Unaccompanied Children Seeking Asylum
15-16 December 2010
THE CYPRUS LEGAL FRAMEWORK FOR THE
PROTECTION OF CHILDREN
Leda Koursoumba
Commissioner for the Protection of
Children’s Rights
www.childcom.org.cy
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GENERAL LEGAL FRAMEWORK
FOR THE PROTETION OF CHILDREN
PROTECTION OF AND CHILDREN’S RIGHTS
STEMS FROM • Universal Legal instruments – United Nations
Conventions, Covenants and protocols
• International Regional Legal Instruments –
Council of Europe
• European Union Law
• National law – Constitution and legislation
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Universal legal instruments
• The United Nations Convention of the Rights of the Child
(CRC) – ratified with Law 243/1990
• Optional Protocol to the CRC on the Involvement of
Children in Armed Conflict – ratified with Law 9(ΙΙΙ) του
2010
• Optional Protocol to the CRC on the Sale of Children,
Child Prostitution and Child Pornography – ratified with
Law 6(III)/2006
• General international human rights legal instruments
ratified by Cyprus also applicable to children i.e.
– Covenant on Civil and Political Rights- ratified with Law 14/1969
– Covenant on Social, Economic and Cultural Rights- ratified with
Law 14/1969
– 1951 Geneva Convention on the status of Refugees e.t.c.
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International Regional Legal
Instruments
• The European Convention of Human Rights – ratified
with Law 39/1962
• The Revised European Social Charter – ratified with Law
27(III)/2000
• The European Convention on the Exercise of Children’s
Rights – ratified with Law 23(III)/2005
• The Council of Europe Convention on Action Against
Trafficking in Human Beings – ratified with Law
38(III)/2007
• Guidelines of the Committee of Ministers of the Council
of Europe on child friendly justice adopted on 17/11/2010
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Applicability of international
(universal and regional) legal
instruments
Article 169 of the Constitution – International
legal instruments upon ratification
– are directly enforceable and applicable before
Cypriot Courts with superior force over any
other domestic legislation
– No need to transpose them into domestic
legislation to have legal effect unless
implementing measures are necessary for
effective enforcement
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European Union
• Charter of Fundamental Rights – special
provisions on Children (Article 24)
– Protection and care
– Freedom of expression
– Best interest principle
• Legal instruments on sexual and other forms of
exploitation of children, asylum and immigration,
include specific provisions on children and
particularly unaccompanied children.
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National Law
•
•
•
•
•
The Children Law (CAP 352) (Article 3)
The Combating of Trafficking of Human Beings and
Protection of Victims Law of 2007 – Law 87(I) /2007
(Articles 36-39)
The Refugee Law of 2000 – Law 6(I)/2000 (Articles
10, 18, 20H, 20I, 25A)
The Aliens and Immigration Law (CAP 105) (Article
18KI)
The Commissioner for the Protection of Children’s
Rights Law of 2007 (Law 74(I)/2007) (Article
4(1)(g)(h))
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The special situation of
unaccompanied minors under
the law in Cyprus
• Under national law a minor is generally
defined as a person who is under the age
of 18.
• The term of an unaccompanied minor is
defined in the Aliens and Immigration Law,
the Refugee Law, and the Combating of
Trafficking of Human Beings and
Protection of the Victims Law.
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Definition
Unaccompanied children are «persons
below the age of eighteen who arrive in the
Republic unaccompanied by an adult
responsible for them whether by law or by
custom, and for as long as is not effectively
taken into the care of such a person,
including
minors
who
are
left
unaccompanied after they have entered the
Republic»
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The UN Convention on the
rights of the child
Article 20
1. A child temporarily or permanently deprived of his or her family
environment, or in whose own best interests cannot be allowed to
remain in that environment, shall be entitled to special protection
and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure
alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of
Islamic law, adoption or if necessary placement in suitable
institutions for the care of children. When considering solutions, due
regard shall be paid to the desirability of continuity in a child's
upbringing and to the child's ethnic, religious, cultural and
linguistic background.
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The UN Convention on the
rights of the child
ARTICLE 22
1. States Parties shall take appropriate measures to ensure that a child who is
seeking refugee status or who is considered a refugee in accordance with
applicable international or domestic law and procedures shall, whether
unaccompanied or accompanied by his or her parents or by any other
person, receive appropriate protection and humanitarian assistance in
the enjoyment of applicable rights set forth in the present Convention
and in other international human rights or humanitarian instruments to
which the said States are Parties.
2. For this purpose, States Parties shall provide, as they consider appropriate,
co-operation in any efforts by the United Nations and other competent
intergovernmental organizations or nongovernmental organizations cooperating with the United Nations to protect and assist such a child and to
trace the parents or other members of the family of any refugee child in
order to obtain information necessary for reunification with his or her family.
In cases where no parents or other members of the family can be found, the
child shall be accorded the same protection as any other child permanently
or temporarily deprived of his or her family environment for any reason , as
set forth in the present Convention.
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General Comment No 6 under
the CRC
• The General Comment No 6 applies to all such children
irrespective of their residence status and reasons for
being abroad, and whether they are unaccompanied or
separated.
• Obligations deriving from the Convention vis-à-vis
unaccompanied and separated children apply to all
branches of government (Executive, Legislature and
Judiciary).
• legal obligations are both negative and positive in
nature, requiring States not only to refrain from
measures infringing on such children’s rights, but also to
take measures to ensure the enjoyment of these rights
without discrimination.
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General Comment No 6
Non discrimination (Article 2 CRC)
• The principle of non-discrimination, in all its facets,
applies in respect to all dealings with separated and
unaccompanied children. In particular, it prohibits any
discrimination on the basis of the status of a child as
being unaccompanied or separated, or as being a
refugee, asylum-seeker or migrant. This principle, when
properly understood, does not prevent, but may
indeed call for, differentiation on the basis of
different protection needs such as those deriving from
age and/or gender.
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General Comment No 6
Best interest of the child (Article 3 CRC)
A determination of what is in the best interests of the child requires
a clear and comprehensive assessment of the child’s identity,
including her or his nationality, upbringing, ethnic, cultural and
linguistic background, particular vulnerabilities and protection needs.
The right to life, survival and development (Article 6 CRC)
Practical measures should be taken at all levels to protect children
from the risks mentioned above. Such measures could include:
priority procedures for child victims of trafficking, the prompt
appointment of guardians, the provision of information to children
about the risks they may encounter, and establishment of measures
to provide follow-up to children particularly at risk. These measures
should be regularly evaluated to ensure their effectiveness.
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General Comment No 6
Respect for the principle of non-refoulement
Respect non-refoulement obligations deriving from
international human rights, humanitarian and refugee law
and (Article 33 of the 1951 Refugee Convention, 3 of
Convention against Torture, Article 3 of the European
Convention of Human Rights)
Special Protection under the Optional Protocol to the
CRC on the Involvement of Children in Armed Conflict refrain from returning a child in any manner whatsoever
to the borders of a State where there is a real risk of
underage recruitment.
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General Comment No 6
• Appointment of a guardian or adviser and legal representative
(Articles 18(2) and 20(1)) of the CRC)
• Care and accommodation arrangements (arts. 20 and 22)
• Full access to education (arts. 28, 29 (1) (c), 30 and 32) of the CRC)
• Right to an adequate standard of living (art. 27 of the CRC)
• Right to enjoy the highest attainable standard of health and facilities
for the treatment of illness and rehabilitation of health (arts. 23, 24
and 39 of the CRC)
• Prevention of trafficking and of sexual and other forms of
exploitation, abuse and violence (arts. 34, 35 and 36 of the CRC )
• Prevention of military recruitment and protection against effects of
war (arts. 38 and 39 of the CRC)
• Prevention of deprivation of liberty (Article 37 of the CRC)
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General Comment No 6
Asylum Seeking Children – special rights
• Access to asylum procedures regardless of age
• Procedural safeguards and support measures –
representation by a legal representative in the
asylum procedure, assessment by fully qualified
eligibility officers on child specific claims, priority in
the examination
• Child-sensitive assessment of protection needs, taking
into account persecution of a child-specific nature
• Full enjoyment of all international refugee and human
rights by children granted refugee status
• Right to family reunification
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Protection under national
law
• The Director of the Social Welfare Services receives any
child under his/her care if the child has neither a parent
nor a guardian and remains abandoned or if the parents
or guardians are prevented from providing for the child’s
proper accommodation, maintenance, etc. – General
competence of the Director under the Children’s Law
(Article 3)
• The rights, duties and obligations of the Director of
Social Welfare Services as a guardian of children are
the same as those of parents. The Director exercises all
parental rights for the separated children with a view to
take all the necessary measures and to provide for the
physical and mental welfare and development of the
child.
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Special provisions
Guardianship
• The duty of the Director to place children under
his/her care is also derived from the Refugee
Law and in the Anti - trafficking law
Legal Representation
• The Refugee Law provides additionally for the
legal representation of the unaccompanied
children in the asylum procedure to be
exercised by the Commissioner for the
Protection of Children’s Rights
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Special provisions on
unaccompanied minors
• The anti - trafficking legislation provides for
unaccompanied minors, but without any special
reference to their special needs apart for the
issues of return.
• As such– it provides the same rights as adult victims of
trafficking on identification, protection, residence
permits, social and other rights,
– Special rights on deportation /return and tracing of
family members as well as on the right to education
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The Role of the
Commissioner
Under Law 74(I)/2007 the Commissioner has the
competence, inter alia, to – represent children and their interests at all levels (Article 4(1)(a))
– Submit, on behalf of any child, applications for the appointment
of a special legal representative in judicial proceedings affecting
the child, where the law or the Court may exclude persons
having parental responsibility from representing the child, as a
result of conflict of interests with the latter
– Represent children and their interests in procedures affecting the
children, where provided by law, as well as in judicial
proceedings, when he may be appointed by the Court as the
representative of a child
The above constitute the legal basis for the Commissioner
to provide legal representation to unaccompanied asylum
seeking minors in the asylum procedure
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Commissioner for
Children’s Rights
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