Samantha Arnold
Terry Smith, Muireann Ní Raghallaigh, Katja Fournier, Barbara Noske, Lucy Gregg, Natalie Williams, Rafaela Camassa, Jantine
Walst, Martine Goeman, Jean-Pierre Gauci, Christine Cassar, Katarína Fajnorová, Miroslava Mittelmannová, Alekos Anastasiou,
Morgane Conaty, Eilís O’Keeffe, Nancy Roe
Origins of the Project
•
Funding through the European Commission’s Pilot
Project on Unaccompanied Minors
•
Objectives:
• Define the term ‘Durable Solutions’ for Separated
Children (prior to publication of Safe & Sound)
• Identify best practice in determining and implementing
durable solutions for separated children in Europe
The Project Methodology
•
9 Countries:
• Greek Council for Refugees
• The Children’s Society
• Hope for Children UNCRC Policy Centre
• Defence for Children- ECPAT, NL
• People for Change Foundation
• Service Droit des Jeunes
• Human Rights League
• Bundesfachverband Unbegleitete Minderjährige Flüchtlinge
•
Child and Family Agency and the School of Social Policy, Social
Work and Social Justice of University College Dublin
•
Separated Children in Europe Programme
The Project Methodology
•
Interview 10 Service providers (legal, care and other
professionals) per country
• Questionnaire around:
• understanding of durable solutions
• experiences ‘planning’ for and with separated
children and taking into account their best interests
The Project Methodology
•
Consult with 10 separated
children and young people per
country:
• interactive learning session
around the CRC and Comment
No 6 (with a focus on the
section on durable solutions)
• activities around children’s
rights
• Group work or open questions:
• What does durable solution
mean?
• Why is determining a durable
solution important?
• How would you determine a
durable solution with a child?
Guidance
•
CRC and General Comments 6 (SC), 12 (to be heard) & 14 (BI) in particular
•
EC legislation (recast asylum directives, Dublin III Regulation & Trafficking Directive)
•
UNHCR & UNICEF Safe & Sound
•
Council of Europe, Life Projects
•
FRA Handbook on Guardianship for Children Deprived of Parental Care
•
ICRC Inter-Agency Guiding Principles
•
European Commission Child Protection Principles
•
UNICEF Child Notices
•
CONNECT Project
•
Core Standards for Guardians of Separated Children
•
UNHCR Guidelines on Child Asylum Claims
A working definition
A durable solution is: ‘a sustainable solution that
ensures that an unaccompanied or separated
child’ and any child on the move ‘is able to develop
into adulthood, in a safe and secure environment
which will meet his or her needs and fulfil his or her
rights as defined by the CRC and will not put the
child at risk of persecution or serious harm’ in
accordance with the 1951 Refugee Convention
and 1967 Protocol. ‘Because the durable solution
will have fundamental long-term consequences for
the unaccompanied’ child ‘or separated child, it will
be subject to a BID. A durable solution also
ultimately allows the child to acquire, or to reacquire, the full protection of a state’.
UNHCR & UNICEF, Safe & Sound 2014 with
amendments based on consultation with
stakeholders & partners in italics.
Due to the fundamental impact arriving at a
durable solution decision has on the life of the
child, determining a durable solution should
be seen as a process that involves many
actors and one that may require periodic
review and revision to make any decisions
continue to be in the best interests of the
child.
Barriers & Building Blocks: identified in literature
•
Barriers:
• Identification as a child and as separated
• Identification as particularly vulnerable and/or in need of
protection
• Risk of going missing
•
Building Blocks:
• Child-Centred legal framework (Life Projects)
• Relevant training and competencies of service providers
(Life Projects & Core Standards)
• Trusting relationship with service providers (Core
Standards)
• Safe and positive environment during assessment
Placement in Alternative Care (in host country,
country of origin or third country)
-An immediate and suitable placement is provided based on
an initial assessment
-As soon as possible, a more long-term placement is
arranged following a thorough assessment of his/her
individual needs
-It serves as a supportive environment ensuring his/her
safety, well-being and development
-It aims to promote: attachment and permanency, where it
is in the best interests of the child
-It is reviewed regularly
Consensus: National Reports
•
A need for a holistic, multi-disciplinary approach
considering all rights and needs including protection —
a merging of the traditionally siloed care and
immigration procedures
Immigratio
n
Care
“a process, which cannot be limited to a short
term period, and where the best interests of
the child must be considered, it is subject to
updating, and children’s rights under the
[CRC] must be taken into consideration. A
substantial part of this process is to find an
optimal solution in the interest of the child,
either in Slovakia, or in another country. It
also requires that the responsible persons
(guardians, social workers, educators and
psychologists) are being adequately
prepared, in order to be able to correctly
apply any durable solutions. Process and
cooperation between the relevant
stakeholders is essential….”
–Participant, Slovakia
“a solution that can withstand challenge and
stress, but its constantly evolving and
changing.”
–Participant, Ireland
Towards a Multidisciplinary Framework
1. Components of a Durable Solution
•
Protection/Immigration needs/rights:
•
Immigration and Protection decisions - stakeholders
emphasised the need for decisions to be reached in
order to progress with other aspects of the durable
solution, including for those young people not
seeking protection.
Separated Children Seeking Asylum and those
not Seeking Asylum
•
Lower numbers of children seeking asylum than those referred to social services, yet
very few statistics available on anything other than applications submitted for asylum
•
Relative abundance of law, guidance and literature relating to international protection,
less on those not seeking international protection
•
Partners concluded that non-asylum seeking children were relatively invisible or less
visible than their asylum seeking counterparts
Regardless, partners also identified a number of ways separated children seeking
asylum faced difficulties in realising their rights in the context of international protection.
In fact all reports identified immigration and asylum determination procedures as the
number 1 barrier to providing a durable solution due to:
• delays,
• low recognition rates,
• failure to assist or provide access to the asylum or immigration procedures in the
State and
• absence of, or limited options to, durable alternative procedures for regularisation
outside of international protection, etc
•
2. Components of a Durable Solution, cont.
•
Safe, nurturing and positive environment — within that
assessment of family and exploration of reunification
•
Health, education, religion and culture
•
May be overlap between these rights and immigration
and protection needs/rights
Non-Exhaustive List of Elements to Consider when
Making a Durable Solutions Assessment
-*Respecting the right to confidentiality
The child *ensuring the voice of the child is at the fore
-Basic information relating to the child’s identity
-Aspects of culture that s/he considers important
-Values that are of importance to him/her
-His/her views, wishes and expectations
-His/her individual/special needs
-Physical and mental health needs and any experiences of
trauma
-His/her migration plans
-Journey and background of the child
-His/her goals, ambitions and plans
-His/her level of education and future plans for education & skills,
including immediate needs (such as language classes) [as part of
a Life Project]
-Resilience
-Coping strategies such as religion or spiritual
-Sources of support
-Resources
-Strengths
Family/Community:
-Family situation pre-arrival and post-arrival
-Relationship between child and family
-Assessment of non-familial supportive relationships
*Family assessment should only occur if safe and in the best
interests of the child
-Views and wishes of immediate family
-Views and wishes of extended family
Risk analysis (immediate and looking to the future):
-Risk of physical harm, abuse and neglect
-Risk of psychological harm, abuse and neglect
-Social or economic deprivation
-Sexual or labour exploitation, including trafficking indicators
-Risk of going missing (ie to try to join family members in another
jurisdiction, risk of trafficking or irregular labour)
Environment (host, origin or third countries)
-Security and stability of country
-Access to child-specific rights in the country
- Developmental opportunities: inter alia education and skills,
leisure activities, religious and spiritual activities or communities
and future work prospects
- Risks, including child specific forms or manifestations of
persecution & other forms of persecution which are not child
specific, but have a disproportionate impact on children
http://hitfoundation.eu/wp-content/uploads/2013/05/BIC-modelEnglish.pdf
Multidisciplinary assessment and collaboration
Comment Number 14
As far as possible, a multidisciplinary team of professionals should be involved in
assessing the child's best interests
Comment Number 12
Qualified professionals
With expertise in, inter alia, ‘child psychology, child development and other relevant
human and social development fields, who have experience working with children and
who will consider the information received in an objective manner’.
Key actors
•
•
•
•
•
•
•
•
•
•
•
The child
Guardians and Social workers
Foster carers and other care providers
Legal professionals
Provide time & resources to
Teachers and educators
build trust between the
Health professionals
relevant actors and child
Authorities
Judges
IOM, ISS and other social service organisations
Red Cross
Community and Local Organisations
A Multi-disciplinary approach
•
Requires:
•
Coordination of many actors
•
Taking into consideration all of the child’s needs and
rights and their own views and wishes including their
immigration and protection needs.
The Process
Gather information
Make a proposal for the durable solutions hearing following Establishment of Facts and
following General Comment No.12 within 6 months or as soon as practicable in line with
his/her best interests
Any assessment of the best interests should follow strictly Guidance in Comment No 14, V.B.
Interagency/Multi-disciplinary case conference or hearing
Analysis of different solutions
Best Practice: Decision by qualified majority
Best practice: Binding decision before 18, but as soon as possible, where possible and where
The Process: Who is involved?
An independent coordinator has overall responsibility for information gathering.
At least 3 experts
(identified on case-by-case basis):
-Relevant governmental departments or agencies
-Representatives of child welfare agencies, such as social workers (in particular those under whose care the child
has been placed)
-Expert representative and/or information from country of origin and/or third country
&
Qualified professionals With expertise in, inter alia, ‘child psychology,
child development
and other relevant human and social development fields, who have experience working with children and who will
consider the information received in an objective manner’.
His/her guardian should be able to attend.
The child should also be able to attend and give his/her view.
Decision makers must not have a conflict of interest. Decision must be based on the best interests of the child and
not influenced by the interests of the State in respect of border control.
Access to Justice
Due to their young age, dependency and relative immaturity, children should enjoy specific procedural and
evidentiary safeguards to ensure that fair refugee status determination decisions are reached with respect to
their claims.
The Durable Solutions Process relates to both rights relating to care and development and migration as they
are inextricably linked. Any decisions relating to the durable solution must:
Be written down
Be open to independent appeal
Carry the option of suspensive appeal
Provide an effective remedy
Require that the burden of proof is shared
Apply the benefit of the doubt principle
Procedural Safeguards
Appointment of a legal and independent guardian who:
-is accessible
-has relevant competencies (training)
-is free of potential conflicts of interest
Appointment of an independent legal representative at no cost
*Guardian should also be present in meetings between the child and the legal representative
Interpreters should be made available. They should be:
-accessible
-trained in child specific interpretation
-free
Case conference or hearing should be adapted to the age and maturity of the child, allowing for meaningful participation
Decisions should be in a reasonable time to decrease uncertainty acknowledging Time Perception ‘Delays in or prolonged decision-making
have particularly adverse effects on children as they evolve’.
The process should begin as soon as possible after the child is identified and should conclude within 6 months to 1 year depending on the best
interests of the child.
Analysis: must be multidisciplinary
Decision: must be reasoned and presented in a child friendly way
There must be an option of appeal
Due process applied in the same way as to adults, including mechanisms to revise or review
Access to independent and and effective complaints mechanisms in respect of care and migration needs (including guardianship, carers, legal
representatives etc)
Monitoring of all institutions, representatives and procedures
Child Protection Systems have transnational and cross-border mechanisms in place EC Child Protection Principle 7
Review, Revision & Monitoring of Durable
Solutions Decisions
Revision is possible if it is in line with the best interests, wishes and views of the child and
where there is a change in:
The situation in the country of origin or third country, eg:
-Issues arise sur place (risk of persecution arises after the child leaves the country of
origin or residence).
-The situation becomes safe and stable and the child would have access to their CRC
rights
*A decision for the child to remain in the host country cannot be overturned or revisited
solely based on a change in environment in the country of origin.
Family circumstances (eg where family have been traced after a decision has been made)
Number 1 Recommendation
•
•
‘Status’ decisions need to be made as soon as possible before turning
eighteen to promote positive development and access to rights
through:
• ensuring access to education and reducing the likelihood that it will
be interrupted
• ensuring access to immediate and on-going medical and mental
health services
• ensuring continuity of care
• facilitating family reunification where possible and in the best
interests of the child & reducing the time spent separated
• ensuring that young people can plan for their futures and be
supported to do so and
• re-establishing normality
Not having a status decision puts all other aspects of the durable
solution in flux
“‘Take action as soon as you can - because
waiting affects young people a lot and we
miss more than 6-7 years.”
–Young person, England
Next Steps
•
November - December:
Present draft tool to EASO and
European Commission
•
Mid-January: Publish and
Disseminate final International
Report with Toolkit
•
More to come…