs of the child and the requirements of the situation. However, in only a few countries are the duties of guardians defined at all. In Finland and Slovenia, there are no clear or precise guidelines that define a guardian s duties. Swedish legislation, too, does not exhaustively define the duties of a guardian (or custodian ), although these are sometimes developed in more detail in general principles concerning parental responsibility. As a result, the role of a guardian varies considerably with each individual guardian. In Austria, certain duties, such as care and education, are legally defined in the Civil Code (or, Allgemeines Bürgerliches Gesetzbuch / ABGB). In practice, the agency dealing with guardianship the youth welfare agency, or Organization des Jugendamtes determines in more detail the duties it needs to perform in its general role of guardianship. In Ireland, duties such as monitoring or reporting on the situation of the child are carried out by a guardian, but only to the extent that resources are available. Moreover, as the guardian is a governmental body (Executive Health Service) and has, at the same time, the role of applying for asylum on behalf of the child, it needs to undertake duties related to both care and asylum. 14

15 Croatia s Family Law does not specify the expected duties of a guardian. These are generally determined by the Centre for Social Welfare (CSW), which is a locally-based state-run social care institution. The duties include, but are not limited to, all the 13 duties listed in the survey questionnaire. In Greece, the refugee law specifies that a guardian s duties are to assist UASC only for the duration of the asylum process. In reality, very few UASC asylum-seekers have a guardian appointed. According to the replies to the questionnaire, the Public Prosecutor for Minors plays a cursory role and does not work toward the protection and care of UASC. The legislative framework governing the protection of UASC, including guardianship issues, is in need of substantial overhaul in Greece Best interest of the child Despite the fundamental principle of the Convention on the Rights of the Child, the best interest of the child is an explicit duty of a guardian in 24 European countries (57per cent of those surveyed). The best interest principle extends to all areas of a guardian s duties and competencies, and provides a guide to all important decisions that affect the child. Best interest assessment and / or determination is ideally a multi-sectorally based conclusion that entails the joint assessment and decision-making by all actors who are in some way linked to the issue at stake. The decision should be informed by the child s best interests, and not by the interests, incapacity or lack of resources of the actors. The best interest determination should, therefore, be made independently of other considerations. To the extent that the children s maturity allows, they should be heard and their views taken into account in decisions that affect them. The questionnaire s respondents put forward a view that many guardians lack appropriate expertise in ensuring the child s best interests. There is, in general, insufficient research and training for professionals and, in many countries of Europe, the best interest principle is enshrined usually in child welfare legislation, but practical procedures for its implementation may not be in place. For example, in the Czech Republic, the principle of the interest and welfare of minors is outlined in the Family Act and the Law on Social and Legal Protection of Children. In reality, however, this principle is neither adequately defined nor reflected in legislation, court decisions or specific policies related to children in the country. In Romania, a child s interests are not formally safeguarded in practice, due to a narrow interpretation of Article 73 of the Law on the Protection and Promotion of the Rights of the Child. In Ukraine, in cases where a guardian is assigned to asylum-seeking UASC, the duties do not include protection of a child s best interests. In the Former Yugoslav Republic of Macedonia, the best interest principle, although mandatory and enshrined in law, is not applied in the case of refugee children. A practical example of the impact of limiting duties of guardians, or not resourcing guardians to professionally carry out their required duties, comes from the Czech Republic. Because of the conflicting positions of local departments in the Czech Republic for the social and legal protection of children and the role of guardians, the involvement of guardians in asylum proceedings and refugee status determination remains limited. The guardians refuse to exercise their role of guardianship for the entire administrative proceedings of the asylum procedure, and only participate in asylum interviews. Hence, NGO legal counsellors continue to assume a de facto legal representation of the child in the asylum procedure by working closely with the resident guardians assigned to each asylum-seeking UASC. 15

16 Finally, as a good practice example, the Refugee Council Children s Panel (RCCP) a SCEP partner has played a key role in the UK in assisting some UASC to access legal and social services. However, it is widely acknowledged that the RCCP does not have sufficient resources or powers to be considered a guardian. Unlike in asylum proceedings, the role of a guardian does exist in family court proceedings. However, the guardianship role of the Children and Family Court Advisory and Support Service (CAFCASS) is limited only to family court proceedings and does not deal with non-national UASC, except in the context of family law matters Durable solutions for voluntary repatriation, local integration or resettlement Durable solutions for refugees can take three basic forms, entailing the re-establishment of the refugee and providing a normal way of life, either in the country of origin or asylum, or in a third country through resettlement. Resettlement is a durable solutions option when, for reasons of protection or individual needs, it is not feasible for the refugee to return home or to stay on in the country of asylum. When the need for international protection ceases, the refugee returns voluntarily to the country of origin or usual habitation. By local integration is meant that the refugee stays in the country of asylum and integrates locally into the host society. The identification of a suitable durable solution is thus essential for the regularization of the status of a refugee, and as a long-term solution to involuntary displacement. The responses to the survey questionnaire point to difficulties in defining the duties and tasks of guardians that are similar to the difficulties in defining legal representation. The children whose guardianships were surveyed are both minors and refugees. Depending on the country, there seems to a mixed approach to the children and a lack of clarity as to whether they should, for the most part, be considered and treated as minors, or whether they should be seen primarily as asylum-seekers with limited rights. This incoherent approach and the delinking of asylum-seeking children from their rights that would otherwise be applicable to all children in a particular country is reproduced in national legislation. In asylum-related legislation, there is a lack of child-sensitivity, and few provisions for the specific needs of child asylum-seekers. Consequently, the service providers are not sufficiently guided by their obligations under the Convention on the Rights of the Child and the 1951 Convention relating to the Status of Refugees, including whether in the case of asylum-seeking children to apply the national asylum law or child welfare law. For example, there are no specific procedures identified in the national laws of Cyprus for asylumseeking children. In Cyprus, the draft law on asylum and refugees provides for integration support to refugees and beneficiaries of subsidiary protection status, regardless of their age. However, no specific provisions for the integration support of other groups of minors are provided for in the national laws. In Bulgaria, no special arrangements exist in the country s legislation in respect of asylum-seeking and non-national UASC. In Italy, guardians have no obligation to assist in seeking durable solutions. The German model where a guardian is part of the planning process for durable solutions and required to approve measures taken by the Youth Welfare Office (Jugendamt) represents one of the good practices in the involvement of the guardian, thus, making it a more independent and multi-sectoral decision-making process, with a check on the government s actions and motivations Family tracing and reunification 16