1. Introduction
1. The newly adopted Council of
Europe’s
Strategy
for the Rights of the Child 2022-2027 identifies children’s rights in crisis and emergency
situations as one of its priority areas. It makes specific reference
to the rights of migrant and refugee children and spells out the
steps that can be taken to implement relevant standards. Also, the
Council of Europe’s Action Plan on protecting vulnerable persons
in the context of migration and asylum in Europe 2021-2025 provides
valuable guidance. Both are key documents, whose implementation
at national level – through legislation, policies and practices
– the present report supports. Furthermore, the Parliamentary Assembly
has also voiced concern about the need for the protection of unaccompanied
and separated migrant and refugee children, and the Committee on
Migration, Refugees and Displaced Persons has previously addressed
the issue of alternative care for unaccompanied and separated migrant
and refugee children in the framework of its Parliamentary Campaign
to End Immigration Detention of Children (2016-2019).
2. Thus, the present report examines the issues pertaining to
the protection and alternative care of unaccompanied and separated
migrant and refugee children in the member States of the Council
of Europe. It will provide a brief overview of relevant international
and European legal standards and policies, as well as map some of
the promising practices in the Council of Europe’s member, observer
and partner States in the provision of alternative care arrangements
for these children and adolescents, with priority given to the necessary
safeguards of prevention and protection as well as to family-based
care.
3. Given the ongoing war in Ukraine and its devastating impact
on high numbers of children fleeing the country with relatives but
at risk of being separated, or fleeing unaccompanied and separated,
or already placed in alternative care prior to the war, the present
report also addresses the specific situation of these children and
explores some preliminary initiatives implemented in neighbouring
and other European countries in response to their protection and
care needs. The key elements of the procedure to ensure the true
necessity and suitability and quality of alternative care are fully
applicable to the current situation.
2. Unaccompanied and separated migrant
and refugee children in Europe: current situation
4. Unaccompanied children are
those “who have been separated from both parents and other relatives
and are not being cared for by an adult who, by law or custom, is
responsible for doing so”, whilst separated children “have been
separated from both parents, or from their previous legal or customary
primary care-giver, but not necessarily from other relatives. These
may, therefore, include children accompanied by other adult family members”.
5. For the year 2020, the International Organization for Migration
(IOM), the United Nations International Children's Emergency Fund
(UNICEF) and the United Nations High Commissioner for Refugees (UNHCR) estimated
that 16 750 children arrived in Greece, Italy, Spain, Bulgaria,
Cyprus and Malta; of these, 10 343 (62%) were unaccompanied and
separated migrant children, whilst child arrivals decreased by 50%
in 2020 compared to 2019 (33 200). In this context, it can be noted
that 52% of those people in resettlement procedures in Europe were
children; Sweden, France, Norway, Germany, the United Kingdom and
Finland were the main countries in Europe considering children’s
resettlement cases. Syrians, Congolese (Democratic Republic of Congo),
Sudanese and Eritreans were the most common nationalities of children
whose cases were being considered for resettlement by European States.
6. It is worth highlighting the current mass displacement of
Ukrainian children, in relation to whom UNICEF had already estimated
by 15 March 2022, that “every single minute, 55 children have fled
their country. A Ukrainian child has become a refugee almost every
single second since the start of the war”. By the end of the same
month, the Organisation stated that “two million children have now
been forced to flee Ukraine”, among these, “many are unaccompanied
or have been separated from their parents or family members”.
These children have
been arriving in other Council of Europe member States, mainly Poland,
Romania, the Republic of Moldova, Hungary, the Slovak Republic and
the Czech Republic. This context will be addressed specifically in
Section 6 below. Moreover, one month after the invasion of Ukraine
by Russian forces, the number of internally displaced children in
the country reached 2.5 million, according to the same Organisation.
3. Key
applicable legal standards and policies
7. An extensive legal framework
to protect unaccompanied and separated migrant and refugee children exists
at global, regional and domestic levels; so do very useful policies
and guidelines that offer guidance for their efficient implementation
and de facto protection.
3.1. United
Nations and other global organisations
8. The
Convention
on the Rights of the Child (1989) – the most widely-adhered to human rights instrument –
establishes four general principles and a set of rights, which should
guide the protection of all children, including the consideration
for the best interest of the child (Article 3), the principle of
non-discrimination (Article 2), the right to be heard and due weight
to be given to his or her views (Article 12) and the right to life, survival,
and development (Article 6). Particularly relevant for the protection
of unaccompanied and separated migrant and refugee children are,
among others, the right to preserve his or her identity (Article
8), the right to be cared for and grow up with one’s parents and
to maintain contact with them (Article 9), including through reunification
(Article 10), the right to protection from all forms of violence
(Article 19), the right of children deprived of parental care to
special protection and assistance (Article 20), the right of children
seeking refugee status to receive appropriate protection and humanitarian
assistance (Article 22) and the right to non-deprivation of liberty
(Article 37).
10. Likewise, the
Global
Compact for Safe, Orderly and Regular Migration (2019) promotes “existing international legal obligations
in relation to the rights of the child, and upholds the principle
of the best interests of the child at all times, as a primary consideration
in all situations concerning children in the context of international
migration”, and refers to actions to “protect unaccompanied and
separated children at all stages of migration” and “ensure that
child protection authorities are promptly informed and assigned
to participate in procedures for the determination of the best interests
of the child once an unaccompanied or separated child crosses an
international border, in accordance with international law, including
by training border officials in the rights of the child and child-sensitive
procedures, such as those that prevent family separation and reunite families
when family separation occurs”. The
Global Compact on
Refugees (2018) also addresses the needs and rights of refugee
children. In relation to the latter, it is worth mentioning UNHCR’s
Best
Interests Procedure Guidelines: Assessing and Determining the Best
Interests of the Child (2021), which reiterates that it is crucial to preserve
the family environment, aimed mainly at intending family tracing
and reunification.
11. In relation more specifically to the provision of alternative
care, the
UN
Guidelines for the Alternative Care of Children (2010) were developed to enhance the protection of children
without, or at risk of losing, parental care, including how to prevent
family separation and how to ensure that any alternative care is
both necessary and suitable for the individual child. The UN Guidelines
include guidance specifically aimed at the protection and alternative
care of children, who are already abroad and in emergency situations,
including for unaccompanied and separated migrant children. The
2019
General Assembly Resolution on the Rights of the Child 74/133 has called on States to implement these guidelines
to prevent the unnecessary separation of children from their parents
and reflects a deep concern in relation to the protection of unaccompanied
and separated migrant children.
12. It is also worth mentioning the recently-adopted
2022
Resolution of the Human Rights Council on the Rights of the Child, which focuses on realising the rights of the child
and family reunification. This Resolution “calls upon States to
use alternatives to the detention of migrant children, including
by promoting the use of non-custodial solutions, implemented by
competent child protection actors engaging with the child and, where applicable,
his or her family”; it also “calls upon States of origin, transit
and destination to find effective and timely responses to the needs
of unaccompanied or separated children as soon as they are identified
as such”. Similarly, the
United
Nations Global Study on Children Deprived of Liberty was launched in November 2019, noting that institutional
care, despite being particularly harmful and often characterised
by living arrangements that are inherently harmful to children,
such as separation and isolation from families and the wider community, continues
to be used.
13. Finally, also at global level, it is worth mentioning two
instruments developed by the Hague Conference on Private International
Law. The
1996
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and
Co-operation in Respect of Parental Responsibility and Measures
for the Protection of Children may indeed be applicable to the protection and alternative
care of unaccompanied and separated migrant children, as it “provides
competent authorities with the tools and flexibility to implement
just about any cross-border or domestic solution that will respond
to the best interest of such children, on a case-by-case basis”.
This could, for example, be applicable to the large number of children
fleeing Ukraine, who were already placed in alternative care in
their country of origin and whose protection measures must be recognised
abroad. While the
1993
Convention on Protection of Children and Co-operation in Respect
of Intercountry Adoption establishes the safeguards for such procedures, it may
only be applicable to unaccompanied and separated migrant and refugee
children after a significant lapse of time.
3.2. Council
of Europe
15. Over decades, the Council of
Europe has developed standards and tools, which provide for a co-ordinated
approach on children’s rights as well as very specific benchmarks
and guidance as to how to ensure that unaccompanied and separated
migrant and refugee children are entitled to special protection
and care, through both legally binding instruments that define States’
rights and obligations and practical guiding tools to support the
implementation of standards in practice.
17. In terms of applicable legal instruments, children’s rights
have been enshrined into the
European Convention
on Human Rights (1950) (ETS No. 5), within Article 8 on the right to
respect for private and family life and the European Court of Human
Rights’ comprehensive case law (see below). Furthermore, other binding standards
developed by the Council of Europe over the years provide further
references to its member States, thus complementing efforts at global
level. The
Convention
on the Protection of children against sexual exploitation and sexual
abuse (2007) (CETS No. 201, “Lanzarote Convention”), the
Declarationof
the Lanzarote Committee on protecting children in out-of-home care
from sexual exploitation and sexual abuse, and the
Convention on Action against
Trafficking in Human Beings (2005) (CETS No. 197) are
examples of relevant standards. In addition, the
Revised European Social
Charter (ETS No. 163) contains specific provisions devoted to
children’s protection, in particular Article 17 requires States
to “take all appropriate and necessary measures designed to provide
protection and special aid from the State for children and young persons
temporarily or definitively deprived of their family’s support”.
Under Article 31.2 of the Revised European Social Charter, States
have a duty to provide shelter to migrant children (including those
unlawfully present) as long as the children are in the States’ jurisdiction.
18. Furthermore, in its
Resolution
1810 (2011) “Unaccompanied children in Europe: issues of arrival,
stay and return”, the Assembly encouraged member States to provide
“appropriate care arrangements, preferably foster care, with living
conditions suitable for children’s needs and for the appropriate
period of time”. The Assembly also underlined that unaccompanied
and separated migrant and refugee children should never be detained
and must be treated first and foremost as children, in,
inter alia, this same
Resolution 1810 (2011) as well as
Resolution
2020 (2014) “The alternatives to the detention of children” and
Resolution 2136 (2016) “Harmonising the protection of unaccompanied minors
in Europe”.
19. Non-binding texts approved by the Council of Europe’s Committee
of Ministers also provide a comprehensive set of standards and guidance
with a view to strengthening the protection of unaccompanied and
separated migrant and refugee children and their care, including:
- Recommendation
CM/Rec(2019)11 on effective guardianship for unaccompanied and separated children
in the context of migration sets out a set of essential principles and implementing
guidelines targeting both decision-makers and practitioners working
to secure the protection, reception, care and well-being of unaccompanied
and separated migrant and refugee children through guardianship;
- Recommendation
CM/Rec(2007)9 on life projects for unaccompanied migrant minors promotes life projects as tools to foster the social
integration and personal development of the child, by granting support
and training by competent authorities;
- Recommendation
CM/Rec(2019)4 on supporting young refugees in transition to adulthood provides guidance with a view to supporting young refugees
during their transition to adulthood;
- Recommendation
CM/Rec(2011)12 on children’s rights and social services friendly
to children and families sets key strategies to develop child-friendly social
services planning, delivery and evaluation, addressing three children’s
fundamental rights: the best interests of the child, the right to
participation, and the right to protection;
- Recommendation
Rec(2005)5 on the rights of children living in residential institutions offers guiding principles to be applied whenever a child
is placed outside the family, particularly in a residential institution.
The family is identified as the ideal environment for the well-being
of the child; hence, the placement of a child outside the family
should be exceptional and not be longer than necessary. In June 2021,
the Steering Committee on the Rights of the Child held an online
Regional Discussion on Children’s Rights and Alternative Care to
contribute to the UN Committee on the Rights of the Child’s Day
of General Discussion on this theme;
- Recommendation
CM/Rec(2010)2 on deinstitutionalisation and community living of
children with disabilities and Recommendation
Rec(2006)19 on policy to support positive parenting;
- A Draft Recommendation relating to Human Rights Principles
and Guidelines on age assessment for children recently received
the approval of the Steering Committee on the Rights of the Child
and should soon be discussed at the level of the Committee of Ministers
for its adoption. The
latter contains human rights compliant age assessment procedures
aimed at policy makers and professionals.
20. As mentioned above, the European Convention on Human Rights,
as interpreted by the important body of case law of the European
Court of Human Rights, has offered opportunities to develop and
confirm standards for the protection of children in the context
of migration that must be respected. Among others, relevant case
law has addressed relevant issues, such as:
- recognition of the mutual enjoyment by a parent and child
of each other’s company as a fundamental element of family life;
- the need for a best interest assessment before any decision
concerning a child is made;
- precedence of a child’s extreme vulnerability over his
or her immigration status;
- the duty of State authorities to identify unaccompanied
and separated migrant and refugee children and take measures to
place them in adequate accommodation;
- the obligation to take adequate measures for the care
and protection of children, even if the unaccompanied and separated
migrant and refugee children’s intention is not to seek asylum in
the current State but in another State;
- reception conditions to be adapted to the child’s age,
to not create for them a situation of stress and anxiety, with particularly
traumatic consequences;
- appointment of guardian or legal representative for unaccompanied
and separated migrant and refugee children;
- violation of Articles 3, 5 and 8 of the Convention when
migrant and refugee children are detained in closed detention centres
and when they are detained together with adults in the same conditions
as them, without installations adapted to their situation of extreme
vulnerability;
- children’s specific needs related, in particular, to their
age and lack of independence, but also to their asylum-seeker status;
- unaccompanied and separated migrant and refugee children
without leave to remain fall into “the category of the most vulnerable
individuals in society”;
- protection of the child’s best interests involves both
keeping the family together, if in the child’s best interest, and
considering alternatives to detention;
- the obligation of the State to facilitate the family’s
reunification when children are unaccompanied;
- placement of a child in public care should normally be
regarded as a temporary measure and any measures implementing such
care should be consistent with the ultimate aim of reuniting the
natural parent and the child;
- a positive obligation of States to grant effective protection
from abuse to any person under their authority, and, in particular,
to vulnerable persons, such as children;
- failure to take into account a child’s religious and cultural
background when placing him or her in a context where continuation
of his or her religious and cultural origins would not be possible.
3.3. European
Union
21. The European Union established
its objective to promote the protection of the rights of the child
in Article 3.3 of the Treaty on European Union (2007). Based
on the latter, the
Charter
of Fundamental Rights of the European Union (2000) guarantees the protection of the rights of the
child through Article 24 on the rights of the child, that stresses
four main principles in similar terms to the Convention on the Rights
of the Child.
22. Furthermore, the Council of the European Union adopted the
Brussels
II-A Regulation on cross-border procedural aspects of the placement
of children in 2003. In particular, Article 56 could bring valuable
solutions with regards to cross-border placements of children, as
it states that “where a court … contemplates the placement of a
child in institutional care or with a foster family and where such
placement is to take place in another member State, it shall first
consult the central authority or other authority having jurisdiction
in the latter State where public authority intervention in that
member State is required for domestic cases of child placement”.
Furthermore,
“the judgment
on placement … may be made in the requesting State only if the competent
authority of the requested State has consented to the placement”.
In the same vein, the
European Parliament
Resolution of 5 April 2022 on the protection of the rights of the
child in civil, administrative and family law proceedings focuses on child-friendly
justice, a European Union framework for the protection of the rights of
the child in cross-border civil disputes, mediation in cases concerning
children and may be applicable to some alternative care measures.
23. Finally, the European Union has set guiding principles for
the protection of unaccompanied and separated migrant and refugee
children asylum-seeking children through the
Recast
Reception Conditions Directive (2013) and the
Recast
Qualification Directive (2011), adopted by all member States, except Ireland and
Denmark. Both directives provide that, when assessing asylum applications
of children and unaccompanied and separated migrant children, the
best interest of the child and of the family unity must, as a priority,
be taken into consideration. According to Article 23 of the first
directive, member States should ensure an adequate standard of living
for children’s physical and mental development, with particular
attention to family reunification possibilities, their well-being
and social development, their safety and security, and views. According
to Article 24 of the same directive, unaccompanied and separated
migrant and refugee children should receive assistance and should
be placed, with adult relatives, with a foster family, in accommodation
centres with special provisions for minors or in other accommodation
suitable to their needs. In addition, Article 31 of the Recast Qualification
Directive provides that unaccompanied and separated migrant and
refugee children should be assisted by a legal guardian after they
have been granted international protection, and their views should
be taken into consideration when a choice of accommodation is made. Siblings
should be kept together, and changes of residences must be limited.
Moreover, member States should ensure the tracing of their family
members. The
EASO
Guidance on Reception Conditions for Unaccompanied Children is intended to support member States in the implementation
of the Reception Conditions Directive, ensuring an adequate standard
of living for unaccompanied and separated migrant and refugee children
that takes into account their special reception needs and best interests.
24. In line with the latter, it is worth mentioning that the European
Parliament recently adopted a
Resolution on
the European Union Protection of children and young people fleeing
the war in Ukraine, to protect children and
young people fleeing violence and facilitate their integration into
host country communities. The latter “recommend[s] that child protection
officers be present at the borders to be able to swiftly and accurately identify
vulnerable children, record their identity and nationality as well
as their specific needs. Services, such as psychosocial support,
maternal health support, protection against gender-based violence,
family tracing and support for family reunification should be offered
within the national child protection systems along with full access
to all basic services and appropriate care”. It also reiterates
that “unaccompanied and separated children and children in institutional
care should have a guardian appointed”. This
resolution follows the European Commission’s communication on European
Union support to help member States meet the needs of refugees,
including
unaccompanied and separated migrant and refugee children.
4. Protection
and alternative care for unaccompanied or separated migrant and
refugee children: main conditions
25. By referring to promising practices
in Europe and partner States, the report provides guidance for the protection
of unaccompanied and separated migrant and refugee children throughout
their migration and asylum process, at its various stages.
26. Arrival, detection and identification:
As soon as possible following the arrival or identification of the child
in the country of asylum, a best interest assessment should be initiated,
which will subsequently be monitored, reviewed and revised throughout
the displacement cycle. This process shall address any immediate protection
and care needs, and entails establishing or confirming the child’s
identity and collecting all possible information about the child’s
situation. It entails registering the child and initiating the co-ordination
of services needed to safeguard his or her rights and to respond
to his or her immediate needs.
Unfortunately,
to date, children’s identity and family situation is often complex
to fully determine, due to the practice of unavailability and/or
non-recognition of original identification documents (birth certificates
or other documentation) in conflict and emergency contexts. This
puts any child at risk of not accessing services and procedures,
of becoming stateless or of not having all his or her rights fully
safeguarded. For example, even before the current conflict in Ukraine,
“only 45% of children born in Donetsk and Luhansk (non-government
controlled areas) and 12% born in Crimea [had] obtained a birth
certificate issued and recognised by the Ukrainian Government”.
Efforts to
ensure that all unaccompanied and separated migrant and refugee
children have their legal identity safeguarded has been seen to
prevent statelessness, in line with Target 16.9 of the UN Sustainable Development
Goals.
Missing Children
Europe is strongly advocating and working to ensure that children, including
unaccompanied and separated migrant and refugee children, do not
go missing.
27. Best interests assessment/determination
and age assessment: It has been explained in a report
by UNICEF and UNHCR that a Best Interests Assessment (BIA) “would
normally be conducted to inform the immigration/asylum decision”,
whilst the Best Interests Determination (BID) is rather aimed at
determining the “scope of the durable solution”, namely long term
and sustainable option.
As part of the identification
process, age assessment is important for several reasons, as an
incorrect age assessment results in children not having access to
education, being housed in shared accommodation with adults, or
being placed in an adult facility or immigration detention. In order
to provide protection for unaccompanied and separated migrant and
refugee children, age assessment is essential to identify those
that are children (under 18 years), and, during the procedure, they
must be cared for as children according to the presumption of minority.
28. Prompt appointment of guardian:
The appointment of a guardian for every unaccompanied and separated
migrant and refugee children has been enshrined in
Recommendation
CM/Rec(2019)11 of the Committee of Ministers of the Council of Europe
on effective guardianship for unaccompanied and separated children
in the context of migration. This “is paramount for acting in the best interest
of the child, and for ensuring that the child’s rights and well-being
are respected” throughout the migration and protection process, by
taking into account the specific needs of these children. Regrettably,
within the European Union, for example,
“there
are still many differences across member States as regards terminology,
appointment, tasks allocated, and training and monitoring of guardians”.
The delays relating to such an appointment also vary from one member
State to another, and so does the distribution of tasks.
With a view to improving practices,
a
European
Guardianship Network has been established and member States may resort to
a
self-assessment tool
for guardianship systems in order to identify potential gaps in the provision
of guardianship. It is also worth mentioning here the need to establish
complaint mechanisms for unaccompanied and separated migrant children,
who may wish to raise issues or concerns during their protection
and migration process.
29. Determination of necessity and
suitability of alternative care and sustainable solutions: Alternative
care arrangements, which should help safeguard the best interests
of the child, may be provided to unaccompanied and separated migrant
and refugee children by the child’s extended family or close friends
of the family or by caregivers who are not their biological parents
or extended family
. They
may be both short-term and long-term, as well as formal or informal,
and should be available to unaccompanied and separated migrant and
refugee children immediately after their identification. According
to the Steering Committee for Human Rights
Guide
on family-based care for unaccompanied and separated children, “alternative care is the care provided for children
by persons who are not their usual primary caregiver and takes the
form of:
a. Informal care – a private
arrangement provided in a family environment, where the child is
looked after by relatives, friends or others in their individual
capacity, on an ongoing or long-term basis. These arrangements have
not been ordered by an administrative or judicial authority or accredited
body;
b. Formal care – care ordered by a competent administrative
or judicial authority. Formal care can either be provided in a family
environment, or in a residential one.”
Alternative care can take the following forms:
- Kinship
care is provided by the child’s extended family or close
friends of the family. This type of care is often used for separated
children and can be either formal or informal.
- Foster care and other family-based
care is care provided by individuals selected and considered qualified
to provide care in their domestic environment by a competent authority.
- Supervised independent living is
a form of accommodation where an adolescent lives independently alone
or with a group of other adolescent children. Children receive support
from the community and social workers.
- Residential care is
care provided in a non-family group setting. Children are placed
in residential care facilities but also short-term options, such
as places of safety for emergency care and transit centres in emergency
situations. Residential care
should be a measure of last resort and only considered when family-based
care is not possible.
- Group care is a
form of residential care where small groups of children are placed
in homes where they are provided with care by trained caregivers.
- While institutional care,
namely large-scale residential arrangements, should be
seen only as a last resort and on a short-term basis, many unaccompanied
and separated migrant and refugee children are placed in reception
or detention centres without their consent and without suitable
care arrangements and stay there for a long period of time, which
often leads to the children absconding.
As further explored below, suitable quality care should be
provided together with access to origins, careful preparation for
leaving care and transition, preservation of identity and access
to remedies.
5. Promising
European opportunities and practices in response to existing challenges
in the provision of alternative care for unaccompanied and separated
migrant and refugee children
30. Many European countries have
not yet extensively implemented suitable alternative care for unaccompanied
and separated migrant and refugee children. In fact, while governments
have incorporated – sometimes even only partially – international
and European standards into their legal texts and provisions, they are
often still in the process of concretely changing and reforming
the alternative care system in practice, aimed at preventing family
separation and investing in family-based care solutions. This regional
situation reflects certain differences in the protection ensured
by each State to these children, but some promising practices will be
referred to.
5.1. The
need for solid child protection systems
31. European countries face several
difficulties in putting in place appropriate and child-focused alternative care
systems, including for unaccompanied and separated migrant and refugee
children. For example, in several European countries, there is a
lack of co-ordination between the migration/asylum system and the
child protection system at administrative level. As a result, unaccompanied
and separated migrant and refugee children applying for asylum risk
being treated as adults while their application is being processed,
without receiving necessary care and protection.
32. In addition, in several European states, the youth care system
is decentralised and varies across regions, increasing disparity
in the forms and quality of care provided and relying strongly on
the involvement of both, public and non-governmental actors. For
example, in Italy, the Municipality of Venice guarantees foster care
to 50% of unaccompanied and separated migrant refugee children under
its responsibility, mainly as kinship care.
This situation brings
non-governmental organisations and local associations to be at the forefront
of the protection of unaccompanied and separated migrant children,
but with limited available resources.
33. However, several European States are also implementing alternative
care systems that have strengthened the protection of unaccompanied
and separated migrant and refugee children and which aim to offer
the same level of protection to these children as to local children;
these constitute promising practices that may inspire other countries.
For example, in Italy,
Law
47/2017 provides equal treatment to Italian children and foreign
unaccompanied and separated migrant children, and the latter have
a right to access education, health and social services, in addition
to care and protection services. The law also indicates family-based
care as the most appropriate and preferred option for unaccompanied
and separated migrant and refugee children and provides for the
creation of a list of volunteer guardians, who are trained by the
State and have to pass a public competition. In Council of Europe
partner country Tunisia, the Ministry of Justice has been working
on a procedural guide for the placement of migrant children.
34. The Steering Committee for Human Rights’
Guide
on family-based care for unaccompanied and separated children,
which calls
for an integrated child protection system: linking the migration
or asylum reception system to the national child protection system
and its standards is a recommended way of ensuring that there is
equity of protection and care for all children, regardless of immigration
status. In addition, a supportive legislative framework, which allows
for the development of proactive, targeted measures that address
specific needs and situation of each child is essential for the
implementation of this principle. For the successful practical implementation
of an integrated national child protection system, necessary funding should
be provided in the national budget. It is also important to designate
a responsible governmental agency which will co-ordinate this process
among relevant actors.
5.2. Promising
practices of quality alternative care for unaccompanied and separated
migrant and refugee children
35. When unaccompanied and separated
migrant and refugee children indeed cannot be immediately reunited
with their family, there is a need for States to offer suitable forms of alternative care to these children, which take into account all their rights and
individual needs. It is very important to conduct a timely
assessment of their specific needs (see 5.2 above) in order to provide
the best care option adapted to the particular circumstances of
each child. All these factors should be taken into consideration
when the decision on his or her future is taken, especially when
placing a child in any form of care.
36. In many countries, the provision of alternative care is ensured
by governmental and non-governmental institutions, thus providing
a mixed model. Thus, the examples and practices that follow stem
from both sectors, and in some situations, are undertaken jointly
or in co-ordination between both. A difference may also be drawn from
the immediate reception of unaccompanied and separated migrant and
refugee children and the determination of their medium- and long-term
alternative care, in addition to other services that may be provided
during their care.
37. Once the child’s situation has been duly assessed, and it
has been determined that alternative care is needed (see 5.2 above),
it is fundamental that each country offers a range
of forms of care, which will respond to the variety of these children’s
needs on the medium- or long-term.
38. In giving priority to family-based care, kinship care – including cross-border kinship
care – should be explored as a priority. Indeed, continuity
in the child’s family environment, language, culture and religion
are generally a positive element to be sought, although due assessments
of such an option should be undertaken to ensure that the child’s
rights are safeguarded and his or her rights are met, and that this
solution is sustainable and in the child’s best interests.
39. Further, in line with international and regional standards,
various countries have been implementing
specialised
foster care for unaccompanied and separated migrant children.
In
the
Netherlands, unaccompanied and separated migrant and refugee children
under the age of 15 are placed in foster families recruited by the
Nidos Foundation, the national guardianship institution for unaccompanied
and separated children in the Netherlands. Nidos created a network
of reception families, who are providing specialised family-based
care to these children, for initial reception, short-term reception
and long-term.
In Belgium, Mentor-Escale, a NGO
based in Brussels, runs several projects for unaccompanied and separated
migrant children. The organisation is matching children with suitable
foster families and provides training to foster families and children.
Twice a year there is a training for prospective foster families.
It concerns different topics such as law on refugee and asylum,
the role of a guardian, and the specific psychological and social
needs of children. The families interested to host a refugee child
are carefully selected based on interviews during which the family’s
motivation and approach are discussed as well as the living conditions
assessed”. In Austria, “all foster families undergo an eligibility
test … including psychosocial clearings and house visits. Families
receive trainings on legal framework, coping with trauma or guardianship.
There are various networking events organised to offer exchange
possibilities with other foster families”.
The
Spanish
Red Cross has also, for years, been operating a programme of specific
foster care for unaccompanied and separated migrant children, in
parallel to other potential care options. This programme has been
strengthening the recruitment, training and monitoring of these
placements. In Italy,
MetaCometa Onlus has a network of host families who provide foster care
for children upon their arrival in Sicily, and works with specialists,
including psychologists, social workers and cultural mediators to
encourage integration of children.
At regional level,
Fostering
Across Borders (FAB), a European Union project led by the IOM, developed
and granted the distribution of materials and a training package
to improve the quality of family-based care in six countries of
Europe, aimed at promoting and expanding foster and family-based
care in several European countries. Building on the tools developed
under FAB, IOM is also leading the
U-Care
project, which contributes to the development and improvement
of alternative care systems for unaccompanied and separated migrant
and refugee children in Belgium, Germany and Greece. In addition
to foster care,
other forms of family-based care may also be
promoted. In Austria, “the project ‘Connecting People’, implemented
by the NGO Asylkoordination Österreich, aims to bring together (former)
[unaccompanied children] who seek asylum or have already been granted
refugee status with Austrian sponsors who support them in their
integration (for example through leisure activities, educational
support or handling of administrative procedures)”.
The
European
Union’s Alternative Family Care (ALFACA) project has explored the benefits of such care and has
developed training and guidance on family-based care.
40. In relation to family-based care, in particular foster care,
it is worth recalling the work of the Steering Committee for Human
Rights of the Council of Europe. The latter has developed important
documents on alternatives to immigration detention and family-based
care arrangements for unaccompanied and separated migrant children.
The above-mentioned practices are all examples of potential implementation
of the its 2021 “Guide on family-based care for unaccompanied and
separated children”. In addition to promoting access to quality
care and appropriate accommodation options for unaccompanied and
separated migrant and refugee children and outlining the advantages
of family-based care, the guide underlines the need to promote the exchange
of knowledge, practical know-how and best practices between Council
of Europe member States. Specifically, it calls for some key elements
to be taken into account when identifying host families, such as intercultural
awareness, pedagogical and nurturing experience, sincere interest
in the child’s well-being and capacity to create a safe space. The
bodies responsible for the recruitment of host families should have
a well-elaborated methodology and clearly defined recruitment procedure.
Furthermore, it calls for the recruitment process of host families
to include comprehensive screening procedures and training to support
migrant children, about the asylum process or any other legal procedure
and in keeping links to their families of origin. Foster families
should be provided with support when needed and all placements should
be regularly monitored based on specially defined criteria (analysis
of treatment, quality of accommodation, protection of unaccompanied
and separated migrant and refugee children by foster carers, etc.).
Here, it is worth referring to a similar guide on foster care for
unaccompanied and separated migrant, asylum-seeking and refugee children
that was developed in Mexico, jointly between the federal government
and the Latin-American Foster Care Network.
41. For some – mainly older – children, the availability of
semi-autonomous or supported independent living
arrangements may also offer a suitable care option, as
these promote their progressive autonomy, while supporting them
with access to other necessary services (education, vocational training,
access to health care, legal proceedings, etc.). For example, in
Germany,
SOS
Children’s Village Düsseldorf developed a comprehensive care network for unaccompanied
and separated migrant and refugee children over the age of 16, who
live together in shared apartments and receive 24/7 support of socio-pedagogical
experts. In Spain, the
Spanish
Red Cross offers residential care to unaccompanied and separated
migrant and refugee children and young people through its network
of supervised apartments, whilst also offering socio-educational
projects in open environments to those, who find it difficult to
remain in these facilities. Also in Spain,
Fundació
Eveho runs similar “autonomy apartments” for adolescents between
the ages of 16 and 18 years old, including unaccompanied and separated
young people. In Austria, unaccompanied and separated migrant children,
who have some level of independence and maturity may move to a shared
apartment, where they are supervised by workers of the local child
protection authority.
Similarly, in France, “a number
of departmental councils provide supported independent living arrangements
for older children, including unaccompanied and separated migrant
children, asylum-seeking and refugee children. This service is often
provided in collaboration with non-governmental organisations” and
in Greece, in line with the country’s new law on guardianship, “apartments
hosting a maximum of four children each are provided for children
who are over the age of 16. Until early 2020, when the Special Secretariat
for the Protection of Unaccompanied Minors was created in Greece
and took full responsibility of the housing of unaccompanied and
separated migrant and refugee children, there used to be joint action
between the Ministry of Labour, UNHCR, UNICEF and IOM”.
Since September 2021, the responsibility
of the guardianship of unaccompanied minors has also been transferred
to the Special Secretariat.
At
the moment there are 90 such apartments in Greece with a capacity of
364 minors in total. Alternative forms of care in the country are
not seen only as a protection measure, but also as a means of integration
for the unaccompanied and separated migrant and refugee teenagers
during their transition into adulthood; children residing in semi-autonomous
or supported independent living arrangements are assigned a mentor,
namely an adult with similar lived experiences with them who has managed
to integrate in the local society, to support them in that transition.
42. Finally, in terms of
residential
care, whilst these should be options of last resort,
some practices are worth mentioning as they intend to strengthen
the care offered in such facilities. Indeed, in some cases, a suitable
option for unaccompanied and separated migrant and refugee children
may be their placement in
small-group
homes. For example, in Bulgaria, “nine children with
international protection status were placed in small group homes
in 2018, and 14 children were placed in these facilities in 2017.
These homes have a capacity to care for up to 12 children and provide
a mix of social services with a focus on individualised provision
of care and education, with links to community-based services to
encourage integration in the community”. This option is available
to “children who do not apply for international protection [as they]
fall under the responsibility of the Agency for Social Assistance
(ASA), rather than the State Agency for Refugees, and therefore
can be placed in a small group home or other form of care under
the Child Protection Act”.
In Ireland,
according to the
Child
and Family Agency (Tusla), “all separated children under 12 years will immediately
be placed with a foster care family. Those over 12 years may be
placed in one of the five short-to-medium term residential intake
units that are registered children’s homes”. In parallel to care
in small-group homes, the Irish Government has made additional efforts
seeking to recruit more foster families for separated children.
In Greece, for a few years
since 2016,
SOS
Children’s Villages provided care and accommodation to over 300 unaccompanied
and separated migrant and refugee children through a psycho-pedagogical approach,
creating five group homes in Athens, Thessaloniki and Serres. There
are currently 1 956 places in accommodation centres for unaccompanied
and separated migrant and refugee children all over Greece, as well
as 180 places in Emergency Hospitality Structures; accommodation
centres are often hosted in detached houses offering a more family-type
care. Likewise, in Finland,
SOS
Children’s Villages has also established group homes, whose running costs
are covered by the State. In
the
Netherlands, a similar form of care is also offered: unaccompanied
and separated migrant and refugee children aged 15 and over, and
those under 15 who cannot be placed with foster families, are given
accommodation by the Central Agency for the Reception of Asylum
Seekers. They are housed in small-scale reception centres with 24-hour
supervision.
43. It is important to mention that some countries have resorted
to informal accommodation arrangements for unaccompanied and separated
migrant children, such as hotels and camps, when capacity in formal facilities
was suddenly exceeded due to unexpected influx.
These “emergency” facilities
do not have the capacity, specialist staff or suitable environment
for quality care for these children. It is also important to mention
that, whilst a variety of care options should be able to respond
to the range of needs and circumstances of unaccompanied and separated
migrant and refugee children in Europe, the particular needs of
girls and
children
and young people with disabilities must also be given
due attention, in order to ensure that their particular needs are
fully met.
5.3. Access
to other services
44. In general, beyond the need
to provide quality care to these children, the availability and
access to other relevant services must be ensured. Amongst these,
it is worth mentioning Missing Children Europe’s app
Miniila, which provides information on the support available,
rights and international protection and reunification procedures
for children on the move in Europe. The app is specifically tailored
to the needs of unaccompanied children on the move, with a focus
on facilitating access to and understandable information about dedicated services
such as shelter, food banks, and health services in the area they
are in. The app also connects them easily to the missing children
hotline and the child helpline. In the same vein, the German Federal
Office for Migration and Refugees in collaboration with the Federal
Employment Agency, the Goethe Institute and Bavarian Broadcasting
developed the
Ankommen app. The app provides information on the asylum procedure, vocational
training, work and living in Germany. In addition, the app provides
German lessons and is intended to promote integration.
In this regard,
Recommendation
CM/Rec(2011)12 on children’s rights and social services friendly
to children and families (Section IV.A.) is a useful reference.
5.4. Leaving
care for unaccompanied and separated migrant and refugee children
45. Special attention should also
be drawn to unaccompanied and separated migrant children’s
transition to adulthood, autonomy and leaving
care. As called for in the Steering Committee for Human
Rights’ Guide,
unaccompanied
and separated migrant and refugee children should be supported in
drawing up a transition plan and a long-term plan. This process
should ideally be managed through the development and implementation
of a “leaving care plan”, including information about all the topics
to consider regardless of whether the young person is staying or
leaving the country. This, for example, could include support during
the period of asylum procedure; support in the integration, when
they received international protection; support in the case of return
to the country of origin. This process also needs well-developed
guidelines based on the best practices in the assistance in transition
of unaccompanied and separated migrant and refugee children to adulthood.
The guide also calls for the implementation of policies aimed at
ensuring sustainable solutions and the effective integration of
children affected by migration more generally. As guardianship often
ends when a child reaches majority, there is a true need to focus
on and to plan this transition together with the guardian, in order
to ensure that the child has been fully prepared. It is welcome
that some States provide for support beyond the age of adulthood,
including financial support, accommodation, sponsorship/mentoring,
support network, etc, which should be adapted to the needs and circumstances
of each unaccompanied or separated child.
46. In the United Kingdom, “the majority of separated young people
will be entitled to leaving care services under the Children (Leaving
Care) Act 2000. This Act seeks to improve support to care leavers
in a number of ways, including ensuring that young people do not
leave care until they are ready and that they receive more effective
support once they have left”.
This usually includes a personal
adviser, a pathway plan, financial assistance with employment, education
or training, accommodation, monitoring of the care leaver’s situation. In
Austria, the organisation Don Bosco runs the
Moses
project, which provides counselling and support services for
former unaccompanied and separated migrant children, who have had
to move out of residential communities on turning 18, as well as
affordable housing, counselling and support for independent living, especially
in dealing with authorities. Furthermore, it supports with finding
appropriate training and counselling centres, tutoring and learning
support and overall assistance in finding a job. In The Netherlands,
the above-mentioned body Nidos, together with the Dutch Association
of Municipalities, have developed a manual on how to transfer unaccompanied
and separated migrant and refugee children from the care of Nidos
to an independent living home under the responsibility of the municipality
on turning 18, with a focus on case management.
This is the case, for example,
in Utrecht, where the city financially supports the local ex- unaccompanied
and separated migrant children’s team of the Dutch Council for Refugees.
In Belgium, unaccompanied
and separated migrant and refugee children who age out with irregular
migration status and who live in some reception centres can enrol
in the My Future programme, designed to help them explore their options
and to follow some vocational training and several of the exercises
are meant to increase resilience and empower them. However, because
the programme is only available in specific centres, they can no
longer access it once they turn 18 and are transferred to another
reception centre. Furthermore, the organisation Minor-Ndako supports
about 200 unaccompanied and separated migrant and refugee children
per year, all living in small, supported housing, which are considered
specialised youth care, meaning that support can be extended up
until the young person’s 25th birthday
and a “growth plan” is developed as soon as they are 16.
6. Specific considerations relating to
unaccompanied and separated migrant and refugee children from Ukraine
arriving in Council of Europe member States
47. Today, we are faced with the
consequences of the Russian Federation´s aggression against Ukraine. One
of the direct consequences is a flux of children, who are fleeing
the conflict unaccompanied and separated, but also children, who
were already in alternative care in Ukraine (estimated at 100 000)
and have fled the country
accompanied by their temporary caregivers, including many with disabilities.
These children are facing a heightened risk of violence, abuse,
exploitation and trafficking. Thus, the ongoing Russian Federation´s aggression
against Ukraine is again a tragic example of challenges posed by
massive arrivals where children are affected and there is a risk
of inappropriate care conditions. The Minister of Social Policy
of Ukraine, Maryna Lazebna, said that as of 19 March 2022, 4 894
children from 179 institutions of institutional care had been evacuated.
Of these, 2 522 children were relocated within Ukraine, and 2 372
children from 116 institutions were relocated abroad”.
These numbers have
undoubtedly been growing further: the Regional Refugee Response
Plan estimates that 36% of the overall over five million refugees
having entered European countries by 23 April 2022 were children.
Thus, an emergency plan, based on
the Regional Refugee Response Plan, is needed to address this situation,
particularly amongst Council of Europe member States, situated at
the borders and beyond. For example, according to the Child Protection
Sub-Working Group, efforts have been undertaken to establish “referral
pathways” on child protection, and gender-based violence for identification
and referral to services in the Republic of Moldova, including the
deployment of guardianship authorities to the border. This approach
has also been called for by the European Parliament Intergroup on
Children’s Rights
and Child Circle
and KIND’s Note on Unaccompanied Children Fleeing From Ukraine
intends to support this approach
of a common framework of measures, in particular among the European
Union countries.
48. As recommended by UNICEF, “the current emergency also necessitates
rapidly expanding the capacity of emergency care arrangements with
screened caregivers, as well as other critical services for the
protection of children, including against gender-based violence,
as well as family tracing and reunification mechanisms. This is
crucial for unaccompanied and separated migrant children, who need
temporary care while reunification efforts are underway. Per UNICEF
guidelines, family-based and community-based care should be promoted
in these circumstances, with institutional care being used only
as a last resort and for the shortest duration possible”. It calls
on neighbouring and impacted countries to: establish and strengthen
screening processes to identify unaccompanied and separated migrant
and refugee children at the borders; establish and strengthen safe
spaces for children at border crossings and other strategic sites;
link safe spaces with national child protection systems, and rapidly
expand the capacity of emergency alternative, family-based care arrangements
and other critical child protection and gender-based violence services.
49. As highlighted by Child Circle and KIND, “the Ukrainian authorities
are trying to ensure that the children travel with sufficient information
about their identities and needs but it is unclear whether they
are being transferred into the care of child protection agencies
in their States of arrival or transit”.
This raises a number of
concerns beyond and prior to their effective alternative care. Indeed,
the initial reception and assessment of these children’s situation
is key to providing the most suitable temporary care. Thus, priority
must be given to “a centralised, cross-country information management
system to keep track of the whereabouts, safety and well-being”
of these children and “this must strengthen identification and tracking
systems and decision-making mechanisms to account for children in/relocated
from institutions alongside unaccompanied and separated migrant
children”.
In this regard, UNICEF
and UNHCR have been developing “
Blue
Dots” into their operation along the borders and main migration
routes from Ukraine.
These are “locations
where professional, trained case workers, mental health and psychosocial
support and legal aid providers are available to support identification
of urgent social service and protection needs and ensure that those
needs are addressed”. They act as first contact points and offer
an example of co-ordination and co-operation with other partners
in child protection. This also intends to ensure that “moving children
to safety must not hinder their prospect for family reunification
in the future. Under no circumstances should families be separated
as a result of relocation or evacuation movements”.
Changing
The Way We Care has also issued guidance to address the movement of
children during a humanitarian crisis, including key actions when
preparing to and moving children and when receiving individual or
groups of children in a new location, including across borders.
In February, the
Government
of Ukraine itself issued during the first weeks of the conflict
an updated procedure for border crossing for orphans and children
without parental care, including who and how many adults should
be with them, with a particular focus also on children with disabilities.
In this regard, the European Parliament Intergroup on Children’s
Rights, which included a number of government representatives and
non-governmental experts, led a visit to a number of facilities
on the border, including a “temporary accommodation and registration
centre for orphans and children with disabilities of Poland in the
municipality of Stalowa Wola”.
Likewise, the
European
Network on Statelessness and its
partners have also been collecting information on what is happening,
as well as
updating
specific information for those stateless or at risk of statelessness who need advice and assistance both in Ukraine and Western
bordering countries.
50. To date, Ukraine’s neighbouring countries have made efforts,
through their governments and non-governmental organisations, to
provide some adequate form of care to these children. It is worth
mentioning, for example, the initiative taken by SOS Children’s
Villages to relocate children from its villages as well as children
in foster care, kinship care, boarding schools and residential institutions
in Ukraine to its villages in other European countries. Indeed,
“some 80 children and their foster parents supported by SOS Children’s Villages
in Ukraine have been relocated to SOS Children’s Villages in Poland”;
in addition, by beginning of April, it also already had 697 displaced
Ukrainian children in its care in Austria, Belgium, Czech Republic, Hungary,
Italy, Lithuania, Latvia, Romania, Estonia and Bulgaria.
In fact, in
Poland, “ensuring children have temporary guardians for support
is covered by a new law, the Act on Assistance for Ukrainian Citizens”,
but its implementation in practice remains a challenge according
to the Polish Foster Care Association. The Slovak Republic and Bulgaria
are also facing difficulties in ensuring the capacity of their own
national foster care systems, and rather resorting to residential
care, sometimes placing children with the guardian they arrived with.
According to UNICEF,
“since 24 February, around 1 900 unaccompanied children arrived
in Romania, out of which 255 are now in the State protection system”,
and UNICEF has been working for their protection with the Ministry
of Family, Youth and Equal Opportunities through the National Authority
for the Protection of Children's Rights and Adoption.
In the Republic
of Moldova, in early April 2022, it was estimated that “at least 2%
of children would be separated or unaccompanied, which would mean
at least 780 [unaccompanied and separated migrant children] and
over 1 000 children at risk currently in the Republic of Moldova”
and that “the authorities ha[d] identified 11 unaccompanied children
and placed them in emergency care”. Around the same time, it was
stated that “the Ministry of Labour and Social Protection has established
a guardianship system for unaccompanied and separated migrant children,
an emergency care centre for unaccompanied children has been identified,
and the foster care system is available to accommodate unaccompanied
children as needed” and “the Guardianship authorities, AVE Copiii,
UNICEF and UNHCR have assessed and assisted families hosting refugee
children (the later as part of the flight transfer programme of
families to various European countries)”.
In Switzerland, the
organisation
Tipiti,
together with SOS Children’s Villages and public authorities, has also organised the placement of Ukrainian children
and their foster families in the country and more are expected to
be placed. The
Swiss
Government had already, prior to the conflict in Ukraine, issued clear
guidelines on intercountry child placement.
51. Finally, it is worth recalling that intercountry adoption
procedures should not take place in humanitarian or emergency situations,
as it is complex to fully ascertain children’s family, social and
legal status. In this regard, the Hague Conference on Private International
Law has issued a note of recommendations. Indeed, it recalls that
“in case of an armed conflict, the focus should be on child protection
measures other than adoption” as the children “cannot be assumed
to be orphans and/or in need of adoption”. Indeed, “efforts to reunite
a displaced child with their parents or family members in situations
brought about by armed conflict must take priority” and “the conflict
should not be used as a justification for expediting intercountry
adoptions, or for circumventing or disregarding international standards
and essential safeguards for safe adoption; and adoption procedures
should be prohibited from taking place”.