Council of Europe Adopts Recommendation on Guardianship for Unaccompanied Children
In a new recommendation to the Member States of the Council of Europe, the Council of Europe’s Committee of Ministers warns that “unaccompanied and separated children are among the most vulnerable persons in the migration context,” and emphasizes that effective guardianship structures are necessary to protect the rights and best interests of unaccompanied children in migration. See Council of Europe Committee of Ministers, Recommendation CM/Rec(2019)11 of the Committee of Ministers to member States on effective guardianship for unaccompanied and separated children in the context of migration, CM/Rec(2019)11, 11 December 2019. In accordance with international and European legal standards, the Committee of Ministers outlines 18 principles in the recommendation, calling on Member States to implement a guardianship framework for unaccompanied and separated children; review national legislation and policies to ensure that the recommendation is implemented; translate and disseminate the recommendation to all relevant stakeholders; create a European “platform of experts” to assist and support States in strengthening their guardianship systems and facilitating cross-border cooperation; and, ensure that the Committee of Ministers monitors the guardianship system at the State level at regular intervals. See id. The principles seek to address the need for additional protections and assistance for children in migration. See id. at II, para. 1 (f); III.
The guidelines and measures in the recommendation apply to all children who are identified as unaccompanied or separated children in the context of migration. See id. at I, paras. 1-4. An unaccompanied child is defined as anyone under 18 years of age who has been “separated from both parents and other relatives,” while a separated child is one who has also been separated from both parents, but who may still be accompanied by other relatives. See id. at II, para. 1(b)(c). Separated and unaccompanied children in this context do not have a primary caregiver to look after their interests. See id.
The first set of nine principles outline what is required for an “effective guardianship system.” See id. at III. The second set of nine principles cover, in more detail, the actual implementation of the guardianship systems in Member States. See id. at IV.
Principle 1 states that for a guardianship system to be effective, States must take into account the unique circumstances and needs of unaccompanied and separated children to best protect their rights and interests. See id. at III, Principle 1. This requires States to respect international human rights norms; take into account the best interests of unaccompanied and separated children in the context of migration; mitigate risks of exposure to “discrimination, neglect, sexual violence, forced labour, drug trafficking, child abduction, child marriage and other forms of violence;” and, identify “sustainable, rights-based solutions” for unaccompanied and separated children, which refer to comprehensive solutions that ensure children are “able to develop into adulthood” in an environment that meets their needs and upholds their rights. See id. at IV, Principle 1.
Principle 2 requires that the guardianship system be established via “adequate legal, policy, regulatory and/or administrative frameworks.” See id. at III, Principle 2. These frameworks should include provisions on screening and vetting standards for guardians, the duties of guardians and training requirements, data-protection requirements, and regular monitoring of guardianship arrangements, among others. See id. at IV, Principle 2.
Principles 3 and 4 refer to States responsibilities with respect to guardians, stating that States should appoint guardians “without undue delay,” taking into account children’s individual characteristics, and should implement measures to empower guardians to safeguard the children’s rights and best interests. See id. at III, Principles 3 and 4. When appointing guardians, States should ensure that the unaccompanied or separated child’s views are taken into consideration and that children are able to change guardians, if necessary. See id. at IV, Principle 3. With respect to guardians’ tasks and responsibilities, Principle 4 states that guardians have a duty to assist in family tracing procedures, create an environment that enables a relationship of trust with the children, act as a link between the child and State authorities, among other duties. See id. at IV, Principle 4.
Principle 5 requires States to adequately inform and advice children of their options in terms of effective remedies available to them and access to complaint mechanisms if their rights are ever violated. See id. at III, Principle 5. States have a responsibility to provide information to children in a language that they understand, and to implement complaint mechanisms that are accessible to children, particularly in relation to their guardianship arrangement. See id. at IV, Principle 5. Where necessary, States should provide legal counsel and interpretation to ensure effective access to remedies. See id.
Further, Principles 6 and 7 require States to establish competent authorities to manage the guardianship process for unaccompanied and separated children, and to allocate sufficient resources to ensure adequate guardians for children, including by “ensuring that guardians are adequately screened, reliable, qualified and supported throughout their mandate.” See id. at III, Principles 6 and 7. Competent authorities should be responsible for, for example, maintaining case files for all children within their care, providing administrative support and assistance to children and guardians, establishing communication mechanisms and networking among guardians, and providing assistance to children. See id. at IV, Principle 6. Additionally, States should ensure that sufficient financial, technical, and human resources are allocated to the guardianship process and that data on the number of children and their needs is regularly collected to ensure that the resources are adequate. See id. at IV, Principle 7.
Finally, Principles 8 and 9 require States to cooperate at the national and international levels, including to identify or trace family members. See id. at III, Principles 8 and 9. Coordination and cooperation at the national level requires that States identify and develop protocols and operational procedures, including referral mechanisms with respect to guardians in instances where a child disappears or is at risk, that facilitate communications between guardians and other stakeholders. See id. at IV, Principle 8. States should also be able to engage in international cooperation with respect to unaccompanied or separated children in migration. See id. at IV, Principle 9. In this regard, States should implement communication channels with other States and should have a legal basis to request and provide effective cooperation between guardians and guardianship authorities. See id.
The Council of Europe, based in Strasbourg, France, is an intergovernmental organization with 47 Member States. The Committee of Ministers, a decision-making body charged with monitoring the implementation of several human rights treaties, including the European Convention on Human Rights, is composed of the ministers of foreign affairs of the Member States.
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