The Rights of Unaccompanied Minors: Perspectives and Case Studies on Migrant Children (Clinical Sociology: Research and Practice) 3030755932, 9783030755935

Citation preview

Clinical Sociology: Research and Practice

Yvonne Vissing Sofia Leitão   Editors

The Rights of Unaccompanied Minors Perspectives and Case Studies on Migrant Children

Clinical Sociology: Research and Practice Series Editor Jan Marie Fritz, University of Cincinnati, Cincinnati, Ohio, USA, University of Johannesburg, Johannesburg, South Africa

The series explores key research and practice in this rapidly expanding field. Topics include ethical and legal aspects of intervention; the nature of client relationships; methods of intervention and evaluation; and the role of clinical sociology in specific settings. This open-ended series appeals to practitioners, policymakers, students and professors in sociology, social work, community psychology, public health, health education, social policy and counseling.

More information about this series at http://www.springer.com/series/5805

Yvonne Vissing • Sofia Leitão Editors

The Rights of Unaccompanied Minors Perspectives and Case Studies on Migrant Children

Editors Yvonne Vissing Center for Childhood and Youth Studies Salem State University Salem, Massachusetts, USA

Sofia Leitão Research & Development Division “Hope For Children” CRC Policy Center Nicosia, Cyprus

ISSN 1566-7847 Clinical Sociology: Research and Practice ISBN 978-3-030-75593-5 ISBN 978-3-030-75594-2 https://doi.org/10.1007/978-3-030-75594-2

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Source: Artwork by Isaac Ndamjim, Unaccompanied child at “Home For Hope” shelter, Nicosia, Cyprus

This book is dedicated to the Rights of Unaccompanied Migrant Children

“Coming here was not a choice for me but becoming part of this country was, I went through many difficulties in life which made me want to give up on life but I came across people who helped me mentally. I came here with nothing knowing nobody and been frustrated by live as a minor, but in return I turn to love the environment and the people around. My story in the shelter, I met wonderful souls which I can’t never forget, they helped me in my difficult moments, stood by me and encouraged me even when on me and they guided me all through the way until where I am today. I felt bad leaving the shelter but I had to go so that others who went through what I went could have the chance to experience the love and care they gave to me leaving in my own house now am happy even though there are so many challenges and many are still to come I won’t give up Cyprus is my home now. I’ m happy am here and thanks for the chance that was given to me to be part of this country.” —Ariane Flore. Muya, Former resident at Homes For Hope shelters for unaccompanied children in Southern Europe ““Ne jamais echouer dans ma vie” (Never fail in my life, or better never give up) this is the sentence I like to repeat since I left my country, Congo. Almost one year ago, I decided to escape from my country for family reasons. I’ve never known my mother because she died when she gave birth to me. My father was used to picked on me. One day, one of my friend introduced me to a man who offered me his help for travelling to Europe. When I took the flight I hadn’t any idea where I was going to and how would be my life. I landed in North Cyprus, where a man helped me to cross the border. During the trip we changed different cars. At that time, I didn’t know that Cyprus is divided in two parties. So, I was scared because I didn’t know what was happening. I remember that the man was “black” so I was sure he was reliable and I trusted him. Once in the South part of Cyprus I met an African man who proposed me to sleep in his house since it was almost night. The day after I went to Immigration Office, where they sent me to a camp with hundreds of asylum seekers. I don’t have good memories of that place.

Now I am in the shelter since one year and I feel safe. I dream to be an engineer and for this reason I am making a lot of efforts to study English and Greek.” —Anonymous, Resident at Homes For Hope shelters for unaccompanied children in Southern Europe “I am from Somalia and now I leave in Cyprus. I left from my country a year ago to start my trip for England. My journey started from Somalia by car to Kenya, where I stayed for two months, at my aunt's house. After two months, I traveled by plane believing that I was going to England to find my father, but as I found out, I was in the occupied area of Cyprus. Leaving my country, I left behind my family, my mother and my siblings, all my relatives and my friends. I was forced to leave my country due to the terrorist group of Αl Shabab, which is pursuing underage boys to join them. I took the risk of travelling alone and I was very scared until I reached Kenya. I didn't care about anything else, I was very happy that I would have the chance to see my father. I was worried and concerned about where I was going, since it was the first time that I was travelling, but I was hoping that I would meet my father soon. The most challenging thing for me was the way I felt, the fear I had during my journey. I felt that I was threatened and I didn’t want to speak to anyone, because I believed that all the people around me would hurt me. Due to that, I had only one thought, I was hoping that I would make it and I was feeling safe away from Al Shabab. As a refugee who, at the moment, is not feeling safe to go back home, I want to send a message to all the refugees in the world “When there is Peace in your country, return”.” —Anonymous, Resident at Homes For Hope shelters for unaccompanied children in Southern Europe “Coming here was not a choice but integrating here was. I belong to the category of people who become mature not because of age but because of the different difficult situations that life has put in my way. I had people by my side to support me even in the darkest moments, I always had people to bring me light, the people in the shelter. Thanks for always being there for me. So to you who at the shelter, be grateful and thankful to these people who work here day and night, in each moment and time these people

are not against you. They really help you to heal your inner wounds you carry from the past. Personally, all my life, I will remain grateful. I remain thankful for your help this shelter was for me like a mother and a father. Even though I faced little difficulties I learned a lot. I take this shelter to heart. A word of advice for you who are here: For me knowing how to love can be summed up as gratitude and politeness being respectful and thankful to everyone. Big, big thanks to you who helped me keep my head high.” —Carine Takang, Former resident at Homes For Hope shelters for unaccompanied children in Southern Europe

Preface

Around the world, young people are on the move, travelling to other countries to escape violence, poverty, oppression and environmental catastrophes. They are in search of a better life, a safer existence where they can go to school, have food and shelter, obtain health care and build families. They are on the move to make their futures happier and healthier. They are hoping their new homes will enable them to participate fully in their communities and to use their gifts and talents to make the world a better place. Many are travelling alone, putting their survival at risk as they make their journeys. In 2014, the International Humanitarian Non-Profit Organisation “Hope For Children” CRC Policy Center, whose work is devoted to the protection and advocacy of the Rights of the Child, launched a call to academics around the globe to join forces in promoting the United Nations Convention on the Rights of the Child (UNCRC). It was the beginning of the Chair of the CRC Policy Center programme, which now counts with members in three continents and continues to expand. The Rights of Unaccompanied Minors: Perspectives and Case Studies on the Rights of Migrant Children results from the collective will of our Chairs to bring the Rights of the Child to the forefront of public debate and to alert to the violations of the Rights of a particularly vulnerable group of children deprived from safety and the shelter of their family due to political, social and economic circumstances. The new millennium has seen an unprecedented migratory crisis, with images of people adrift in the Mediterranean Sea, overcrowded migrant camps in Southern Europe, human caravans in South and Central America, detention of migrants and family separation at the Mexico–USA border daily featuring in the media. The often sensationalist rhetoric driving radical anti-migration movements has not been sufficiently counterpoised by wide reach information on the cruel facts behind an individual’s need to leave all things loved in the hope of a future. The authors of this book wish to contribute to a wider analytical understanding of the challenges faced by unaccompanied children on the move through the lenses of the Rights of the Child and Clinical Sociology. The authors offer their informed perspectives as academics, activists and/or humanitarian workers on contexts and cases in alignment with the four General Principles of the UNCRC: xiii

xiv

Preface

Non-discrimination; Best Interest of the Child; Right to Survival and Development; and Right to be Heard. Salem, MA Nicosia, Cyprus

Yvonne Vissing Sofia Leitão

Acknowledgements

We are grateful to a number of people who have contributed, in different ways, to making this book happen. In common, they have a strong commitment to the defence and protection of the Rights of the Child: Jan Marie Fritz, who believed and supported the project from the very beginning, this book would not have been possible without her. Martha Stavrou, who has very kindly helped in proofreading and revising text. Joseph Borghese and Andria Neocleous, founders of “Hope For Children” CRC Policy Center, whose hard work, vision and passion made possible the Homes for Hope shelters for unaccompanied children in Cyprus. Homes for Hope team of specialised staff and support officers who daily care for unaccompanied children working to heal wounds and to build bridges to the community for a successful social integration. A special appreciation and acknowledgement to unaccompanied children whose brave journey into the unknown in search of safety is always perilous and traumatic. We hope this book contributes to a wider understanding of your challenges and rights.

xv

Contents

Clinical Sociology and Its Application to Analysis of Unaccompanied Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Yvonne Vissing, Sofia Leitão, and Jan Marie Fritz A World Society Analysis of the Rights of Unaccompanied Minors . . . . Brian Gran International State Responsibility Obligations to Protect and Provide Access to Justice for the Asylum-Seeking Child: The CRC and the Unaccompanied Minor Border Case Study Using Dahrendorf’s Social Conflict Theory to Proffer a Revised Legal Framework: Australia, Bangladesh/Myanmar to the ASEAN Charter States, the Republic of Côte d’Ivoire, Africa, and USA/Mexico . . . . . . . . . . . . . . . . . . . . . . . Tanya Herring Refugees and Migrant Children in Europe . . . . . . . . . . . . . . . . . . . . . . . José Noronha Rodrigues

1 19

39 87

Unaccompanied Foreign Minors and Asylum Seekers Under Italian Law: The Issue of Minors Attaining Majority . . . . . . . . . . . . . . . 131 Alessandra Cordiano Unaccompanied Minors Seeking Asylum in Denmark: Best Interest, Crime Prevention or Immigration Policy? . . . . . . . . . . . . . . . . . . . . . . . 147 Caroline Adolphsen The Right to Education of Unaccompanied Minors and the Persistence of an Education Gap in their Transition to Adulthood . . . . . . . . . . . . . . 163 Isolde Quadranti Voluntary Guardianship for Unaccompanied Children in Italy: Strengths and Weaknesses of a New Model . . . . . . . . . . . . . . . . . . . . . . 187 Joëlle Long xvii

xviii

Contents

Detention of Unaccompanied Migrant Children in Portugal: A Call for a Clinical Sociology Intervention . . . . . . . . . . . . . . . . . . . . . . 201 Ana Rita Gil Unaccompanied Children at the US-Mexico Border . . . . . . . . . . . . . . . . 229 Yvonne Vissing Hope for Refugees: Challenges in Reception and Integration of Unaccompanied Venezuelan Children in Brazil . . . . . . . . . . . . . . . . . 269 Maria Mariana Soares de Moura Ageing Out of Care Towards Living a Self-determined Life: A Multidisciplinary Mentoring Model for Unaccompanied Care Leavers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Anca Clivet Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 Yvonne Vissing and Sofia Leitão Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323

Clinical Sociology and Its Application to Analysis of Unaccompanied Children Yvonne Vissing, Sofia Leitão, and Jan Marie Fritz

1 Introduction Unaccompanied children (which includes people up to age 18) are found around the world as they seek asylum, are refugees or immigrate to new nations or communities. Irrespective of where they can be found, most have experienced hardships and trauma (United Nations 2017). Their hardships can be mitigated or exacerbated depending on how they are addressed by providers and social institutions. There are a variety of actions that social institutions and providers of all sorts can take to assist them. A clinical sociology framework is useful for us to address organizational and provider responses that are in keeping with the United Nations Convention on the Rights of the Child’s (UNCRC) emphasis on “best interests of the child”. The Inter-agency Working Group on Unaccompanied and Separated Children (2004) defines unaccompanied children as minors separated from parents and other relatives not being cared for by an adult responsible by law or custom. As definitions of what constitutes being unaccompanied pertains to children seeking asylum on their own, countries may have their own standards. In the United States, unaccompanied minors must be under age 18, have no lawful immigration status, and no parent available to provide care and physical custody when they seek asylum

Y. Vissing (*) Salem State University, Salem, MA, USA e-mail: [email protected] S. Leitão “Hope For Children” CRC Policy Center, Nicosia, Cyprus e-mail: sofi[email protected] J. M. Fritz University of Cincinnati, Cincinnati, OH, USA Department of Sociology, University of Johannesburg, Johannesburg, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_1

1

2

Y. Vissing et al.

(USCIS 2019). Asylum officers evaluate them to see if they meet set criteria. Their determination sets into action a series of other steps and outcomes. In the European Union (EU), the Dublin mechanism, which regulates asylum application of non-EU and stateless persons, defines unaccompanied children as any individual under the age of 18 arriving at a EU Member State (MS) from a non-EU country unaccompanied by an adult responsible by law or MS practise. An age-assessment may be carried to determine the age of the unaccompanied asylum-seekers claiming to be minors, through medical age-test by qualified medical personnel, with the consent of the child and that of an appointed adult representative or institution (United Nations 1993). According to the Dublin mechanism, the best interest of the child is a priority when determining the country of asylum, taking into consideration the possibilities of family reunification; the child’s well-being and social development; safety and security; and the views of the child according to age and maturity. The Member State responsible for the asylum application is that where a parent, sibling or other adult responsible for the child by law or Member State practise is legally present. (Council Resolution 1997; Regulation EU 2013) Once intercepted by authorities, a variety of trajectories can occur for unaccompanied children. These range from significant support to help them resettle, receiving some to minimal assistance, detainment or incarceration, being sent back to where they came from, or receiving no assistance at all. The types of assistance and interventions put into place largely determine the direction of the children’s futures. Clinical sociology frameworks can be of assistance in influencing organizational decision-making in a positive direction for this vulnerable population of young people. Over 4.8 million migrants arrived at OECD countries in 2015 (OECD 2018). Since then, over 215,000 unaccompanied children have applied for asylum in the EU (EUROSTAT, November 2020). In 2018/2019 close to 73,000 unaccompanied children made the journey from Central America to the USA (Unicef 2020). They are a vulnerable population with positive potential if they are helped. They are also an at-risk population whose needs and troubles could grow if their needs are not adequately addressed. As shown throughout this book, the challenges they face are extraordinary (Vickers and Alexander 2013). But so are their strengths and ability to be resilient in the face of extreme crisis. It is the goal of this book to take a candid look at the lives of unaccompanied children around the world and to identify best practices for how we, as a global community, can better care for them.

2 The Bigger Picture The issue of unaccompanied youth seeking entrance in new countries is nothing new. Young people fleeing for their lives or moving in search of better lives is a worldwide historical phenomenon. It is easily seen in the turn of last century’s immigration from Europe to the United States. Fifteen-year-old Annie Moore and her two little brothers travelled alone from Cork County, Ireland in 1892 to Ellis

Clinical Sociology and Its Application to Analysis of Unaccompanied Children

3

Island in the United States, where now a statue of her stands as a testament to the courage of millions of children who travel to new destinations without an older family member to help them along (Raja 2014). Even then, unaccompanied children were not always welcome. Many came without knowing anyone and having no family or friends to help them upon arrival. Refugees, stowaways, asylum-seekers, orphans, trafficked, and other children were accused of carrying disease, having criminal tendencies, seeking to take away jobs of upstanding citizens, and were admonished to “go back where you came from” (Haines 2015; Raja 2014). Mass migration and population displacement is becoming a defining global issue and “the new normal” for the twenty-first century, as people around the world are leaving their homes because of war, disaster, violence, persecution, climate change, poverty, and the desire for better lives and more equality and opportunity (O’Hagan 2015). The World Migration Report (International Organization for Migration 2020) estimates the number of international migrants at 272 million globally, with nearly two-thirds being labour migrants. Major migration and displacement events have occurred in recent years, causing great hardship and trauma as well as loss of life. Some include displacements of millions of people due to conflict (associated with the Syrian Arab Republic, Yemen, the Central African Republic, the Democratic Republic of the Congo and South Sudan), extreme violence (such as that inflicted upon Rohingya in Bangladesh) or severe economic and political instability (faced by millions of Venezuelans). There has also been growing recognition of the impacts of environmental and climate change on human mobility, including Mozambique, the Philippines, China, India and the United States of America. The US-Mexico border crisis is but one global expressions of this phenomenon; over two million people have sought asylum into Europe, three million Ethiopians fled homes in 2018, conflicts in Africa have resulted in nearby nations hosting six million refugees, and the Philippines have seen four million people displaced in 2018 by natural disasters. Worldwide, the number of refugees has doubled in five years, and the number of refugees is estimated at 25.4 million, with another 41.3 million internally displaced by conflict or violence to move elsewhere within their home country. As many as 20 million more are displaced by natural disaster (UN Refugee Agency 2018). Over 28 million people are displaced annually according to the Internal Displacement Monitoring Centre (2020) in Switzerland. The number and severity of natural disasters has increased, and will continue. Reacting to such events as individual, isolated incidents rather than addressing them as part of ongoing policy discussions is ill-considered. In general, the motivations and methods of young migrants are varied and similar to those of adults. Whatever the global conditions are that predispose someone to want to move to a better place, children are caught up in the same current. But a major difference between unaccompanied immigrant children and adult migrants is that young migrants are much more vulnerable than adults. How they are received, processed, held, returned, or integrated depends on the country in which they arrive. It is common for young migrants to be seem as needing a lot of resources and not seen as offering much or being potentially productive members of society when they

4

Y. Vissing et al.

arrive, often destitute, in new countries (Levinson 2011). Their status as minors has called into question whether some special exception to immigration law or procedures must be created for them. While it is understandable that people wish to relocate to areas where they will be safer and find more opportunities for better lifestyles, their arrival poses challenges for host nations. Tension becomes particularly high in countries unprepared to host them. Resources get strained, cultural norms become challenged, fears rise, suspicion and intolerance result, and interpersonal violence rises. Racism, ethnocentrism, and host supremacy (in the case of the US, white, male, Christian supremacy) is a common response to the rise of external threats that immigration poses. Having adequate housing, food, water, healthcare, education, transportation, and security are community concerns as populations rise quickly, especially when the new arrivals lack the means to fend for themselves. Many countries who feel “invaded” by “outsiders”, are ill-equipped to deal with the influx of thousands of people who arrive at the border wanting entry (Bernstein 2019). The building of a wall, creating prohibitive laws, or telling people to “go back where they came from” are not realistic approaches to address a global problem that is not going to go away. Isolationist backlash to hosting asylum seekers and immigrants is growing in the US, Europe, and other nations. Treating asylum seekers—especially those who are children and unaccompanied children and youth—in inhuman ways for political purposes can be seen as immoral, certainly not in in the best interests of the child, and a clear violation of the UNCRC and Universal Declaration of Human Rights (UDHR) (Kotch 2019).

3 The Clinical Sociology Approach Clinical sociology1 is a creative, humanistic, rights-based, and multidisciplinary specialization (Bruhn 2001; Fritz 1989, 1992, 2020a, b) that seeks to improve life situations for individuals and groups in a wide variety of settings, including those faced by young unaccompanied migrants. The work is done on one and hopefully more than one system level (e.g., interpersonal, family, organizational, community, national, international). Clinical sociology frameworks and approaches can be used by policymakers and others involved in problem solving in many different fields (e.g., immigration, housing, health, environment, counselling).

1

The clinical sociology specialization often is traced to the fourteenth-century work of the Arab scholar and statesperson Abd-al-Rahman ibn Khaldun (1332–1406). The term clinical sociology was mentioned in Spain as early as 1899. The earliest continuous use of the words “clinical sociology” was in the United States was in the late 1920s and early 1930s. The words appeared in course titles at the University of Chicago, documents written by a medical school dean at Yale who wanted to have physicians trained in what he called clinical sociology and a 1931 American Journal of Sociology article, “Clinical Sociology,” by Louis Wirth.

Clinical Sociology and Its Application to Analysis of Unaccompanied Children

5

Clinical sociologists work with client systems (individuals or groups assisted by a clinical sociologist or an intervention team) to assess situations and avoid, reduce, or solve problems through a combination of analysis and intervention. Clinical analysis is the critical assessment of beliefs, policies, or practices, with an interest in improving a situation. Intervention is based on continuing analysis; it is the creation of new systems as well as the change of existing systems and can include a focus on prevention or promotion (e.g., preventing improper treatment of juveniles or promoting an excellent migration processing system). Clinical sociologists have many areas of expertise, such as environmental protection, challenging social inequalities, community development, social conflict reduction, evaluation research or cultural competence, and they work in various capacities (Cole 2017; Zevallos 2014). Clinical sociologists with an organizational focus may be interested in developing an organization or working with public sector organizations (government and non-profit organizations) and/or for-profit enterprises that are publicly or privately owned. Clinical sociologists usually have education and training in more than one discipline and experience working with intervention teams whose members have a variety of backgrounds. Because of this, they are familiar with a range of theoretical approaches and often integrate them in their work. Clinical sociologists with advanced degrees have training in a variety of qualitative and quantitative research methods. Depending, in part, on the amount and kind of research training they have received, clinical sociologists may conduct research, collaborate with researchers, or primarily focus on intervention. Since 1983, clinical sociologists have applied for individual certification from the Association for Applied and Clinical Sociology (AACS) (2019) and, since 1995, academic programs have been accredited through the Commission for the Accreditation of Programs in Applied and Clinical Sociology (CAPACS) (2019). Data indicates that the traumas that children experience in their young years can result in a variety of preventable problems, as shown in Fig. 1. They may have more problems learning and have social, behavioural, and relational difficulties. Trauma exposure is related to risky lifestyles choices such a substance and alcohol abuse, sexual exploitation as well as violent behaviour to themselves (i.e. cutting, suicide) or others. Accidents are more common. Mental health problems are linked to trauma exposure. Physical ailments, including diabetes and cardiovascular, cancer, respiratory, gastrointestinal, and other diseases and disorders can result in higher morbidity and earlier mortality. (Finkelhor 2018; Solloway, Vissing and Koury 2019) Realizing that most, if not all unaccompanied children, will have experienced a variety of trauma or adverse child experiences (ACES), social organizations are positioned to design services and interventions that will mitigate the impact of trauma (Copeland et al. 2018; Erazo 2018; World Health Organization n.d.).

6

Y. Vissing et al.

Fig. 1 The-ACE-pyramid-Centers-for-Disease-Control-and-Prevention-cdcgov. https://www.cdc. gov/violenceprevention/acestudy/index.html

4 Resilience in Unaccompanied Children Despite the many adversities that unaccompanied children may face, the traumas they face do not have to defeat them. If they are given good support and assistance, they may fare well throughout life. As shown in Maslow’s hierarchy of needs finds that the most fundamental thing that children need to grow well is food, water, rest, and having their health needs met. This is the first challenge that must be addressed to support unaccompanied children. Organizations and providers need to immediately address these concerns. Then children’s need for safety and security can be addressed. Finding them a long-term home where they can find stable shelter is important for them to gain a sense of belongingness and to feel that they are a part of a caring community. Only after these are achieved can youth strive towards the development of positive self-esteem, ego integrity, and hopefully what Maslow (1943) refers to as self-actualization. A child’s ability to be resilient may depend upon how their needs are met, especially during times of life crisis. Resilience is the process of adapting well in the face of adversity, trauma, tragedy, threats or significant stress. It is not an inherent trait that people either have or do not have; it involves behaviours, thoughts and actions that can be learned and developed. Being resilient does not mean that a person does not experience difficulty or distress. Suffering adversity or trauma is common for everyone. The issue is that unaccompanied children who are seeking

Clinical Sociology and Its Application to Analysis of Unaccompanied Children

7

asylum in a new country have likely experienced more adversities, hence stress and trauma, pain and sadness, than others. Research has found that those who are resilient may have suffered, and survived considerable physical and emotional distress. Thus, resilience is seen as something that is ordinary, not extraordinary, something that can be cultivated given the right support (American Psychological Association 2019). (Consoli, Gonzalez and Lopez 2019). This is where clinical sociologists can be of assistance. As obstacles are identified, solutions can be created and implemented. There is no one-size-fits-all strategy to helping children to gain resilience. Assessments must be made at the individual level, since children will have unique journeys and experiences that led them to arriving at a new location unaccompanied. Their needs, challenges and abilities are not the same. Providers and organizations can establish resources to lift them up. There will be cultural variations as well that must be considered. Immigrant youth have to navigate between the often-conflicting values and developmental goals of their home and host cultures, in a discriminatory context. Culture, development and acculturation are highly intertwined, making a cultural developmental science approach yield a better understanding of immigrant youth resilience (Motti-Stefanidi 2018). The capacity of students with an immigrant background to overcome the adversities inherent in displacement and be resilient should be judged not only based on their attainment of baseline levels of academic proficiency, but also on their sense of belonging at school, their satisfaction with life, their level of schoolwork-related anxiety and their motivation to achieve (OECD 2018). The way community organizations and leaders respond to the arrival of immigrant youth impacts their adjustment and their life trajectories (Greenberg et al. 2016). For instance, in a multi-national study of how immigrant children fare in their quest to be resilient, the OECD (2018) found that defining resilience using multiple indicators reflecting the overall well-being of students, including academic, social, emotional and motivational well-being data, can give education systems a clear idea about what they need to do to promote full development of children with an immigrant background. For instance, they found that vulnerabilities, type of displacement, cultural background, access to resources, and having to negotiate between multiple identities all impact student outcomes. Schools should not see themselves as merely disseminators of education, but also encompassing the health, social and welfare systems and partnerships between schools, hospitals, governments and community organisations. In order to adequately address the risks associated with having an immigrant background and foster resilience of immigrant students, teachers need to know the background and circumstances of their students, develop the tact that is necessary to discuss their background and be aware of the broad set of mechanisms through which different experiences of migration can affect academic performance, social integration, emotional and psychological well-being. Just as countries invest in developing language programmes and initiatives aimed at supporting socio-economically disadvantaged students, so they should invest in widening the availability of programmes designed to help teachers teach in diverse classrooms and upgrade the quality of existing training modules. While they may not have labelled their actions to be clinical sociology, their actions and the field overlap.

8

Y. Vissing et al.

Helping children to learn how to be resilient is a community endeavour. This is where clinical sociologists can use their insights and skills to help immigrant children in general, but specifically those who arrive in new places unaccompanied by caregivers.

5 Reasons for Being an Unaccompanied Child There are many different reasons for why a child may find themselves entering a country without a parent or guardian. While they may be unique for each individual, there are commonly shared causal categories. These general categories include escape from violence, seeking a better life, or as the result of environmental problems. Let us explore each. Escape from Violence Psychologists have long identified that when confronted with violence it is natural for both humans and animals to either fight it or flee from it. Because children are smaller, younger, and still developing cognitively, physically and emotionally, they may find themselves unable to fight either the perpetrator or causes of violence. Fear is a normal response, since self-protection and survival are hard-wired into human beings. Children may attempt to use fighting as a strategy to deal with violence, but many may find that they are ineffective in overcoming it. Getting away from violence may be the impetus for them fleeing (Ciciora 2019). If their flight is without the presence of parents or guardians, they are deemed unaccompanied in their status. The most obvious example of violence is war. The study of war, or polemology, finds it takes different forms. It is regarded as form of conflict between states, governments, societies, or identified groups of individuals, which impacts the lives not just of soldiers but civilians as well. The violence may be inflicted by regular or unofficial military forces, or non-traditional units, insurgents or vigilantes. While face-to-face combat is still common, where people are beaten, shot, burned, or otherwise attacked, warfare can include use of bombs, biological agents like germs, bacteria or viruses, chemicals, or nuclear arms. Civilians may find their relatives killed, maimed, kidnapped, raped, tortured, and their homes burned to the ground. As technology has advanced, so have warfare strategies, so has use of cyber warfare and information warfare. While less physically invasive, these strategies may have a huge impact on the minds and lifestyles of individuals. Escaping violence at the community level is another cause for unaccompanied youth. Gangs may run roughshod over innocent citizens. Individuals may be bullied, assaulted, raped, or exploited in a variety of ways. Gangs may demand certain services or resources “or else”. Extremist groups may target certain types of individuals and assault or kill them just because of what they look like or for having certain demographic characteristics or group affiliations (like membership in a particular religious group). Police may be ineffective in curbing the activities of those who are violent in the community. Groups who evoke “ethnic cleansing” on

Clinical Sociology and Its Application to Analysis of Unaccompanied Children

9

communities may force people to flee or otherwise be subject to death or other assaults. Children may find themselves victims of violence within their own homes and run away or flee to get away from perpetrators. Physical abuse, sexual abuse, emotional and verbal abuse, neglect, and other types of maltreatment are regularly suffered by children around the world at the hands of their parents and caregivers. Young people may be exposed to domestic violence and be subjected to oppressive gender role expectations. Girls may find themselves to be married when they are very young, experience genital mutilation, forced to do domestic or farm work with no opportunity for education or a career. Children may be abandoned by their families and flee to somewhere they hope they will receive care, security and safety (Kim et al. 2009). Seeking a Better Life Youth may flee where they have been living with their parents, who want to give them a better life somewhere else. They may find that in the journey to their new destination that they are separated from them. Sometimes the separations are due to the parents being killed, or families can be separated by official authorities or unofficial authorities who put themselves into leadership or power positions (Children’s Defence Fund 2018). Parents may realize that their children are in harm’s way in the community or country were they are living, and pull together money to have them sent to a new land where they hope their children will have better opportunities. They may make arrangements with other relatives, friends, or acquaintances for their children to travel with them to a new destination. Traffickers may be paid sums of money to escort children across borders, overseas, and through violent areas to new places (Canizales 2015). Some youth may run away from homes or communities on their own. They may observe what their life options are where they are living, and decide that they will either die or have a horrible life if they stay where they are. They may know peers who are traveling to new places and they decide to go with them. They may be enticed by older adults to travel with them. While they may realize they may be exploited or subjected to violence along the way, the known violence and trouble they anticipate if they stay where they are make chancing the unknown a reasonable risk. Youth in this situation have many hopes. These include that in their new locale they will have safe housing, adequate food and water, not be victims of violence, and have opportunities to go to school, get a job and create their own family. Fleeing from Environmental Problems Climatic shifts are occurring worldwide. Fires may devastate thousands of acres and burn down homes and entire communities. Hurricanes, floods, and tsunamis may wipe out homes. Heat waves and droughts may dry up water and make farming difficult if not impossible. Loss of habitat makes it hard for people to have sustainable lifestyles. Climate change has both direct and indirect pressures that force migration (Butler 2018; Podesta 2019; UNHCR 2019).

10

Y. Vissing et al.

Mass migration and population displacement is becoming a defining global issue and “the new normal” for the twenty-first century, as people around the world are leaving their homes because of war, disaster, violence, persecution, climate change, poverty, and the desire for better lives and more equality and opportunity. The US-Mexico border crisis is but one global expressions of this phenomenon; over two million people have sought asylum into Europe, three million Ethiopians fled homes in 2018, conflicts in Africa have resulted in nearby nations hosting six million refugees, and the Philippines have seen four million people displaced in 2018 by natural disasters. Worldwide, the number of refugees has doubled in five years, and the number of refugees is estimated at 25.4 million, with another 41.3 million internally displaced by conflict or violence to move elsewhere within their home country. As many as 20 million more are displaced by natural disaster. Over 28 million people were newly displaced in 2018 according to the Internal Displacement Monitoring Centre in Switzerland. In 2018, more than 1.2 million people were forced from their homes due to natural disasters in the US, accounting for some 10% of all disaster-caused internal displacement in the world last year. Almost all were due to three events: Hurricane Florence in August, Hurricane Michael in October, and the California wildfires in July, August, and November. The number and severity of natural disasters has increased, and will continue to. Reacting to such events as individual, isolated incidents rather than addressing them as part of ongoing policy discussions is ill-considered (Bernstein 2019).

6 Challenges Experienced by Unaccompanied Children and Benefit of the UNCRC Just as there are common conditions that foster the rise of unaccompanied children, irrespective of where they are found, these children suffer preventable challenges that harm their physical, social, emotional, and educational wellbeing. These

Table 1 UNCRC articles especially relevant to unaccompanied children Nondiscrimination #2 Best interests of the child #3 Government protection of rights #4 Right to live & develop #6 Not separated from parents #9 Humane treatment #10

Forbid trafficking #11, #35 Participation, free expression & own decisionmaking in legal matters #12 Freedom of association (family & siblings) #15 Privacy #16 Abuse & neglect protections #19, #39 Suitable care when unaccompanied #20

Protection of refugees #22 Healthcare #24, #25, #27 Education #28, 29 Recreation #31 Economic protection #32 Protection from torture #37

Clinical Sociology and Its Application to Analysis of Unaccompanied Children

11

challenges are in direct opposition to what the UNCRC identifies as necessary for children’s health and development (Table 1).

7 The United Nations Convention on the Rights of the Child The UNCRC is the landmark statement on the Rights of the Child, it is the treaty on human rights most widely-ratified—at present the United States of America are the only country in the world not to have ratified it. It entered into force on September second 1990 having been adopted and opened for signature on November 20th 1989 a date that marks the adoption of the UN Declaration of the Rights of the Child and is now celebrated as the World’s Children’s Day. The Convention has 54 linked articles of equal importance guided by four principles, the overarching rights that frame the fulfilment of the Rights of the Child providing guidance on determining violations and on preventing them. As the CRC pertains to our understanding of the experiences of unaccompanied children, the CRC requires that each government make sure to respect children’s rights (Article #4). The guiding principles of the CRC include non-discrimination (Article #2), adults must adhere to doing whatever is in the best interests of the child (Article #3), the right to life, survival and development (Article #6), and children’s right to participate in any and all decisions that impact their wellbeing (Article #12). These are basic in representing the underlying requirements for their rights to be realized. Challenges Facing Unaccompanied Children Unaccompanied children share many common challenges. At the most basic level, this includes survival. Recent media reports have shown photographs of children’s bodies washed ashore after falling out of boats and drowning; collapsed on the ground after dying of dehydration or untreated health problems; or being murdered as they attempted to journey to safety. Many experienced rape, assaults and violence early in their lives that contributed to their need to escape to safer territories. As they travelled, they may have experienced physical, sexual, economic and emotional assaults. In their journeys, many walked many miles and are exhausted with sores on their feet, they be hungry, malnourished, and dehydrated. Climate may be harsh—either too hot or too cold, geography may be hard to negotiate, whether across mountains, through water, across deserts, or through urban areas. There may be no sidewalks or roads for them to walk, and terrain may be not easily manoeuvrable. They may have had no safe place to sleep and few hours to rest. Personal hygiene may be hard to have, with toileting, bathing, or dealing with menstrual cycles. Most unaccompanied children lack money to purchase necessities for their travel, and if they had cash it could quickly be taken from them. When traveling with families, they may find themselves separated from them. As they traveled without parents, they may have been watched over by other family members, friends, or acquaintances to varying degrees. Some children were sent on

12

Y. Vissing et al.

their journey to new lands with total strangers who were paid sums of money to get the children to a destination. The quality of care they receive from these traffickers may be poor indeed, exacerbating the trauma and toxic stressors to which they are exposed. While traveling, material possessions are limited. This includes clothing, which puts children at risk of being cold or wet when exposed to the rain. They likely have no sleeping bags. Objects of sentimental value or cherished toys are unlikely to be sustained for long distances. As they arrive at their destination, or at a port of entry (planned or accidental), children are intercepted by adults. The range of reaction may vary considerably, from being welcomed and provided help, food, housing, healthcare, and emotional support to rejection, anger, hostility, violence, and no assistance. Children may find themselves thrown into refugee areas with people they know or separated from their support systems and put into facilities with no one they know. Unaccompanied children may find themselves separated from siblings. Even babies may be removed from parents or caregivers and put into situations where they become unaccompanied, even though they arrived with caregivers. The processing procedures unaccompanied children confront vary. Most new areas will want to see documentation of children’s legal status. The most common document is a birth certificate. However, some children never had paper documentation, or they may have lost it or had it stolen while on their journey. In some cases, birth certificates may be forged or purchased, rendering them not authentic. This means that authorities must try to locate documentation, which will take time. In the days or weeks it takes, children may be warehoused in holding locations. These facilities are not stable housing, usually are staffed by different caregivers, and may not provide the consistency that children developmentally require. While the CRC requires legal representation, it may not be provided to children. In some cases, children must wait a long time for any legal representation at all, as there may not be enough lawyers or judges available to address them. With language differences, children may not understand the legal questions asked of them. They may be pushed through systems without actually giving consent. For instance, in the US 86% of border children are not given legal representation, the court was found to require babies to give consent, orders were given in a different language, which was clearly impossible for a child to do in meaningful way (Jewett and Luthra 2018; Leonhardt 2019). While children are waiting to be placed in more permanent housing, either with relatives, friends, or foster-care, they may receive some health care, but the health care is largely designed to keep them from passing on diseases that are contagious or life-threatening. In the US, most new arrivals receive vaccinations, TB tests, pregnancy, and sexually transmitted disease checks. The type of housing and accommodations unaccompanied children receive vary by age, gender and location. Even within a single country the treatment of unaccompanied children may vary considerably, with some receiving adequate care while others do not. The way children are processed can add to trauma and hardship or reduce it.

Clinical Sociology and Its Application to Analysis of Unaccompanied Children

13

Violations of CRC articles occur around the world. Adding insult to injury, it is not unusual to hear complaints of provider’s physical, emotional, verbal, and sexual abuse of unaccompanied children. With no parents or siblings there to witness or protect them, children who are detained are at the mercy of those who have control over their lives. Facilities may not be inclined to report abuses by staff, and staff may be hesitant to report violations of other workers. The result is that vulnerable children are often maintained in risky situations, even after fleeing violence in the pursuit of safety. Culture shock is a normal expectation to be considered. Children have lost their families, friends, neighbourhoods, nation and culture. These pose significant psychological and social impacts. There may be difference in language, norms, monetary systems, government, laws, regulations, organizational policies and practices. Expectations by caregiver may differ. Education and recreation may or may not be provided. What is acceptable in one place may not be in another, which can lead to different perceptions of whether a child’s behaviour is appropriate or inappropriate. Discipline strategies may differ. The result is that longitudinal data on the wellbeing of unaccompanied children is sparse indeed.

8 Organizational and Provider Responses A clinical sociology approach to addressing the needs of unaccompanied children must be multifaceted and engage caregiving at multiple levels and institutions. As shown in Fig. 2, there are four major levels of how to address when children arrive in new countries or regions unaccompanied. Governments can decide if children are welcome and what kinds of laws they will institute to protect them. Governments will determine levels of funding for their services and criteria for local response. Fig. 2 Multi-level assistance response

Individual Provider Response

Government & Legal Reponse

Instuonal & Organizaon Response

Community Response

14

Y. Vissing et al.

Communities must decide how to greet the children who arrive without caregivers. What will they do? What types of structures and infrastructures exist to assist them, and what new ones will need to be created? Local communities may find their resources stretched beyond their capacity and must make determinations about what they will do and who they will serve. At the organizational level, what are the policies, practices and plans for helping the children? What kinds of resources do they have, and what do they need in order to serve the children well? How are they to obtain operational funding and staff to address the needs of serving the children? And at the individual provider level, do they have the empathy, language skills, and knowledge of what to say and do? (Koury and Green 2019). Some organizations and institutions are prepared to address the needs of an influx of unaccompanied youth. Others are blindsided by their arrival and totally unprepared about what to do with them. One organizational response may be to “welcome the stranger” and “care for the child”, others take a “go away” approach. The majority, however, seem to take a minimalist approach, where some resources are given that assuage guilt or appearance of callousness. Housing may be provided, but it may be insufficient for the numbers of children who need it, may be available only for short periods of time when children are pushed out to questionable housing and care arrangements. Whether children are provided beds, blankets, and privacy varies. The amount and quality of food and water may vary, as well as bathing facilities, healthcare, education, recreation, and social services. Counselling is often non-existent, despite the fact that most of the children have experienced multiple types of trauma. The amount of legal support ranges from adequate to non-existent. A goal of organizations may be to place unaccompanied youth and not to keep them in their facilities. Organizations may have policies that the children must be placed into safe, reputable homes and these homes are well-investigated. Other organizations may do virtually no scrutiny for appropriateness of placement— organizations may be inundated with new arrivals and their goal may simply be to move occupants along. When a child is placed, often upon their relocation to new homes or caregivers, data on where the children go and what happens to them is often never collected. Longitudinal data is seldom collected, making it difficult to know about what resources or services influence particular outcomes. Another common organizational challenge is that staff may not speak the same language as the children. Without the ability to communicate in the same language, questions cannot be asked and answers not understood. This is a problem for obtaining information on the child’s history, needs, conditions, and to locate permanent housing. It is also a problem for educators who are working to give children survival communication skills, such as counting/math/how to handle money and basic living commands.

Clinical Sociology and Its Application to Analysis of Unaccompanied Children

15

9 Summary The UNCRC requires that participating nations address the needs of all children, as defined in their Articles. Unaccompanied youth have no guardian to speak on their behalf, so the community must decide what voice it will use and how vigorously it will use it. In many parts of the world there is a growing isolationist backlash to hosting asylum seekers and immigrants, even those who are children. The needs of the children are similar, no matter where they are. The challenges that host nations face are as well. How to address the presence of unaccompanied children is of international concern. There are a variety of ways that organizations, institutions and providers can assist unaccompanied children. There are also ways that they can make life significantly challenging for them. (James and Prout 1998). In each chapter that follows, examples of how a clinical sociology perspective can be useful will be employed. Case studies throughout Europe, North America, South America, Asia and Africa will be provided.

References American Psychological Association. (2019). What is resilience? https://www.apa.org/helpcenter/ road-resilience Association for Applied and Clinical Sociology (AACS). (2019). https://www.aacsnet.net/ Bernstein, D. (2019). The US border crisis is the top of an international problem. WGBH. https:// www.wgbh.org/news/commentary/2019/08/19/the-us-boarder-crisis-is-the-tip-of-an-interna tional-problem Bruhn, J. G. (2001). On becoming a clinical sociologist. In H. M. Rebach & J. G. Bruhn (Eds.), Handbook of clinical sociology. Clinical sociology: research and practice. Boston, MA: Springer. Butler, J. (2018). Forced migration is the new face of climate change. Greenpeace. https://www. greenpeace.org/usa/forced-migration-is-the-new-face-of-climate-change/ Canizales, S. (2015). Unaccompanied migrant children: humanitarian crisis at the US border and beyond. https://poverty.ucdavis.edu/policy-brief/unaccompanied-migrant-children-humanitar ian-crisis-us-border-and-beyond Centers for Disease Control. (2019). Adverse child experiences. https://www.cdc.gov/ violenceprevention/childabuseandneglect/acestudy/aboutace.html Children’s Defense Fund. (2018). Unaccompanied migrant youth. https://www.childrensdefense. org/cdfny/wp-content/uploads/sites/3/2018/07/unaccompanied-migrant-youth.pdf Ciciora, P. (2019). What’s behind surge in unaccompanied minors crossing southern U.S. border. https://news.illinois.edu/view/6367/803606 Cole, N. (2017). Applied and clinical sociology. https://www.thoughtco.com/applied-and-clinicalsociology-3026291 Commission on the Accreditation of Programs in Applied and Clinical Sociology (CAPACS). (2019). https://www.sociologycommission.org/ Consoli, M., Gonzalez, N., & Lopez, S. (2019). Promoting resilience in immigrants. Oxford Handbook of Prevention in Counseling Psychology. Edited by Elizabeth Vera. New York: Oxford. https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780195396423.001. 0001/oxfordhb-9780195396423-e-22

16

Y. Vissing et al.

Copeland, W. E., Shanahan, L., & Hinesley, J., et al. (2018). Association of childhood trauma exposure with adult psychiatric disorders and functional outcomes. JAMA Network Open, 1(7), e184493. https://doi.org/10.1001/jamanetworkopen.2018.4493. https://jamanetwork.com/ journals/jamanetworkopen/fullarticle/2713038 COUNCIL RESOLUTION of 26 June 1997 on unaccompanied minors who are nationals of third countries (97/C 221/03). https://eurlex.europa.eu/legalcontent/EN/TXT/PDF/? uri¼CELEX:31997Y0719(02)&from¼EN EUROSTAT. (November, 2020). Asylum applicants considered to be unaccompanied minors by citizenship, age and sex – annual data (rounded). https://appsso.eurostat.ec.europa.eu/nui/ show.do?dataset¼migr_asyunaa&lang¼en Erazo, T. (2018). Migration related trauma. American Psychological Association. https://www. apa.org/international/pi/2018/08/migration-trauma Finkelhor, D. (2018). Screening for adverse child experiences. Child Abuse and Neglect. http://unh. edu/ccrc/pdf/CV350-InPress.pdf Fritz, J. M. (1989). The history of clinical sociology. Sociological Practice, 7(1). Article 11: 72–95. https://pdfs.semanticscholar.org/b603/ea75d6448f2145f624bf9f0c6e654611f782.pdf Fritz, J. M. (1992). Creating successful communities. In R. Straus (Ed.), Using sociology: An introduction from the applied and clinical perspectives (2nd ed.). General Hall: Bayside, New York. Fritz, J. M. (2020a). International clinical sociology. New York: Springer. Fritz, J. M. (2020b). Clinical Sociology. Chapter in Clinical Sociology for Southern Africa, edited by Tina Uys and Jan Marie Fritz. Juta. Greenberg, D., Feierstein, S., & Voltolini, P. (2016). Supporting resilience in immigrant communities. https://www.lisc.org/our-resources/resource/supporting-resilience-americas-immigrantcommunities Haines, D. (2015). Learning from our past: Immigrant experience in the US. https://www. americanimmigrationcouncil.org/research/refugee-experience-united-states? g c l i d ¼C j 0 K C Q j w 6 _ v z B R C I A R I s A O s 5 4 z 5 M A w l d O 6 r k O g R m c O k r N w m r 9 _ UG5EbKDjFTiUDGa3g_cCVLDjN_nk8aAtDJEALw_wcB Inter-agency Working Group on Unaccompanied and Separated Children. (2004). Inter-agency guiding principles on unaccompanied and separated children. https://www.unhcr.org/ protection/children/4098b3172/inter-agency-guiding-principles-unaccompanied-separated-chil dren.html Internal Displacement Monitoring Center. (2020). Global displacement. https://www.internaldisplacement.org/ International Organization for Migration. (2020). World migration report. https://www.un.org/ sites/un2.un.org/files/wmr_2020.pdf James, A., & Prout, A. (1998). Constructing and reconstructing childhood. Washington, DC: The Falmer Press. Jewett, C., & Luthra, S. (2018). Immigrant toddler ordered to appear in court alone. Texas Tribune. https://www.texastribune.org/2018/06/27/immigrant-toddlers-ordered-appear-court-alone/ Kim, M. J., Tajima, E. A., Herrenkohl, T. I., & Huang, B. (2009). Early child maltreatment, runaway youths, and risk of delinquency and victimization in adolescence: A mediational model. Social Work Research, 33(1), 19–28. https://doi.org/10.1093/swr/33.1.19. https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC2743509/ Kotch, A. (2019). Some companies are making big bucks off contracts with US border and customs. Indy Week. https://indyweek.com/news/northcarolina/trianglecompanies-us-border-protection/ Koury, S., & Green, S. A. (2019). The Institute on Trauma and Trauma-Informed Care Traumainformed organizational change manual. Buffalo, NY: SUNY Buffalo. Leonhardt, M. (2019). Want to help children at the border? CNBC. https://www.cnbc.com/2019/06/ 26/how-to-donate-to-help-migrant-children-at-the-border.html

Clinical Sociology and Its Application to Analysis of Unaccompanied Children

17

Levinson, A. (2011). Unaccompanied immigrant children: A growing phenomenon with few easy solutions. Migration Policy Institute. https://www.migrationpolicy.org/article/unaccompaniedimmigrant-children-growing-phenomenon-few-easy-solutions Maslow, A. (1943). A theory of human motivation. Psychological Review, 50(4), 430–437. Motti-Stefanidi, F. (2018). Resilience among immigrant youth: The role of culture, development and acculturation. Developmental Review, 50, Part A, December: 99–109. https://www. sciencedirect.com/science/article/pii/S0273229717301119 OECD. (2018). The resilience of students with an immigrant background: Factors that shape wellbeing. OECD Publishing, Paris. https://www.oecd-ilibrary.org/docserver/9789264292093-4-en. p d f ? e x p i r e s ¼1 5 7 3 7 5 2 2 2 0 & i d ¼i d & a c c n a m e ¼g u e s t & checksum¼080E49B51CFF272322885B4B2F041D58 O’Hagan, E. M. (2015). Mass migration is no crisis: it’s the new normal. The Guardian. https:// www.theguardian.com/commentisfree/2015/aug/18/mass-migration-crisis-refugees-climatechange Podesta, J. (2019). The climate crisis, migration and refugees. Brookings Institution. https://www. brookings.edu/research/the-climate-crisis-migration-and-refugees/ Raja, T. (2014). Child migrants have been coming alone. Mother Jones. https://www.motherjones. com/politics/2014/07/child-migrant-ellis-island-history/ Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (Dublin Regulation), OJ L 180, 29.6.2013. https:// eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri¼CELEX:32013R0604&from¼en Solloway, M., Girouard, S., & Vissing, Y. (2019). Committee to revise ACES instrument. Brooklyn, NY: SUNY Downeast. Unicef. (2020). Child Migrants in Central America, Mexico and the U.S. https://www.unicefusa. org/mission/emergencies/child-refugees-and-migrants/child-migrants-central-america-mexicoand-us United Nations Refugee Agency. (UNHCR). 2019. Climate change and disaster displacement. https://www.unhcr.org/en-us/climate-change-and-disasters.html United Nations Refugee Agency. (2018). Global trends: Forced displacement in 2018. https:// www.unhcr.org/5d08d7ee7.pdf United Nations. (2017). International migration report. https://www.un.org/en/development/desa/ population/migration/publications/migrationreport/docs/MigrationReport2017_Highlights.pdf United State Citizenship and Immigration Services (USCIS). (2019). Minor children seeking asylum by themselves. https://www.uscis.gov/humanitarian/refugees-asylum/asylum/minorchildren-applying-asylum-themselves United Nations, Treaty Series, vol. 1577, p. 3; depositary notifications C.N.147.1993.TREATIES-5 of 15 May 1993 [amendments to article 43 (2)]1; and C.N.322.1995.TREATIES-7 of 7 November 1995 [amendment to article 43 (2)]. https://treaties.un.org/pages/ViewDetails. aspx?src¼TREATY&mtdsg_no¼IV-11&chapter¼4&lang¼en Vickers, E., & Alexander, C. (2013). Why migration is bigger and more contentious than ever. Bloomberg Report. https://www.bloomberg.com/graphics/2019-how-migration-is-changingour-world/ World Health Organization. ACES instrument. https://www.who.int/violence_injury_prevention/ violence/activities/adverse_childhood_experiences/questionnaire.pdf?ua¼1 Zevallos, Z. (2014). What is clinical sociology? http://www.sociologyatwork.org/what-is-clinicalsociology/#targetText¼Clinical%20sociology%20is%20an%20applied,well%20as%20two% 20case%20studies

18

Y. Vissing et al.

Yvonne Vissing, Ph.D., Professor of Sociology and Founding Director of the Centre for Childhood and Youth Studies at Salem State University in Salem, Massachusetts. Yvonne has worked in the area of child and youth advocacy for her entire career collaborating with different child rights groups in the USA. Her work is driven by the pursuit of human rights, community-building, resiliency, peace and justice. Yvonne has worked as a teacher, researcher, consultant, therapist, award-winning filmmaker, mediator, guardian-ad-litem, and helps organizations to decrease child abuse and improve child well-being. She is a former fellow at the National Institute of Mental Health, University of Connecticut Center for Democracy, and Whiting Foundation. Author/co-author of 12 books and hundreds of chapters, professional journal articles and other publications, including Children’s Human Rights as a Buffer to Extremism (Springer); Changing the Paradigm of Homelessness (Routledge) and Out of Sight, Out of Mind: Homeless Children in Small Town America (Lexington). Sofia Leitão, Ph.D., is a Sociologist and is currently the Director of the Research & Development Division at “Hope For Children” CRC Policy Center. Sofia’s work reflects her interest in children’s agency in matters related to their spheres of action. She is particularly interested in raising awareness on the Rights of the Child; in developing learning programmes promoting child-friendly practices and children’s social inclusion and participation; and on children’s non-formal education with an emphasis on storytelling and the use of media and arts as means to enhance self-expression and learning. As an experienced Project Manager Sofia has directed the implementation of numerous programmes in the field of the Rights of the Child, including the transnational programme INTEGRA: Multidisciplinary Mentorship program to support the entrepreneurship of children in care and young care-leavers addressing the social integration of migrant children leaving residential care (funded by the Rights, equality & Citizenship programme of the European Commission). She is the author of a book on media discourses and childhood constructions Desenhos Animados— Discursos sobre ser criança (Edições 70). Jan Marie Fritz, Ph.D., C.C.S. is a Professor at the University of Cincinnati (USA) and a Distinguished Visiting Professor at the University of Johannesburg (South Africa). She has a wide range of consulting and government experience and was a Fulbright Distinguished Chair in Human Rights and International Studies at the Danish Institute for Human Rights, a Fulbright Senior Scholar at the Hungarian Academy of Sciences and a Fellow at the Woodrow Wilson International Center for Scholars. Her publications include: Clinical Sociology for Southern Africa edited by Tina Uys and J.M. Fritz; International Clinical Sociology edited by J.M. Fritz; Community Intervention edited by J.M. Fritz and Jacques Rhéaume; “Social Justice for Women and Girls: Global Pacts, Unmet Goals, Environmental Issues” and “Practicing Sociology: Clinical Sociology and Human Rights.”

A World Society Analysis of the Rights of Unaccompanied Minors Brian Gran

1 Introduction For millennia, unaccompanied children have been of concern. With globalization, we must recognize that the needs of unaccompanied children and the dangers they face merit our earnest attention. Numbers of unaccompanied minors, children who are separated from parents and relatives and are not receiving care from an adult who is responsible for providing the care, have dramatically grown. UNICEF estimates a 500% increase in children migrating alone for the five years between 2010–2011 and 2015–2016 (UNICEF 2017a; Migration Data Portal n.d.). Of children who crossed the Mediterranean Sea in 2016, approximately 90% were unaccompanied children (UNICEF 2017b; Migration Data Portal n.d.). For the United States, numbers have varied over the last decade, but estimates are approximately 60,000 unaccompanied children come to the United States at its border with Mexico (USBP 2016; Migration Data Portal n.d.). The experiences of unaccompanied children, including human rights violations they endure, may lead to traumas that are long lasting. These harms may disrupt lives and lead to other problems that undermine contributions a young person may make in the present and later as an adult. If we provide interventions and resources to unaccompanied children, societies may benefit from those children’s work, parenting, creativity, and leadership in the future. Through the United Nations and other organizations, we have established human rights and other resources that are designed to protect unaccompanied children and promote their well-being. Unaccompanied children stand to benefit from human rights and children’s rights. In turn, unaccompanied children as a group present challenges to international frameworks of children’s rights. These challenges arise due to being alone, moving across national borders, and because international rights

B. Gran (*) Case Western Reserve University, Cleveland, OH, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_2

19

20

B. Gran

frameworks are not necessarily organized to protect young people who live at borders without parents or guardians. Unaccompanied children are vulnerable for manifold reasons, but here we concentrate on three important ones: they are young people, without parents or guardians, whose interests and rights are not well protected through extant frameworks of rights. This chapter employs a Clinical Sociology approach to study utilities of children’s rights in protecting and promoting rights and interests of unaccompanied children. While undertaking this effort, the study investigates whether and how a prominent approach to studying diffusion of human rights, the World Society Approach, complements the Clinical Sociology approach to understand the strengths of rights in comprehending and helping young people who are on their own and living in a society that is not their own. The Clinical Sociology approach may be useful to preventing and overcoming harms young people experience. This interdisciplinary approach employs sociological ideas to develop interventions and identify resources to improve lives of individuals and groups across the world. This study complements this Clinical Sociology approach through employment of the World Society Approach. The World Society Approach treats nation states as organizations that participate in international cultural frameworks of human rights. Together, Clinical Sociology and the World Society Approach may be useful to preventing and overcoming harms unaccompanied children experience. This study contributes to scholarship on Clinical Sociology and World Society through studying unaccompanied children and their rights. This study examines what legal frameworks and services are available to unaccompanied minors. Various human rights treaties have been established to protect young people in general and unaccompanied minors in particular. To what degree have children’s rights been disseminated when it comes to the rights of unaccompanied children? Have these rights been deployed to establish interventions and offer useful resources to unaccompanied children? As evidence, this study examines international rights frameworks and agencies to identify gaps in rights, interventions, and resources in protecting and promoting well-being of unaccompanied children. As such, this study finds that a Clinical Sociology approach suggests that although an international framework is extensive, this framework has not translated to sufficient interventions and resources unaccompanied children need.

2 Current Situation This chapter seeks to assess utilities of Clinical Sociology in advancing rights and protecting interests of unaccompanied minors. It investigates whether how and a World Society Approach is useful to achieving this overarching objective. Here we will discuss what Clinical Sociology is, its utility to helping unaccompanied minors, and what the World Society Approach is. Then this chapter will employ these two

A World Society Analysis of the Rights of Unaccompanied Minors

21

analytical approaches to examine challenges arising from the current situation for unaccompanied children.

2.1

Clinical Sociology

What is Clinical Sociology? According to Jan Fritz (2008: 1), one of the key thinkers and leaders of this Sociology specialization, “Clinical sociology is a creative, humanistic, and multidisciplinary specialization that seeks to improve life situations for individuals and collectivities. Clinical sociologists work with client systems to assess situations and avoid, reduce, or eliminate problems through a combination of analysis and intervention.” Rebach and Bruhn (1991: 2) refer to the work of Wirth (1931). Wirth identified three components of Clinical Sociology: clinical sociologists focus on a “real problem,” professionals collaborate to lend their insights and skills, and together these professionals seek to formulate a program or plan to contribute to solving the problem. Increasingly, clinical sociologists and others are employing Clinical Sociology to think about violations of human rights (Picou 2011) and children’s rights (Gran 2020), as well as how to advance these rights. Clinical Sociology has contributed to scholarship of human rights. For Clinical Sociology to make valuable contributions to human rights, Fritz (2013: 399) emphasizes that the level of intervention, such as individual or community or nation, must be taken into account, as well as context, that is, time and space. This point is important given that often experts pay attention to human rights within the relationship between the United Nations and the national government of a particular country. Disconnects can arise between this relationship and experiences within communities and for individuals (Boyle 2002; Merry 2006). Clinical sociologists undertake a wide variety of interventions, from counseling (Roberts 1991) to a change agent in seeking policy change (Lee 1991) to organizational development (Britt 1991) to working in particular settings (Vissing and Kallen 1991). This volume makes an important contribution by identifying potential interventions useful to rights of young people, in particular, unaccompanied children. Clinical Sociology’s point that effectiveness of interventions may depend on the intervention’s level as well as context suggest that a one-size-fits-all may not always work when it comes to children and their rights. Clinical Sociology can be employed to promote well-being through counseling and incorporating its ideas into health care (Vissing and Kallen 1991). Clinical Sociology can be used to ensure that a person’s best interests are advanced. One way best interests may be achieved is through a Clinical Sociological approach of listening to and seeking to fulfill the desires and interests of the individual who is receiving the intervention and resources (Fritz 2013: 399).

22

2.2

B. Gran

World Society Approach

The World Society Approach has proven useful to international studies of human rights and children’s rights. The World Society Approach treats nation states as organizations that establish and share cultures and practices. Despite differences in approaches to governing, nation states share values and norms. Nation states form international frameworks that offer “structural templates” and norms on how to act (Cole 2012, p. 1131; Hafner-Burton and Tsutsui 2005). As norms, human rights are key elements of an international framework of rights (Cole 2005, 2012; Hagan and Levi 2007). A key part of this international framework of human rights is international treaties. As components of this framework, treaties are considered legitimate norms to which nation states adhere in implementing human rights (Cole 2012, p. 1133; citing Meyer and Rowan 1977, p. 344). Individuals who employ the World Society Approach are often interested in diffusion of human rights. Many nation states have made commitments to UN treaties on human rights. A close examination indicates that while some UN treaties have been widely ratified, such as the Convention on the Elimination of All Forms of Discrimination against Women (189 nation states as of October 2020) and Convention on the Rights of the Child (UNCRC; 196 as of October 2020), some treaties have not. As of October 2020, 55 nation states have ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and 63 have ratified the International Convention for the Protection of All Persons from Enforced Disappearance. Similar differences characterize Optional Protocols. Only 24 nation states have ratified the Optional Protocol to the Covenant on Economic, Social and Cultural Rights, but 176 nation states have ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (UN Treaty Dashboard 2020). Scholars who have taken the world society approach to study an international human rights framework have asked whether a nation state’s decision to ratify an international treaty is meaningful (Boyle and Kim 2009; Hafner-Burton and Tsutsui 2005, p. 1383). When a nation state adopts the framework’s structural models and rules, its goal may be to maintain appearances and gain legitimacy (Hirsch and Lounsbury 1997), while some may participate in frameworks in pursuit of substantive objectives (Stinchcombe 1997). The primary way a nation state makes a commitment to a UN human rights treaty is through signature, then ratification. A signature is made by a representative of the national government before the United Nations. Ratification is subject to national laws and procedures and, as a result, the process of achieving ratification varies by country. Once a national government ratifies a treaty, it agrees to ensure that the components of the treaty become that country’s law. Ratification indicates the intent of the national government to make the UN treaty into domestic law. For each UN treaty, a committee is established to monitor implementation of the respective treaty by States Parties who have ratified the treaty. Each UN committee publishes General Comments. While these General Comments are not formally part

A World Society Analysis of the Rights of Unaccompanied Minors

23

of the treaty, the United Nations interprets these General Comments as inherently incorporated into the work of implementing the respective treaty. That is, UN committees publish General Comments to provide interpretations of the treaty, to describes procedures and methods the Committee uses, including working with the respective UN committee, as well as publishing General Comments on particular topics. These topics usually are part of the relevant treaty; the General Comment goes further to elaborate on the topic or theme (UN 2010). The UN Committee on the Rights of the Child has published twenty-five General Comments. Increasingly, UN committees are collaborating on General Comments. In 2017, for instance, the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families published two General Comments with the UN Committee on the Rights of the Child. There are many reasons that UN committees will collaborate to publish a General Comment, including emphasizing the importance of a procedure or a right to States Parties. Unclear is whether these joint publications are useful to monitoring and implementing relevant rights. Societies differ according to their willingness to respond to international human rights norms (Boyle 2002; Boyle and Preves 2000; Boyle and Thompson 2001; Bromley 2014; Deflem and Chicoine 2011; Dobbin et al. 2007; Hathaway 2007; Kim and Boyle 2012; Kim et al. 2013; Merry 2006; Savery 2007; Soh 2008). Scholars employing a world society approach acknowledge that many states endorse human rights principles but do not implement those principles at home (Cole 2013; Hafner-Burton 2008), which is called decoupling. Decoupling may occur when a nation state participates in an international human rights framework, but its domestic activities diverge from international commitments owing to “practical considerations” (Meyer and Rowan 1977, p. 357), such as available resources (Hathaway 2003). Other scholars find that nation states ratify international human rights treaties without intending to implement them domestically (Hafner-Burton 2005; Hathaway 2002). Experts have paid less attention to whether decoupling can discourage, even prevent, nonprofit organizations, ombudspersons, and human rights defenders from doing their work in establishing and implementing interventions, including ones on behalf of unaccompanied children. During the time in which this chapter is prepared, nearly every society in the world is responding to a global pandemic. One response many national governments have taken to this pandemic is derogation of human rights. Derogation is when rights are suspended due to public emergencies. Often derogation is employed to prevent spread of a pandemic. Human Rights Watch (2020), however, contends that the pandemic is being used to justify suspension of particular rights that are weakly connected, at best, to battling the pandemic. In addition, some experts fear that derogation is used to suspend rights of particular social groups. Is derogation being used to suspend rights of unaccompanied minors? If so, is this derogation precluding interventions on behalf of unaccompanied minors? As mentioned, the World Society Approach is interested in diffusion of human rights. Does a world society and culture of children’s rights exist? If so, what are qualities of that society and culture? Of course, one quality of great interest is whether participating in an international framework of children’s rights matter. Do

24

B. Gran

we find evidence that national governments take seriously children’s rights? The rights of all children? Clinical Sociology points to outcomes of international rights frameworks. Can rights be used to establish valuable interventions? Are rights used to establish valuable interventions? Are resources devoted to interventions? Are nonprofit organizations allowed to establish, promote, and provide interventions and resources that will enable a young person to exercise her rights?

3 Current Challenges Unaccompanied Children Face A Clinical Sociology approach complemented with a World Society Approach reveals multiple challenges facing unaccompanied young people across the world. The first challenge is the combination of legal complexities with lack of clarity. A second challenge is national failures to assure young people’s rights are implemented. A third challenge that is not new, but its widespread application is novel, is derogation.

3.1

International Treaties

A combination of Clinical Sociology and the World Society Approach leads us to ask what interventions and other resources are available to unaccompanied minors through treaties that advance young people’s rights. A starting point is what is sometimes called the International Bill of Human Rights, which consists of the Universal Declaration of Human Rights, the ICCPR, and the ICESCR. The UDHR is a declaration. As a declaration, leaders of national governments are expressing agreement with principles stated in the UDHR. When leaders of a national agreement ratify a covenant, they are promising to take the covenant home and make it part of domestic law. The ICCPR and the ICESCR have been ratified by most nation states, as Table 1 illustrates, but some nation states have ratified one but not the Table 1 Rights Ratification differences between the ICCPR and ICESCR ICCPR Freedom of movement (Art. 12) Right to protections due to status as minor (Art. 24) Right to be registered (Art. 24) Right to nationality (Art. 24) Right to one’s culture (Art. 27) Right to practice religion (Art. 27) Right to use own language (Art. 27)

ICESCR Right to adequate standard of living (Art. 11) Right to health (Art. 12) Right to education (Art. 13) Right to take part in cultural life (Art. 15)

A World Society Analysis of the Rights of Unaccompanied Minors

25

other. Some nation states have ratified the ICCPR but not ICESCR (Andorra, Botswana, Mozambique, the United States, and Vanuatu). Other nation states have ratified the ICESCR but not the ICCPR (China and Oman). Some nation states have not ratified the ICCPR and the ICESCR (Bhutan, Brunei Darussalam, Comoros, Cuba, Kiribati, Malaysia, Nauru, Palau, Saint Kitts and Nevis, Saint Lucia, Saudi Arabia, Singapore, South Sudan, Tonga, Tuvalu, and United Arab Emirates; UN Treaty Dashboard 2020). Do these covenants state rights that particularly protect unaccompanied minors? In a sense, they do. These covenants articulate key human rights available to everyone, whether or not a person is a child who is not with her parents. For instance, Article 24 of the ICCPR states that every child, no matter the child’s national or social origin, possesses the right to protections due to her status as a minor. Article 24 goes on to say that every child has the right to be registered immediately after birth, to have a name, and to acquire nationality. Article 27 states that anyone possesses a right to her own culture, the right to practice her religion, and the right to use her own language. We may interpret these rights as indicating that, no matter where that child lives, she is entitled to enjoy her own culture, practice her religions, and use her own language. While it is not crystal clear who is responsible for ensuring these rights can be exercised, because the rights are universal, a logical conclusion is that the society where the particular child lives is obligated to ensure a young person can exercise these rights. The ICESCR states a universal right to education, at least primary education. Article 13 states that everyone possesses a right to primary education, which is available to everyone and is compulsory. A fair interpretation of this right is that not only is a child entitled to primary education, she is required to attend school. Article 12 states that everyone possesses a right to the highest attainable standard of physical and mental health and, for children, the right to healthy development. Similar to the previously mentioned rights, as they are universal, a child is entitled to this right wherever she lives, and with whomever she lives, parent or guardian or the state. Of course, we must consider the UN Convention on the Rights of the Child. Of all UN treaties, the UNCRC is the most widely ratified treaty, with a single member party not having ratified, which is the United States. The UNCRC articulates rights available to all young people. Its Article 22 is quite clear about whether unaccompanied children are entitled to the same rights as any other young person through the UNCRC: 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.

It is important to note that not one State Party has filed a reservation to be excluded from ensuring that this article is incorporated into their national law. Consequently, when it comes to unaccompanied minors, they possess the same rights as any young person.

26

B. Gran

Of course, our definition of unaccompanied goes beyond refugee status. Every UN committee publishes General Comments. According to the UN (2010), a UN treaty body publishes a General Comment to share its interpretation of a provision of a treaty, an important overarching issue involving the treaty, or an elaboration on how the treaty body does its work. “General comments often seek to clarify the reporting duties of State parties with respect to certain provisions and suggest approaches to implementing treaty provisions” (UN 2010). It is important to note that national governments do not sign or ratify General Comments. Instead, the respective UN committee simply publishes General Comments. If a national government has ratified or acceded to the respective treaty, that national government is expected to pay attention to and, if appropriate, comply with the terms of the General Comment. The UN Committee on the Rights of the Child has published over twenty General Comments. One of its first General Comments, number 6, is entitled, “Treatment of Unaccompanied and Separated Children Outside their Country of Origin.” This General Comment makes abundantly clear that States Parties to the UNCRC (again, all UN member states except the United States, and more later on the United States) are obligated to enforce rights of unaccompanied minors in their jurisdictions. First, let’s make sure we are on the same page as the UN Committee. The Committee provides two definitions relevant to our chapter. An unaccompanied minor is a child who has “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.” The UN Committee retains the definition of child employed in the Convention, which is a person age 18 years or younger, unless the person has attained majority at a younger age. The General Comment is organized into sections: principles, protection needs of unaccompanied minors, asylum procedures, and family reunification. The principles section makes clear that human rights apply to unaccompanied minors, including that this group of people should not experience discrimination. These rights include the bests interests of a child, the right to life, survival, and development, the right to express views freely, and the principle of non-refoulement, which prevents a person from being forced to return to the society where she was persecuted. The section on protection needs identifies rights of unaccompanied minors that should be implemented in the society hosting the unaccompanied minor. These rights seem to be articulated to ensure that the young person experiences appropriate care and health, shelter, food, and access to education. In addition, this section articulates rights needed to protect a young person from being taken advantage of due to their vulnerable situations, including prevention of trafficking and military recruitment as a minors. This section of the General Comment requires that a young person enjoy initial assessment. This assessment includes four components: identification, registration, documentation, and tracing. Identification concentrates on age, both physical and psychological, and is to be performed in a safe environment that ensures the child’s integrity is maintained and dignity upheld. Registration is undertaken employing a similar approach that is performed to gather information about the young person,

A World Society Analysis of the Rights of Unaccompanied Minors

27

including biodata, social history, the child’s parents, siblings, and citizenship. An unaccompanied child has the right to possess her own documentation. Tracing of the child to her family is to be undertaken as soon as possible. The General Comment provides a section that articulates an unaccompanied minor’s right to asylum and procedures to achieve asylum. The next section articulates rights around family reunification. One principle the General Comment states is that a child should not be separated from her parents against her will and that all efforts should be undertaken to return the child to her parents, unless separation is in the child’s best interests. The General Comment emphasizes that a violation of a child’s best interests would take place when violation of fundamental human rights would occur if the child returned to the country of origin. A disappointment of the General Comment is that the UN Committee states that the General Comment’s provisions do not apply to young people who have not crossed an international border. This failure means that the General Comment does not apply to young people who have experienced internal displacement. Unclear is what rights young people possess as they cross country’s borders. For a child traveling through a country, it is assumed that this young person possesses rights according to that particular country and the rights articulated in the UNCRC. For the United States, which has not ratified the UN Convention, a child traveling through the United States must count on its laws for protection. Three optional protocols to the UNCRC have been adopted. These optional protocols are considered distinct human rights treaties, meaning that a national government must ratify the optional protocol. That is, despite ratifying the UNCRC, a national government must still ratify the optional protocols. Ironically, although the United States is the lone UN member party not to have ratified the UNCRC, it has ratified two of the optional protocols, which are the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, and the Optional Protocol on the Involvement of Children in Armed Conflict. The United States has not ratified the third, which is the Optional Protocol on a Communications Procedure. This third protocol on Communications Procedure establishes a method by which individuals can complain to the UN Committee on the Rights of the Child. Adopted in 2011 and entering into force in 2014, as of September 2020, only fortysix national governments have ratified this Optional Protocol. While permitting a young person to bring a complaint to the UN Committee is a powerful possibility, an important condition must be met. That condition is that the country subject to the individual complaint must have ratified the Optional Protocol on a Communications Procedure. For an unaccompanied child, this fact combined with the necessity of making the complaint in a host society may restrict this avenue, at least for the time being. This map depicts which UN member states have ratified this Optional Protocol. Dark blue indicates ratification, light blue indicates signed but not ratified, and orange indicates the UN member party has not taken action towards the Optional Protocol. While the Optional Protocol is evidence of intent to ensure children’s rights are implemented, the map indicates that commitment to the Communications Procedure is an uphill battle.

28

3.2

B. Gran

General Comments

Increasingly, UN committees are collaborating to produce General Comments. The UN Committee on the Rights of the Child has collaborated with two UN committees, the Committee on Migrant Workers and the Committee to Eliminate Discrimination Against Women. The UN Committee on the Rights of the Child and the Committee on Migrant Workers have authored two General Comments. Interestingly, as of September 2020, only 55 national governments have ratified or acceded to the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW). The first General Comment’s title is, “Joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration.” The two UN committees have stated that, given nearly universal ratification of the UNCRC, the expectation is that national governments will fulfill requirements of this General Comment, even if they have not ratified the CMW. This General Comment takes a child-centered approach. It re-asserts that unaccompanied children should not experience discrimination. The General Comment calls for an assessment of the young person, particularly on what accommodations would be appropriate. It directs governments to appoint guardians to unaccompanied children. The General Comment requires that the national government establish a “bestinterests determination procedure” through which an unaccompanied child is integrated and settled into the host society, including appropriate residence. The child should be consulted when making these decisions and her wishes should be considered. The national government should appoint adults who can act as parent and guardian of the unaccompanied child. The second General Comment is entitled, “Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return.” This General Comment states that unaccompanied children are vulnerable to and should be protected from abuse, trafficking, and exploitation. In 2014, the UN Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women published the Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women-General Comment No. 18 of the Committee on the Rights of the Child on harmful practices. Rather than concentrate on minors who are separated from their parents, among its many aspects, this General Comment examines young people who have sought refuge from their family or community because she refuses to undergo a practice or tradition. This General Comment seems to focus on women and girls, although men and boys may also seek refuge for similar reasons.

A World Society Analysis of the Rights of Unaccompanied Minors

3.3

29

UN Guidelines

In 2010, the UN General Assembly published, “Guidelines for the Alternative Care of Children.” As article 1 of the Guidelines indicate, they are designed to improve implementation of the UNCRC and other international instruments for purposes of protecting and advancing the well-being of young people who do not receive parental care or are at risk of losing this care. These Guidelines instruct national governments to proceed case-by-case when it comes to assisting unaccompanied children. The Guidelines insist that a holistic approach is taken to assisting the individual child and should concentrate on the child’s best interests. As part of assessing what a child’s best interests are, the national government must ask for and listen to what the young person desires. The Guidelines clearly insist that an unaccompanied child should enjoy same protections and care as children who are citizens of the host society. The Guidelines state that an unaccompanied child should not be considered or treated as having broken a law through violating entry or stay protocols. In addition to appointment of a guardian as soon as possible, the Guidelines state that the child’s family should be contacted if in the best interests of the young person. The Guidelines direct the host national government to collect documentation about the young person to prepare for the child’s next steps. Article 154 of the Guidelines directs that child-focused services should be provided. These services should possess the following qualities: (a) To ensure that all entities and persons involved in responding to unaccompanied or separated children are sufficiently experienced, trained, resourceful and equipped to do so in an appropriate manner; (b) To develop, as necessary, temporary and long-term family-based care; (c) To use residential care only as a temporary measure until family-based care can be developed; (d) To prohibit the establishment of new residential facilities structured to provide simultaneous care to large groups of children on a permanent or long-term basis; (e) To prevent the cross-border displacement of children, except under the circumstances described in paragraph 160 below; (f) To make cooperation with family tracing and reintegration efforts mandatory. Unlike UN treaties, the Guidelines ask national governments to establish services for unaccompanied minors, then indicate what qualities those services should possess (Article 154).

4 Interventions and Resources Through the lens of Clinical Sociology, here we will analyze prominent interventions and resources designed to protect and serve unaccompanied children. While some of these interventions and resources receive attention for their innovation,

30

B. Gran

some have received criticism. Our focus will be on laws, programs, and resources that different countries have established to secure well-being of unaccompanied children. We will pay attention to whether rights of young people in general and unaccompanied children in particular are taken seriously.

4.1

Laws

A Clinical Sociology approach draws our attention to laws that have been established to protect and serve unaccompanied children. Among the most prominent is the Italian law, Zampa. According to UNICEF, key components of Zampa include: – – – –

Unaccompanied children will not face refoulement. Promotion of guardianship through a program of trained volunteers. Establish procedures in a child-sensitive manner. Establish a national reception system that is streamlined and is based on national standards. – Set up a system of cultural mediators who will interpret and communicate needs of adolescents. – Reduce time children spend in reception centers. In addition, the Italian government is devoting financial resources to ensuring these legal changes occur in practice. UNICEF notes that the Zampa law dedicates government budgets to these efforts, which are in addition to national contributions of €600 million the national government has made to municipalities and others to respond to refugees and migrants. The Zampa law stands as an exemplar of law making that a national government has passed that seeks to protect interests and well-being of young people who are not native to the country. From the perspective of Clinical Sociology, the Zampa law treats the best interests of the child as an overarching goal. It seeks volunteers to provide protections and support to unaccompanied children. The law seeks to promote rights of unaccompanied minors, including freedom of movement, security, and opportunities to express beliefs and desires. The Zampa law is designed to take into account the individual child, including paying attention to the child’s age. National governments of other countries have established laws that do not serve the best interests of an unaccompanied minor. A U.S. law directs the U.S. government to violate the principle of non-refoulement, returning children to the countries from which they sought refuge, which the national government has agreed to enforce through various human rights treaties. As noted below, other countries, notably Norway, systematically violate non-refoulement principles.

A World Society Analysis of the Rights of Unaccompanied Minors

4.2

31

Programs and Resources

Employing a Clinical Sociology approach, here we will investigate programs and resources national governments have established to promote well-being and protections of unaccompanied minors. The World Society Approach reminds us that through UN treaty ratification, national governments have agreed to implement laws domestically that establish rights of children, including unaccompanied children. Here we will study programs and resources according to whether they help unaccompanied children exercise their rights to protection, freedom, parental support, right to information, and health. As we have noted, through the Zampa law, Italian centers are fulfilling most of these rights of unaccompanied children. Unfortunately, Save the Children reports that across Europe, protections of unaccompanied children have been reduced. According to this group, the national governments of Finland, Germany, Norway, and Sweden have imposed restrictions and rules that make it harder for unaccompanied children in these countries to experience protection. The U.S. government has actively taken steps to weaken, even thwart, protections of unaccompanied minors. A consequence of failing to implement rights to protection is that large proportions of unaccompanied children face human trafficking and other dangers, ones that violate their human rights. It seems that more national governments are shifting their policies from detention to non-detention of unaccompanied minors. While Hungary changed its policy in 2020, other countries, including Serbia, Bosnia and Herzegovina, Albania, North Macedonia, and the United States are believed not to have done so. Save the Children reports temporary detention policies are employed in Germany, Greece, Norway, Spain, and Sweden are negatively shaping unaccompanied children’s rights to movement. Even now, Save the Children reports, the European Union is considering changes to its laws and policies that would result in more detentions of unaccompanied children. A right to guardianship for unaccompanied children is articulated across human rights treaties. This right to guardianship enables a young person to enjoy guidance and protection, including challenges of making decisions alone in a foreign country. As we have discussed, to exercise many rights, young people must rely on an adult. We can be sure that one of the greatest hardships an unaccompanied minor experiences is having to make decisions without an adult’s input. The right to a guardian offers support to exercising rights effectively and being able to protect the young person from harms arising during detention and processes of seeking support and other protections. Save the Children identifies strong guardianship programs across different countries, including Germany and Italy, and points to an international network, the European Guardianship Network, as offering strong guardianship programs. On the other hand, Save the Children contends guardianship programs must be improved in Greece, Spain, and Sweden. One problem afflicting the guardianship systems in Spain and Sweden is that policies vary according to geographic location,

32

B. Gran

meaning that implementation of an unaccompanied child’s right to guardianship can depend on where the child lives. The right to information is a key right to an unaccompanied minor. The right to information enables a young person as well as her guardian to understand what to expect in the host society, what procedures are available, and what rights they possess. Save the Children reports that unaccompanied children often do not have access to information needed to apply for asylum. They note that national governments frequently do not adhere to processes applicable to asylum and other legal avenues. For instance, Save the Children criticizes Sweden for failing to provide child-friendly information about these policies, as well as policies about return to home countries. Of course, a right to physical and mental health care is crucial to unaccompanied children. Across many countries, this right is enforced for unaccompanied children. Spain has announced new policies that enable unaccompanied children to obtain health care. In the United States, the federal Department of Health and Human Services provides shelters through which unaccompanied children can obtain physical and mental health care. Save the Children reports, however, that some countries, such as Morocco, struggle to provide health care to unaccompanied children. A paragon of a program that provides interventions, resources, and services to unaccompanied children in their own country is the Homes for Hope of the “Hope For Children” CRC Policy Center based in Nicosia, Cyprus. This author enjoyed an opportunity to visit the Homes and opportunities to learn about experiences from the young people living at the home. Homes for Hope is designed to provide holistic, multi-disciplinary services to unaccompanied children. These services particularly concentrate on rehabilitation, integration, and solutions. Rehabilitation services are steps staff of the Homes take to assess the unaccompanied child and her needs, including social counseling, psychological counseling, and legal services. Integration services are ones to help the unaccompanied child adapt and integrate into the host society, such as language classes, education, and psychological and legal support services. The education component incorporates activities beyond “reading, writing, and arithmetic” to seminars ranging from human rights to anger management, from hygiene to sexual education. The Homes offer services that help the unaccompanied child transition from the Homes. Along with legal, social counseling, and psychological services, the Homes provide supports for the young person to trace family and investigate family reunification as well as voluntary return to their home society. In addition, the Homes support efforts at foster care placement and local integration as an adult. The Homes require significant efforts of its staff, all of who are strongly committed to the well-being of the young people living at the home, as well as individuals who contribute to leadership of “Hope for Children” Center. Of course, running the homes is expensive. The Homes receive significant funding from the European Commission’s Asylum, Migration and Integration Fund and the Republic of Cyprus. Save the Children offers perspectives of how the COVID-19 pandemic has shaped exercise of rights and availability of interventions for unaccompanied children. From its perspective, the pandemic has prevented national governments and

A World Society Analysis of the Rights of Unaccompanied Minors

33

entities working in particular countries from assuring unaccompanied children can exercise their rights and receive interventions. Save the Children reports that some national governments suspended policies that allowed unaccompanied children to enter their countries. Some national governments perpetuated detention policies, yet struggled to ensure services were provided to unaccompanied children in detention. Remote education has been challenging to implement. Save the Children reports that unaccompanied children often do not enjoy access to computers and the Internet that they need to participate in remote education. These problems exacerbate challenges of obtaining education due to trauma and cultural differences, such as language.

4.3

Persistent Gaps

A Clinical Sociology approach when complemented with a World Society Approach demands that we focus on whether rights go beyond law to practice. Even if an unaccompanied child possesses a right on paper, does this young person possess the ability to experience this right in practice? The answer for many unaccompanied children is, “no.” Unfortunately, children’s rights watchdogs do report that some programs arising from these laws have not been implemented. Save the Children reports that across many countries, child-friendly information and appropriate reintegration plans are not found. The UN Committee on the Rights of the Child has criticized Finland for failing to implement principles that assure the best interests of the child are practiced. The UN Committee and others have criticized Norway for repeatedly violating the principle of non-refoulement. While national governments of some countries are actively attempting to ensure that unaccompanied children are able to exercise their rights and benefit from appropriate interventions, systemic problems are found. The national government of Italy offers an example of a legal approach that seeks to assure that unaccompanied children can exercise their rights and benefit from interventions that will allow these young people to experience childhoods like Italian children. While not perfect, the Italian example demonstrates possibilities of assuring that rights can transform into interventions and resources that will help ensure unaccompanied children can aspire to dignity other people share.

5 Relevance of a Clinical Sociology Approach This chapter has sought to demonstrate that a Clinical Sociology approach to the study of rights possessed by unaccompanied children demands that we consider whether those rights lead to provision of interventions, resources, and services those children require. By definition, unaccompanied children are young, without parents or guardians, and live in host societies where they do not possess nationality. Clinical Sociology asks us to go beyond rights on paper to ask if rights matter in

34

B. Gran

practice and, if so, in what ways. Clinical Sociology reveals that while innovations in interventions, resources, and services are under way, and should be applauded, efforts are needed across most countries. Otherwise, an international framework of children’s rights will matter little to unaccompanied children.

6 Relevance of the UNCRC This chapter has sought to demonstrate that a Clinical Sociology approach illuminates important qualities of the international framework of children’s rights when it comes to unaccompanied children. When this approach is supplemented by the World Society Approach, we discover that this international framework is significantly complex and unclear. We find gaps in rights. We learn that rights on the page are not necessarily put into practice. We come to recognize that this international framework may routinely fail this highly vulnerable social group of unaccompanied children. A Clinical Sociology-World Society Approach analysis of UN covenants and conventions, optional protocols to the UNCRC, General Comments, and Guidelines demonstrates great complexity when it comes to rights of children, including unaccompanied children. This framework is dense and difficult to navigate. Nevertheless, despite this complex framework of international children’s rights, we find gaps in rights. One area where we find these gaps is for children who live at the border of multiple countries, such as unaccompanied children. National governments are expected to implement UN treaties domestically. Yet we recognize that many issues unaccompanied children face are not readily identified as the provenance of one country’s national government. This weakness unfortunately sometimes translates to dangerous problems for young people, not the least of which is violations of their rights.

7 Summary and Recommendations Scholars and researchers rarely employ a Clinical Sociology approach in combination with a World Society Approach. This chapter has sought to demonstrate that considering together the Clinical Sociology and World Society Approaches may illuminate whether and how international law is used to erect programs and interventions to solve problems some social groups encounter. This chapter has employed these two approaches to examine international human rights frameworks to which nation states have made commitments. These commitments go beyond treaty ratification to implementation of other components of this framework, such as Optional Protocols and General Comments. The World Society Approach demands attention to these frameworks, whether the frameworks are implemented

A World Society Analysis of the Rights of Unaccompanied Minors

35

domestically, and differences in commitments nation states make to international human rights frameworks. A Clinical Sociology approach takes these international human rights frameworks a step further. A Clinical Sociology approach demands that we ask whether and how these human rights are implemented domestically. Are individuals and social groups able to employ these rights to establish programs and interventions to deal with problems affecting those individuals and social groups? Do rights transform into programs and interventions useful to individuals who possess those rights? Does a complementary Clinical Sociology-World Society Approach demonstrate that international human rights are meaningful and useful to unaccompanied children? Through taking a Clinical Sociology-World Society Approach, this chapter suggests that the international human rights treaty framework offers a range of rights to unaccompanied children, from freedom of movement, religious practice, and right to one’s language, to rights to health and education. Yet this Clinical SociologyWorld Society Approach reveals that in many ways, rights do not transform to programs and interventions that unaccompanied children need. A Clinical Sociology approach shows that much work is needed to ensure that unaccompanied children can enjoy the same rights and dignity as any children. Unaccompanied children routinely encounter significant gaps in transforming rights into effective programs and interventions, failures that may undermine their well-being and interests. This Clinical Sociology-World Society Approach suggests that the international human rights framework is incomplete. Before we can celebrate this framework, we must ask whether human rights matter to living together every day. We must insist that rights matter, and one way that rights should matter is through their exercise leading to establishment of programs and interventions useful to overcoming problems people should not have to experience. This Clinical Sociology-World Society Approach suggests that children who are on their own, without parents or family, deserve greater care and protections. Establishing programs and interventions specifically designed to promote best interests of unaccompanied children will require efforts of international organizations, national governments, nonprofit organizations, and organizations committed to the well-being of unaccompanied children, such as independent children’s rights institutions. Much work remains, but a Clinical Sociology-World Society Approach provides hope that we may do better for unaccompanied children.

References Boyle, E. (2002). Female genital cutting. Baltimore, MD: Johns Hopkins University Press. Boyle, E. H., & Kim, M. (2009). International human rights law, global economic reforms, and child survival and development rights outcomes. Law and Society Review, 43(3), 455–490. Boyle, E. H., & Preves, S. (2000). National legislating as international process: The case of antifemale-genital-cutting laws. Law and Society Review, 34, 401–432.

36

B. Gran

Boyle, E. H., & Thompson, M. (2001). National politics and resort to the European Commission on Human Rights. Law and Society Review, 35, 321–344. Britt, D. W. (1991). A clinical perspective on organizational development. In H. M. Rebach & J. G. Bruhn (Eds.), Handbook of clinical sociology. Boston, MA: Springer. https://doi.org/10.1007/ 978-1-4615-3782-3_16. Bromley, P. (2014). Legitimacy and the contingent diffusion of world culture: Diversity and human rights in social science textbooks, divergent cross-national patterns (1970–2008). The Canadian Journal of Sociology, 39(1), 1–44. Cole, W. M. (2005). Sovereignty relinquished? Explaining commitment to the international human rights covenants. American Sociological Review, 70, 472–495. Cole, W. M. (2012). Human rights as myth and ceremony? Reevaluating the effectiveness of human rights treaties, 1981 to 2007. The American Journal of Sociology, 117(4), 1131–1171. Cole, W. M. (2013). Strong walk and cheap talk: The effect of the international covenant of economic, social, and cultural rights on policies and practices. Social Forces, 92(1), 165–194. Deflem, M., & Chicoine, S. (2011). The sociological discourse on human rights. Developement and Society, 40(1), 101–115. Dobbin, F., Simmons, B., & Garrett, G. (2007). The global diffusion of public policies. Annual Review of Sociology, 33, 449–472. Fritz, J. (2008). Introduction. In J. M. Fritz (Ed.), International clinical sociology (pp. 1–6). New York: Springer. Fritz, J. (2013). Practicing sociology: Clinical sociology and human rights by Jan Marie Fritz. In D. Brunsma, K. Smith, & B. Gran (Eds.), Handbook of sociology and human rights (pp. 394–401). New York: Routledge. Gran, B. (2020). The sociology of children’s rights. Polity. Hafner-Burton, E. (2005). Trading human rights: How preferential trade agreements influence government repression. International Organization, 59(3), 593–629. Hafner-Burton, E., & Tsutsui, K. (2005). Human rights in a globalizing world: The paradox of empty promises. American Journal of Sociology, 110(5), 1373–1411. Hafner-Burton, E. (2008). Sticks and stones: Naming and shaming the human rights enforcement problem. International Organization, 62(4), 689–716. Hagan, J., & Levi, R. (2007). Justiciability as field effect: When sociology meets human rights. Sociological Forum, 22(3), 372–380. Hathaway, O. (2002). Do human rights treaties make a difference? Yale Law Journal, 111, 1935–2042. Hathaway, O. (2003). The cost of commitment. Stanford Law Review, 55, 1821–1862. Hathaway, O. (2007). Why do countries commit to human rights treaties? Journal of Conflict Resolution, 51(4), 588–621. Hirsch, P. M., & Lounsbury, M. (1997). Ending the family quarrel. The American Behavioral Scientist, 40(4), 406–418. Kim, M., & Boyle, E. H. (2012). Neoliberalism, transnational education norms, and education spending in the developing world, 1983–2004. Law & Social Inquiry, 37(2), 367–394. Kim, M., Boyle, E. H., Longhofer, W., & Brehm, H. N. (2013). When do laws matter? Marriage laws, child’s rights, and adolescent fertility, 1989–2007. Law and Society Review, 47(3), 589–619. Lee, A. M. (1991). Public policies and clinical sociology. In H. M. Rebach & J. G. Bruhn (Eds.), Handbook of clinical sociology. Boston, MA: Springer. https://doi.org/10.1007/978-1-46153782-3_10. Merry, S. (2006). Human rights and gender violence. Chicago: University of Chicago. Meyer, J. W., & Rowan, B. (1977). Institutionalized organizations. The American Journal of Sociology, 83(2), 340–363. Migration Data Portal. (n.d.). Migration Data Portal. Accessed November 23, 2020, from https:// migrationdataportal.org/?i¼stock_abs_&t¼2019.

A World Society Analysis of the Rights of Unaccompanied Minors

37

Picou, S. J. (2011). Commentary sociology and human rights: Building professional association capital for improving the human condition. Societies Without Borders, 6(2), 120–122. Available from https://scholarlycommons.law.case.edu/swb/vol6/iss2/7 Rebach, H., & Bruhn, J. (1991). Clinical sociology. In H. M. Rebach & J. G. Bruhn (Eds.), Handbook of clinical sociology. Boston, MA: Springer. https://doi.org/10.1007/978-1-46153782-3_1. United Nations. (2020). What is the purpose of the Human Rights Treaty Bodies general comments? Accessed November 23, 2020, from http://ask.un.org/faq/135547#:~:text¼General%20com ment%20is%20a%20treaty,approaches%20to%20implementing%20treaty%20provisions Roberts, L. (1991). Clinical sociology with individuals and families. In H. M. Rebach & J. G. Bruhn (Eds.), Handbook of clinical sociology. Boston, MA: Springer. https://doi.org/10.1007/978-14615-3782-3_9. Savery, L. (2007). Engendering the state. London: Routledge. Soh, C. S. (2008). The comfort women. Chicago: University Chicago Press. Stinchcombe, A. L. (1997). On the virtues of the old institutionalism. Annual Review of Sociology, 23, 1–18. UN. (2010). Guidelines for the alternative care of children. Guidelines for the Alternative Care of Children: resolution/adopted by the General Assembly. A/RES/64/142. UNICEF. (2017a). Five-fold increase in number of refugee and migrant children traveling alone since 2010 – UNICEF. Accessed November 23, 2020, from https://www.unicef.org/pressreleases/five-fold-increase-number-refugee-and-migrant-children-traveling-alone-2010-unicef UNICEF. (2017b). Harrowing Journeys - Children and youth on the move across the Mediterranean Sea. UN: New York, NY. USBP. (2016). U.S. Customs and Border Protection. United States Border Patrol southwest family unit subject and unaccompanied alien children apprehensions Fiscal Year. Accessed November 23, 2020, from http://www.cbp.gov/newsroom/stats/southwest-border-unaccompa nied-children/fy-2016 Vissing, Y. M., & Kallen, D. J. (1991). The clinical sociologist in medical settings. In H. M. Rebach & J. G. Bruhn (Eds.), Handbook of clinical sociology. Boston, MA: Springer. https://doi.org/10. 1007/978-1-4615-3782-3_11. Wirth, L. (1931). Sociology and clinical procedure. The American Journal of Sociology, 37, 49–66. Reprinted in Clinical Sociology Review, (1982) 1, 7–22.

UN Treaties and Documents International Covenant on Civil and Political Rights. International Covenant on Economic, Social and Cultural Rights. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. UN Convention on Elimination of Discrimination Against Women. UN Convention on the Rights of the Child.

38

B. Gran

Brian Gran, JD, Ph.D., is a Professor of Sociology, Law, and Applied Social Sciences at the Department of Sociology, College of Arts and Sciences of Case Western Reserve University. Brian’s expertise is on Children’s Rights, Human Rights and Social Policy and he is particularly interested in investigating whether children’s rights advance their interests, or whether these rights impede young people from possessing and benefiting from human rights with a focus on the international treaties that articulate young people’s rights. Publications include The Sociology of Children’s Rights (forthcoming with Polity) and An International System of Children’s Rights? (Annual Review of Law and Social Science).

International State Responsibility Obligations to Protect and Provide Access to Justice for the Asylum-Seeking Child: The CRC and the Unaccompanied Minor Border Case Study Using Dahrendorf’s Social Conflict Theory to Proffer a Revised Legal Framework: Australia, Bangladesh/ Myanmar to the ASEAN Charter States, the Republic of Côte d’Ivoire, Africa, and USA/Mexico Tanya Herring

1 Introduction From 11 through 12 May 2011, the United Nations High Commissioner for Refugees’ (UNHCR) Global Roundtable met in Geneva to establish alternatives to the detention of asylum-seekers, refugees, migrants, and stateless persons with a proclamation of asserting the first goal is to end the detention of children. However, over a decade later and despite having thirty-eight participants representing 19 countries at the apogee of their research, the efforts to abate detention of asylum-seeking children have continued to be futile. The practice of detaining children in unsafe, inhumane conditions has persisted, and States possess the edict to exercise change in policy and jurisdictional laws (Boyden 1990). Detention has become a frequent reoccurrence with States notwithstanding the in-force treaty and customary international law obligations that mandate specific treatment of all children, regardless of nationality or citizenry. An interpretation of the relevant cases proffered leads to the understanding that an obligation of international law exists, whereby States must refrain from any action, omission, or be subjected to a remedy when there is a breach.1 The claim’s 1

In ECtHR, Siliadin v France, Application no. 73316/01, Judgment 26 July 2005, the punishment consisting of a fine for breach of Article 4 was considered to give insufficient support against such

T. Herring (*) Wales Observatory on Human Rights of Children and Young People, Bangor/Swansea University, Wales, UK e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_3

39

40

T. Herring

premise is that without being compelled to comply with treaty obligations, the countries with Conflict Theory construct characteristics will be non-compliant. After almost fifty years of evidence leading up to the twenty-first century, Conflict Theory is a consistent theme used by sociologists to describe conflict, post-conflict behaviors. This study uses Dahrendorf’s Social Conflict Theory principles in juxtapose to conflict and post-conflict States and regions to proffer an effective legal framework for the protection of unaccompanied asylum-seeking children. The primary international instruments providing resources for advocates and practitioners to protect the unaccompanied children seeking asylum are: The Convention on the Rights of the Child (hereinafter, CRC), 1989; the Convention relating to the 1951 Convention Relating to the Status of Refugees2 (hereinafter, Refugee Convention), its 1967 Protocol Relating to the Status of Refugees,3 the 1954 Convention Relating to the Status of Stateless Persons4 (hereinafter, Stateless Convention) and the 1961 Convention on the Reduction of Statelessness.5 Though each State under review is not a member-state to each of the conventions noted, the text argues that under the doctrine of customary international law, each State still has an obligation to protect every child. The chapter further posits a legal framework of State Responsibility that the author posits can establish a systematic and sustainable State policy change with the capacity to deter and attribute responsibility for the detention of unaccompanied asylum-seeking children, which focuses on the child's education, vulnerability to trafficking, and exploitation (UK Department of Education 2017).

violations: “the member States’ positive obligations under Article 4 of the Convention must be seen as requiring the penalisation and effective prosecution of any act aimed at maintaining a person in such a situation” (margin no. 112). The Court also criticised the imprecise language of the legislation which gave scope for varying interpretation and application. The ECtHR found that the criminal law failed to give the minor applicant in the case practical and effective protection against the treatment she had been subjected to and called for “greater firmness” due to increasingly high standards that are required regarding protection (margin nos. 143–144, 147–148). Other important cases under Article 4 are Rantsev v Cyprus and Russia, Application no. 25965/04, Judgment 7 January 2010, margin no. 282; C N v United Kingdom App no. 4239/08, Judgment 13 November 2012; C N and V v France App no. 67724/09, Judgment 11 October 2012. 2 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, adopted by the General Assembly of the UN on 14 Dec 1950, entry into force 22 April 1954; UN General Assembly Protocol Relating to the Status of Refugees. 3 UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267, entry into force 4 October 1967. 4 UN General Assembly, Convention Relating to the Status of Stateless Persons, 28 September 1954, United Nations, Treaty Series, vol. 360, p. 117, adopted on 28 September 1954, entry into force 6 June 1960. 5 UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty Series, vol. 989, p. 175, adopted on 30 August 1961 by a conference of plenipotentiaries which met in 1959 and reconvened in 1961 in pursuance of General Assembly resolution 896 (IX) of 4 December 1954. Entry into force 13 December 1975, in accordance with article 18.

International State Responsibility Obligations to Protect and Provide. . .

1.1

41

Sociological and Legal Approach (Socio-legal)

The text aims to speak to all levels of advocacy in law and sociology, specifically the social worker practitioner and academic sociologist, to assist in their understanding of embedded legal empowerment tools of ratified international instruments that can help protect asylum-seeking youth. The chapter takes a socio-legal approach to investigating the problems faced by asylum-seeking children and places equal emphasis on social systems and structures, the large-scale populations across four global regions, and their respective societal laws (Carr and Goosey 2019) in North America, Southeast Asia, Oceania, and Central Africa. The international definition of social work by the International Federation of Social Workers (IFSW) illustrates that ‘social work is a practice-based profession and an academic discipline that promotes social change and development, social cohesion, and the empowerment and liberation of people’ (IFSW 2014; Weber 1969). Once we draw upon the empowerment element, it becomes clear that the chapter speaks from an interdisciplinary perspective, where sociology, similar to the law, is constructed by theories that converge from the humanities and a legal phenomenon to grasp community views. An essential foundation of the chapter rests on the research of Marx’s Social Conflict Theory, where Dahrendorf’s viewpoint analyses the societal postures that ferment escalating conflict and violence directed toward vulnerable populations (Adams and Sydie 2001; Coser et al. 1957; Dahrendorf 1958; Vold 1998). Theoretically, Conflict Theory has led an independent paradigm in sociological theory, which bares specific focus on the phenomena of coercion, conflict, interests, and power (Rössel 2017). Max Weber describes sociology as a subject of science, where the aim is to gain an interpretive understanding that leads to a reasonable explanation of social actions, processes, and outcomes (Ma 2008). Those actions, processes, and outcomes propel this chapter’s examination of the ‘why’ guiding societal behaviors. The chapter investigates situations where societies lose that connection to protect the vulnerability of a child. In several of the conflict and post-conflict societies, there is a gap in the best interest of a child that shifts to a warped violent and discriminatory justification for the unsafe conditions associated with the treatment and detention of unaccompanied asylum-seeking children (Byrne 1998). The study infers that grasping an understanding of the why provides a basis for a responsive framework to address, prevent, and abate the abuse of unaccompanied asylum-seeking children, their detention, and the prurience toward perversity, sexual exploitation, and trafficking of a migrating child (Bartos and Wehr 2002; Byrne 1998). From an evidence-based research posture, the chapter proffers that there is a growing body of global events bridging the etiology of Social Conflict Theory with the disregard of a child’s well-being, especially in conflict and post-conflict societies. Seldom explored in academia, the text presents four case studies of unaccompanied asylum-seeking children in situ where the constructs of Social Conflict Theory prompt the use of the author's proffered legal framework. The premise suggests that societal behaviors incite an environment where the unlawful acts

42

T. Herring

against a child are acceptable. An environment where the child is physically and mentally abused during immigration detention, subjected to commercial labour, trafficking, and sexual exploitation (Royal College of Pediatrics and Child Health 2000). Collectively, the theoretical principles suggest that abusive actions reflect underlying manifestations of degraded views of a child’s role in society (Abramson 2017; Montgomery 2010; Newbery 1983; Williamson 2012). Newbery (1983), Bernard and Cupta’s (2006) views also coincide with Dahrendorf’s posture. The views also suggest Conflict Theory becomes the engine for adverse social change where traditional societal views to protect vulnerable children shifts to one of complacency and disregard. A sociologist can postulate that violent and discriminatory societies reject the safeguarding of the vulnerable and impose what Dahrendorf describes as the ‘ruler and the ruled’ in a social environment where literature describes children can be regarded as chattel (Dahrendorf 1958; 2007; Txleber 1947). The concept of Social Conflict Theory and its linkage to conflict and post-conflict societies is not an innovation but more of an affirmation for this research. The United Nation’s Security Councils’ S/2004/616 report underscores key issues and prominence of human rights violations in conflict and post-conflict societies and issues a call for the ‘rule of law’ (UN Security Council 2004). In keeping with the UN Security Council’s increased focus on the elements of transitional justice and the rule of law in conflict and post-conflict societies, this research takes the exploration of these factors beyond the United Nation’s Security Council’s surface discussion to encapsulate what happens to children in these conflict and post-conflict societies’ legal structures in the targeted states of Southeast Asia, North America, Oceania, and the Ivory Coast of Africa.

1.2

The Unaccompanied Child’s Legal Standing

The query that continually arises is attempting to provide a legal distinction between a refugee and a migrant. Sociologists and other practitioners often have gaps in understanding the international and domestic legal standings. Though there is no formal legal distinction of an international migrant, the International Organization for Migration (IOM) affirms that it is an umbrella term reflecting a common lay understanding of a person who moves away from his or her place of usual abode (IOM 2020). The UNHCR defines an unaccompanied child as “a person who is under the age of eighteen, unless, under the law applicable to the child, majority is attained earlier and who is ‘separated from both parents and is not being cared for by an adult’ (UNHCR 1997). The United Nations Geneva Convention (1951) has defined a refugee as,

International State Responsibility Obligations to Protect and Provide. . .

43

any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself to the protection of that country; or who not having a nationality and being outside the country of his habitual residence, is unable or owing to such fear unwilling to return to it

Twentieth-century achievements have embraced the global refugee concerns. The matter has surfaced as an issue deserving of an international joint platform of cooperation and burden-sharing. This stance is indicative of the other primary international instruments that also fuse with the CRC for the protection of children. For example, CRC General Comment 6 identifies asylum-seeking and refugee children.6 CRC General Comment 6, para III. 7, defines unaccompanied children as, Unaccompanied children (also called unaccompanied minors) are children, as defined in article 1 of the Convention, 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

Article 14(1) of the Universal Declaration of Human Rights (UDHR) affords persons the capacity to seek asylum in any state of their choice, ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’. UDHR, Article 1 asserts protection against the violation of rights and dignity of all human beings; and, Article 7, UDHR, affirms equal opportunity tenets bereft of ‘discrimination against equal protection before the law’.Though these human rights are explicit, several States have not ratified the Refugee and Stateless Conventions and subject those seeking asylum to violence and abuse with total disregard to other in-force treaty obligations. In absentia of the Refugee and Stateless Conventions, other in-force treaty obligations become integral in the legal framework to provide similar preventions and protections against harm for an unaccompanied asylum-seeking youth.

1.3

Protracted Refugee Status

Case study exemplar. The 2017 Rohingya-crisis of over 900,000 people were classified under the UNHCR’s (2020) protracted refugee situation, which states, Protracted refugee situations are those in which at least 25,000 refugees from the same country have been living in exile for more than five consecutive years. Refugees in these situations often find themselves trapped in a state of limbo. While it is not safe for them to return home, they have not been granted permanent residence to stay in another country.

The Rohingya refugees and similarly-situated refugees live in protracted conditions where the UNHCR has assessed the group as trapped in situations where they experience deprivation of freedom and restriction on their rights (Report of the Special Rapporteur on the situation of Human Rights in Myanmar 2020). Rohingya families are also experiencing a lack of legal employment and economic 6 CRC Committee, General comment 6: Treatment of Unaccompanied and Separated Children Outside their Country of Origin paras 69–70.

44

T. Herring

opportunities that also impacts the children (UN 2012; UN Independent International Face-Finding Mission on Myanmar 2019). The children are limited to no access to education in direct violation to the CRC, Article 28 and 29 (Human Rights Watch 2019; Morse 2017). Reports also reflect that lack of economic opportunities has pressed force-displaced families with perilous alternatives where women and children have a high vulnerability to early marriage, trafficking in persons, and exploitation. UNHCR (2020) has identified three durable solutions for protracted refugee situations: – First, the UNHCR notes voluntary, safe repatriation to their respective home country. – Secondly, local integration is a feasible alternative for those unable to return to their home country. – Thirdly, resettlement permits refugees to relocate to a third country as a permanent residence and prioritize the most vulnerable

Practitioners and researchers continue to express varying concerns for each phase of the durable solutions and the best interest assessment processes for unaccompanied asylum-seeking children (UNHCR’s Evaluation and Policy Analysis Unit EPAU 2007). There has been questions postured by the Union of Myanmar Ministry of Social Welfare Relief and Resettlement National Committee (2017) regarding logistical plans and obtaining success of the first durable solution.

1.4

The Proffered Protection Framework

The proffered framework consists of combining international criminal and international human rights law to capture a stronger State obligation to prevent and protect all children in lieu of a single human rights approach. The chapter opines that a dual framework triggers embedded legal empowerment and access to justice, regardless of citizenship, from member state treaty obligations. The chapter centers on the international criminal law articles of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, supplemented by the UN Convention against Transnational Organized Crime. Conjunctively, the chapter avers that the positive obligations of the CRC and the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography (OPSC) are essential instruments to combine and optimize prosecutorial effectiveness and child protections. Details of how the specific articles are combined and used for prevention, protection, and mitigation of child human trafficking are outlined further in the chapter. In essence, the proffered protection framework centers on using existing ratified treaty obligations, lessening the push for ratification of the human rights Refugee and Stateless Conventions, but to widen the prevention and protection spectrum that can provide similar protections. The chapter further opines that State obligations under the ratified international criminal law and international human rights treaties should be aggressively pursued in a combined framework. The State Responsibility legal framework and approach to the cessation of detaining the asylum-seeking child is

International State Responsibility Obligations to Protect and Provide. . .

45

underpinned by the codified ILC State Responsibility Articles (2001).7 The international legal framework of State obligation is derived from multiple interrelated bodies of international law and each States’ obligation to its respective ratified treaties. The international instruments include the obligations set forth under the United Nations (UN) Charter, the laws of customary international law inclusive of the international humanitarian law, international human rights, and international criminal law examined in this chapter. The text supports the body of literature indicating that adverse childhood experiences (ACE)8 are inherent with an unaccompanied asylum-seeking child being detained (Jeremiah et al. 2017). Research has identified that children exposed to ACE have been exposed to abuse, neglect, and victimization (National Working Group for Sexually Exploited Children and Young People 2008). The context of this research further avers that there is a likelihood these experiences, associated with the detention of unaccompanied asylum-seeking children, can be mitigated, and avoided when States are held responsible for the actions and omissions of their organs. Meaning, a State is responsible for the actions and omissions of their immigration officials, police, and similar decision-making determination bodies regarding the detention of unaccompanied asylum-seeking children (ILC State Responsibility Articles 2001, articles 1, 2(a)(b), 3). The International Court of Justice promulgates general international law on States’ responsibility for internationally wrongful acts and its provisions under Article 13, international obligations in force for a State. To dissolve the practice of detaining unaccompanied asylum-seeking children, this chapter’s text avers that where and when states breach customary international law and in-force treaty obligations, the State should be held responsible for their internationally wrongful acts. The International Court of Justice accepts legal disputes between States, or more commonly referred to as contentious court rulings, and requests for advisory opinions on the legal questions that have been referred to it by a UN organ and specialized agencies; or, commonly referred to as advisory proceedings.9

Text adopted by the Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. International Law Commission, 2001, vol. II (Part Two). Text reproduced as it appears in the annex to General Assembly resolution 56/83 of 12 December 2001 and corrected by document A/56/49(Vol. I)/ Corr.4. 8 Adverse childhood experiences (ACE) are described as exposure to and victimization of physical abuse, sexual abuse, and familial violence. 9 United Nations, Statute of the International Court of Justice, 18 April 1946; Set up in 1945 under the Charter of the United Nations to be the principal judicial organ of the Organization, and its basic instrument, the Statute of the Court, forms an integral part of the Charter (Chap. XIV). By signing the Charter, a Member State of the United Nations undertakes to comply with the decision of the Court in any case to which it is a party. Since, furthermore, a case can only be submitted to the Court and decided by it if the parties have in one way or another consented to its jurisdiction over the case, it is rare for a decision not to be implemented. A State which considers that the other side has failed to perform the obligations incumbent upon it under a judgment rendered by the Court may bring the matter before the Security Council, which is empowered to recommend or decide upon measures to be taken to give effect to the judgment. 7

46

T. Herring

Articles 42(a)(b) and Article 48(1)(a)(b) set out the provisions of who may invoke State Responsibility and to whom the obligation is owed. Seeking guidance from the Barcelona Traction case,10 where the obligations were erga omnes,11 and, in the earlier Southwest Africa cases, the courts ruled whether the applicant states had legal rights or interests sufficient for jurisdiction (Oxford University Press 2007).12 Thus, it is the law of responsibility, which determines whether we can even identify the conduct and the respective actor with the legal capacity to breach international law (Vienna Convention Law of Treaties Article 60). There have been instances where the court came close to giving effect to individual rights in the LaGrand case13 and an earlier advisory opinion on matters regarding UN staff members, but as of the writing of this chapter and the research outcomes from the chapter author, there are no ‘individual rights’. Therefore, there is a heightened responsibility thrust upon the international community to act as illustrated in the case of The Gambia v Myanmar, Provisional Measures, Order of 23 January 2020, ICJ Reports 2020 concerning the Crime of Genocide. Though the law of state responsibility regulates the consequences of a breach of a legal obligation, it does not determine whether there has been a breach of the underlying primary norm. In the ICJ Gabčikovo/Nagymaros14 case and the situation between Hungary and Slovakia, the court ruled,

10 Barcelona Traction, Light & Power Co., Ltd. (Belg. v Spain), Second Phase, 1970 ICJ Rep. 3, 32, para. 33 (Feb 5). 11 Obligations in whose fulfilment all states have a legal interest because their subject matter is of importance to the international community as a whole. It follows from this that the breach of such an obligation is of concern not only to the victimized state but also to all the other members of the international community. Thus, in the event of a breach of these obligations, every state must be considered justified in invoking (probably through judicial channels) the responsibility of the guilty state committing the internationally wrongful act, Dictionary of (Oxford University Press 2007). 12 South West Africa cases (Eth. v S.Afr.; Liber.v.s.Afr.), Second Phase, 1966 ICJ Rep. 6 (July 18) hereinafter, South West Africa). In the earlier Judgment on the Preliminary Objections, the Court found that it had jurisdiction because both Ethiopia and Liberia were former members of the League of Nations and thus could bring a claim against South Africa to enforce the obligations of the mandate. South West Africa cases (eth.v.S.Afr.; Liber.v.S.Afr.), Preliminary Objections, 1962 ICJ Rep. 319 (Dec 21). But at the merits phase, the Court found an insufficient legal interest. 13 Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America); Merits, 27 June 1986; LaGrand Case (Ger. v US), Merits (Int’l Ct. Justice June 27, 2001), 40 ILM 1069 (2001); In LaGrand, the ICJ found that the Vienna Convention on Consular Relations, in Article 36, created individual rights, which Germany as the national state of the detained person could raise as a diplomatic protection claim before the Court. Germany further claimed that the right of individuals to be informed of their rights without delay was an individual human right, but the court noted that since it had found that the USA had violated the rights of the LaGrand brothers under Article 36, para 1 of the Convention, it did not need to consider the additional argument. Para. 78 14 Gabčikovo-Nagymaros Project, Hungary v Slovakia, Judgment, Merits, ICJ GL No 92, [1997] ICJ Rep 7, [1997] ICJ Rep 88, (1998) 37 ILM 162, ICGJ 66 (ICJ 1997), 25th September 1997, International Court of Justice [ICJ].

International State Responsibility Obligations to Protect and Provide. . .

47

A determination of whether a convention is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the responsibility of the State which proceeded to it, is to be made under the law of state responsibility.15

Applicable to this research, Gabčikovo/Nagymaros guides the approach where, first, wrongfulness is identified under the primary norm —treaty law. Once treaty law is established, the law of State responsibility is utilized to determine the consequences of wrongfulness. Strengthened by the codified ILC State Responsibility Articles (2001), the proffered legal framework sets out the general provisions of a breach in Articles 1, 2(a) (b), and 3. Wherein, Article 1, a State is responsible for its internationally wrongful acts; Article 2(a)(b), elements of an internationally wrongful act of a State are ‘unlike under domestic law, the authors’ guilt or intentions are required, nor is it necessary to identify, individually, the agent to which the violations are attributed‘(Gutierrez and Family v Argentina, 2013, para 78, note 163).16 Thirdly, Article 3 characterization an act of a State as internally wrongful, wherein the requirements of local law cannot be advanced for non-compliance with an international obligation (Gutierrez and Family v Argentina, 2013, para 174, note 299).17 Instead, it is sufficient that the State is obliged to comply with its treaty obligations (The Rompetrol Group NV v Romania, 2013, para 174, note 299).18

2 History of the Issue/Problem The annals of issues and problems surrounding unaccompanied asylum-seeking children continue to generate as global upheavals of conflict and natural disasters increase in intensity and geographies. Each factor vastly impacts the poor. This section of the chapter examines the history and issues of the problems through three strands: literature, society, and the law.

2.1

Literary Presence

The chronology of literature on the detention of unaccompanied asylum-seeking children has an unfortunate lineage. The body of research ranges from the outcomes 15

Judgment of 25 September 1997, ICJ Reports 1997, p. 7, at pp. 17–18, para. 47. In Gutierrez and Family v Argentina, the Inter-American Court of Human Rights, Judgment, 25 November 2013, para 78, note 163. 17 Article 3, State Responsibility Articles; Gutierrez and Family v Argentina, ICSID Case No. ARB/06/3, Award, 6 May 2013, para 174, note 299. 18 State Responsibility Articles, Article 3; The Rompetrol Group N.V. v Romania, ICSID Case No. ARB/06/3, Award, 6 May 2013, para 174, note 299. 16

48

T. Herring

of imprisonment ranging from societal to medical impacts on children to the trafficking and exploitation of unaccompanied asylum-seeking children. From a medical perspective, the Royal College of Pediatrics and Child Health’s (1992, 2011) research is prominent. It affirms that the research on addressing the needs of children seeking asylum is essential in assessing their physical and psychological well-being. The Royal Colleges’ study has been unprecedented in providing governments with guidance and direction in the research and investigation of refugees, asylum-seekers, and migrants (Care of Unaccompanied Migrant Children and Child Victims of Modern Slavery: Statutory Guidance for Local Authorities 2017). Amongst the prompting of research and the bandwidth of the literature, the Royal College of Paediatrics and Child Health’s (2011) ethics committees warn about the probability of harm to children, who are highly vulnerable, easily bewildered and frightened, and unable to express their needs or defend their interests. Subsequently, the committee has reiterated the full compliance with ethical guidelines during and after researching the unaccompanied asylum-seeking child. Social work literature is also a significant discipline that offers constructive concepts to support the unaccompanied asylum-seeking child within an interdisciplinary framework. Most textbooks focus on providing the practitioner with the skills and knowledge to collate across disciplines, interspersed with the surveybased perspectives of asylum seekers, refugees, and migrant populations. The twentieth century’s massive influx of asylum-seeking children has not been able to mandate a shift in the ever-changing landscape of the suffrage, torture experiences, and the overall contextual make-up of supporting the unaccompanied asylumseeking child. Works by Hayes and Humphries (2004) respond to the debates and dilemmas facing social work, care, and practice with asylum-seekers. King and Grant (2016) expanded upon the unique needs of community work with asylumseekers in Calais (Burchill 2011; Wroe et al. 2019). The authors identify the impact of conflict-based States of origin on families, the trauma of children, and gaps in resources. Asylum-seekers often cry out just to receive basic human treatment. Wroe’s (2015, 2018) writings, among others, provide multiple volumes of literature that establish a platform for asylum-seeking voices can be heard. The International Association of Schools of Social Work (IASSW 2018) adjoins with the Royal College of Pediatrics and Child Health to serve as a foundational source to guide, support, and train global social workers in ethical principles needed to work with the most vulnerable populations, diverse youth who are unaccompanied asylum-seekers, refugees, and the stateless (Human Rights Watch 2012; Royal College of Pediatrics and Child Health 2000). Practitioners and advocates are consistently challenged with obtaining the skills needed to work with the vulnerable impacted by immigration and border issues. More research and text references are necessary to serve as a valuable resource for both practitioners and academics. The author avers that establishing resources is critical in bringing awareness to those in positions to garner access to justice for the unaccompanied asylum-seeking youth. Restoring hope, agency, and meaning for clients has become a vital role in support (Canada: Immigration and Refugee Board of Canada 1989; Nelson et al. 2017).

International State Responsibility Obligations to Protect and Provide. . .

2.2

49

The Law

States have exercised levels of temerity in practice and hubristic impunity under the auspices of State sovereignty. International Court of Justice (ICJ) case law cites Article 27 of the Vienna Convention on the Law of Treaties, where the reference states, ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’ (Inter-American Court of Human Rights, Order, 21 May 2013, para 405). In that, Article 3 of the State Responsibility Articles (2001) reflects a rule of customary law, whereas ‘the characterization of an act of a State as internationally wrongful is governed by international law,’ referring to the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia). The international law element of this socio-legal study addresses local laws in a theoretical conflict society that contradict treaty obligations. International law guides States against biased and discriminatory policies that negatively impact decisions leading to the detainment of unaccompanied asylum-seeking children. This chapter declares local laws often reflect the sociological, behavioural constructs of Social Conflict Theory. Within the context of the detention of unaccompanied asylumseeking children and the subsequent child trafficking, exploitation, and violence against children, ‘the ruler’ will likely not provide access to justice unless forced to comply with the provisions of international law. Article 3, State Responsibility prohibits a State from using its local laws to excuse non-compliance with an international obligation (State Responsibility, Article 3).19 It is contrasted against the four case studies: State Responsibility Articles 4–11 details the conduct’s attribution to a State. Articles 12–15 specify the existence, extension in time, and when a breach consists of an international obligation’s composite act. The responsibility of a State and the connection with the act of another State are outlined in Article 16. The circumstances that preclude wrongfulness is covered in Article 20, consent, Article 25, necessity, and Article 26, compliance with a peremptory norm. Part II of the content of a State’s international responsibility addresses the general principles that capture the legal consequences, cessation, and non-repetition, reparations, Articles 28–33. One of the most substantive segments that have a deterrence against breaching international law against children’s protection is contained with Articles 34–39, reparation, restitution, compensation, satisfaction, and the contribution to the injury. Part three, encompassing individual responsibility and lex specialis20 is not applicable within the context of this chapter.

19

State Responsibility Articles, 3, characterization of an act of a State as internationally wrongful. Lex specialis, in legal theory and practice, is a doctrine relating to the interpretation of laws and can apply in both domestic and international law contexts. The doctrine states that if two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law governing only general matters (lex generalis). 20

50

T. Herring

3 Current Situation: Case Study 3.1 3.1.1

Border Case Study, #1, Bangladesh/Myanmar, ASEAN Charter States Association of Southeast Nations (ASEAN)

An investigation into the border issues of Bangladesh/Myanmar encapsulates the ASEAN Charter and its ten member states, Brunei Darussalam, Cambodia, Indonesia, Malaysia, Myanmar, Philippines, Singapore, Thailand, Viet Nam, and Cambodia, which excludes Bangladesh. Concerning the unaccompanied asylum-seeking Rohingya children, UNHCR records indicate that over 700,000 Rohingya were forced migrated across the Bangladesh/Myanmar border (Pinheiro 2007). However, often not highlighted is that there were hundreds and thousands of unaccompanied asylum-seeking youths and Rohingya families disbursed across borders of each of the ASEAN charter states on both land and sea (UNHCR 2017, 2018, 2019). As a legal personality, ASEAN is subjected to international law.21 To grasp an understanding of the ASEAN Charter’s legal standing and inherent responsibilities, scrutiny of Article 7822 from the 1947 Paris Peace Treaties23 gives insight to the basis and application of international legal personalities within customary international law. ASEAN’s positioning as an international legal personality is subject to the ICJ opinion, which notes, [i]nternational organizations are subjects of international law, and, as such, are bound by any obligations incumbent upon them under general rules of international law.24

21 A final consideration in this abstract ‘consideration of international legal personality is that it is not plenary—in other words, even if international legal personality is found to exist, that does not conclude the inquiry of what powers such an entity may in fact exercise. In the Reparations case, the ICJ noted that: The Court has concluded that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is “a super-State”, whatever that expression may mean. . .’; ‘Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice’. 22 Article 78, “United Nations nationals” means individuals who are nationals of any of the United Nations, or corporations or associations organised under the laws of any of the United Nations, at the coming into force of the present Treaty, provided that the said individuals, corporations or associations also had this status on September 3, 1943, the date of the Armistice with Italy. The term “United Nations nationals” also includes all individuals, corporations or associations which, under the laws in force in Italy during the war, have been treated as enemy. 23 Canada: Immigration and Refugee Board of Canada, Hungary: Paris Peace Treaty 1947, 30 May 1989 24 Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, Advisory Opinion, 1980 I.C.J. Rep. 73, 89–90 (Dec. 20) [hereinafter WHO-Egypt Advisory Opinion].

International State Responsibility Obligations to Protect and Provide. . .

51

Among scholars, there is a range of positions on how general international law binds international organizations. Yet, a narrower view of the single sentence in the ICJ’s 1980, WHO-Egypt advisory opinion further supports the footing for obligations imposed upon international organizations where it states, ‘under their constitutions or under international agreements to which they are parties.’25 Yet, in relation to responsibility, only a subject of international law may be internationally responsible. Referring to the Reparations Advisory Opinion, a conclusion was derived by the International Court that the United Nations is an international person by noting, its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.26

The court further concluded that the United Nations. . . is a subject of international law and capable of possessing international rights and duties, and that it can maintain its rights by bringing international claims27

The primary concern for ASEAN’s inclusion in this chapter is the commitment and responsibilities, as an international personality, to the CRC and unaccompanied asylum-seeking children within its member-states. The CRC has been affirmed within the ASEAN Intergovernmental Commission on Human Rights (AICHR)Philippines and AICHR-Singapore, in collaboration with Child Rights Coalition Asia. Though not recognized within the context of a Declaration, the principles outlined in the Commission are structured to highlight awareness and understanding in the implementation of the CRC and the two of the relevant Optional Protocols: (a) The Involvement of Children in Armed Conflict (OPAC), (b) the Optional Protocol on Communications Procedure (OPIC).28 Each member of the ASEAN Charter is a State Party to the CRC but has not ratified all the Optional Protocols. However, ASEAN does not have a separate and distinct domestic and binding law for implementing the CRC. Another notable, prominent, but non-binding instrument is ASEAN’s 2002 UN Recommended Principles and Guidelines on Human Rights and Human Trafficking (Human Rights Watch 2012).29 The critical element in notating this document is that it includes specific details for its member States to improve victim protection, reduce victim detention, enhance criminal justice responses, and move toward 25

WHO-Egypt Advisory Opinion, para 37. Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, 174, 179. 27 Ibid. 28 The concept of the “child’s best interests” is not new. Indeed, it pre-dates the Convention and was already enshrined in the 1959 Declaration of the Rights of the Child (para 2), the Convention on the Elimination of All Forms of Discrimination against Women (arts. 5 (b) and 16, para 1 (d)), as well as in regional instruments and many national and international laws. 29 United Nations High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, delivered to the Economic and Social Council, UN Doc 3/2002/68/Add.1, May 20, 2002 [hereinafter UN Trafficking Principles and Guidelines]. 26

52

T. Herring

legislative development. Though non-binding and no measurable goals and objectives exist, these principles, on the surface, reflect a correlation to protecting children from detention. In international law, declarations, though not binding, can become customary international law. Declarations, unlike reservations, do not affect legal obligations but are often made when a State expresses its consent to be bound by a specific treaty. A position could be taken that ASEAN uses declarations to clarify its position on the respective treaty text of its member States. This intent could serve as an explanation of ASEAN’s adoption of the following instruments also identified as informational, but yield protection to the unaccompanied asylum-seeking child located within the ten-member states (ASEAN 2007): – April 2010, Hanoi Declaration on the Enhancement of Welfare and Development of ASEAN Women and Children, – 2007, Protection and Promotion of the Rights of Migrant Workers, – the ASEAN Human Rights Declaration (AHRD), and – 2004, ASEAN Declaration Against Trafficking in Persons—particularly, Women and Children, which was preceded by the 1997 ASEAN Declaration on Transnational Crime,30 and superseded by the ASEAN Convention against Trafficking in Persons, especially Women and Children (ACTIP). Until recent years, ASEAN’s focal issues have primarily been centered on labour migration instead of forced migration, especially along the border of Bangladesh and Myanmar (ILO 2019). However, after 2005, the current state of forced migration in its member states, trafficking-in-persons situ, specifically from the State of Myanmar and the mass exodus of the Rohingya’s unaccompanied asylum-seeking children has received global attention.31 In the ASEAN region, thousands of people flee conflict (both armed and religious), persecution, and catastrophic natural disasters (Ahmed & Ahmed 2007; Ahsan et al. 2014). The UN Office for Disaster Risk Reduction notes that natural disasters have taken a heavy economic and tragic human toll in the AsiaPacific region (UNISDR 2012). These scenarios have contributed to onslaughts of force migrations and descriptively meet the categories according to The Hague Process on Refugees and Migration Foundation (THP Foundation) Handbook (2008) and CRC Article 2332 discussed in more detail within this chapter. Accordingly, people escaping from fighting, persecution, armed conflicts (and religious conflicts) all fall into the category of forced migrants. There are many causative factors for fighting, persecution, and armed conflicts, especially concerning the

30 The 2004 Declaration was preceded by: ASEAN, ASEAN Declaration on Transnational Crime; ASEAN, ASEAN Plan of Action to Combat Transnational Crime, endorsed by the second ASEAN Ministerial Meeting on Transnational Crime (AMMTC), Yangon, Myanmar, 23 June 1999. 31 Ibid. 32 UNCRC, General Comment 23, human rights of children in the context of international migration in countries of origin, transit, destination, and return (2017).

International State Responsibility Obligations to Protect and Provide. . .

53

unarmed non-combatant, but this chapter posits that recognizing these factors are critical to the safety of unaccompanied asylum-seeking children. Coercion is deserving of further discussion as it relates to the Rohingya-crisis. From a conflict theory point, sociologist J Raikes emphasizes that the distribution of economic and material means becomes the dominant force (Williams 1976). Most theorists are of the opinion that Raikes and Dahrendorf’s school of thought on conflict is divided. However, there are more similarities than differences in Myanmar as both means, and unequal distribution of authority are relevant factors. Comparatively against international law, coercion correlates to a forced migration situation as one of the important critical elements of the international trafficking definition as a pivotal action impacting the unaccompanied asylum-seeking youth. Article 3 of the Trafficking Protocol33 states that if any coercive means are utilized, then consent to the act is made irrelevant as these criminal elements are seen to remove a person’s free will (Hastie 2012). Succinctly, the definition of human trafficking and its association with the unaccompanied asylum-seeking child makes the connection that taking advantage of a position of vulnerability translates into a coercive means of recruiting or transporting people.34 When looking at the Rohingya-crisis, a coercion linkage can be established to a ‘position of vulnerability,’ where a person has no real and acceptable alternative or viable options, which aligns with Dahrendorf’s Conflict Theory of violence and the ruled and the ruler concept.35 Dahrendorf’s posture on conflict theory is indicative of where there is an existing unequal distribution of authority and power in Myanmar’s social organizations. As a result of the divisions, many others are forced to leave their country of origin in Southeast Asia (Jones 2010). Poverty and development projects initiated and imposed by the governments, in many, but not all cases, result in the loss of livelihood (IOM 2008). Despite the dismissive and disassociated posture with the regions’ migratory situation that has been fostered by many of the ASEAN States and the region, the global attention that has beset on the Rohingyacrisis and the accompanying parallel forced migration has created situations impossible to ignore or diminish in magnitude. Official government reports suggest that the migratory categories are blurred with refugees, unaccompanied asylum-seeking youth, the stateless, each looking for relief from anyone, including traffickers and smugglers, who, in turn, may at some point been refugees themselves (IOM 2008). Unlike children in Europe, the United States, and other highly developed countries, children in the Southeast Asian region and similar geographies work and support their families at an early age. Like their parents and other adults caught in the 33 UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, Article 3. 34 Article 9(4), Palermo Trafficking Protocol, ‘a position of vulnerability’; Article 3, CRC, ‘children in vulnerable situations’; CRC, General Comment 14 adds further clarity to member States as it explains that a child in a specific situation of vulnerability. 35 CRC, General Comment 14 adds further clarity to member States as it explains that a child in a specific situation of vulnerability.

54

T. Herring

migratory flows, a child is also an irregular migrant worker, and contingent upon their dilemma, the child may meet the international definition of a stateless refugee, accompanied or unaccompanied by a parent or legal guardian (IOM 2008). As a result of the unstable and vulnerable situation, much research supports the premise that the child has a high likelihood of being trafficked and exploited (New York Times Editorial 2005; UN-ACT 2017).36 Yet, the ASEAN Intergovernmental Commission on Human Rights (AICHR) has been censured for the omission of an explicit mandate to perform a protection duty. Unfortunately, a reluctance to intervene with formidable measures or mechanisms to address statelessness, forced migration, and a host of migrant humanitarian concerns remains unaddressed (AICHR 2019). A most important point to note is that the ASEAN Charter has no human rights court, no mandate to receive complaints, or allocates no process to conduct investigations. Hence, the court of public opinion have rendered its voluminous declarations ineffectual.

3.2

Myanmar

The Burmese live a ceaseless debilitating experience of the most massive humanitarian crisis and protracted refugee situation unmatched worldwide. Myanmar is a State within the Greater Mekong Subregion (GMS) along with Thailand, Cambodia, Lao PDR, China, and Vietnam.37 The countries consistently rank low on the Trafficking in Persons Tier ranking with the US State Department (2019). As Myanmar is a transit, origin, and destination state, it is equally as essential to address the State in-force treaty obligations in the GMS context.38 Child sexual exploitation in this region is prominent in an online39 modality, in local brothels, and organized

36

The United Nations Action for Cooperation against Trafficking in Persons (UN-ACT) and Mahidol University in Bangkok co-organized the International Seminar on Mixed Migration in Southeast and East Asia, 21–22 June 2017. 37 Burma was a founding signatory to the Coordinated Mekong Ministerial Initiative against Trafficking (COMMIT) Process. In October 2004, to the surprise of some UN officials, Burma was proud to host the initial meeting of the COMMIT in Rangoon. Senior Government ministers from the six countries of the Mekong sub-region signed a memorandum of understanding on cooperation and joint action against trafficking in persons in the sub-region. 38 The Greater Mekong Sub-region (GMS) countries—China, Cambodia, Laos, Myanmar, Thailand, and Vietnam—have launched a collective initiative known as Coordinated Mekong Ministerial Initiative Against Trafficking (COMMIT) to tackle the menace of human trafficking in that region. 39 Director General of the Judicial Administration System Department, Ministry of Justice, ‘The Australian Federal Police, presented a case study on a successful operation that led to the arrest of 184 child sex offenders who used technology to access their victims’; “Offenders were arrested in the United Kingdom, the United States, New Zealand, Australia, and Thailand,” said a Liaison Officer of the Australian Federal Police. “The three-year joint operation with other law enforcement agencies identified many other members of a website who had a sexual interest in young boys.”

International State Responsibility Obligations to Protect and Provide. . .

55

crime units according to the UN Office on Drugs and Crime’s Transnational Organized Crime reports in East Asia and the Pacific—a Threat Assessment (UNODC 2013a, b). Cross-border trafficking flows—sub-regional and transregional—are more often connected to organized crime since they require more organization and higher investments to maximize profits. There is a strong correlation between the level of organized crime measured at the origin country and the share of citizens of these countries detected in the major destinations of transregional trafficking that unfortunately includes unaccompanied asylum-seeking children (Dijk 2008; Report of the Special Rapporteur on the Situation of Human Rights in Myanmar 2020; Schwab 2014).40 The GMS has deep-rooted and historical gender inequality and poverty problems where unaccompanied asylum-seeking children are trafficked either within their own countries or over and across the border into neighboring countries.41 The unaccompanied asylum-seeking child crosses the border into neighboring countries, for example, from Laos to Thailand or Cambodia to Thailand, or Myanmar to Cambodia, and so on. However, the major regional destination remains Bangkok. Some unaccompanied children are moved vast distances across international borders, and some are trafficked across the world into developed regions such as Europe, the USA, and Australia.42 The UN Inter-Agency Project on Human Trafficking indicates no universally accepted estimate of child trafficking numbers across the globe (UNIAP 2012).43

40

Measured by the Composite Organized Crime Index (COCI, 2008) 162–167; the organized crime perception index referring to the year 2013 of the World Economic Forum, Schwab 2013. 41 According to Burmese officials, there were 155 trafficking cases in 2009, including for forced marriage, forced prostitution, forced labor, and child trafficking. These cases all involved crossborder, as opposed to domestic, trafficking. Of these, the highest numbers (85) were for forced marriage. 42 An analysis of a total 641 trafficking cases between 1 January 2006 and 31 December 2010 shows that 69.7% were for forced marriage, and China was the destination country in 80% of cases (Union of Myanmar, Ministry of Home Affairs, Central Body for Suppression of Trafficking in Persons (n.d.): 45–46). 43 The United Nations Inter-Agency Project on Human Trafficking in the Greater-Mekong Sub-region (UNIAP) was established in 2000 to allow UN agencies to promote a coordinated approach and response to trafficking with stakeholders involved in fighting it, supported by improved information on the subject and the efficacy of responses. Phase I (2000–2003) promoted critical analysis, built linkages between agencies, and supported small-scale pilot initiatives to address emerging issues. Phase II (2003–2006), originally seen as a consolidation phase, supported the development of a sub-regional Memorandum of Understanding (MoU) between the governments of the six Greater Mekong Subregion (GMS) states (Cambodia, China, Lao PDR, Myanmar, Thailand and Vietnam), accompanied by a Sub-regional Plan of Action (SPA I) to operationalize the agreement. This process, known as the Coordinated Mekong Ministerial Initiative against Trafficking (COMMIT, to which UNIAP functions as the Secretariat), provides a sub-regional institutional framework for counter-trafficking initiatives. Phase III (originally for the period of January 2007 to November 2009) aims to further consolidate and institutionalize existing initiatives, complemented by a—research and developmentk role.

56

T. Herring

Myanmar has a long-standing history of human rights issues as it continues to struggle with poverty, political, and civil unrest (Human Rights Watch 2017). The stage for a conflict and post-conflict society is set. The UN Independent International Fact-Finding Mission (IIFFM) (2019) released its 2018 report indicating that abuses and severe human rights violations in Kachin, Shan, and Rakhine states have occurred since 2011, aligning the country with many of the Social Conflict Theory constructs.44 A penurious existence is indiscriminate. The elderly and the young, struck the hardest, are the easiest to harm and exploit. From the 2000s to the present day, nongovernment organizations (NGOs) and an array of coteries vehemently contend that Myanmar’s flagrant child forced labour violations are principally the worst forms and equate to modern-day slavery (Greenpeace 2014). As a state party to the United Nations (UN) and ASEAN, Myanmar has been under significant pressure to stabilize its impoverished areas and address its myriad of issues. Efforts for humanitarian change in Myanmar were initiated from 2011 through 2014 by Tomas Ojea Quintana, the UN special rapporteur on Burma, and continues to this day (Union of Myanmar Ministry of Social Welfare Relief & Resettlement National Committee on the Rights of the Child Myanmar National Plan of Action for Children 2006–2015). The Rohingya‘s 2017 mass exodus, unaccompanied asylum-seeking children, adults, and other families brought Myanmar before the International Court of Justice. The ICJs' actions are reflect best models of this chapter’s premise of State Responsibility executed and indicators of Dahrendorf’s Conflict Theory in action. Whereas, the IIFFM on Myanmar, under HRC resolution 34/22, outlined the scope of responsive investigations by the Office of the Prosecutor of the International Criminal Court (ICC) and included projected plans by The Gambia in support of the Organization for Islamic Cooperation (UN Fact-Finding Mission 2019).45 According to the HRC resolution, both the Prosecutor and The Gambia, Republic of the Gambia v Republic of the Union of Myanmar,46 are pursuing a case against Myanmar before

44

Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, UN Doc. A/HRC/39/CRP.2,17 September 2018. 45 The United Nations Independent International Fact-Finding Mission on Myanmar, HRC resolution 34/22, 22 October 2019. 46 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), 23 January 2020; On 11 November 2019, the Republic of The Gambia (“The Gambia”) filed in the Registry of the Court an Application instituting proceedings against the Republic of the Union of Myanmar (“Myanmar”) concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention” or “Convention”). In its Application, The Gambia argues in particular that Myanmar has committed and continues to commit genocidal acts against members of the Rohingya group, which it describes as a “distinct ethnic, racial and religious group that resides primarily in Myanmar’s Rakhine State”. The Application contained a Request for the indication of provisional measures, seeking to preserve, pending the Court’s final decision in the case, the rights of the Rohingya group in Myanmar, of its members and of The Gambia under the Genocide Convention.

International State Responsibility Obligations to Protect and Provide. . .

57

the ICJ 47 for the breach of States’ responsibility to obligations of the 1948 Genocide Convention. Despite both Myanmar and Bangladesh being member-States of the Convention on the Rights of the Child, thousands of children have crossed the border into Bangladesh, escaping from Myanmar, in a suffering state of emaciation, desperate for sustenance, and in a high level of vulnerability.48 Risking loss of life by sea or on land, the UNHCR reported nearly 700,000 Rohingya fled their homes and persecution in Myanmar for neighboring Bangladesh since August 2017 (UNHCR 2018). As of the publication of this chapter, the outcome of The Gambia v The Union of Myanmar case is still unresolved. The most significant defense declaration by Myanmar of the factual inaccuracy of the State Responsibility charges was noted at The Hague on Wednesday, 12 December 2019. The verbatim transcript reflected: Aung San Suu Kyi’s speech at the ICJ in full for 30 minutes, where the Myanmar leader defended her country’s military actions against genocide allegations. . . . . .the former human rights icon rejected the case at the United Nations’ highest court— which was filed by the Gambia with the support of the 57-member Organisation of Islamic Cooperation (OIC)—alleging Myanmar violated the 1948 Convention on the Prevention and Punishment of the Crime of Genocide”. . . (ICJ Verbatim Transcript 2019)

3.3

Bangladesh

As a small deltaic country in South Asia, the country has a total land area of 145,035 square km. It is recorded as the eighth largest population in the world, according to the 2019 US State Department records. The country gained independence from Pakistan after the 1971 Bangladesh Liberation War, and according to 2007 research by author Amed, the country was established as a parliamentary democracy. Geographically, the country is located in the world’s largest delta, the Bengal. Its low-lying deltaic terrain experiences extensive climate variability, both spatially and temporally, thereby rendering the area highly disaster-prone (Zaman 2001). Frequently encased in riverine floods and coastal storm surges, the region is populated by the vulnerable poor, who the UNHCR (2020) indicates consists of the displaced persons already struggling from natural disasters and political unrest.

47

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. The seat of the Court is at the Peace Palace in The Hague (Netherlands). The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States (its judgments have binding force and are without appeal for the parties concerned); and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system. 48 CRC, General Comment 14 adds further clarity to member States as it explains that a child in a specific situation of vulnerability.

58

T. Herring

As Bangladesh is both an origin and transit state, while Myanmar is a transit, origin, and destination state, guidelines on distinguishing the minimum standards are set out to eliminate trafficking under TVPA, Section 108, ‘the government of a country of origin, transit, or destination.’ The laws appear to be a patchwork across the international and national forums that leave gaps in how origin, transit, and destination States function in the real world. As a result, the countries experience an unsurmountable volume of migration, especially forced migration, in the region. The state obligations can be interpreted based upon rulings from the Permanent Court of Arbitration (under UNCITRAL rules) in Hulley Enterprises Limited (Cyprus) v The Russian Federation, where the court found that ‘only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e., as agents of the State’. In Bangladesh and the ASEAN Charter Nations, the CRC Committee on the Rights of the Child, UNICEF, UNHCR, and a host of human rights advocacy organizations have continued to express and attempt to address the continuous detention and treatment of asylum-seeking children, who have been subjected to unspeakable violence, trafficking, exploitation, and inhumane conditions. The UNHCR has labelled the most prevailing and highly publicized abuse of indigenous groups as the Rohingya-crisis, ‘100 days of Hell’ (UNHCR 2017). The committee on the Rights of the Child continues to address ongoing child detention issues in Bangladesh, where thousands of asylum-seeking Rohingya-crisis children are being detained in unsanitary huts, subjected to violence, trafficked, and exploitation (CRC/C/BGD/5 2012). Reports from the United Nations Migration Report, dated 27 September 2017, reporting from Cox’s Bazar, by the UN Migration Director General, William Lacy Swing, indicate that countless vulnerable Rohingya, classified internationally as stateless refugee children, women, and men, arriving in Bangladesh, from Myanmar, suffered gender-based violence, exploitation, and sexual assaults (sexual violence)49 during forced migration (IOM 2017). The Migration Director also addressed the situation where thousands of Rohingya entire families were set adrift and lost at sea during the forced migration. Human Rights Watch, 3 December 2019, ‘We are not human’, presented an 81-page report on Bangladesh where. . .

49

Sexual violence includes but is not limited to rape. Although there is no agreed upon definition of sexual violence, commonly applied ones encompass any act of a sexual nature or attempt to obtain a sexual act carried out through coercion. Sexual violence also includes physical and psychological violence directed at a person’s sexuality, including unwanted comments or advances, or acts of traffic such as forced prostitution or sexual violence; Article 58, Rome Statute, Duties and powers of the Prosecutor with respect to investigations states, ‘Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses. . .’ including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children.

International State Responsibility Obligations to Protect and Provide. . .

59

Researchers spoke to 163 Rohingya children, parents, and teachers, as well as government officials, aid groups and United Nations agencies in February 2019. According to the 81-page report, the Bangladeshi government has barred UN humanitarian agencies and NGOs from providing children in the camps with any formal or accredited education. Refugee children are prohibited from accessing formal education within or outside the camps.

3.4

Border Case, #2, Republic of Côte d’Ivoire, the Ivory Coast of Africa

Côte d’Ivoire has been one of the leading immigration countries of West Africa since its independence from France in 1960. The country is well-known for its longstanding practice of children in Côte d’Ivoire engaging in the worst forms of child labor, including in the harvesting of cocoa and coffee, sometimes due to human trafficking (Global March against Child Labour 2013; Tulane University 2015). According to a multiple indicator cluster survey conducted in 2016, 21.5 percent of children ages 5–17 are engaged in hazardous work (US Dept of State 2017). The political crisis which hit the country in 2002 slowed down immigration but stepped up emigration.50 In essence, there is a high influx of unaccompanied children leaving Côte d’Ivoire and are in transit through the country’s ports to other countries (University of Sussex Research Center 2000). The country is world-renowned for its ports. It is unknown what happens in and beyond the territorial waters with unaccompanied and accompanied minor children. Nonetheless, it can only be forecast that unethical and unlawful actions against asylumseeking children occur along the ports, within the territorial waters, and beyond from the ports that may far exceed what has been recorded or reported from the land. Though the research figures from 2000 have aged, the statistics serve as a baseline for the Côte d’Ivoire 2009 National Profile estimates. . . A stock of 176,692 Ivorian emigrants, distributed according to countries of destination: France, 26 percent; Burkina Faso, 20 percent; Benin, 7 percent; Germany, 6 percent; Guinea, 5 percent; Ghana, 5 percent; Italy, 5 percent; and the United States, 4 percent.

According to the United Nations Population Division (UNPD), . . . the net migration rate (for 1,000 people) has always been positive since the 1950s (between 5 and 12, despite a 2.2 decline from 1995 to 2000) up to the 2000–2005 period (3.7). It is estimated to be harmful for the 2005–2010 period (1.4), but the projections for the years ahead show virtually nil balances (between 0.1 and 0.2) (UNPD 2008).

Historical evidence supports the concern and outcome for the unaccompanied asylum-seeking girls and boys immigrating to or emigrating from Côte d’Ivoire.

50

While immigration means the movement of people to a country, emigration means the movement of people from a country. Moreover, emigration has derived from the Latin emigrare which means to move.

60

T. Herring

Asylum-seeking children’s formal education has been interrupted, and the children usually have minimal academic knowledge. With little alternatives, many seek domestic work only to be vulnerable to the entrapment of sexual exploitation, begging, surviving on the streets in a foreign land seeking employment opportunity only to find themselves exchanging sex for money (Asylum Aid 2009). Reports from Human Rights groups indicate that both accompanied and unaccompanied asylumseeking girls, as young as ten years old, are being exploited for sex in Cote d’Ivoire and emigrated to be trafficked throughout Central Africa and Europe (The New Humanitarian 2009). The explanation and response to the ‘why’ query continues to reflect the desperation surrounding conflict, post-conflict action reflecting negatively upon the children. The children are lured to restaurants and bars in the assurance of money for food and payment for school fees (Ministry of Family, Women, and Social Affairs 2009). For many girls and boys, sex work, early childhood marriage, is the only means of funding their survival (Shawki 2015). The UNHCR (2011) has recorded an extensively high level of claims of violence and detention from unaccompanied asylum-seeking girls from Côte d’Ivoire in Libya, Syria, and Tunisia. The girls often live together close to each other in cramped, unsanitary conditions. However, often understated, the asylum-seeking boys are exploited for sex and labour, but there are gaps in data collection for the male child. For Tunisia, figures went up nine-fold, from 900 in 2010 to 7900 in 2011. Italy and Switzerland together received three-quarters of those claims. In Côte d’Ivoire, figures stood at 5200 asylum applications during 2011 (+180%), with France being the prime destination (1700 claims). Out of the 8400 Syrian asylum claims in 2011 (+68%), one third were submitted in Germany alone. The almost five-fold increase in Libyan asylumseekers (3800 claims) was concentrated in the United Kingdom, which registered one-third of all claims” (UNHCR Trends 2011).

3.5

Côte d’Ivoire Refugees in Liberia

The unaccompanied asylum-seeking Côte d’Ivoire child in Liberia has been thrust into an unending continuum of civil conflicts and post conflicts across Africa (Zolberg 1969). The conflicts resulted in children being separated from their parents during Côte d’Ivoire’s post-electoral crisis in 2010–2011 (ICRC 2016). During that period, over 1000 unaccompanied children escaped Côte d’Ivoire into Liberia for several years. Exercising the provisions of CRC, Articles 19, protecting the child from violence, Article 22, guidance on asylum-seeking and refugee status, and Article 3’s best interest of the child, Liberia sheltered the unaccompanied Côte d’Ivoire child for over four years (ICRC 2016). In 2015, the CRC Committee General Comment 6 (2005) elements were evident in the text Treatment of Unaccompanied and Separated Children outside their

International State Responsibility Obligations to Protect and Provide. . .

61

country of origin (2005).51 The text noted that the provisions of Article 10 were exercised as the humanitarian support at the corridor of Liberia and Cote d’Ivoire borders included the Red Cross and the ICRC in their efforts in reuniting of families (ICRC 2016). The foundation of tensions in Côte d’Ivoire aligns with Dahrendorf’s concepts of Social Conflict Theory. These tensions and patterns of conflict involve the breakdown of old-established patterns of dominance and a partial or complete collapse of the state surrounding the global economic quest for diamonds and cocoa beans (Office for the Coordination of Humanitarian Affairs 2020).52 Côte d’Ivoire accounted for around 40% of the world cocoa production in 2006 (Child Labor Cocoa Coordinating Group 2016). Traditional distribution of power through patronage is replaced by rival warlords fighting each other through militias, often on an ethnic basis, and recruited partly from children either torn directly from their village, those accompanied, or unaccompanied seeking asylum (Global Witness 2007). The report by Global Witness depicts children who have been acquired either by force or lure as child soldiers in a conflict and post-conflict society. Brandishing weapons, the male children are forced into a direct, indirect conflict and pilferage of villages, while the girl child is often used as a concubine (Global Witness 2007). The Côte d’Ivoire case study is indicative of the Sociology Theory work done by Swedberg (2017), where the author suggests that there has been an emergence of an approach to the role theory in sociology and its correlation to societal norms. In the Côte d’Ivoire situations, impoverished people living in a country with deep wealth, corruption factors coming from all directions underlines the Social Conflict Theory in conflict and post-conflict societies that the UN Security Council seeks to employ transnational justice. The sociological theories give perceptiveness to policy and decisionmakers to address these critical situations adversely impacting children.

3.6

Case Study, #2, Australia/Oceania sub-region

Australia and its sub-regions have a pattern of mismanagement of asylum-seeking situations. In 2014, asylum-seeking children held on Christmas Island were

51 CRC Committee, General Comment 6 (2005): Treatment of Unaccompanied and Separated Children outside their country of Origin (2005), CRC/GC/2006/6, para. 79. 52 ‘Timberand diamonds played a central role in funding the conflict in Liberia, as documented in Global Witness reports Taylor Made, September 2001, and The Usual Suspects, March 2003’; The information in this report is based on in-depth field investigations conducted in Côte d’Ivoire, Burkina Faso and Togo in June and July 2006. Global Witness staff interviewed a wide range of sources in Abidjan in the government-controlled zone; in Bouaké and Korhogo in the FN-controlled zone; in Bobo-Dioulasso in neighbouring Burkina Faso, and in Lomé, the capital of Togo. Those interviewed included cocoa sector officials, cocoa exporters, government officials, diplomats, academics, members of non-governmental organisations and journalists. Further research was carried out in France and from the United Kingdom in 2006.

62

T. Herring

transferred to further detention on the Australian mainland. Reports reflect 100 adults and 94 children, comprised of family groups, were assigned at the bequest of the Immigration Minister, Scott Morrison, at the Bladin Point Facility in Darwin, Australia. The Australian Human Rights Commission made complaints that no education was provided to detained children and noted “hopelessness and helplessness” and made claims of child self-harm (Safi 2014). Moreover, children born in facilities have been detained for their entire lives. Three years later, the UN News published deteriorating conditions where refugees and asylum-seekers on Manus Island were physically abused by uniformed officers (UN News 24 November 2017; 4 April 2018). Again, UN News (2017) identified concerns that were filtered to the UNHCR that of the refugees and asylum-seeking women and children, thousands were forcibly transferred between Australia facilities in Manus, Nauru, and Papa New Guinea with children remaining in detention. Issues for the asylum-seeking children was brought forward by The Regional Representative for the Office of the UN High Commissioner for Refugees noting “grave risk deterioration of conditions for vulnerable human beings.” Within four years later, in 2018, locations in Manus Island in Papua New Guinea and Nauru housed over 3000 men, women, and children originating from Afghanistan, Iran, Syria, Sri Lanka, and Myanmar asylum-seeking refugees. Similar mental-hygiene deterioration reports continued to be reported to the Asia and Pacific Bureau of the Office of the UN High Commissioner for Refugees (Amnesty International and Human Rights Watch 2016).

3.7

Border Case #4, the United States/Mexico Border

At the United States border with Mexico, the conditions at the Clint, Texas, US Customs and Border Patrol facility, among others, became public in a ninth Circuit Court of Appeals hearing dispute, Flores, et al. v Barr, et al. 8/15/19. The case details before the court include allegations of abuse where the government denied children essential hygiene items such as soap and toothbrushes, unlawfully medicating children, unnecessarily restrict detention without fair process, where the government’s appeal of the Flores v Reno Settlement Agreement (AILA Doc No. 15072804) on Minors in Immigration Custody was dismissed, Flores v Barr, 9/27/19. Based upon the Flores Agreement, which sets out standards for the care of unaccompanied asylum-seeking youth, the appeal alleges relief from allegations of mistreatment of children (US Court of Appeals, No. 15–70,530). The United Nations became vocal in condemning the conditions faced by children being held in immigration detention and the customary practice of the United States separating children from their families UN Office for the Coordination of Humanitarian Affairs - OCHA 2020). Michelle Bachelet, the UN High Commissioner for Human Rights, has spoken publicly and cited the issues of unsafe conditions to bring into focus that Mexico is a member state of the CRC, ratified in 1990, and the OPSC, in 2002 (UN 2019). The United States is not a member state

International State Responsibility Obligations to Protect and Provide. . .

63

of the CRC but signed the treaty in 1995. The treaty ratification process in the United States is complex and engages multiple layers of the government. However, the signature qualifies the United States to proceed to ratification, acceptance, or approval, which, as of this chapter’s printing, did not. However, signing the treaty does create an obligation to refrain, in good faith, from acts that would or could be considered defeating the object and the purpose of the treaty (Vienna Convention on the Law of Treaties 1969). The United States has ratified the Optional Protocol on the Sale of Children in 2002. As member states, both Mexico and the United States have committed to protecting the child according to the provisions outlined in the OPSC. In actions that reflect a contradiction to treaty obligations, Ms. Bachelet addressed “children sleeping on the floor, inadequate health care, food, and poor sanitation conditions” (US News 2019). At the border, news broadcast showed children sleeping in tents, poorly clothed, and dwelling at the border in unsanitary conditions. Current reports do not authenticate trafficking and exploitation recorded at the United States and Mexico border. Under the current conditions, it is challenging not to conclude the high likelihood that there are unreported or unrecorded incidents of abuse, violence, trafficking, and exploitation resulting from historical references of other forced migration and disaster related issues of the region (Adler 1991; UNHCR Evaluation and Policy Analysis Unit 2002; UN Office for Disaster Relief reduction - UNISDR 2012). At the United States and Mexico border, there was no record of trafficking and exploitation recorded. There were Mexico’s violations for likely breaches of Article 3, best interest; Article 4, general obligations; Article 10, family reunification; Article 22, asylum-seeking and refugee children; Article 24, right to health. Though the USA is not a member-state of the CRC, interpretation of customary international law provisions provides that those treaties still bound a state party that has not signed a specific convention under customary international law (Henckaerts and Beck 2005; ICRC 2019). Looking to State Responsibility Articles, Article 2, the case before the ISID Convention, Tulip Real Estate and Development Netherlands BV v the Republic of Turkey, the arbitral tribunal concluded a case that codified customary international law (ICSID, Case No. ARB/11/28, 30 December 2015, para 183).

4 Challenges Unaccompanied Youth Face 4.1

The Legal Empowerment Challenge

This chapter envisages that the unaccompanied asylum-seeking youth’s most substantive challenge is the lack of legal empowerment. Legal empowerment is a compelling legal rights tool to access justice. Conceptually, within the context of this chapter, legal empowerment is opined to be captured within the embedded laws of the Universal Declaration of Human Rights (UDHR), Article 16 of the 1951 Refugee Convention. The Refugee Convention provides free access to courts in the

64

T. Herring

contracting states for all refugees, and the focused treaties of this chapter provide access to justice in geographies where States are not member states to the Refugee or Stateless Conventions: Convention on the Rights of the Child (CRC), the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC),53 and the Palermo Trafficking Protocol, supplemented by the United Nations Convention against Transnational Organized (UNTOC) exercising the fullest extent of the articles contained in the supplement and protocols.54 The term legal empowerment is conceptually grounded in the principles of Public Legal Education (PLE) where Sarah Morse defined the term as, an umbrella term we have adopted to cover the many activities carried out worldwide aimed at educating members of the public in relation to legal rights and responsibilities. . .(2017 p. 13)

People engaging in social justice and legal education issues refer to legal empowerment through several descriptors: street law, community legal education (CLE), legal literacy, and legal capability, among others (Isoyama 2019). Expanded upon within the chapter’s argument, the concept has an essential role in public legal education. On the international platform, the term legal empowerment is applied within a multitude of contexts in literature. However, this study adopts the United Nations’ 2009 Commission on Legal Empowerment of the Poor’s (CLEP) authoritative definition of legal empowerment as, The use of legal rights, services, systems, and reform, by and for the disadvantaged populations and often in combination with other activities, to directly alleviate their poverty, improve their influence on government actions and services, or otherwise increase their freedom.

4.2

Embedded Legal Empowerment

The UDHR, Article 10, affords equal opportunity to a fair and public hearing before an autonomous and unbiased court in determining his or her “rights and obligations,” which is afforded to all humans. Under review in this chapter, the States, except for

53

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, adopted and opened for signature, ratification and accession by ‘; General assembly resolution A/RES/54/263 of 25 May 2000, entered into force on 18 January 2002. 54 UN General Assembly, United Nations Convention against Transnational Organized Crime: resolution/adopted by the General Assembly, 8 January 2001, A/RES/55/25, Adopted without vote, 62nd plenary meeting; Issued in GAOR, 55th sess., Suppl. no. 49. “Annex I: United Nations Convention against Transnational Organized Crime”: p. 4–31. “Annex II: Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime”: p. 31–39. “Annex III: Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime”: p. 40–51.

International State Responsibility Obligations to Protect and Provide. . .

65

the United States of America, have all ratified the CRC, OPSC, and the Palermo Trafficking Protocol, supplemented by the UNTOC. Yet, children, who are forcibly displaced, and unaccompanied asylum-seeking lack legal empowerment55 in societies likened to Social Conflict Theory constructs and have an increased vulnerability to being victimized through trafficking and multiple forms of exploitation.

4.3

The CRC and the OPSC

The legal status of the CRC, in national legal systems, is mixed. For almost 30 years, the CRC has been the canonical statement of children’s rights. However, the CRC is not often used as the enforceable legal instrument that it is with the capacity to serve as a child’s legal empowerment conduit for accessing justice. The CRC serves in court as an authority, independently, in conjunction with other relevant law, and as an interpretive guide. This study’s analysis of the CRC emphasizes the instruments use in all three dimensions. The Child Rights International Network (CRIN) database of case law, since its 2009 inception and through the end of the study in 2016, has captured over 354 cases from across the globe and summarized their application with the CRC (CRIN 2020). A review shows that the most cited CRC articles in the CRIN cases are Article 3, the best interest of the child, Article 9, separation from parents, Article 19, protection from all forms of violence, and Article 37, detention and punishment. These four articles provide powerful preventions and protections. The full application of the legal enforcement afforded to children through the CRC remains unused.56

The CLEP defined legal empowerment as “a process of systemic change through which the poor and excluded become able to use the law, the legal system, and legal services to protect and advance their rights and interests as citizens and economic actors.” For the CLEP, legal empowerment has “four pillars”: access to justice and the rule of law, which are “the fundamental and enabling framework”; The Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone, Vol. 1 (New York: UNDP, 2008); “The commission emphasized that legal empowerment is a process that serves two end goals—protection and opportunity: ‘protecting poor people from injustice – such as wrongful eviction, expropriation, extortion, and exploitation—and offering them equal opportunity to access local, national, and international markets’. 56 Research as part of this project found that in only 20 countries have courts cited the CRC sufficiently whether it is to directly enforce one of the rights contained in the Convention or to use its text as interpretive guidance to amount to an established jurisprudence on the Convention. Amongst these 20 countries, the CRC can be directly enforced in 12 either in full (Argentina, Bolivia, Guatemala, Latvia, Luxembourg, Poland) or in part (Belgium, Finland, France, Kenya, Netherlands, United Kingdom, (England and Wales), and eight cite it as an interpretative tool only (Australia, Canada, India, Israel, New Zealand, South Africa, United Kingdom, (Northern Ireland and Scotland), in half of all countries (97), the CRC has been cited in a domestic court, though not frequently enough to establish jurisprudence on the Convention. There is no evidence of the CRC’s citation in about 40 percent of countries (80), reportedly because of a lack of awareness, or of a reluctance to use international law. However, court judgments in certain countries are not available to the public, which limits this research. 55

66

T. Herring

The CRC had an abundance of contributors whose works influenced the final version of the Convention. The treaty’s literature reflects that the legal framework’s background for a ‘child’s best interest didn’t materialize initially in the CRC (Cantwell 1992). Actually, the League of Nations (LON), in 1924, adopted the Geneva Declaration. The LON initiated the need to differentiate the rights and interests of a child from that of an adult.57 However, the 1924 efforts were limited in scope and not widely accepted, despite it specifying the protections that should have been clear for any human. . . the child that is hungry must be fed, the child that is sick must be nursed, the child that is backward must be helped, the delinquent child must be reclaimed, and the orphan and the waif must be sheltered and succored.58

Though well-intentioned, the 1924 Geneva Declaration—LON’s document had several gaps, and the most prominent is that it failed to specify the definition of a ‘child.’ For member states, Article 1, Convention on the Rights of the Child, sets a child as a person under 18 years of age.59 However, the age of majority for decisions related to marriage and a list of other adult decisions varies among States. Hence, this is a gap that many exploiters prey upon with children. Though defined in the current CRC, article 1, a child’s definition in various contexts, such as the juvenile justice system and rituals that embrace child-marriage,60 remains an enormous cultural and economic controversy. States that still allow these practices are not in compliance with Article 24(3) of the CRC, which states that ‘States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of a child.’61 One of the critical factors that the unaccompanied asylum-seeking youth faces is a lack of legal empowerment. Yet, the CRC’s articles’ full weight is seldom utilized by

57 The text of the document, as published by the International Save the Children Union in Geneva on 23 February 1923, is as follows: (1) The child must be given the means requisite for its normal development, both materially and spiritually, (2) The child that is hungry must be fed, the child that is sick must be nursed, the child that is backward must be helped, the delinquent child must be reclaimed, and the orphan and the waif must be sheltered and succoured, (3) The child must be the first to receive relief in times of distress, (4) The child must be put in a position to earn a livelihood, and must be protected against every form of exploitation, (5) The child must be brought up in the consciousness that its talents must be devoted to the service of its fellow men. The text was endorsed by the League of Nations General Assembly on 26 November 1924 as the World Child Welfare Charter and was the first human rights document approved by an inter-governmental institution; It was reaffirmed by the League in 1934. Heads of State and Government pledged to incorporate its principles in domestic legislation. In France, it was ordered to be displayed in every school. 58 The Geneva Declaration of the Rights of the Child adopted by the League of Nations in 1924. 59 CRC, Article 1. 60 According to Article 16(2) of the Convention on the Elimination of All Forms of Discrimination against Women, “the betrothal and the marriage of a child [under the age of 18] shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.” 61 Article 24 (3), UN Convention on the Rights of the Child (1989).

International State Responsibility Obligations to Protect and Provide. . .

67

member States and child advocates. Unknowingly, embedded within the CRC and its Optional Protocol on the Sale of Children are legal empowerment tools. Member states are required to follow the General Comments issued by the CRC.62 The CRC Committee has held in its General Comment 6 that the definition of a refugee in the 1951 Refugee Convention ‘must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children.’63 Since the targeted research states are not all members of the Refugee or Stateless Convention, a non-member status can be a counter-argument. However, the term the migrant has been and continues to be used by the target states to identify asylum-seeking children. Children are mainly considered to be experiencing vulnerabilities in migration. The best interests of the child principle, under Article 3, are set as a baseline in addressing and reducing such vulnerabilities (IOM 2018). On this point, the CRC Committee has expressed that unaccompanied children are found to be in heightened need of protection, such as being given free access. Contained in CRC, Article 32, are the general obligations for protecting children from economic exploitation that comprises a four-tier approach inclusive of ‘legislative, administrative, social, and educational measure.’64 The United Nations Secretariat’s detailed definition of sexual abuse, used in conjunction with the Luxembourg Guidelines, has addressed semantics that has served as barriers to conviction and access to other protection measures for victims. Articles 8 and 9 of the Optional Protocol on the Sale of Children (OPSC) augment the CRC, specifically Articles 32 and 34–36. Legal empowerment and access to justice are prominent in the OPSC, as Article 8(1)(a) focuses on the vulnerable child and has a ‘shall’ obligation for State parties to adopt measures and mechanisms to recognize their particular needs, including their unique needs as witnesses in legal proceedings. The OPSC further obliges each state party, under Article 11, Nothing in the present Protocol shall affect any provisions that are more conducive to the realization of the rights of the child, and that may be contained in (a) The law of a State party and (b) International law in force for that State. . .

The OPSC also coincides with the Palermo Trafficking Protocol’s Article 6, 7, and 8, as noted below in the following section.

62 CRC Committee; The CRC Committee elaborates its general comments with a view to clarifying the normative contents of specific rights provided for under the Convention on the Rights of the Child or particular themes of relevance to the Convention, as well as offer guidance about practical measures of implementation. General comments provide interpretation and analysis of specific articles of the CRC or deal with thematic issues related to the rights of the child. General comments constitute an authoritative interpretation as to what is expected of States parties as they implement the obligations contained in the CRC. 63 CRC Committee, General comment 6: Treatment of Unaccompanied and Separated Children Outside their Country of origin para. 74. 64 CRC, Article 32.

68

T. Herring

Palermo Trafficking Protocol Article 9(4) of The Trafficking in Persons Protocol mandates States Parties to take action to alleviate the underlying causative factors of trafficking: specifically, to take or strengthen measures . . . to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity; vulnerability to trafficking is certainly not fixed, predetermined or even fully “known.65

An assortment of circumstances forms the context within which human trafficking takes place and the individual’s capacity to respond. The international guidance implies vulnerability should be addressed with a situation-specific analysis.66 When courts attempt to interpret treaty rules or their domestic rule counterpart, courts usually rely to some degree upon the international canon of codified rules of Article 31 and 32 of the Vienna Convention on the Laws of Treaties.67 This practice may not be the most prudent due to gaps in the domestic implementation of international treaties. According to the Palermo Trafficking Protocol, para 3(a), ‘a position of vulnerability’ (APOV) as a criterion for meeting the trafficking in persons’ definition. Notwithstanding the absence of an established definition, the term ‘vulnerability’ is commonly exercised across a range of disciplines, inclusive of criminal justice, human security, environmental science, and health. Within the framework of trafficking, ‘vulnerability’ is commonly referenced to apply factors that enhance individuals’ likelihood or specific marginalized groups to being trafficked. In the scope of the displaced, stateless, refugee, and non-refugee children, it would be their forced migration and situations of detention camps. These factors inherently consist of human rights violations such as ‘poverty, inequality, discrimination and genderbased violence’68 — all of which are ongoing components that further promote social conditions, economic deprivations, and constrained individual choices that create avenues for traffickers and exploitation perpetrators. An unaccompanied child is highly vulnerable to trafficking and exploitation. The States’ responsibility is to exercise due-regard to the CRC and the protections afforded to all children regardless of discriminatory practices derived from race, gender, ethnicity, religion, and citizenship.

65

Palermo Trafficking Protocol, Article 9(4). OHCR (2010). 67 VCLT, Article 31 addresses the VCLT’s general rules of treaty interpretation: ‘1. a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. 68 United Nations Global Plan of Action to Combat Trafficking in Persons. UN Doc. A/RES/64/293 (12 August 2010), preambular para 3; UNCRC, General comment 13, right of the child to freedom from all forms of violence (2011). 66

International State Responsibility Obligations to Protect and Provide. . .

4.4

69

ASEAN and Forced Migration

A significant factor and ever-present challenge that faces the unaccompanied asylum-seeking child are the realities of forced migration. When looking at the unaccompanied asylum-seeking child’s situation in the regional focus of this chapter, a coercion linkage can be established to a ‘position of vulnerability’.69 Many others are forced to leave their country of origin (Jones 2010). Poverty and development projects initiated and imposed by the government, lead to unrest especially in regional and historical indigenous land/territory disputes. Ongoing civil unrest has resulted in the ASEAN States mass multidirectional exodus of the Rohingya, Central America’s pilgrimage thru Mexico to the United States borders, and the ever-present sea voyages to Europe from Africa and Asia consisting of a host of desperate and vulnerable people losing their lives at sea. The accompanying parallel forced migration has created situations impossible to ignore or diminish in magnitude. Official government reports suggest that the migratory categories are blurred with refugees looking for relief from anyone, including traffickers and smugglers, who, in turn, may at some point been refugees themselves (IOM 2008). Similar to their parents and other adults caught in the migratory flows, a child is also an irregular migrant worker, and contingent upon their dilemma, the child may meet the international definition of a stateless refugee, accompanied or unaccompanied by a parent or legal guardian (IOM 2008). As a result of the unstable and vulnerable situation, much research supports the premise that the child has a high likelihood of being trafficked (UN-ACT 2017).

5 Relevance of a Clinical Sociological Approach 5.1

The Sociological Approach

As a branch of sociology, Social Conflict Theory occupies a vital position in social science. This chapter accentuates that international criminal and human rights law within the social science spectrum. The shaping of Conflict Theory began around the late 50s. From the first annual meeting in the 70s of the American Sociological Association, Social Conflict Theory seized a prominent position. Since its conception, Social Conflict Theory has been on a continuum into the twentieth century with classical sociologist theories from Karl Marx, Max Weber, and Georg Simmel (Ma 2008). Conflict Theory was identified for this research as it emphasizes the conflicts of social life to ‘explain’ social change and its impact upon the rule of lawfor. Max Weber’s definition of sociology as a subject of science identifies it as. . .

69 CRC, General Comment 14 adds further clarity to member States as it explains that a child in a specific situation of vulnerability.

70

T. Herring the aim of which is to have an interpretive understanding of social actions and given a reasonable explanation of social actions processes and outcomes’ aligns with the study’s scope, aim, and objectives (Ma 2008; Weber 1947).

The theory is widely applied in dominant structural functionalism by representatives of the Conflict Theory School. The prominent theorists primarily consist of British sociologist J Raikes, German sociologist Ralf Dahrendorf, American sociologists L Collins and Lewis Coser (Coser 1964; Dahrendorf 2007). Each sociologist has a unique perspective but possesses differentiations that distinguish their purview of the theory. For example, Dahrendorf avers that an unequal distribution of authority and power within a social organization creates divided, opposite quasi-groups based upon a social structure of: ‘the ruler and the ruled,’ or commonly referred to as the ‘have, and the have nots’ (Dahrendorf 2007). Along the same plateau, Raikes’ conflict theory emphasizes that the distribution of material by the dominant force constructs social models and allows for compulsory powers to force integration of resources for their interests to form a collective actor (Collins 1974). However, a slight variation in social conflict theory sets Collins apart. Collins’ postures social conflict as the nucleus process of social life with actors creating and re-creating (Bartos and Wehr 2002; Collins 1990). Coser’s model points out a good and bad role of conflict while expressing disapproval of structural functionalism (Collins 1990).

5.2

Case Study Societal Constructs

There is a divergence in conflict theory across the sphere of macro-sociological. This study focuses only on the concept of conflict theory by Dahrendorf, as his principles more closely fit the norms from the quasi-group organizational structures of the region. Dahrendorf’s conflict theory speaks to how the case study regions have devoted themselves to group conflicts as a collective actor. The asylum-seeking child, and similarly-situated children, are the outcast and the ruled (Demmers 2012). Examples can be drawn from Myanmar of the following quoted remark from State Counsellor Aung Suu Kyi in 2012, Rape is used in my country as a weapon against those who only want to live in peace, who only want to assert their basic human rights. It is used as a weapon by armed forces to intimidate the ethnic nationalities and to divide our country (Just Security 2020).

Similar comments have been made by the UN Special Rapporteur Paulo Sergio Pinheiro on the situation, the failure to investigate, prosecute, and punish those responsible for rape and sexual violence has contributed to an environment conducive to the perpetuation of violence against women and girls in Myanmar. Sexual violence in Myanmar has been mentioned in every report the UN Secretary-General has written on conflict-related sexual violence. Women’s civil society groups, such as the Women’s League of Burma, have been tirelessly documenting and reporting military-orchestrated rape campaigns for years (UN Special Rapporteur 2007)

International State Responsibility Obligations to Protect and Provide. . .

71

Though the above comments are focused on Myanmar, historically, many mainland Southeast Asia conflicts appear to mirror those in Myanmar to varying degrees. Southeast Asia has been embroiled in some war and conflict fashion that has engulfed South Vietnam, Cambodia, and Laos for many years (Evers 1973, 1980). Sociologists’ research has laid the basis for ongoing conflict and tension from and by members of the different segments (Evers and Chen 1978). The segments are defined in terms of religion, language, ways of life, and position in the economy, where the ruler and the ruled ‘meet only in the market-place, in buying and selling’ (King 1994). Most significantly, Furnivall notes that ‘the conflict between rival economic interests tends to be exacerbated by racial diversity’ (Furnivall 1948). However, Furnivall’s writings have drawn attention to the vital principle of ethnic identity and differences in Southeast Asia’s social communities and similar situated geographies. Yet, one of the most consistent criticisms of Furnivall is that he has a too simple view of the relationship between ethnic and economic divisions in regions. Though Furnivall’s works may use a broad-brush stroke on racial and economic tensions, his views continue to come under scrutiny despite realization of the theories across the globe. Meanwhile, the philosophy appears to be validated by Dahrendorf’s concepts of Social Concept Theory. A research conclusion can be drawn that Dahrendorf’s Social Conflict Theory looks like what has and continues to occur in the targeted regions noted in this chapter and similar situated geographic areas. The author’s opinions can also be surmised to suggest that conflict behaviors are directed toward indigenous groups, who possess the physical features and cultural history. The people baring the physical features and culture are being required to submit to a redistribution of authority by organizations that have devoted themselves to group conflicts (Dahrendorf 2007; Simmel 1971). Dahrendorf (2007) also points out that society means, ruling means inequality, while inequality brings conflict, and conflict constitutes a source of social progress and digression. . . including the survival chance for the majority people.

Multiple journals, news articles, and press releases are littered with similar comments and opinions that convey that human rights gaps have a discriminatory basis. A common thread amongst the targeted regions of this chapter indicate that where anytime violence against a group is deemed necessary by a government, the reasons are couched in justifications that are likely marred in discrimination and oppression (Jia et al. 2011). As a result, the study presents evidence that a child is rendered what the Children’s Rights Committee describes as ‘children in vulnerable situations’ or ‘children prone to marginalization’ in the targeted research states of this chapter (Sandberg 2015).

72

T. Herring

5.3

Clinical Sociological Approach and Forced Migration

To gain a better understanding of forced migration and displacement, and what prompts the unaccompanied asylum-seeking child to flee, the Hague Process on Refugees and Migration Foundation Handbook (2019) explains the term ‘forced migration’ explains, in detail, the salient elements of the Rohingya... [f]orced migration can be conflict-induced, caused by persecution, torture, or other human rights violations, poverty, natural or manmade disasters (non-exhaustive listing). As repeatedly stated by UNHCR, the distinction between voluntary and forced migration continues to be of relevance. It still constitutes an essential element in the distinction of asylum and immigration policy and the persons they respectively concern. Migration as a general phenomenon relates to a variety of situations engaging forced and voluntary decisions. Elements of choice and coercion can be overlapping, but in the case of refugees and other displaced70 persons, compelling factors are decisive. . .

Key components of the forced migration definition, such as conflict-induced migration, coercion, and ‘persons they respectively concern’ are indicators of Dahrendorfs’ Social Conflict Theory’s presence. The escalation of violence refers to what Dahrendorf outlines as ‘conflict intensity.’ In contrast, the cost of conflict can be quantified in loss of life, economies, and infrastructure within the power struggle of the have and have nots (Coser 1964). People escaping from fighting, persecution, armed conflicts (and religious conflicts) are social conflict indicators. However, the intensity and high degree of violence in the targeted countries of regions of this chapter exemplify the Social Conflict Theory in action. The chapter’s case study border regions are each migration hot spot. This sociolegal chapter postures a hypothesis that the research States align with Dahrendorf’s fostered belief that Social Conflict Theory exists when there is an unequal distribution of authority and power within a social organization and its propensity directed violence exists against the vulnerable (Dahrendorf 2007). Dahrendorf further opines that the result is a division of two opposite quasi-groups in social structure: ‘the ruler and the ruled’ (Wilson 2011). Conflict theorists do not see societies’ social and economic factors with conflict constructs as positive; instead, these behaviors are viewed as the causes of crime and deviance (Agger 1991). As a Social Learning Criminal Theorist, Agger (1991) argues that criminal acts are associated with social settings where there are both social and non-social reinforcements. For example, the United Nations Human Rights Chief, Michelle Bachelet, has condemned the United States declarations of all undocumented border crossings as criminals, where migrant adults and families are jailed, separated, and housed in cages likened to dog kennels (NY Times 2019). 70 ‘Forced displacement, following the Asian Tsunami of December 26, 2004 and the tragedies of Haiti, many stories of child trafficking were reported. The Thailand Tsunami made an estimated 35,000 children lost one of their parents, thus vulnerable to trafficking’. ‘Even prior to Tsunami, the Southeast Asian region, and the so-called Mekong Delta was known as a hotbed of human trafficking. Indo-China grabbed the media attention as a source of trafficked women and children for not only neighboring countries but also as far as Europe and North America’.

International State Responsibility Obligations to Protect and Provide. . .

73

Similarly, across regions and the case study borders examined, undocumented migrants, including unaccompanied asylum-seeking children, are viewed, and treated as criminals to be caged and subjected to inhumane conditions. Societal fears and predispositions appear to align with Agger’s (1991) and Rössel’s (2017) writings on Dahrendorf’s Social Conflict Theory. The phenomena of power and coercion are prominent against vulnerable groups with behaviors entrenched in discrimination and conflict. An underlying message communicated among Dahrendorf’s Social Conflict Theory societies is that all undocumented migrants, including children, are thieves and harsh criminals who will harm citizens. They all should be treated with contempt. The chapter’s overall context avers that the theory describes recent and longstanding scenarios in the designated regions where anytime violence against a group is deemed necessary by a government, the reasons are couched in justifications that are likely marred in economic and discriminatory oppression (Dahrendorf 2007). As such, advocates must become acutely aware of the sociological context in which they work and strive for unaccompanied asylum-seeking children’s protections. An illustrative comparison can be made to a situation when a physician makes a medical diagnosis and treatment that correlates to a patient’s environment. For example, in malaria-prone areas, patients are administered medicinal therapies and mosquito nets to compensate for environmental hazards. In social conflict areas, where the ruled, or marginalized populations, are subjected to persecution, the study proffers the legal framework for prevention, and protection should be aligned with the geographical area’s sociological environment to compensate for the environmental hazards. Knowing and recognizing the sociological environment and what legal frameworks will and will not work must identify and promote the appropriate legal protections.

6 Relevance of the CRC 6.1

The CRC and the Committee on the Rights of the Child General Comments

Countries that ratify the CRC are bound to international law—Article 1(b) Vienna Convention on the Law of Treaties (VCLT). Therefore, the Child (CRC Committee) Rights has established a series of General Comments to serve as the authoritative guide on implementation to member States.71 The committee monitors member States periodically through a report to the Third Committee of the United Nations

71

General comments provide interpretation and analysis of specific articles of the CRC or deal with thematic issues related to the rights of the child. General comments constitute an authoritative interpretation as to what is expected of States parties as they implement the obligations contained in the CRC.

74

T. Herring

General Assembly that is accompanied by a statement from the CRC and a Resolution on the Rights of the Child. The CRC is coupled with three protocols, only one of which is examined in this research. On 25 May 2000, the two initial optional protocols were adopted. The First Optional Protocol restricts the involvement of children in military conflicts.72 The Second Optional Protocol prohibits the sale of children, child prostitution, and child pornography.73 The Third Optional Protocol relating to Communication of complaints adopted in December 2011 with a signature opening on 28 February 2012 and the effective date of 14 April 2014.74 Of the three, the Optional Protocol on the sale of children, child prostitution, and child pornography (OPSC) is included in this chapter. It has been ratified by each of the states, including the United States of America. The OPSC has an integral role in protecting unaccompanied asylumseeking children in the focused regions. Though the United States of America has not ratified the CRC, many of its federal laws align with many of the CRC provisions, specifically the best interest of the child principles. A child’s vulnerability in his or her sociological context emerges as the missing link in formulating well-developed global practices and policies. An unaccompanied asylum-seeking child aligns with multiple categories of vulnerability. The CRC Committee views discrimination as a vital component of vulnerability,75 where Article 1, 2, 3, and 19 were substantive issues for the prohibition of discrimination—best interests of the child, protection of the child against all forms of violence, or ill-treatment in a situation where a child would face an alleged risk of being subjected to female genital mutilation (FGM). The CRIN illustrates examples of such cases that have been brought before the courts—IAM (on behalf of KYM) v Denmark.76 Unlike the Palermo Trafficking Protocol, the Convention on the Rights of the Child Committee refers to a long list of children in ‘vulnerable situations’ versus language that negatively labels children.77

72 UN General Assembly, Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000, adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000. 73 UN General Assembly, Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 16 March 2001, A/RES/54/263, adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000. 74 UN Human Rights Council, Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure: resolution/adopted by the Human Rights Council, 14 July 2011, A/HRC/RES/17/18, without a vote. 75 CRC Committee, GC 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art 24) (17 April 2013) CRC/C/GC/15 para 8. 76 I.A.M. (on behalf of K.Y.M.) v Denmark, communication No. 3/2016, CRC/C/77/D/3/2016, UN Committee on the Rights of the Child (CRC), 25 January 2018; deportation of girl to Somalia, where she would face an alleged risk of being forced to endure FGM. 77 CRC Committee, GC 13 (2011): The right of the child to freedom from all forms of violence (18 April 2011) CRC/C/GC/13 para 53.

International State Responsibility Obligations to Protect and Provide. . .

75

To guide states, the Convention on the Rights of the Child (CRC) Committee identifies unaccompanied children have a heightened vulnerability and a dire need for protection. General Comment (GC) 6 sets out the CRC Committee’s obligation to States to provide an adequate living standard, including material assistance for nutrition, clothing, and housing. Correspondingly, CRC Committee, GC 19 (2016), sets out public budgeting for the realization of children’s rights (Article 4).78 The CRC Committee refers to the Global Compact for Safe, Orderly and Regular Migration and the obligation of States to provide a host of services to include referrals and care and family reunification (para 23.f) (UN General Assembly 2018): . . . Health care, services, including mental health, education, legal assistance, and the right to be heard in administrative and judicial proceedings, including by swiftly appointing a competent and impartial legal guardian, as essential means to address their particular vulnerabilities and discrimination, protect them from all forms of violence, and provide access to sustainable solutions that are in their best interests.

Codified in Article 3, the Convention on the Rights of the Child, and the best interest principle has a vital role in decisions involving the admission or removal of a child from a host State.79 In detail, Article 3 examines the extent to which the best interest principle also serves as an independent source of international protection. General Comment 14 adds further clarity to member States as it explains that a child in a specific situation of vulnerability may not be parallel to the same as a child, who may not be in the same vulnerable situation—“each child is unique and each situation must be assessed according to the child’s uniqueness.”80 The Convention also identifies particular groups/subgroups of children as vulnerable for States’ purposes to identify and implement special measures for these groups (Sandberg 2015). Article 22 of the CRC identifies asylum-seeking and refugee children and children in armed conflict, Article 38; similarly, in cases of children with disabilities, Article 23 as vulnerable groups. In direct relation to the detention and protection against trafficking of unaccompanied asylum-seeking children. The Children’s Rights Convention has prompted states to consider the development of strategic policies to protect children and prevent trafficking while simultaneously having the

78 CRC Committee, GC 10 (2016) on public budgeting for the realization of children’s rights (art 4) (20 July 2016) CRC/C/GC/19 para 42. 79 Article 3 provides: ‘(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration; (2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures; (3) States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.’ 80 UNCRC, General Comment No 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (art 3, para 1), 62nd session, UN Doc CRC/C/GC/14 (2013) (‘General Comment No 14’) [76].

76

T. Herring

capacity to address the real-world scenarios that perpetrators use to victimize vulnerable populations in their contexts.

6.2

Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography (OPSC)

In 1999, at Vienna, the International Conference on Combatting Child Pornography on the internet further prompted worldwide criminalization efforts that focused on the ‘production, distribution, exportation, transmission, importation, intentional possession, and the advertising of child pornography.’ The OPSC is a vital component of the proffered legal framework for this chapter. It provides specificity for the terms that are so frequently confused when an unaccompanied asylum-seeking child is trafficked and exploited. Without the execution of the OPSC, many cases fail due to gaps in the interpretation of exploitation, the application of the term sexual assault versus charges of rape, the translation of child abuse across cultural and geographic regions, and the varying types of child abuse. The OPSC further obliges each state party, under Article 11, ‘Nothing in the present Protocol shall affect any provisions that are more conducive to the realization of the rights of the child, and that may be contained in (a) The law of a State party and (b) International law in force for that State’; and the Palermo Trafficking Protocol’s Article 6, 7, and 8. Equally important, the OPSC links with the Palermo Protocol as the terms trafficking in children and child abduction were not defined by the CRC or subsequent treaties. However, the OPSC, Article 31(a)(i)b adds clarity to many trafficking elements, such as the trafficking of human beings for their organs. The term ‘sale of children’ has been defined in Article 2(a) of the OPSC as ‘any act or transaction whereby any person or group of persons transfers a child to another for remuneration or any other consideration.’ OPSC Article 3 includes all the transactions’ elements, indicating that delivery or accepting the transaction is criminally covered. Article 35 of the CRC and the OPSC makes it clear that states are obliged to recognize that ‘the sale of and trafficking in children are two distinct but linked human rights violations,’ refer to Case of Ramfrez Escobar and Others v Guatemala (Merits, Reparations, and Costs).81 Research by David Smolin focuses on the definition of trafficking under international law and criticizes the narrow perspective. Smolin avers that the international definition is too easily interpreted as a ‘quid pro quo’ transaction that hinders international adoptions, where adoption is not considered harming a child (Smolin 2004). Subsequently, the annex to the initial reporting guidelines of the OPSC defined trafficking of children in line with Article 3 of the UN Convention Against

81 Case of Ramfrez Escobar and Others v Guatemala (Inter-American Court of Human Rights (IACtHR)) 2018, para 313 (translated from Spanish to English).

International State Responsibility Obligations to Protect and Provide. . .

77

Transnational Organized Crime.82 The OPSC supports CRC’s Articles 1, 11, 21, 32, 33, 34, 35, and 36.83 The OPSC also extends the measures that member-States undertake to protect the child from sale, prostitution, and pornography. Grave concerns for the international trafficking of children in the various forms of exploitation prompted the OPSC. OPSC is integrated as a supporting element of several CRC articles with specific caveats that place an additional obligation upon State parties. Captured within the OPSC is the States’ responsibility for: related offences, OPSC.09; terminology application, OPSC.04, and OPSC.06; child prostitution OPSC.04; safeguarding clauses, OPSC.17; ‘sale’ of children terminology, OPSC.04 and OPSC.05; state responsibilities generally criminalization/penalization duties, OPSC.07 and OPSC.09; international cooperation duties OPSC.10 and OPSC.14; the prevention duties OPSC.16; and, the protection of victims, OPSC.15 and OPSC.16.84

Other examples can be found in how the OPSC details in Article 4.2 for State Parties to form their extraterritorial criminal jurisdiction over enumerated offences by expanding the duty-bearer sider of children’s rights. The outcome is that the provision allows States to make it a crime for their nationals to carry-out sexual offences of a child abroad. Another significant example of the OPSC complimenting the CRC is contained within the Luxembourg Guidelines.85 The guidelines speak to the CRC’s Article 34, where clarity distinguishes between sexual exploitation and sexual abuse of a child. For the prosecution of a case, the definitional application of the terms is critical. On 28 January 2016, the Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse were adopted by the Interagency Working Group on the Sexual Exploitation of Children. . . more commonly known as the Luxembourg Guidelines.86 The Luxembourg Guidelines address the semantics of phrases and words used within the context of the offense covered under the CRC Articles 34–36 and the OPSC. The guidelines, conjunctively with the OPSC, are implementation tools for member-States. The contents of the guidelines reiterate that ‘words matter,’ and it is critical to avoid confusion around the different terminology applicable to the sexual exploitation of children and sexual crimes against children (Luxembourg Guidelines 2016).

82

Committee on the Rights of the Child (CRC Committee), Revised Guidelines Regarding Initial Reports to be Submitted by States Parties Under Article 12, para 1, Of The Optional Protocol on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (3 November 2006), Annex. 83 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, requires parties to prohibit the sale of children, child prostitution and child pornography; it entered into force on 18 January 2002. 84 OPSC. 85 Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse adopted by the Interagency Working Group in Luxembourg, 28 January 2016. 86 Ibid.

78

T. Herring

Despite the global ratification of the UNCRC, there are still many gaps in compliance with in-force treaty positive obligations. The positive in-force treaty obligation of the Convention on the Rights of the Child and its Optional Protocol for the sale of children (OPC), Article 4, CRC promulgates the general obligation that encumbers member-States to take all appropriate measures, to include legislative, administrative, and others to implement the Convention. Article 46 of the CRC clarifies that the CRC is a treaty between the states. In contrast, Article 1 (b) of the Vienna Convention defines ratification and accession as ‘the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty’ (Vienna Convention on the Law of Treaties, Articles 11–17). Hence, States are obliged to comply with their respective treaty obligations. Collectively, the CRC and the OPSC has significant relevance to the unaccompanied asylum-seeking child and the proffered legal framework of this chapter.

7 Summary/Recommendations A fundamental underlining principle of Ralph Dahrendorf is that the task of sociology is to derive conflicts from specific social structures and not to consign these conflicts to descriptive or psychological variables (Dahrendorf 2007). In the sense of rigorous sociological analysis, conflicts can be considered explained if they can be shown to arise from the structure of social positions that are independent of the orientation of the population, whether it be a wealthy or poor society. The chapter is steadfast in identifying advocates and sociology practitioners that protecting an unaccompanied asylum-seeking child is an obligation of the State. The CRC and the Optional Protocols are the nuclei to children’s rights law and the global codification for an unaccompanied asylum-seeking child (Vandenhole 2017). Counting all the 196 States recognized by the United Nations, the United States of America stands as the lone exclusion of the CRC. As the most relevant and universally foundational document outlining the tenets of children’s rights law, this chapter has urged the application of the codified ILC State Responsibility Articles as a means to identify a breach of treaty obligations and address the breach in order to protect ‘all’ children through all forms of migrations. The narratives shared within this chapter are interspersed throughout the chapter to humanize and spring forward the impact of the legal theories and social work practices across borders. Emphasis is placed on the role of the International Court of Justice to accept legal disputes between States, or more commonly referred to as contentious cases, and requests for advisory opinions on the legal questions that have been directed to it by a UN organ and specialized agencies; or,

International State Responsibility Obligations to Protect and Provide. . .

79

commonly referred to as advisory proceedings as the modality to address State Responsibility.87 The chapter suggests that an alignment of a geographical area’s sociological, environmental aspect holds equal weight with establishing a legal framework. In essence, the region’s sociological makeup would support a legal framework where the decision-makers, or the ruled, were ‘required’ or mandated to abide.88 If not, the chapter opines that self-directed compliance would not occur, and past actions validate this point. This chapter also establishes a platform of legal framework collaboration between the disciplines of sociology and the law. The interpretation of customary international law provisions provides that those treaties still bind a state party that has not signed a specific convention under customary international law (ICRC Database 2020). In The Factory at Chorzow, Merits’89 case dictum illustrates that the articles are structured upon the existence and content of the primary rules of international law. The case provides the framework for determining whether each State’s obligations have been breached and the legal consequences for other States. Among other facts in the Factory at Chorzow case, para 62 reinforces States obligations to treaties and the ICJ’s jurisdictions, Such an argument seems hardly reconcilable with the fundamental principles of the Court’s jurisdiction, which is limited to cases specially provided for in treaties and conventions in force.90

To establish the wrongful act, it must be brought in connection with the obligation’s undertaking. An international actor ‘a priori’ or omission presents more defining challenges. Still, the term omission lends itself to an unfilled obligation ‘to act’ and is referenced as a ‘wrongful omission.’ In contrast, the word ‘omission,’ according to Article 2, ‘the word “act” covers both acts and omissions.’91 As the Articles on the Responsibility of International Organizations reflects in Chap. III, Breach of an International Obligation, Article 13, stipulates that ‘an act of a state does not constitute a breach of an international obligation unless the

87 United Nations, Statute of the International Court of Justice, 18 April 1946; Set up in 1945 under the Charter of the United Nations to be the principal judicial organ of the Organization, and its basic instrument, the Statute of the Court, forms an integral part of the Charter (Chap. XIV). By signing the Charter, a Member State of the United Nations undertakes to comply with the decision of the Court in any case to which it is a party. Since, furthermore, a case can only be submitted to the Court and decided by it if the parties have in one way or another consented to its jurisdiction over the case, it is rare for a decision not to be implemented. A State which considers that the other side has failed to perform the obligations incumbent upon it under a judgment rendered by the Court may bring the matter before the Security Council, which is empowered to recommend or decide upon measures to be taken to give effect to the judgment. 88 Other important cases under Article 4 are Rantsev v. Cyprus and Russia, Application no. 25965/ 04, Judgment 7 January 2010, margin no. 282; C N v United Kingdom App no 4239/08, Judgment 13 November 2012; C N and V v France App no 67724/09, Judgment 11 October 2012. 89 Ibid, 4, 29. 90 Ibid, para 62. 91 ILC, ARSIWA, Article 2.

80

T. Herring

obligation bounds the state in question at the time the act occurs.’92 The same is valid, mutatis mutandis, for other sources of international obligations, such as customary international law (Henckaerts and Beck 2005).93 International law controls states94 as primary actors with the capacity to harm internationally. International law governs States as primary actors with the capacity to harm internationally. The situations in Myanmar, Bangladesh, the ASEAN States, Australia, and the Oceania region, the Republic of Côte d’Ivoire—the Ivory Coast, and the USA border with Mexico may have been a plurality in this chapter. Still, there are so many other areas across the globe using plebiscites to mistreat unaccompanied-asylum-seeking persons. To effectively address the unaccompanied asylum-seeking child’s protection, the advocate and sociology practitioner must build and sustain a bridge between the law and sociology.

References Abramson, B. (2017). Article 2: Non-discrimination 7 and 66 (A commentary on the United Nations convention on the rights of the child). Martinus Nijhoff Publishers, pp 64–65. Adams, B. N., & Sydie, R. A. (2001). Sociological theory. Thousand Oaks, CA. Adler, N. (1991). International dimensions of organizational behaviour. PWS-KENT Publishing Company. Boston. Agger, B. (1991). Critical theory, poststructuralism, postmodernism: Their sociological relevance. Annual Review of Sociology, https://doi.org/10.1146/annurev.so.17.080191.000541 Ahmed, A. F., & Ahmed, S. (2007). History and heritage: Reflections on society politics and culture of South Asia. The University Press Limited. Ahsan, A., et al. (2014). International migration and development in East Asia and the Pacific. Washington, DC: World Bank. Amnesty International and Human Rights Watch. (2016). Annual report. Retrieved from Amnesty International Annual Report 2015/2016|Amnesty International ASEAN. (2007). Declaration on the protection and promotion of the rights of migrant worker. Accessed February 7, 2019, from http://www.aseansec.org/19264.htm ASEAN Intergovernmental Commission on Human Rights. (2019). Terms of reference. Accessed February 7, 2019, from http://aichr.org/documents/

92

Articles on the Responsibility of International Organizations, with commentaries 2001. The articles are concerned only with the responsibility of States for internationally wrongful conduct, leaving to one side issues of the responsibility of international organizations or of other non-State entities (see articles 57, 58). 94 International Law Commission (ILC) Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) (2001), ILC Yearbook 2001, Vol. II, Part 2. Commentaries, General Commentary, para 1; International law is the set of rules generally regarded and accepted as binding in relations between states and between nations. It serves as a framework for the practice of stable and organized international relations. International law differs from state-based legal systems in that it is primarily applicable to countries rather than to private citizens; Within the latitude of this research the ASEAN Charter has an integral role in the domestic implementation of treaty obligations in the region. As such, discussion of international legal personalities is included in Chap. 4 and weaved in with analysis of the four-state jurisdictions. 93

International State Responsibility Obligations to Protect and Provide. . .

81

Asylum Aid. (2009). Women’s asylum news, June 2009, 24 June 2009, Issue No 84. Accessed July 20, 2019, from https://www.refworld.org/docid/4a42320b2.html Bartos, O. J., & Wehr, P. (2002). Using conflict theory. Cambridge: Cambridge University Press. Bernard, C., & Cupta, A. (2006). Black African children and the child protection system. British Journal of Social Work, 38(3), 476–392. Boyden, J. (1990). Childhood and the policymakers. In J. James & A. Prout (Eds.), Constructing and reconstructing childhood (pp. 184–215). London: Falmer Press. Burchill, J. (2011). Safeguarding vulnerable families: Work with refugees and asylum seekers. The Journal of the Community Practitioners’ & Health Visitors’ Community practitioner: The Journal of the Community Practitioners’ & Health Visitors’ Association, 84(2), 23–26. Byrne, I. (1998). The human rights of street and working children. London: Intermediate Technology Publications. Canada: Immigration and Refugee Board of Canada. (1989). Hungary: Paris Peace Treaty 1947, 30 May 1989. Cantwell, N. (1992). The origins, development and significance of the United Nations convention on the rights of the child. In S. Detrick (Ed.), The United Nations convention on the rights of the child: A guide to the travaux préparatoires (pp. 19–30). Dordrecht: Martinus Nijhoff Publishers. Carr, H., & Goosey, D. (2019). Law for social workers (15th ed.). Oxford: Oxford University Press. Child Labor Cocoa Coordinating Group. (2016). Annual report. Washington, DC. Accessed March 4, 2020, from https://www.dol.gov/sites/default/files/documents/ilab/CLCCG%202016% 20Annual%20Report.pdf Collins, R. (1974). Conflict sociology. London: Academic Press. Collins, R. (1990). Conflict theory and the advance of macro-historical sociology. In G. Ritzer (Ed.), Frontiers of social theory (pp. 68–87). New York: Columbia University Press. Compositive Organized Crime Index (COCI). (2008). Organized crime index. Retrieved from download our database and reports about Criminality in Africa – The Organized Crime Index. ENACT (ocindex.net) Coser, L. (1964). The functions of social conflict: An examination of the concept of social conflict and its use in empirical sociological research. Tampa: Free Press. Coser, L., et al. (1957) Conflict and critical theories. In Theory cumulation and schools of thought (1st ed.). Accessed March 27, 2019, from http://www.corwin.com/upm-data/13636_Chapter7. pdf Côte d’Ivoire. (2009). Migration. In Côte d’Ivoire: 2009 National Profile. ISBN: 978-92-9068-5593. Accessed December 12, 2019, from http://www.iomdakar.org/profiles/content/migrationprofiles-cote-divoire CRIN. (2020). CRIN Court Cases. Accessed January 2019, from https://home.crin.org/site-search Dahrendorf, R. (1958). Toward a theory of social conflict. The Journal of Conflict Resolution, June 1958, 170–183. Accessed January 3, 2020, from http://links.jstor.org/sici?sici¼0022-0027% 28195806%292%3A2%3C170%3ATATOSC%3E2.0.CO%3B2-5 Dahrendorf, R. (2007). The modern social conflict: The politics of liberty (2nd ed.). New Jersey: Transaction Publishers. Demmers, J. (2012). Theories of violent conflict: An introduction. Abingdon: Routledge. Dijk, V. (2008). Measured by the composite organized crime index. COCI, pp 162–167. Evers, H. D. (1973). Modernization in Southeast Asia. Singapore: Institute of Southeast Asian Studies, Oxford University Press. Evers, H. D. (1980). Sociology of Southeast Asia: Readings on social change and development. Kuala Lumpur: Oxford University Press. Evers, H. D., & Chen, P. (Eds.). (1978). Studies in ASEAN sociology: Urban society and social change. Singapore: Chopmen Enterprises. Compositive Organized Crime Index (COCI). (2008). Organized crime index. Retrieved from download our database and reports about Criminality in Africa – The Organized Crime Index. ENACT (ocindex.net)

82

T. Herring

Global March Against Child Labour. (2013). Child Labour in Cocoa Farming in Côte d’Ivoire: Report of the Scoping Mission Conducted by Global March Against Child Labour. New Delhi January–February 2013. http://globalmarch.org/images/CHILD-LABOUR-IN-COCOAFARMING-IN-COTE-D’IVOIRE.pdf; U.S. Accessed 20 December 2019. Global Witness. (2007). Hot chocolate: How Cocoa Fuelled the Conflict in Côte D’ivoire a Report By Global Witness, June 2007. Accessed December 23, 2019, from https://reliefweb.int/sites/ reliefweb.int/files/resources/48050E1867F9D922492572F4000D7B8A-Full_Report.pdf Greenpeace. (2014). Slavery and labour abuse in the fishing sector. Accessed December 19, 2019, from https://www.greenpeace.org/.../2014/Slavery-andLabour-Abuse-in-the-Fishing-Sector.pdf Hague Process on Refugees and Migration. (2008). People on the Move: Handbook of selected terms and concepts. The Hague/Paris: UNESCO Section on International Migration and Multicultural Policies, 29. Accessed January 2, 2019, from http://thp.merit.unu.edu/ migration_policy/ Hastie, B. (2012). By any means necessary: Towards a comprehensive definition of coercion to address forced labour in human trafficking legislation. Order No. MR84192, McGill University, Canada. ProQuest Dissertations and Theses, 101, pp. 7–40. Hayes, D., & Humphries, D. (2004). Social work, immigration and asylum: Debates, dilemmas and ethical issues for social work and social care practice. London: Jessica Kingsley Publishers. Henckaerts, J. M., & Beck, L. D. (2005). Customary International Humanitarian Law. International Committee of the Red Cross Vol I & II. Human Rights Watch. (2012). World report 2012: Burma. Accessed December 1, 2019, from https://www.hrw.org/world-report/2012/country-chapters/burma.pdf Human Rights Watch. (2019). We are not human. Accessed December 21, 2019, from https://www. hrw.org/report/2019/12/03/are-we-not-human/denial-education-rohingya-refugee-childrenbangladesh Human Rights Watch. (2017). World report 2017 (Human Rights Watch). Retrieved from https:// www.hrw.org/sites/default/files/world_report_download/wr2017-web.pdf IASSW (International Association of Social Work). (2018). Global social work statement of ethical principles. Accessed December 3, 2018, from http://www.iassw-aiets.org/wp-content/uploads/ 2018/04/Global-Social-Work-Statement-of-Ethical-Principles-IASSW-27-April-2018-1.pdf ICJ Verbatim Transcript. (12 December 2019). Application of the convention on the prevention and punishment of the crime of genocide (The Gambia v. Myanmar). Accessed February 2, 2020, from https://www.icj-cij.org/files/case-related/178/178-20191212-PRE-01-00-EN.pdf. and https://www.icj-cij.org/en/case/178. Myanmar Rebuts Rohingya claims. Accessed March 24, 2019, from https://www.rfa.org/english/news/myanmar/myanmar-rejects-evidencepresented-in-un-report-on-mass-sexual-violence-against-rohingya-04182018172101.html ICRC. (2016). Restoring Family Link. Accessed March 24, 2019, from https://familylinks.icrc.org/ en/Pages/Forms/DispForm.aspx?ID¼1517 ICRC. (2019). Customary IHL database. Accessed March 24, 2019, from http://www.icrc.org/ customaryihl/eng/docs/home ICRC. (2020). Customary IHL Database. Accessed October 2, 2019, from http://www.icrc.org/ customaryihl/eng/docs/home IFSW (International Federation of Social Workers). (2014). Global Definition of Social Work. Accessed March 24, 2019, from http://www.ifsw.org/what-is-social-work/global-definition-ofsocial-work ILO. (2019). Asia-Pacific migration network, ILO regional office for Asia and the Pacific. Accessed April 11, 2019, from http://apmigration.ilo.org/asean-labour-migration-statistics International Law Commission, Draft Articles on Responsibility of States for International Wrongful Acts. (2001, November). Supplement no 10 (A/56/10), chp.IV.E.1, adopted by the International Law Commission at its fifty-third session (2001).International Law Commission, Draft Articles on Responsibility of States for International Wrongful Acts. (2001, November). Supplement no 10 (A/56/10), chp.IV.E.1, adopted by the International Law Commission at its fifty-third session (2001).

International State Responsibility Obligations to Protect and Provide. . .

83

IOM. (2008). Situation report on international migration in East and Southeast Asia: Regional thematic working group on international migration including human trafficking. Bangkok, p 199. IOM. (2017). UN Migration. UN migration director general warns of increasing reports of violent sexual assaults against Rohingya. Accessed December 2017, from https://www.iom.int/news/ un-migration-director-general-warns-increasing-reports-violent-sexual-assaults-againstrohingya IOM. (2018). Global compact for safe, orderly, and regular migration. A/RES/73/195 20, Resolution adopted by the General Assembly on 19 December 2018 para. 15. Accessed March 22, 2019, from https://www.un.org/en/ga/search/view_doc.asp?symbol¼A/RES/73/195 IOM. (2020, August). Bangladesh, Rohingya humanitarian crisis response. Retrieved from Bangladesh, Rohingya Humanitarian crisis response. International Organization for Migration (iom. int). Isoyama, K. (2019). Law education in Japan, Developments and challenges. International Journal of Public Education, 3:1.96 p 116. Jeremiah, R., et al. (2017). Exposing the culture of silence: Inhibiting factors in the prevention, treatment, and mitigation of sexual abuse in the Eastern Caribbean. Child Abuse & Neglect, 66, 53–63. Jia, G., et al. (2011). A study of mega project from a perspective of social conflict theory 29. International Journal of Project Management 817, 827. https://doi.org/10.1016/j.ijproman. 2011.04.004. Accessed 3 January 2019. Jones, L. (2010). ASEAN’s unchanged melody? The theory and practice of ‘non-interference’. The Pacific Review, 23(4), 479–502. https://doi.org/10.1080/09512748.2010.495996. Accessed 23 April 2019. Just Security. (2020). Behind Myanmar’s military alibi: A path to compliance with the ICJs Order to Protect Rohingya. Reiss Security on Law and Security at New York University School of Law 2020. Accessed Feb 5, 2020, from https://www.justsecurity.org/68393/behind-myanmarsmilitary-alibi-a-path-for-compliance-with-the-icjs-order-to-protect-rohingya/ King, V. (1994). The sociology of South-East Asia: A critical review of some concepts and issues. Brill, 171, 206. Accessed February 2, 2020, from https://www.jstor.org/stable/27864515 King, L., & Grant, K. (2016). Meet the social workers supporting refugees in Calais. Accessed Feb 3, 2020, from http://www.communitycare.co.uk/2016/08/24/meet-social-workers-supportingrefugees-calais Ma, X. F. (2008). Durkheim and Weber: The comparison of sociological research method. The Studies of Sociology, 31(22), 15–18. https://doi.org/10.1146/annurev-soc-060116-053604. Accessed 1 February 2019. Montgomery, H. (2010). Defining child trafficking & child prostitution: The case of Thailand: Understanding human trafficking and its victims. Seattle Journal for Social Justice, 9, 775–812, 787. Morse, S. (2017). I’m so glad that I live in a world where there are Octobers. International Journal on Public Legal Education. https://doi.org/10.19164/ijple.v2i1.704. Accessed 3 February 2018. National Working Group for Sexually Exploited Children and Young People ‘How is Child Sexual Exploitation Defined?’. (2008). Accessed Sept 28, 2017, from http://www.nwgnetwork.org/ who-we-are/what-is-child-sexual-exploitation Nelson, D., Price, E., & Zubrzycki, J. (2017). Critical social work with unaccompanied asylumseeking young people: Restoring hope, agency and meaning for the client and worker. International Social Work. 60(3), 601–613. https://doi.org/10.1177/0020872816637663 New Humanitarian. (2009). Children exchange sex for money. IRIN News, The United Nations Office for the Coordination of Humanitarian Affairs. Accessed December 20, 2019, from https://www.thenewhumanitarian.org New York Times. (9 July 2019). UN Rights head ‘Shocked’ by treatment of migrant children at US Border. Accessed July 15, 2019, from https://www.nytimes.com/2019/07/08/world/americas/ michelle-bachelet-unhcr-migrants-border.html?emc¼rss&partner¼rss

84

T. Herring

New York Times Editorial. (13 January 2005). The Tsunamis and child trafficking. The New York Times (nytimes.com). Accessed 23 July 2019. Newbery, E. (1983). Child abuse: The current theory base and future research needs. Journal of the American Academy of Child Psychiatry, 22(3), 262, 268. Accessed December 31, 2018, from http://www.elinewberger.com/child-abuse-the-current-theory-base-and-future-research-needs OHCR. (2010). Recommended principles and guidelines on Human Rights at International Borders. Retrieved from Recommended Principles and Guidelines on HRIB_Final.indd (ohchr.org) Pinheiro, P. (2007). The United Nations Special Rapporteur on the Situation of Human Rights in Myanmar Urges the Myanmar Authorities to Immediately Release Peaceful Protesters’ UN Special Rapporteur Paulo Sergio Pinheiro. https://newsarchive.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID¼3911. Accessed 4 January 2018. Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, Paulo Sérgio Pinheiro, mandated by resolution S-5/1 adopted by the Human Rights Council at its 5th special session. Accessed January 3, 2020., from https://digitallibrary.un.org/search?f1¼author& as¼1&sf¼title&so¼a&rm¼&m1¼e&p1¼Pinheiro%2C%20Paulo%20Se%CC%81rgio%20de %20M.S.&ln¼en Rössel, J. (2017). Conflict theory. Oxford Bibliographies. https://doi.org/10.1093/obo/ 9780199756384-0035. Accessed 4 January 2018. Royal College of Paediatrics and Child Health. (2000). Guidelines for the ethical conduct of medical research involving children prepared by the ethics advisory committee. Archives of Disease in Childhood, 82, 77–182. Safi, M. (2014). Asylum seeker children on Christmas Island transferred to detention in Darwin. Accessed January 5, 2019, from https://www.theguardian.com/australia-news/2014/dec/21/ asylum-seeker-children-christmas-island-transferred-detention-darwin Sandberg, K. (2015). The convention on the rights of the child and the vulnerability of children. Nordic Journal of International Law, 84, 221, pp 47, 229. https://doi.org/10.1163/1571810708402004. Accessed 21 December 2019. Schwab K (2014) The Global Competitiveness Report 2013-2014. World Economic Forum 2013, 2014 Retrieved from https://www.weforum.org/reports/global-competitiveness-report-20132014 Shawki, N. (2015). Norm-based advocacy and social change: An analysis of advocacy efforts to end child marriage. Social Alternatives, 34(4). Accessed July 1, 2019, from https://www.questia. com/read/1P3-4011056571/norm-based-advocacy-and-social-change-an-analysis Simmel, G. (1971). The problem of sociology. In D. Levine (Ed.), Georg Simmel: On individuality and social forms (pp. 23–27). Chicago: University of Chicago Press. Smolin, D. (2004). Intercountry adoption as child trafficking. Vaparaiso University Law Review, 39, pp 283, 325. Swedberg, R. (2017). Theorizing in sociological research: A new perspective, a new departure? Annual Review of Sociology 189, 206. https://doi.org/10.1146/annurev-soc-060116-053604. Accessed 4 December 2018. The UN Refugee Agency (UNHCR). (2018). Operational Update. Accessed September 28, 2018, from http://reporting.unhcr.org/sites/default/files/UNHCR%20Bangladesh%20Operational% 20Update%20-%2015AUG18.pdf#_ga¼2.63143724.2077047854.1579290660-1653085541. 1554326498 Tulane University. (2015). Final Report: 2013/14 Survey Research on Child Labor in West African Cocoa-Growing Areas. New Orleans: Payson Center for International Development and Technology Transfer. Accessed January 5, 2018, from http://www.childlaborcocoa.org/index.php/ 2013-14-final-report Txleber, X. (1947). Wirtschaft und Gesellschaft In: Gruncliiss cler Sozialiikonomik, I11 3rd ed. Tubingen, p 28. UK Department of Education. (2017). Care of unaccompanied migrant children and child victims of modern slavery: Statutory guidance for local authorities. Accessed December 29, 2017, from

International State Responsibility Obligations to Protect and Provide. . .

85

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/656429/UASC_Statutory_Guidance_2017.pdf UN. (2012). The United Nations Inter-Agency Project on Human Trafficking (UNIAP). Accessed March 21, 2018, from https://uia.org/s/or/en/1100068079 UN General Assembly. (2018). Global Compact for migration: Global compact for safe, orderly, and regular migration. Accessed December 22, 2018, from https://www.un.org/pga/72/wpcontent/uploads/sites/51/2018/07/migration.pdf UN News. (2017). Situation on Australian offshore processing facility at risk of further deterioration, UN warns. https://news.un.org/en/story/2017/11/637212-situation-australian-offshoreprocessing-facility-risk-further-deterioration-un. Accessed 30 Dec 2017 UN News. (4 April 2018). Australia-bound asylum seekers left mentally scarred by years of detention on Pacific Islands, warns UN refugee official. https://news.un.org/en/story/2018/04/ 1006501. Accessed 3 May 2018. UN Office of for the Coordination of Humanitarian Affairs (OCHA). (2020). Côte d’Ivoire. https:// www.unocha.org/west-and-central-africa-rowca/côte-d’ivoire. Accessed 5 May 2020. UN Security Council. (2004). The rule of law and transnational justice in conflict and post-conflict societies: Report of the Secretary-General, S/2004/616. https://www.un.org/ruleoflaw/blog/ document/the-rule-of-law-and-transitional-justice-in-conflict-and-post-conflict-societies-reportof-the-secretary-general. Accessed 3 November 2019. UNHCR. (1997). Guidelines on policies and procedures in dealing with unaccompanied children seeking asylum. https://www.unhcr.org/3d4f91cf4.pdf. Accessed 3 December 2018. UNHCR. (2020). Protracted refugee situations. Accessed January 5, 2020, from https://www. unrefugees.org/news/protracted-refugee-situations-explained/#What is a protracted refugee situation? UNHCR Trends. (2011). Accessed December 21, 2018, from https://docs.google.com/ spreadsheets/d/1glTKEfUj9TfcjQXIOSGrFeagbzL9AYwEzEnYUuG6C8A/edit#gid¼0 UNHCR’s Evaluation and Policy Analysis Unit (EPAU). (2007). A case study of Liberian refugees in Côte d’Ivoive. Union of Myanmar Ministry of Social Welfare Relief & Resettlement National Committee on the Rights of the Child Myanmar National Plan of Action for Children (2006–2015) Myanmar Plan of Action. Accessed December 29, 2017., from http://ovcsupport.org/wp-content/uploads/ Documents,2006-2015Myanmar_National_Plan_of_Action_for_Children_2006_2015_1.pdf? United Nations Action for Cooperation against Trafficking in Persons (UN-ACT) and Mahidol University in Bangkok co-organized the International Seminar on Mixed Migration in Southeast and East Asia, 21–22 June 2017. United Nations High Commissioner for Refugees Evaluation and Policy Analysis Unit. (2002). Responding to protracted refugee situations A case study of Liberian refugees in Côte d’Ivoire.. https://www.unhcr.org/uk/3d4006412.pdf. Accessed 3 December 2019. United Nations Independent International Fact-Finding Mission on Myanmar, HRC resolution 34/22, 22 October 2019. Accessed November 7, 2019, from https://reliefweb.int/sites/ reliefweb.int/files/resources/FFM-GA%20statement.rev_.2%20%28002%29_0.pdf United Nations Office for Disaster Relief Reduction (UNISDR). (2012). The Asia-Pacific Disaster Report: Reducing Vulnerability and Exposure to Disaster. https://www.unisdr.org/archive/ 29286. Accessed 29 January 2019. UNODC. (2013a). Transnational organized crime in East Asia and the Pacific, a threat assessment, p 15. Accessed July 28, 2019, from https://www.unodc.org/documents/data-and-analysis/ Studies/TOCTA_EAP_web.pdf UNODC. (2013b). Director General of the Judicial Administration System Department, Ministry of Justice. Accessed July 2, 2018, from https://www.unodc.org/southeastasiaandpacific/en/laopdr/ 2013/06/project-childhood/story.html US News. (2019). UN Human Rights Chief Decries ‘Alarming’ Conditions at US Borders. https:// www.huffingtonpost.co.uk/entry/un-human-rights-chief-shocked-by-migrant-detention-condi tions_n_5d236fb6e4b04c481418156f?ri18n¼true. Accessed 14 August 2019.

86

T. Herring

US State Department. (2017). Trafficking in Persons Report-2017: Côte d’Ivoire. Washington, DC. https://www.state.gov/j/tip/rls/tiprpt/countries/2017/271171.htm. Accessed 3 January 2018. US State Department. (2019). TIP Country Report. https://www.state.gov/reports/2019-traffickingin-persons-report/. Accessed 3 December 2019. Vold, G. B. (1998). Theoretical criminology. Oxford: Oxford University Press. Weber, M. (1947). Wirtschaft und Gesellschaft. In: Gruncliiss cler Sozialiikonomik, I11, 3rd ed. Tubingen, p 28. Weber, M. (1969). Science as a vocation. In H. H. Gerth & C. W. Mills (Eds.), From Max Weber: Essays in sociology (pp. 129–158). New York: Oxford University Press. Williams JT (1976). Conflict theory and race conflict. Social Science, 51(1), 32–36. http://www. jstor.org/stable/41886040. Accessed 30 November 2020. Williamson, E. (2012). Human trafficking. Washington, DC: US Department of Justice, Office of Justice Programs, Office for Victims of Crime, Training and Technical Assistance Center, pp. 31–41. http://www.nationalacademies.org/hmd/~/media/Files/Resources/SexTrafficking/ guideforlegalsector.pdf. Accessed 22 December 2017. Wilson, R. (2011). The relationship between school and society: Part II – Conflict Theory. In: The Building Blocks of Social Foundation, 6(1), http://scholarworks.gvsu.edu/cgi/viewcontent.cgi? article¼1006&context¼colleagues. Access 2 November 2017. Wroe, L. (2015). Social workers have a duty to speak up about the humanitarian crisis in Calais. http://www.theguardian.com/social-care-network/2015/aug/04/social-workers-humanitarian-cri sis-calais. Accessed 4 December 2017. Wroe, L. (2018). It really is about telling people who asylum seekers really are, because we are human like everybody else. Negotiating victimhood in refugee advocacy work. Discourse and Society, 29(3), 324–343. Wroe, R., et al. (2019). Social work with refugees, asylum seekers and migrants. Theory and skills for practice. Zaman, N. (2001). 1971 and After: Selected stories. The University Press Limited. Zolberg, A. R. (1969). One-party government in the Ivory Coast. Princeton, NJ: Princeton University Press.

Tanya Herring, Ph.D., currently a Post-doctoral Researcher with the Wales Observatory on Human Rights of Children and Young People, Bangor University/Swansea University, and Research Fellow with International Communities Organization (ICO) of London. Tanya’s academic pursuits are motivated by her desire to be a ‘voice-for-the-voiceless’ unaccompanied refugee and asylum-seeking child. Her work includes research in the prevention and protection measures and mechanisms against the multiple forms of trafficking and exploitation of children, legal empowerment and self-determination focused on the stateless child, refugee, and non-refugee. Her sociolegal approach in supporting Children’s Rights and the Law has globally engaged international government officials, legal and academic practitioners, and a host of child advocates in North America, Southeast Asia, the Oceania Region, Russia, and Europe. Her research and body of work include Prevention and Protection Interventions for Stateless. refugee, non-refugee, and forced displaced children (New England Journal of Public Policy, ICO Handbook on Self-Determination (ICO-research-centre), and The Palermo Protocols as a Conduit to Legal Empowerment and Peaceful Self-Determination (Ateliers Doctoraus).

Refugees and Migrant Children in Europe José Noronha Rodrigues

1 Introduction May the 21st century be the century of the happiest child (Silva 2016)1

The title of this article, “refugees and migrant children in Europe,” reflects the unconscious, sensitive, unprotected human beings with specific characteristics and needs. Children are in fact the (un)visible victims of the twenty-first century through the progressive increase in Europe and the world of refugee children and the disrespect and non-compliance with the most elementary rights of children as a result of wars, disasters, and/or the indiscriminate exploitation of children

1

The quotation given by António Torrada da Silva, a paediatrician of recognised merit in Portugal and abroad. He was a pioneer in the promotion of humanization in hospital services, in the articulation between them, primary health care and the community. He was a great promoter of team work, in the defence of a comprehensive health concept, often referring that the twenty-first century would be the century of the happiest child. J. N. Rodrigues (*) Department of Economics and Law, Faculty of Business and Economics, University of the Azores, Ponta Delgada, Portugal e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_4

87

88

J. N. Rodrigues

themselves. Such mistreatment occurs through neglect,2 physical abuse,3 sexual abuse,4 psychological or emotional abuse,5 or by proxy Munchausen syndrome6 (Jorge et al. 2007). It is necessary to revive international diplomas to safeguard the most elementary rights of children, to find new protectors for children in the twentyfirst century and, above all, to globalise in a uniform manner the safeguarding of the best interests of the child, whether migrant, refugee, or other groups. Moreover, the recognition of the dignity inherent in all members of the human family and of their equal and inalienable rights constitutes the foundation of freedom, justice, and peace in the world and, in particular, are basic principles of the Charter of the United Nations signed in San Francisco on 26 June 1945. With this Charter in mind, the peoples of the United Nations have once again proclaimed their faith in fundamental human rights and in the dignity and worth of the human person

2 Neglect is understood as the inability to provide the child or young person with the basic care needs of hygiene, nutrition, affection and health that are indispensable for normal growth and development. This type of maltreatment, which is generally continued over time, can manifest itself in an “active” way, where there is an intention to cause harm to the victim, or “passive”, when it originates from the incompetence or incapacity of the parents or other responsible persons to fulfil this wish. Neglect can take various forms: physical, psycho-affective, educational and school, temporary or permanent abandonment, begging, etc. 3 Physical abuse results from any action, not accidental, isolated or repeated, taken by parents, caregivers or others responsible for the child or young person, which causes (or may cause) physical harm. This type of abuse, the most common expression of which is in the form of “beaten child”, encompasses a number of traumatic situations, such as shaken (shaken or rattled) child syndrome, burns, fractures, traumatic brain injury, abdominal injuries, suffocation, drowning, intoxications caused and others. 4 Sexual abuse is the involvement of a child or adolescent in activities aimed at the sexual satisfaction of an adult or another older and stronger person. It is based on a relationship of power or authority and takes the form of practices in which the child or young person, depending on his or her stage of development:—Does not have the capacity to understand that he or she is a victim;—Realizing that he or she is not able to name the sexual abuse;—Is not structurally prepared;—Is not able to give informed consent. This type of abuse can take different forms— from harassing the child or young person, forcing him/her to become aware of or attend conversations, writing and obscene shows, using him/her in photographic sessions and filming, to the practice of coitus, through the manipulation of the sexual organs, among others (. . .). 5 Psychological mistreatment (emotional abuse) results from the inability to provide the child or young person with an environment of tranquillity, emotional and affective well-being, which is indispensable for balanced growth, development and behaviour. This type of maltreatment encompasses different situations, from the absence or precariousness of care or affection appropriate to the child’s age and personal situation, to complete affective rejection, and permanent depreciation of the child or young person, which can have repercussions, for example, on sleep, sphincter control, behaviour, school performance and other activities of the child or young person. 6 Munchausen’s Syndrome by proxy refers to the attribution to the child, by a member of the family (which, in most cases, presents a credible and seductive speech, but to which sometimes psychiatric pathology is subjacent, not always easy to identify), of various signs and symptoms, in order to convince the clinical team of the existence of an illness, generating frequent hospitalizations, the need for exhaustive diagnostic procedures and the use of invasive techniques. This is a rare form of maltreatment and poses great diagnostic difficulties for professionals.

Refugees and Migrant Children in Europe

89

and have resolved to promote social progress and better conditions for life in larger freedom. For this legal and other purposes, the Universal Declaration of Human Rights, adopted by the United Nations on 10 December 1948, proclaimed that childhood includes the right to special help and assistance, including adequate legal protection, both before and after birth, principally because the idea of fragility and dependence on children and young people refers us to the need to protect them from all forms of violence to which they may be subjected, since their lack of physical and intellectual maturity often hinders self-defence in the face of the violation of their rights. Along these lines, the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989,7 stipulated in its preamble the following: “the family, a natural and fundamental element of society and natural environment for the growth and well-being of all its members, and in particular children, should receive the protection and assistance necessary to play its full role in the community; [recognizing] that the child, for the harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding; [considering] that the child should be fully prepared to live an individual life in society and be raised in the spirit of the ideals proclaimed in the Charter of the United Nations and, in particular, in a spirit of peace, dignity, tolerance, freedom, equality and solidarity; [recognizing] that in all countries of the world there are children living in particularly difficult conditions and that special attention should be paid to them; [having] due regard to the importance of the traditions and cultural values of each people for the protection and harmonious development of children; [recognizing] the importance of international cooperation for the improvement of the living conditions of children in all countries, in particular in developing countries” (UNICEF 2019, pp. 5–6). In this sense, the purpose of this article is to provide a historical framework for the evolution of the concept of the child broadly, from antiquity to the twenty-first century, as well as to combine this concept of the child and his or her rights with the various international and national instruments for safeguarding the most basic rights of children. As a second step, we will address the importance of the United Nations (UN) General Assembly’s Agenda 2030, the objectives of sustainable development, and the (un)visible reality of minor and/or unaccompanied migrants in the European Union, the UN Global Pact for Migration, and the imperative safeguarding of children in transit. The intention of this work, finally, is to demonstrate that refugees and migrant children are victims in the true meaning of the word, and therefore the Member States of the European Union and countries in general must highlight and implement actions that fully safeguard the most basic rights of children and, in particular, their best interests.

7

Portugal ratified this Convention on September 21, 1990.

90

J. N. Rodrigues

2 The Child from Antiquity to the XXI Century We cannot talk about children or their possible rights without referencing the past to understand how it has been treated. In the history of children’s rights, we can distinguish three phases8: in the first phase, antiquity9 was characterized by the sacrifices of children subjected to the absolute “family power” under which the family could dispose of its children as it wished, subjecting them to exploitation and mistreatment (Lima et al. 2017). Moreover, “in ancient Greece, the father was the highest authority, and the child’s family was his reference in relation to education, culture, health, moral formation, and psychological structure. In ancient Rome, the family was, for the child, its educational and cultural basis. . . . Aristotle considers the child incapable of using thought and reasoning to attain virtue. He sees childhood as evil and disastrous, an illness requiring special care and education for the future, the child being incapable and inoperative, whose value was in the developmental potential of childhood. The child becomes an individual only when he reaches adulthood, and childhood would be a phase in which there is still no identity, no capacity for discernment to make decisions, and no autonomous thinking” (Moura et al. 2013, p. 476). In the second phase, during the Middle Ages, the idea of ownership or abandonment arises, a common practice along with the sale of children according to the parents’ economic incapacity to support them, selling their children as “mere objects”. At this time, little attention is paid to the children; however, the first orphanages begin to emerge. In fact, “[in] the Middle Ages, in Europe, perceptions of children are radically transformed. . . . St. Augustine, in his book Confessions, reports facts from his own childhood of which he is ashamed, affirming that the little child already brings sin and that his soul is not innocent. . . . At that time, adolescence and childhood were confused, and there was no age limit that separated them. . . . the ‘discovery of childhood’ began in the thirteenth century, because until the twelfth century, the art of the Middle Ages (paintings, pictures, portraits, iconographies, etc.) was unaware or did not try to represent childhood. . . . When the reproduction of As stated “it seems possible to delimit the treatment given to children and adolescents within the Brazilian legal system in three phases: in the first phase, approximately between the sixteenth century and the nineteenth century (1501 to 1900) (. . .) as a rule, children and adolescents were recognized by adults as “pets”; in the second phase, approximately from the first half of the twentieth century (1901 to 1950), they began to be treated as “objects” of State tutelage; and, finally, in the second half of the twentieth century, until the present time, they began to receive greater protection from both society and the State, becoming the target of full and priority protection.” 9 Indeed, “(. . .) in ancient societies (Greek or Roman) children and adolescents were not even considered susceptible to legal protection, if not mere objects of state or paternal property, characterized by a state of imperfection that was lost only with the passing of time, and only softened by an ethical-religious duty of piety. Only recently have they begun to look at children and adolescents as a person in the full sense of the term, allowing them to attain rights and freedoms of which they are the beneficiaries as a general condition, even in the period of time during which they are in the process of formation”. 8

Refugees and Migrant Children in Europe

91

the child in paintings appears, he appears exactly as an adult in reduced size, and his height and proportion were the only features that differentiated them. There was great indifference and rest in relation to the children who died. . . the child was not considered to be endowed with personality and soul, and she was dressed in the same clothes as adults, confusing herself with them in public and private environments. . . . In medieval society, there was no awareness of the particularities of the child due to the lack of proper treatment directed to them, which does not mean that they were despised, abandoned, or mistreated by their guardians (Moura et al. 2013, p. 476). As referred by Moura et al. “[in] a third phase, in the Enlightenment, the first ideas about children begin to emerge, although associated with a state of minority, while justifying protection of that same minority. Moreover, in Modernity, there are significant changes in the conceptions of children and childhood, with great emphasis and concern about education and morals, which influenced the thinking of later centuries. . . . The adoption of a costume peculiar to childhood, which became general in the upper classes at the end of the sixteenth century, marks an important period in the formation of the feeling of childhood, by the constitution of a group aesthetically separated from adults. The child was now recognized as a separate entity. . . . At the end of the sixteenth century. . . [the] figure of the child acquires a religious and caste connotation, and perceptions of childhood are changed, with great respect for children in their particularities. . . . A moral conception of childhood is constructed which emphasizes the frailties of the child, associated with the idea of innocence. . . . The sense of childhood innocence resulted, therefore, a double moral attitude towards childhood: to preserve it from the dirt of life, and especially from tolerated sexuality—when not approved—among adults, and to strengthen it, developing character and reason. . . . Modern society designates a central role for education and the family, attaching great importance to the educational character in the child’s development. In the eighteenth century, Rousseau deeply imprinted the conceptions about the child. . . [and] gives great emphasis to childhood and education, placing the feeling as a central point in his vision of man and considering that childhood has its own ways of seeing, thinking and feeling. . . . He understands that the child has a world of his own, and elaborates a pedagogy that emphasizes the naturalness, authenticity and innocence of the child (Moura et al. 2013, p. 477). Finally, “in contemporary times, i.e. from the eighteenth century onwards, “perceptions about childhood undergo profound changes. . . the child under 8 years old was considered incapable of performing economic type activities; from 8 to 12 years of age, they were no longer children and entered the adult world as apprentices. . . the concept of minor appears in the nineteenth century associated with age limits. . . . [By the way,] the legal world discovers the minor in poor children and adolescents in cities who, because they are not under the authority of those in charge, are called abandoned minors. Later, this concept is associated with crime and serves the regulation of laws for minors. Two types of childhood emerge: one included in the coverage of basic policies, with children socialized by school and family, and another excluded from families and social policies, which constitutes the contingent of minors. In the twentieth century, with the growth of poverty and urban violence,

92

J. N. Rodrigues

the child becomes the object of government policies of a more comprehensive character” (Moura et al. 2013, p. 478). A new conception of childhood and children is gradually emerging today. A child has special rights and care because of his natural fragility, a fragile being who needs a pleasant family environment for his development. Awareness is born from the need to implement and enshrine the rights of children and to safeguard their best interests.

3 The Child and His or Her Rights as Set Out in International Instruments As we have seen, children gradually gain rights as individuals embodied in various international instruments. Therefore, in the first section, we will talk about several international instruments to safeguard the rights and the best interests of children. In the second section, we will approach the United Nations Children’s Fund (UNICEF) as the main United Nations International Organization that promotes the rights and well-being of children and adolescents. Finally, we will focus our study on the Convention on the Rights of the Child, which lays down four basic principles: (a) non-discrimination; (b) the best interests of the child; (c) the right to life, survival, and development; and (d) respect for the views of the child. Here we will also address the two optional and complementary Protocols to the Convention on the Rights of the Child: (a) the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and (b) the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography. As far as international instruments are concerned, in 1924, the first Declaration of the Rights of the Child was proclaimed in Geneva: “[the] League of Nations adopts the Geneva Declaration on the Rights of the Child. It establishes the rights of the child to the means for material, moral, and spiritual development; special help in situations of hunger, sickness, disability, or orphanhood; priority in care in difficult situations; immunity from economic exploitation; and education in an environment that inspires a sense of social responsibility. The Geneva Declaration of 26 September 1924 arose from a preliminary five-point proposal drawn up by Save the Children International that called for rights for children. In this document, men and women of all nations recognize that humanity is indebted to the child for the best they can give and declare and accept it as their duty, beyond and above all considerations of race, nationality, or creed. “(i) The child must be given the means necessary for its normal development, both material and spiritual; (ii) The hungry child must be fed, the sick child must be nurtured, the child who is behind must be helped; the delinquent child must be recovered, and the orphan and the abandoned child must be protected and [rescued]; (iii) the child shall be the first to receive relief in times of distress; (iv) the child shall be placed in a position to earn a living and shall be protected from all forms of exploitation; (v) the child shall be brought up in

Refugees and Migrant Children in Europe

93

the awareness that his or her talents must be dedicated to the service of other men” (Building the Age of Human Rights for Children, Adolescents—Time line: Towards the Age of Human Rights in the World 2020). In 1946, the United Nations Children’s Fund (UNICEF) was founded within the United Nations. In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights, also known as the Declaration of Human Rights.10 Point two of Article 25 of this Declaration states that “. . . childhood is entitled to special care and assistance” (Universal Declaration of Human Rights 2018, p. 4). Indeed, this Declaration recognizes among other rights the inherent dignity of all members of the human family and equal and inalienable rights as the foundation of freedom, justice, and peace in the world.11 A few years after this group is founded, within the United Nations, the second Declaration of the Rights of the Child is proclaimed.12 Its preamble states, as in the 1924 Declaration of the Rights of the Child and the Universal Declaration of Human Rights “that the child, because of his or her lack of physical and intellectual maturity, needs special protection and care, including appropriate legal protection, both before and after birth. [Moreover,] humanity owes the child the best that it has to give” (Declaration of the Rights of the Child 2020, p. 1). The 1924 Declaration only listed five points in which it was proclaimed that men and women should offer the best they can give and accept the task of child care. In comparison, this 1958 Declaration is divided into ten (10) principles requiring, among other elements, the commitment of local authorities and national governments to recognize the rights of the child and to produce policies and legislation that promote them. In addition, it grants the right to non-discrimination on the basis of the child’s race, colour, sex, language, religion, political or other opinion, or that of his or her family, national or social origin, property, birth, or other status. The child shall also enjoy special protection and shall benefit from the opportunities and services provided by law and other means so that he or she may develop physically, intellectually, morally, spiritually, and socially in a healthy and normal manner and under conditions of freedom and dignity. In enacting laws to this end, the fundamental consideration will be in the best interests of the child.13 In addition to these, many other rights have also been identified. For example, every child has the right to a name and nationality; to full opportunity to play and engage in recreational activities; to benefits from social security; to a free and compulsory education; to good health during development; to love and understanding for the full and harmonious development of his or her personality; to adequate food, housing, recreation, and medical care; and to the care and responsibility of his or her country, unless, in exceptional circumstances, the young child should not be

10 Adopted and proclaimed by Resolution 217 A (III) of the UN General Assembly on 10 December 1948. 11 See paragraph 1 of the Preamble to the Universal Declaration of Human Rights. 12 Proclaimed by United Nations General Assembly Resolution 1386 (XIV) of 20 November 1959. 13 Principles 1 and 2 of the 1958 Declaration of the Rights of the Child.

94

J. N. Rodrigues

separated from his or her mother. Finally, society and public authorities have a duty to care especially for children without large families, so when stipulating the desirability of state subsidies or other assistance, the best interests of the child should be the guiding principle of who has the responsibility for his or her education and guidance, and, finally, the child should under all circumstances be among the first to benefit from protection and assistance. In 1966, two new international legal instruments were adopted, namely the International Pact on Civil and Political Rights14and the International Pact on Economic, Social, and Cultural Rights.15 In the first Pact, the States Parties undertake efforts to respect and to ensure that all individuals within their territories and subject to their jurisdiction the rights recognized in the present Pact without distinction as to race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth, or other status.16 This Pact safeguards civil and political human rights in their entirety, which of course includes minors. But among the various rights enshrined, there is one that should be highlighted, which states that “everyone is free to leave any country, including his own. And this right may not be subject to any restrictions unless they are provided for by law and are necessary to protect national security, public order, public health or morality or the rights and freedoms of others and are compatible with the other rights recognized in the present Pact”17 (International Pact on Civil and Political Rights 1966, pp. 1–2). However, there are some specific safeguard rules for minors: a death sentence cannot be handed down in cases of crimes committed by persons under the age of 18 and cannot be executed on pregnant women18; young people under detention will be separated from adults, and their case will be decided as soon as possible19; and the prison regime will include treatment of prisoners whose essential aim is their amendment and social recovery. Young offenders shall be separated from adults and shall be subject to a regime appropriate to their age and legal status20; juveniles shall be subject to criminal law taking into account their age and the interest in their rehabilitation21; the States Parties to the present Pact undertake to respect the liberty of parents and, where appropriate, legal guardians will ensure the religious and moral education of their children and pupils in conformity with their own convictions.22 Any child, without discrimination of race, colour, sex, language, religion, national or

14

Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with article 49. 15 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27. 16 See Article 2(1) of the International Pact on Civil and Political Rights. 17 Idem, Article 12(2) and (3). 18 Ibid Article 6(5). 19 Ibid Article 10(2) (b). 20 Ibid Article 10(3). 21 Ibid Article 14(4). 22 Ibid Article 18(4).

Refugees and Migrant Children in Europe

95

social origin, property or birth, shall be entitled by his or her family, society, and the State to such protective measures as may require his or her condition as a minor23; each child shall be registered immediately after birth and shall have a name,24 and each child shall be entitled to acquire a nationality.25 The International Pact on Economic, Social, and Cultural Rights, for their part, commits the States Parties to the present pact to ensure the equal economic, social, and cultural rights of men and women (International Pact on Economic, Social and Cultural Rights 1966, pp. 1–2). Nevertheless, this pact recognizes the widest possible protection and assistance to the family, which is the natural and fundamental building block of society, particularly for the purpose of raising and educating its children.26 Special protective and assistance measures must be taken for the benefit of all children and adolescents, who must be protected against economic and social exploitation. Their employment in work that compromises their morality or health, endangers their life, or harms their normal development should be subject to the sanction of the law. States shall also set age limits below which the employment of child labour shall be prohibited and subject to the sanctions of the law.27 It should also be emphasized that the states party to the present pact recognize the right of all persons to a standard of living adequate for themselves and their families, including adequate food, clothing, and housing, and to a continuous improvement in the conditions of their existence.28 In particular, the exercise of this right shall include the measures necessary to ensure the reduction of infant mortality.29 In 1973, the International Labour Organization adopted Convention No. 13830 (Minimum Age for Admission to Employment), noting “the terms of the Minimum Age (Industry) Convention, 1919; the Minimum Age (Sea) Convention, 1920; the Minimum Age (Agriculture) Convention, 1921; the Minimum Age (Trimmers and Stokers) Convention, 1921; the Minimum Age (Non-Industrial Employment) Convention, 1932; the Minimum Age (Sea) Convention (Revised), 1936; the Minimum Age (Industry) Convention (Revised), 1937; the Minimum Age (Non-Industrial Employment) Convention (Revised), 1937; the Minimum Age (Fisherman) Convention, 1959; and the Minimum Age (Underground Work) Convention, 1965, and [considering] that the time has come to establish a general instrument on the subject, which would gradually replace the existing ones applicable to limited economic

23

Ibid Article 24(1). Ibid Article 24(2). 25 Ibid Article 24(3). 26 See Article 10(1) of the International Pact on Economic, Social and Cultural Rights. 27 Idem Article 10(3). 28 Ibid Article 11(1). 29 Ibid Article 12(2)(a). 30 Convened to Geneva by the Governing Body of the International Labour Office, and meeting there on June 6, 1973, at its 58th session, it adopts on June 26, 9173 the Minimum Age Convention, No. 138. 24

96

J. N. Rodrigues

sectors, with a view to achieving the total abolition of child labour”31 (Minimum Age Convention 1973, pp. 1–2). During this convention, each member in force undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.32 However, the minimum age shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years.33The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety, or morals of young person’s shall not be less than 18 years.34 In 1979, the UN General Assembly adopted another international instrument, this time the Convention on the elimination of all forms of discrimination against women. This convention is divided into six parts: Part I (articles 1 to 6)—Discrimination, Policy Measures, Guarantee of Basic Human Rights and Fundamental Freedoms, Special Measures, Sex Role Stereotyping and Prejudice, and Prostitution; Part II (articles 7 to 9)—Political and Public Life, Representation, Nationality; Part III (articles 10 to 14)—Education, Employment, Health, Economic and Social Benefits, Rural Women; Part IV (articles 15 to 16)—Law, Marriage, and Family Life; Part V (articles 17 to 22)—Committee on the Elimination of Discrimination against Women, National Reports, Rules of Procedure, Committee Meetings, Committee Reports, Role of Specialized Agencies; Part VI (articles 23 to 30)—Effect on Other Treaties, Commitment of States Parties, and Administration of the Convention (Convention on the Elimination of All Forms of Discrimination Against Women 1979). In its preamble, the convention explicitly acknowledges that “extensive discrimination against women continues to exist” and emphasizes that such discrimination “violates the principles of equality of rights and respect for human dignity”. As defined in Article 1, discrimination is understood as “any distinction, exclusion, or restriction made on the basis of sex. . . in the political, economic, social, cultural, civil, or any other field”. The convention gives positive affirmation to the principle of equality by requiring state parties to take “all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men”.35 Essentially, this convention is based on the principle that the full and complete development of a country

31

See the second and third paragraph of the preamble to the Convention on the Minimum Age, 1973 (No. 138). 32 Idem Article 1. 33 Ibid Article 2 (3). 34 Ibid Article 3 (1). 35 See Article 3 of the Convention on the Elimination of All Forms of Discrimination Against Women.

Refugees and Migrant Children in Europe

97

affects the welfare of the world and the cause of peace requires the maximum participation of women on equal terms with men in all fields.36 As a consequence, this convention defines “discrimination against women” as any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field.37 To this end, all state parties are called on to take all appropriate measures to ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases. This convention further provides that state parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on the basis of equality of men and women, the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount.38 It is also fixed that the betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.39 However, the most significant step with regard to children was that the United Nations General Assembly declares 1979, as the International Year of the Child, setting in motion a working group that would draft the draft legally binding Convention on the Rights of the Child. Resolution 40/33, on November 29, 1985, setting the United Nations minimum rules for the administration of juvenile justice, also known as the “Beijing Rules” is adopted (United Nations minimum rules for the administration of juvenile justice 1985). This resolution establishes the minimum objectives of the policy on juvenile justice. To that end, it establishes as a general principle that member states will seek, in accordance with their general interests, to promote the well-being of young people and their families. Member states will endeavour to create conditions that guarantee young people a useful life within the community, encouraging, during the period of life in which the young person is more exposed to deviant behaviour, a process of personal and educational development removed as far as possible from any contact with crime and delinquency.40 This resolution establishes minimum rules that will be applied to young offenders in an impartial manner, without any distinction, including race, colour, sex,

36

Idem paragraph 12. Ibid Article 1. 38 Ibid Article 16 (1) (d). 39 Ibid Article 16 (2). 40 See paragraphs 1.1 and 1.2 from topic 1 (Fundamental Guidelines) of Resolution 40/33. 37

98

J. N. Rodrigues

language, religion, opinions of a political or other nature, national or social status, economic condition, birth, or other condition. For this purpose, he considers youth as any child who, in the respective legal systems, can be treated for the practice of an offense in a different way from that of an adult. Offense is any behaviour (act or omission) punishable by law under the respective legal systems. A juvenile offender is any child or youth accused of having committed or found guilty of committing an offense.41 In practice, this resolution establishes the minimum objectives of the policy on the administration of juvenile justice; invites member states to adapt their national laws and policies, especially in the field of training juvenile justice personnel; and, above all, that the justice system privileges the well-being of children and young people and that the measures applied are proportionate. In 1989, the UN General Assembly unanimously approved the Convention on the Rights of the Child. This convention entered into force the following year and contains 54 articles. However, given the importance of this convention, we will address this international legal instrument in one of the following items. In the meantime, many other international instruments to safeguard the child’s best interests have been adopted. For the sake of better systematization, we will now only identify these instruments and the essential keywords of those instruments: • Thus, on September 30, 1990, the World Summit for Children held at the United Nations, in New York, adopted the World Statement on Child Survival, Protection and Development. This outlines an “Action Plan divided into four topics: Challenges, Opportunities, Tasks, Next Steps” to improve the health of children and mothers, to prevent malnutrition and illiteracy and to eradicate the diseases that have been affecting millions of children (World Statement on Child Survival, Protection and Development 1990); • In the same year, 1990, the “World Statement on Education for All” was adopted in Jomtien, Thailand. This statement notes serious difficulties in teaching and proposes to satisfy basic learning needs (Basic Learning Needs 1990). • On June 17, 1999, the Worst Forms of Child Labour Convention and Immediate Action are approved with a view to its elimination (No. 182). This convention calls on all states that have ratified this convention to immediately take effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. For the purpose of this convention, the worst forms of child labour comprise: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage, and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring, or offering of a child for prostitution, for the production of pornography, or for pornographic performances; (c) the use, procuring, or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is

41

Idem paragraphs 2.1 and 2.2(a) to (c).

Refugees and Migrant Children in Europe

99

likely to harm the health, safety, or morals of children (Worst Forms of Child Labour Convention 1999). • From April 26 to 28, 2000, the World Education Summit was held in Dakar Senegal, at which the Dakar Statement—Education for every citizen and every society was approved. This statement reaffirms “the vision of the World Declaration on Education for All, supported by the Universal Declaration of Human Rights and the Convention on the Rights of the Child, that every child, youth and adult has the human right to benefit education that satisfies your basic learning needs, in the best and fullest sense of the term, and that includes learning to learn, to do, to live and to be. It is an education that aims to capture the talents and the potential of each person and develop the personality of the students so that they can improve their lives and transform their societies” (Dakar statement—Education for all 2000, p. 1). And fifteen years later, the Incheon Statement: Education 2030: Towards an Inclusive and Equitable Quality Education and Lifelong Education for all is approved in Korea. This statement sets out a new vision for education: “[our] vision is to transform lives through education, recognizing the important role of education as a main driver of development and in achieving the other proposed on Sustainable Development Goals (SDGs). We commit with a sense of urgency to a single, renewed education agenda that is holistic, ambitious, and aspirational, leaving no one behind. This new vision is fully captured by the proposed Sustainable Development Goal 4 (SDG4) is the education goal, to “Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all” and its corresponding targets.. . . It is inspired by a humanistic vision of education and development based on human rights and dignity; social justice; inclusion; protection; cultural, linguistic and ethnic diversity; and shared responsibility and accountability. We reaffirm that education is a public good, a fundamental human right, and a basis for guaranteeing the realization of other rights. It is essential for peace, tolerance, human fulfilment, and sustainable development” (Incheon Declaration and Framework for Action 2015, p. 6). • On September 8, 2001 in Durban, South Africa, at the World Conference against Racism, Racial Discrimination, Xenophobia and Correct Intolerance, the Durban Statement and program of action was adopted. This statement states that racism, racial discrimination, xenophobia, and related intolerance, when equivalent to racism and racial discrimination, constitute serious violations of all human rights and obstacles to the full enjoyment of these rights, and deny the truth that all humans are born free and equal in dignity and rights, constitute an obstacle to friendly and peaceful relations between peoples and nations, and are among the basic causes of many internal and international conflicts, including armed conflicts and the consequent forced displacement of the populations. Essentially, this statement defines in its general questions the victims of racism, racial discrimination, xenophobia, and related intolerance, and reaffirms that children and young people and especially girls are victims of racism. It is necessary to combat it, incorporating special measures in accordance with the principles of the best interest of the child, and respect for their opinion in order to give priority attention to the rights and situations of children and young people who are victims of these

100

J. N. Rodrigues

practices. They recognize that ethnic minority children and young people are the ones who suffer most from racism and that child labour is linked to poverty, lack of development, and related socio-economic conditions. Furthermore, in some cases, it can perpetuate poverty and racial discrimination. (Durban Statement and program of action 2001).42 • On 8 May 2002, the UN General Assembly hold a Special Session on Children. More than 70 World Leaders and hundreds of children participated in this Special Session from which a document called “A World for Children” is published, comprising a statement and an Action Plan. The Statement proposes: (i) Putting children first. (ii) Eradicating poverty and investing in childhood. (iii) Prohibiting abandonment of any child. (iv) Taking care of each child. (v) Educating all children. (vi) Protecting children from violence and exploitation. (vii) Protecting children from war. (viii) Combating human immunodeficiency virus (HIV)/ acquired immune deficiency syndrome (AIDS). (ix) Listening to children and ensuring their participation. (x) Protecting the Earth for children. On the other hand, the Action Plan is structured in 4 points: (a) Creating a world for children. (b) Objectives, strategies and actions. (c) Resource mobilization. (d) Monitoring and evaluation actions (A World for children 2002, pp. 13–16). Five years after the 2007 Special Session on Children, a new Statement on Children was adopted by more than 140 governments, recognizing the progress made and the challenges that remain and reaffirming the commitment to the pact “A World for Children, the Convention and its Optional Protocols”. • On December 19, 2011, the United Nations General Assembly adopted Resolution 66/138, which adopts the Optional Protocol to the Convention on the Rights of the Child concerning the institution of a communication procedure. This protocol reaffirms the universality, indivisibility, interdependence, and interrelation of all human rights and fundamental freedoms. They also recognize that a child’s special status and dependency can create real difficulty in pursuing redress in the event of a violation of children’s rights. Therefore, this protocol will strengthen and complement national and regional mechanisms that allow children to make complaints for violations of their rights. To that end, it encourages state parties to develop appropriate national mechanisms that allow children, whose rights have been violated, to access effective domestic remedies (Optional Protocol to the Convention on the Rights of the Child concerning the institution of a communication procedure 2011, p. 1).

42 Adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, A/CONF.189/12, 8 September 2001.

Refugees and Migrant Children in Europe

3.1

101

The United Nations International Children’s Emergency Fund (UNICEF)

Walter Neuer effectively portrayed the scene after the end of World War II: “8 May 1945 [meant] the end of indescribable suffering and the greatest annihilation caused by the bloodiest and most cruel war in Europe. But it also [meant] the end of a tyranny turned to Germany and abroad. Hitler’s regime wished for this war and used the German people for its inhumane purposes. In the end, it spread the war throughout most of Europe. The guidelines and methods of this regime, including the attempted systematic extermination of the Jewish people, the Sinti in Rome, and many others, are unprecedented in the history of civilised humanity. Today, 50 years after the end of the Second World War, we regret and feel the suffering and death of countless victims of this war. Our memory also includes the millions who were killed for racist and political reasons or because they belonged to minorities in society. It covers millions of soldiers and civilians, including countless women and children” (Neuer 1996, p. 25). Against this disastrous backdrop of a Europe decimated in its founding foundations, on 11 December 1946, one year after the end of the Second World War, the United Nations General Assembly establishes the United Nations Emergency Fund for Children—UNICEF, faced with the reality of millions of children left to their own devices, abandoned and left in deep need, misery, and suffering in Europe, in the Middle East and China. UNICEF is based in New York and has the aim of promoting the defence of children’s rights, helping to respond to their needs and contribute to their development by creating lasting conditions, in particular by supporting and providing emergency assistance to these children. In 1953, UNICEF became a permanent body of the United Nations system and extended its mandate to reach children and adolescents around the world. UNICEF is a non-partisan organisation that is governed by the United Nations Convention on the Rights of the Child and, therefore, encompasses and tries to protect all children, without discrimination in terms of race, colour, sex, language, religion, and political or other opinion, and in order to promote equal rights for girls and women and support their full participation in political, social, and economic development in the communities in which they live, as well as to safeguard the right to survival, education, health care, adequate nutrition, access to water and protection. It is a United Nations humanitarian agency funded exclusively by voluntary contributions from governments, foundations, businesses, and individual donors. Truly, UNICEF is mandated by the United Nations General Assembly to promote and defend the rights of children, working to save their lives, defend their rights, and help them realize their full potential to build a better world. Indeed, as HENRY LABOUISSE, former UNICEF’s executive director (1965–1979) said, “the wellbeing of children today is inseparably linked to the peace of tomorrow’s world (Labouisse 1965, p. 1). In these terms, it is UNICEF’s mission “[to] manage the protection of children’s rights, helping them to meet their basic needs and expand their opportunities for full

102

J. N. Rodrigues

development; [to] strive for the rights of the child to be recognized as permanent ethical principles and standards of behaviour with regard to children; [to] help ensure that the survival, protection, and development of children [are] universal imperatives for development, indispensable for human progress; [mobilise] political will and material resources to assist countries, especially developing countries, to ensure absolute priority for children and to build a framework for the formulation of appropriate policies and provision of services for all children and their families; [to ensure] special protection for the least advantaged children, victims of war, disaster, extreme poverty, and all forms of violence and exploitation, as well as those with disabilities; [and to act] in emergency situations to protect children’s rights. In coordination with its United Nations partners and humanitarian agencies, UNICEF makes available to its counterparts its capacity for rapid action to alleviate the suffering of children and their caregivers; [it is] non-partisan, and its cooperation is free from discrimination. In all its actions, it guarantees priority to the least favoured children and to the most needy countries; [it aims], through its Cooperation Programmes with countries, to promote equal rights for women and girls and to support their full participation in the political, social, and economic development of their communities” (UNICEF 1946, p. 1). In short, and in general terms, we can state that it is UNICEF’s mission to ensure special protection for the most disadvantaged children, disabled children, victims of war, natural disasters, extreme poverty, and all forms of violence and exploitation, not least because it considers that the survival, protection, and development of children are universal imperatives for development, indispensable for human progress. UNICEF is the only global organisation or multilateral agency specifically dedicated to helping children in their entirety, regardless of whether they are refugees, migrants, or unaccompanied minors. However, there are other bodies that also support this protection, such as “Save the Children, a non-governmental organization (NGO) created in 1919, “Eurochild” a network of organizations and individuals with 93 members in 35 countries, Child Support Institute or “Instituto de Apoio a Criança (IAC)”, in the Portuguese case, as well as the Child and Youth Protection Commissions or “Comissões de Protecção de Crianças e Jovens (CPCJ)”. In this sense, the director of the United Nations Children’s Fund (UNICEF) emergency programmes, Manuel Fontaine, warned that “[children] living in conflict zones in the world have continued to suffer extreme levels of violence during the past 12 months and the world has continued to fail them. . . . Children living in countries at war have been direct targets for attack, have been used as human studies, and have been killed, mutilated or recruited for combat. Practices such as rape, forced marriages, and kidnappings have become commonplace tactics in conflict zones such as Syria, Lemen, Democratic Republic of Congo, Nigeria, South Sudan, and Myanmar (formerly Burma) but, the director concludes, “even if wars continue, we should never accept attacks on children” (Fontaine 2018, p. 1). In addition, UNICEF Reports have denounced, alerted, and raised awareness, as well as measured their capacities to try to help and protect children in many other situations in which they are invisible victims.

Refugees and Migrant Children in Europe

103

Therefore, we only need to reference UNICEF data and monitor the situation of children and women to find several denunciations of the most elementary human rights. Children are not the face of this pandemic [Covid-19 and Children], but they risk being among its greatest victims.. . . This is a universal crisis, and for some children, the impact will be lifelong.. . . Moreover, the harmful effects of this pandemic will not be distributed equally. They are expected to be most damaging for children in the poorest countries, in the poorest neighbourhoods, and in already disadvantaged or vulnerable situations. Many of the world’s children do not have Internet access at home. Millions of children are in danger of missing life-saving vaccines against measles, diphtheria, and polio due to disruptions in immunization service. Polio vaccination campaigns have been suspended worldwide, setting back the decades-long effort to eliminate the virus from its last two vestiges, Afghanistan and Pakistan, and to tackle recent outbreaks of the vaccine-derived virus in Africa, East Asia, and the Pacific (UNICEF 2020, p. 1) Indeed, the United Nations Children’s Fund (UNICEF) works with all of its partners to achieve the Sustainable Development Goals proposed in Agenda 2030, adopted at the United Nations General Assembly in 2015. In this context, and, as several authors refer, UNICEF tries to protect all children and young people, “[despite] dramatic improvements in survival, nutrition, and education over recent decades, today’s children face an uncertain future. Climate change, ecological degradation, migrating populations, conflict, pervasive inequalities, and predatory commercial practices threaten the health and future of children in very country. In 2015, the world’s countries agreed on the Sustainable Development Goals (SDGs), yet nearly 5 years later, few countries have recorded much progress toward achieving them. This commission presents the case for placing children, aged 0–18 years, at the centre of the SDGs and at the heart of the concept of sustainability and our shared human endeavour. Governments must harness coalitions across sectors to overcome ecological and commercial pressures to ensure that children receive their rights and entitlements now and a liveable planet in the years to come” (Clark et al. 2020). On the other hand, the United Nations news site lists a number of other situations: Children are vulnerable to abuse and violence during coronavirus lockdowns (UN, 7 April 2020). In Mexico, UNICEF calls for the implementation of protocol to protect migrant children (1 February 2020). Nearly five million children are in need due to rising violence in central Sahel (UNICEF, 28 January 2020); UNICEF chief hopes 2020 will be “a year of peace” for Syria’s Children (2 January 2020). New Year’s Day provides a reminder of the need for action to prevent newborn deaths (UNICEF, 31 December 2019). Nine children are killed or maimed in Afghanistan every day (UN Children’s Fund, 16 December 2019). Failure to register newborns leaves millions “invisible,” warns UN Children’s Fund (11 December 2019). A rise in Caribbean children displaced by storms shows climate crisis is a child rights issue (UNICEF, 6 December 2019) (UN News 2020, p. 1). In conclusion, it is important to underline the important and/or even essential role that UNICEF has played in safeguarding children’s rights and, in particular, maintaining the best interests of the child. It is therefore essential that national

104

J. N. Rodrigues

governments and/or any other private institution support all UNICEF initiatives, because the social assistance model proposed by UNICEF presupposes a link between charity, philanthropy, medicine, and hygiene, forming a tutelage complex in order to normalise the population of children and adolescents. Children and their protection are the guarantee of the common heritage of humanity.

3.2

The Convention on the Rights of the Child

As we have seen, the need to ensure special protection for children has motivated the international community to adopt new and improved legal instruments, such as (a) (b) (c) (d) (e) (f)

Geneva Declaration on the Rights of the Child, 1924; Declaration of the Rights of the Child adopted by the United Nations in 1959; Universal Declaration of Human Rights, 1948; International Covenant on Civil and Political Rights, 196643; International Covenant on Economic, Social and Cultural Rights, 196644; Declaration on Social and Legal Principles for the Protection and Welfare of Children, with special reference to adoption and family placement on the National and International Plan45; (g) the United Nations Standard Minimum Rules for the Administration of Justice for Minors (“Beijing Rules“)46; (h) Declaration on the Protection of Women and Children in Emergency or Armed Conflict47; (i) The Hague Convention on the Protection of Children, 1996. The 1996 Convention arose from the need to revise the Convention of 5 October 1961 on the Competence of Authorities and Applicable Law in Respect of the Law of the Member States of the European Union of Protection of Minors, with the aim of strengthening the protection of children in situations of an international nature and confirming that the best interest of the child should be a primary consideration. Article 5 thus stipulates the following “(1) The judicial or administrative authorities of the Contracting State of the habitual residence of the child shall have jurisdiction to take measures for the protection of the child’s person or property. (2) According to Article 7, in the case of a change of habitual residence of the child to another Contracting State, the authorities of the State of new habitual residence shall have jurisdiction. And Article 6 states “(1) For refugee children and children who, because of disturbances occurring in their country,

43

See Articles 23 and 24. See Article 10. 45 See United Nations General Assembly Resolution 41/85 of 3 December 1986. 46 See UN General Assembly Resolution 40/33 of 29 November 1985. 47 See United Nations General Assembly Resolution 3318 (XXIX) of 14 December 1974. 44

Refugees and Migrant Children in Europe

105

are displaced internationally, the authorities of the Contracting State of the territory in which the children are present as a result of their displacement have jurisdiction provided for in paragraph 1 of Article 5. (2) The legal provisions of the preceding paragraph shall also apply to children whose habitual residence cannot be established” (Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for protection of children 1996, p. 1–2); (j) The Charter of Fundamental Rights of the European Union,48 it contains a preamble and 54 articles divided into seven chapters: (I) Dignity; (II) Freedoms; (III) Equality; (IV) Solidarity; (V) Citizenship; (VI) Justice and (VII) General Provisions. However, in the chapter on equality (Article 21(1)), it is provided that “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation” as well as the rights of children (Article 24(1) to (3)) “shall be prohibited. They may freely express their views, which shall be taken into consideration in matters concerning them in accordance with their age and maturity. All actions relating to children, whether taken by public bodies or private institutions, shall have the best interests of the child as a primary consideration. All children shall have the right to maintain regular personal relations and direct contacts with both parents, unless such action is contrary to their interests” (Charter of Fundamental Rights of the European, 2000, pp. 13–14). (k) European Parliament resolution of 12 September 2013 on the situation of unaccompanied minors in the EU49; (l) In addition to these international and regional instruments, many other national/ international standards have been adopted to safeguard the most basic rights of children, for example in the Portuguese case: I. Constitution of the Portuguese Republic—Family, marriage, and filiation— Article 36, Family—Article 67, Childhood—Article 69,50 Youth—Article 7051 (Constitution of the Portuguese Republic 1976, pp. 1–2) II. Portuguese Civil Code—Definition of Minors—Article 122, Disability of Minors—Article 123, Supply of the incapacity of minors—Article 48

OJ C 202, 7.6.2016, pp. 389–405. OJ C 93 de 9.3.2016, p. 165–173. 50 See article 69 (Childhood) “1—Children have the protection of society and the State, with a view to their full development, especially against all forms of abandonment, discrimination and oppression and against the abusive exercise of authority in the family and in other institutions. 2—The State ensures special protection to children who are orphans, abandoned or otherwise deprived of a normal family environment. 3—The work of minors of school age is prohibited under the law”. 51 Idem Article 70 (Youth) “1—Young people shall enjoy special protection for the realization of their economic, social and cultural rights, namely: (a) In education, vocational training and culture; (b) In access to their first job, at work and in social security; (c) In access to housing; (d) In physical education and sport; (e) In the enjoyment of leisure time”. 49

106

J. N. Rodrigues

124, Annulability of acts of Minors—Article 125, Malice of the Minor— Article 126,
Exceptions to the incapacity of minors—Article 127, Term of the incapacity of minors—Article 129 and Articles 1874 to 1876; Parental Responsibilities—Articles 1877 to 1884; Parental Responsibilities in relation to the person of the children—Articles 1885 to 1887-A; Parental Responsibilities in relation to the property of the children—Articles 1888 and Articles 1901 to 1912; Inhibition and limitations on the exercise of parental responsibilities—Articles 1913 to 1920—A, among others. III. Protection of Children and Young People in Danger Act (LPCJP)—Article 3 considers that a child or young person is in danger when he or she is in one of the following situations: (a) Is abandoned or lives in surrender; (b) Suffers physical or psychological abuse or is the victim of sexual abuse; (c) Does not receive the care or affection appropriate to his or her age and personal situation; (d) Is forced into exploratory activities or work harmful to his or her training or development; (e) Is subject to behaviour that seriously affects his/her safety or emotional balance; and (f) Assumes behaviour or indulges in activities or consumption that seriously affect his/her health, safety, training, education, or development without the country, legal representative, or whoever has the de facto custody objecting in an appropriate manner to remove this situation. To this end, the Law for the Protection of Children and Young People in Danger has a set of guiding principles for actions and the various institutions with competence for intervention, namely: (a) Superior interest of the child (priority in the interests and rights of children); (b) Privacy (respect for intimacy, image, and reserve of their private life); (c) Early Intervention (to solve the problem as soon as it is known); (d) Minimum Intervention (the intervention shall be made exclusively by the competent entities and institutions); (e) Proportionality and topicality (the intervention should be the necessary and adequate to the specific situation); (f) Parental responsibility (the parents should assume their duties with the child or young person during the intervention); (g) Primacy of the continuity of the deep psychological relationships (the intervention should respect and preserve the affective relationships); (h) Prevalence of the family (prevalence to the measures that integrate the children or youths in the family or promote the adoption); (i) Obligation of information (the child or youth, the parents, or the legal representatives have the right to be informed); (j) Obligatory hearing and participation (the child or youth, the parents, or the legal representatives have the right to be heard and to participate); (k) Subsidiarity (the intervention should be carried out by the entities with competence in children or youth matters, the commissions of protection of children and youths and, lastly, the courts) (Protection of Children and Young People in Danger Act 1999, pp. 1–4).

Refugees and Migrant Children in Europe

107

IV. The Commission of the Azores for Children52 is a regional entity (Autonomous Region of the Azores—Portugal) that operates under the authority of the member of the regional government with competence in matters of social solidarity. Its mission is to defend and promote the rights of children and young people in the Autonomous Region of the Azores. V. Portuguese Penal Code53—Infanticide—Article 136, Exhibition or abandonment—Article 138; Female genital mutilation—Article 144-A; Domestic violence—Article 152; Forced marriage—Article 154-B; Trafficking in persons—Article 160; Sexual abuse of person incapable of resistance— Article 165; Sexual abuse of children—Article 171; Sexual abuse of dependent minors—Article 173; Recourse to prostitution of minors—Article 174; Lenocination of minors—Article 175; Pornography of minors—Article 176; Solicitation of minors for sexual purposes—Article 176A; Inhibition of parental power and prohibition of the exercise of functions—Article 179; Violation of the obligation of maintenance—Article 250; However, despite the fact that the concern of the international community for the rights of the child began a few years earlier, mainly without a binding force under international law, it is only with the adoption of the Convention on the Rights of the Child54 by the United Nations General Assembly on 20 November 1989 that this instrument becomes binding, and all the other international, European, and national and/or regional instruments adopted in the meantime come to assimilate its norms and guiding principles. Thus, and as has already been recognised in various international covenants such as the Universal Declaration of Human Rights, the Convention on the Rights of the Child recognises the need for positive discrimination in the treatment of children as the only means of enhancing the development of their physical and mental capacities, as well as their integration into society and thus the full exercise of citizenship (Convention on the Rights of the Child 1989, pp. 1–2). This convention was ratified by Portugal on 21 September 199055 and is the international legal instrument with the largest number of signatories in history, besides being the Magna Carta of UNICEF. It should also be stressed that this is one of the most comprehensive legal instruments of human rights, first because it is binding; secondly because it includes civil, political, economic, social, and cultural rights of children; and thirdly because it covers areas linked to international humanitarian law. The convention consists of fifty-four articles distributed in three parts: (a) Part I (Art. 1 to Art. 41); (b) Part II (Art. 42 to Art. 45); and (c) Part III (Art. 46 to Art. 54). All of these articles, and in particular Part I, constitute a fundamental milestone in the history of human rights, in particular the history of the rights of the

52

See Portuguese Regional Legislative Decree No. 17/2016/A, September 29. See Portuguese Decree-Law No 48/95, Diário da República No 63/1995, Series I-A of 1995-0315. 54 See United Nations General Assembly Resolution 44/25 of 20 November 1989. 55 It was signed on 26 January 1990 and entered into force in Portuguese law on 21 October 1990. 53

108

J. N. Rodrigues

child based on four guiding principles or pillars, namely non-discrimination,56 the right to life, the child’s survival and development,57 the best interests of the child58 and the recognition of the child’s views.59 Indeed, as Fernando Silva says, “the first major milestone in the Convention is that children’s rights are listed in a convention, which gives them exceptional legal force given the nature of this source of international law. By taking this form, the Convention acquires the force of law, or rather, supralegislative force, reflecting a shared concern for international cooperation, based on a commitment by States to internally orient their children’s policies towards conformity with the rights conferred on children by the Convention. We can see this change of conception as an essential qualitative impetus for the recognition and effectiveness of these rights, because of the coercive effect that they acquire by raising them to the level of a convention among States. Thus, through the convention, the States parties are enshrining and accepting these rights, but at the same time committing themselves to adopting measures and creating instruments to ensure compliance with and respect for the rights and to react to situations involving, directly or indirectly, the disrespect or violation of them. All of this represents more than a commitment, a real obligation of the States (. . .) one other defining feature of the Convention is that it gives the child his or her own status. This means recognizing the child as a full citizen, respecting his or her qualitative and quantitative differences, but more than that, assuming the relevance of his or her “status”, of his or her identity. Children’s rights are designed, not as a means of transposing the 56 See Article 2 of the Convention on the Rights of the Child “1. States Parties undertake to respect and to ensure the rights set forth in the present Convention to all children within their jurisdiction without discrimination of any kind, irrespective of the child’s race, colour, sex, language, religion, political or other opinion, parent or legal guardian, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is effectively protected against all forms of discrimination or punishment arising from the legal situation, activities, opinions expressed or beliefs of his or her parents, legal guardians or other members of his or her family. 57 Idem Article 6 (1) States Parties recognize the inherent right to life. (2) States Parties shall ensure to the fullest extent possible the survival and development of the child. 58 Ibid Article 3 (1) In all decisions concerning children taken by public or private social protection institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians or other persons legally responsible for him or her, and to this end shall take all appropriate legislative and administrative measures. (3) States Parties shall ensure that the functioning of institutions, services and facilities that care for and provide for children is in conformity with the standards set by the competent authorities, particularly in the fields of safety and health, with regard to the number and qualifications of their personnel and to the existence of appropriate supervision. 59 Ibid Article 12 (1) States Parties shall guarantee to the child with discretionary judgment the right to express his or her views freely on matters affecting the child, due regard being had to the views of the child in accordance with his or her age and maturity. (2) To this end, the child shall be given the opportunity to be heard in judicial and administrative proceedings affecting him or her, either directly or through a representative or an appropriate body, in the manner provided for by the rules of procedure of national law.

Refugees and Migrant Children in Europe

109

rights of adults to them. Children are not, for these purposes, seen as “miniature adults”, or as the men of tomorrow. The rights are designed for today’s children, based on their specific nature, and are established according to their stage of development. Their status is based on the fact that they are children, and as such, it is inspired by an ethics of childhood, in which the child is recognised as the holder of rights (Silva 2007, p. 2). In this sense, too, Maria Mendes states that, of the “fifty-four articles, some of the articles provide for the process of ratification and monitoring of the Convention, and others, according to the Committee on the Rights of the Child, can be classified as follows: Definition of the child (article 1); General principles (articles 2, 3, 6, 12); Civil rights and freedoms (articles 7, 8, 13 to 17, 37); Family environment and alternative care (articles 5, 9 to 11, 18 to 21, 25, 27, 39); Basic health and well-being (articles 6, 18, 23 to 24, 26 to 27); education, recreation, and cultural activities (articles 28, 29, 31); and special protective measures (articles 22, 23, 30, 32 to 40)” (Mendes, 2013, pp. 16–18). On the other hand, Allison James and Adrian James group the articles of the Convention on the Rights of the Child into three main categories, the so-called three Ps: (a) rights of provision, which are those that ensure the possibility of growth and development of children; (b) rights of protection, which refer to the requirement for state parties to implement systems to prevent child abuse or violations of rights in situations of exploitation, neglect, or maltreatment; and (c) rights of participation, which affirm the right of children to participate in decisions made on their behalf in conditions of freedom of conscience, expression and opinion, as well as the right of association and participation in the life of the family, school, and community (Allison James and Adrian James 2012, p. 62). However, and despite these various categories of distribution of the articles of the Convention on the Rights of the Child, we believe that the preamble states that the legal and political genesis that has driven state parties to adopt and ratify this binding legal instrument as follows: “whereas, in accordance with the principles proclaimed by the Charter of the United Nations, recognition of the inherent dignity of all members of the human family and of their equal and inalienable rights is the foundation of freedom, justice, and peace in the world; – Bearing in mind that in the Charter, the peoples of the United Nations have once again proclaimed their faith in fundamental human rights and in the dignity and worth of the human person, and have resolved to promote social progress and better conditions of life in larger freedom; – Recognizing that the United Nations, in the Universal Declaration of Human Rights and in international covenants on human rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth herein without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status; – Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special aid and assistance; – Convinced that the family, a natural and fundamental part of society and natural environment for the growth and well-being of all its members, and in particular children, should receive the protection and assistance necessary to play its full role in communities;

110

J. N. Rodrigues

– Recognizing that the child, for the harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love, and understanding; – Considering that children should be fully prepared to live an individual life in society and should be educated in the spirit of the ideals proclaimed in the Charter of the United Nations and, in particular, in a spirit of peace, dignity, tolerance, freedom, and solidarity; – . . . .Recognising that, in all countries of the world, there are children living in particularly difficult conditions and that special attention should be paid to them; – Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of children; – Recognising the importance of international cooperation in improving the living conditions of children in all countries, in particular in developing countries"(Convention on the Rights of the Child 1989, pp. 1–2).

In this regard, Fernando Silva highlights “[the] central policy of the convention is based on the principle of the best interests of the child. Much more than a principle, it represents a guiding criterion. In resolving matters concerning the child, the entire intervention of the state, all decisions rendered by the various bodies, at the different levels of intervention, are bound to respect the best interests of the child, raised to the public interest dimension. This is, at the same time, a legitimising criterion for decisions that the various bodies, or the various public and private entities, may adopt and that may assume relevance in the life of the child. The enunciation of this principle reaches, in the first place, the state as the guarantor of the respect for the rights of children, being legally enshrined in several norms that, in the most diverse situations, guide the interventions toward this plan. In relation to entities that are confronted with the need to make decisions in which the interests of the child may be present, when carrying out their functions, they should impose them and overlap them with other rights”. In this regard, it should be noted that the Principle 2 of the 1959 Declaration of the Rights of the Child already addressed the principle of the best interests of the child with a view to the respect of his or her rights” [the] child shall enjoy special protection and shall be given opportunities and facilities by law and other means for his or her psychic, mental, spiritual and social development in a healthy and normal environment and in conditions of freedom and dignity. In making laws for this purpose, the best interests of the child shall be the primary concern”. Similarly, Article 3 of the 1989 Convention on the Rights of the Child states: “[all] decisions concerning children taken by public or private social protection institutions, courts of law, administrative authorities or legislative bodies shall have as a primary consideration the best interests of the child”. And finally, the Portuguese Civil Code provides in articles 1913 et seq. Not only for disqualification from exercising parental responsibility, applicable in the most serious cases of culpable breach of parental duties that have caused serious harm to the child, but also for restrictive measures in cases where danger is observed but disqualification is not appropriate, namely for situations where guilt is not observed. The General Assembly at the United Nations later adopts other legal instruments, including:

Refugees and Migrant Children in Europe

111

– the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography. For a better understanding of this Protocol there is nothing better than to read part of the Preamble: “Whereas, in order better to achieve the objectives of the Convention on the Rights of the Child and the implementation of its provisions, in particular Articles 1, 11, 21, 32, 33, 34, 35 and 36, it would be appropriate to extend the measures which States Parties should take to ensure the protection of children from the sale of children, child prostitution and child pornography; Considering also that the Convention on the Rights of the Child recognizes the right of the child to be protected from economic exploitation or from being subjected to hazardous work or work that may harm the child’s education, health or physical, mental, spiritual, moral or social development; Seriously concerned at the significant and growing international trafficking in children for the purposes of the sale of children, child prostitution and child pornography; Deeply concerned at the widespread and continuing practice of sex tourism, to which children are especially vulnerable as it directly promotes the sale of children, child prostitution and child pornography; Recognizing that certain particularly vulnerable groups, in particular girls, are at greater risk of sexual exploitation, and that a disproportionately large number of girls are among the victims of sexual exploitation (Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography 2000, pp. 247–248)60; – the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. For a better understanding of this Protocol there is nothing better than to read part of the Preamble:” (. . .) concerned about the negative and widespread impact of armed conflict on children and its long-term repercussions on peacekeeping, security and sustainable development; having regard to the fact that in armed conflicts children are targeted, as well as direct attacks on property protected under international law, including places where children are generally present, such as schools and hospitals . condemning with deep concern the recruitment, training and use of children in hostilities, within and beyond national borders, by armed groups other than the armed forces of a State, and recognising the responsibility of those who recruit, train and use children in this way; recalling the obligation of each party to an armed conflict to respect the provisions of international humanitarian law (Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict 2000, pp. 236–237)61; – and the Optional Protocol to the Convention on the Rights of the Child on the establishment of a Communication Procedure. For a better understanding of this Protocol there is nothing better than to read also part of the Preamble “(. . .)

60

Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000, entered into force on 18 January 2002. 61 Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of May 2000, entry into force 12 February 2002.

112

J. N. Rodrigues

Reaffirming the universality, indivisibility, interdependence and interrelation of all human rights and fundamental freedoms; Reaffirming also the status of the child as a subject of rights and a human being with dignity and evolving capacities: Recognizing that the special status and dependent situation of the child may create real difficulties for the child in pursuing remedies for the violation of his or her rights; Considering that this Protocol will strengthen and complement national and regional mechanisms that enable children to bring complaints about violations of their rights (. . .)” (Optional Protocol to the Convention on the Rights of the Child on the establishment of a Communication Procedure 2011, p. 1–2).62 These legal instruments reiterate and consolidate the idea that “[t]he rights of the child are conceived as a natural right. . . insofar as their recognition as a natural right is associated with human essence itself. In other words, this is not an emerging natural right of a given society, but rather a right recognized on a planetary scale, as a right of humanity. This means that the rights conferred on children come from their own existence and essence. Because they are children, they are recognised by all states throughout the world and given rights that are part of their status. This is a phenomenon which is based on the fact that, in all states, children can be said to enjoy specific protection, which involves the granting of their own essential rights that are granted to them simply because they are children. It is therefore a right that is first and foremost reflected in society itself, considering it on a universal scale” (Silva 2007, pp. 2–3).

4 The 2030 Agenda of Sustainable Development Objectives by the United Nations General Assembly Lucas Moura Máximo exemplarily portrays the ratio of the appearance of Agenda 2030 to the United Nations General Assembly’s sustainable development goals: “[the] Millennium Development Goals (MDGs) were adopted in 2001 within the UN framework and have become the focal point of that organization’s development agenda for the past fifteen years. Derived from the Millennium Declaration (2000), a commitment signed by 192 countries, the MDGs have consolidated the UN system’s effort to build a more robust social agenda that began in the early 1990s. It was drawn up around eight objectives: (1) reducing poverty; (2) achieving universal basic education; (3) [achieving] gender equality and women’s autonomy; (4) reducing childhood mortality; (5) improving maternal health; (6) combating HIV/AIDS, malaria, and other diseases; (7) ensuring environmental sustainability; and (8) establishing a global partnership for development. This multilateral initiative 62

Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/66/138 of 19 December 2011, entered into force on 14 April 2014, and ratified by Portugal on 9 September 2013.

Refugees and Migrant Children in Europe

113

also originally consisted of 18 targets and 48 indicators, which allowed countries to measure progress and configured the MDGs as the most grandiose international commitment, until the adoption of the Sustainable Development Goals (SDGs) in September 2015. This was signed in favour of poverty reduction and economic and social development” (Máximo 2015, pp. 10–11). Within the Millennium Declaration, only the fourth objective is specifically aimed at protecting children, or rather reducing childhood mortality. In particular, the other seven goals are directly or indirectly related to this topic of safeguarding the most basic rights of children and young people in conceptual fullness. Thus, it is certain, as Lucas Moura Máximo highlighted, that the MDGs “are based on two central axes: the human development perspective and results-based management. Indeed, the agenda centred on the eight MDGs has successfully brought together a number of important human and international development issues and mobilised a global effort to achieve the goals set. . . . [However], criticism of the way in which the process of adopting the targets has taken place indicates that the MDGs present a ‘source defect’, since the establishment of a particular vision of development in favour of neo-liberal globalisation is identified, given the preponderance of the US, European Union, and Japan triad in the negotiations and the co-sponsorship of the [International Monetary Fund] IMF, the World Bank and the [Organization for Economic Co-operation and Development] OECD. . . . Related to this point, other authors still point out that the agenda is flawed by not clearly perceiving the existence of poverty as a violation of Human Rights” (Máximo, pp. 11–12). However, the United Nations (UN) resolution entitled “Transforming our world: Agenda 2030 for Sustainable Development”, also entitled “Post–2015 Agenda or Agenda 2030”, was adopted by world leaders at a summit in New York on 25 September 2015. This resolution came into force on 1 January 2016 and sets new and broad objectives. Thus, Agenda 2030 sets 169 targets and 17 objectives for sustainable development (SDS) that we identify below: (1) Eradicate poverty; (2) Eradicate hunger; (3) Ensure quality health; (4) Provide quality education; (5) Ensure gender equality; (6) Provide drinking water and sanitation; (7) Provide renewable and accessible energy; (8) Present decent work and economic growth; (9) Ensure industry, innovation, and infrastructure; (10) Reduce inequality; (11) Create sustainable cities and communities; (12) Ensure sustainable production and consumption; (13) Promote climate action; (14) Protect marine life; (15) Protect land life; (16) Promote peace, justice, and effective institutions; and (17) Establish partnerships to implement the goals (The Sustainable Development Agenda 2015, pp. 1–2). These goals were unanimously approved by the 193 member states of the UN, aim to address the needs of people in both developed and developing countries, and are unfolded into 169 goals to be pursued over the next 15 years, thus succeeding the 8 Millennium Development Goals. Indeed, as the Cities Forum websites have said on this topic, “[Agenda 2030 is] much more ambitious than the previous Millennium Agenda [2000 and 2015], primarily because it includes ‘zero goals’, i.e. the express goal of ‘leaving no one behind’ and taking as achievable the eradication of extreme poverty everywhere by 2030, ending hunger and all forms of malnutrition, or achieving universal and

114

J. N. Rodrigues

equitable access to safe drinking water for all” (Cities Forum 2016). In essence, Agenda 2030 has sought to strike a balance between the various dimensions of sustainable development, including economic, social, and environmental development, while promoting peace, justice, and effective institutions. Indeed, UN Secretary-General Ban Ki-moon aptly portrays this instrument by reiterating “a list of things to do on behalf of peoples and the planet, and a plan for success” (as cited in Guide on Sustainable Development—17 goals to transform our world, 2015, p. 1), where we should all contribute to achieving this much sought-after success, and whose main responsibility for turning this vision into reality lies with the governments of the countries. Therefore, on the topic of this work, i.e. refugees and migrant and/or unaccompanied children, Agenda 2030 provides a general set of policies and measures to be implemented by 2030, which safeguard to some extent children, migrants, underdeveloped countries, and, in particular, people with vulnerabilities. Agenda 2030 therefore provides for the implementation of the following by 2030: – Reduce by at least half the proportion of men, women, and children of all ages living in poverty, in all its dimensions, according to national definitions; – End hunger and ensure all people, in particular the poorest and those in vulnerable situations, including children, access to quality, nutritious, and sufficient food throughout the year; – End all forms of malnutrition, including achieving by 2025 internationally agreed-upon targets on dwarfism and cachexia in children under five and meeting the nutritional needs of adolescents, pregnant and lactating women, and older people; – Reduce the global maternal mortality rate to less than 70 deaths per 100,000 live births; – End the preventable deaths of newborns and children under five, with all countries trying to reduce neonatal mortality to at least 12 per 1000 live births and mortality of children under five to at least 25 per 1000 live births; – Ensure that all girls and boys complete primary and secondary education, which should be freely accessible, equitable and of high quality, and lead to relevant and effective learning outcomes; – Ensure that all girls and boys have access to quality early childhood development and pre-school care and education so that they are prepared for primary education; – Eliminate gender disparities in education and ensure equal access to all levels of education and vocational training for the most vulnerable, including people with disabilities, indigenous peoples, and children in vulnerable situations; – To build and improve physical facilities for education that are appropriate for children and sensitive to disability and gender equality, and that provide safe, non-violent, and effective learning environments for all; – Achieve universal and equitable access to safe and secure drinking water for all;

Refugees and Migrant Children in Europe

115

– Achieve access to adequate and equitable sanitation and hygiene for all and end open defecation, with special attention to the needs of women and girls and those in vulnerable situations; – Accomplish full and productive employment and decent work for all women and men, including young people and people with disabilities, and equal pay for work of equal value; – Empower and promote the social, economic, and political inclusion of all regardless of age, gender, disability, race, ethnicity, origin, religion, economic, or other status; – Ensure equal opportunities and reduce inequalities in outcomes, including through the elimination of discriminatory laws, policies, and practices and the promotion of appropriate legislation, policies, and actions in this regard; – Reduce the transaction costs of remittances from migrants to less than 3% and eliminating remittance mechanisms with costs above 5%; – Provide access to safe, accessible, sustainable, and affordable transport systems for all, improving road safety by expanding the public transport network, with special attention to the needs of vulnerable people, women, children, people with disabilities, and the elderly; – Provide universal access to safe, inclusive, accessible, and green public spaces, particularly for women and children, older people, and people with disabilities; – Support the least developed countries, including through technical and financial assistance, in sustainable and resilient construction using local materials (The Sustainable Development Agenda 2015, pp. 1–2). However, despite these policies and measures, some criticisms must be raised, since the agenda lacks a more fruitful treatment on some issues—for example, migration rights are superficially covered in SDGs 8, 10 and 17—and it is even silent on several current, sensitive and relevant issues, such as addressing the rights of the Lesbian, Gay, Bisexual, Transvestite, Transsexual and Transgender (LGBT) population. In addition, the SDGs do not emphasize the imperative of compliance with human rights, nor do they recognize its universal, indivisible and interdependent character, with implications for the implementation of the agenda as a whole. Nevertheless, Agenda 2030 still provides for a number of other policies, and measures to be implemented over the same period and specifically targets people with vulnerabilities, in particular children, but whose implementation will safeguard the most basic human rights, in particular: – End all forms of discrimination against all women and girls everywhere; – Eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other exploitation; – Eliminate all harmful practices, such as premature, forced, and child marriages and female genital mutilation; – Adopt and strengthen sound policies and applicable legislation for the promotion of gender equality and the empowerment of all women and girls at all levels;

116

J. N. Rodrigues

– Take immediate and effective measures to eradicate forced labour, end modern slavery and trafficking of persons, and ensure the prohibition and elimination of the worst forms of child labour, including the recruitment and use of child soldiers, and by 2025 end child labour in all its forms; – Protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular migrant women, and people in precarious employment; – Facilitate the migration and mobility of people in an orderly, safe, regular, and responsible manner, including through the implementation of planned and wellmanaged migration policies; – End the abuse, exploitation, trafficking, and all forms of violence and torture against children; – Provide legal identity for all, including birth registration; – Promote and enforce non-discriminatory laws and policies for sustainable development (The Sustainable Development Agenda 2015, pp. 1–2). However, “[in] the case of the revitalization of the global partnership for development, it is undeniable that SDS 17 carries greater robustness and breadth when compared to [Millennium Development Goal 8: Develop a Global partnership for development] MDG8, since it contains 19 targets that address issues such as finance, technology, capacity building, trade, policy and institutional coherence, partnership among several stakeholders, among others. Nevertheless, these recommendations remain weak and open space “for key actors (richer countries, large corporations, and international organizations) to be free of responsibility for the high levels of poverty in the global community” (Máximo, p. 22). In short, for countries to achieve their sustainable development goals, cities need to be more inclusive, safe, resilient, and sustainable in order to safeguard the most basic human rights. UNICEF, aware of the current challenges, is committed to achieving these goals for the benefit of all children and future generations.

5 The (Un)visible Reality of Refugees and Minor and/or Unaccompanied Migrants in the European Union Refugee children are children first and foremost, and, as children, they need special attention (Ogata 1999, p. 1)

Migration flows are constantly changing and result from several reasons: persecution, human rights violations, child recruitment, child trafficking, female genital mutilation, family and domestic violence, forced marriage, child labour, prostitution, threat to life or liberty, wars, stateless people, natural disasters, climate change, victims of all kinds of exploitation (sexual, labour, parental, military, cultural, religious), and diseases (Covid-19 or malaria), among many others. Therefore, talking about the (un)invisible reality of refugees and minor and/or unaccompanied migrants in the European Union does not have any complexity and/or specificity, but

Refugees and Migrant Children in Europe

117

is essentially based on double vulnerability. In fact, everything we mentioned in the previous points about children and children’s rights applies to the sub judice case, because we are essentially talking about children, independent of ancestry, sex, race, language, territory of origin, religion, political or ideological beliefs, education, economic situation, social condition, or sexual orientation. Finally, we are simply talking about children, children without a homeland or with a homeland torn apart by armed conflict, environmental and war victims, and victims abandoned and exploited in their most basic human rights. In this regard, Maria João Bourbon describes these events as “[an] alarming movement”. This is how UNICEF describes the increase in the number of refugee and migrant children travelling alone around the world, thus being exposed to “risks” on “extremely dangerous routes, often at the mercy of smugglers and traffickers”. The conclusion is drawn from the report “A child is a child”: Protecting children on the move from violence, abuse and exploitation” (Bourbon 2017, p. 1). Also along these lines, Ana Carolina Carvalho dos Santos points out that “refugee children currently represent more than half of the total world population of refugees, which is extremely worrying, since many of them are not only minors but are also more exposed to all kinds of dangers, that is, they are children separated from their parents as well as from any person responsible for them. A child, regardless of refugee, migrant, and/or unaccompanied minor, is still a child. In fact, it is a child with double vulnerability, so the support given by child protection systems is very important. And here it is important to underline, as we have seen, that there are many international, European, and national instruments that safeguard and protect children in their entirety and, in particular, they stand out for reiterating as a mechanism for action the best interest of the child that must be taken into account in all decisions taken that affect his or her life (Santos 2012, p. 6). We therefore believe that no Member State of the European Union can gradually integrate the many existing international legal instruments and, as stated above, can refrain from examining any application from a refugee child, a migrant child, and/or an unaccompanied child. Article 8 of the Convention on the Rights of the Child should use the principle of the best interests of the child as a fundamental criterion for judicial and/or administrative decisions affecting the lives of these doubly vulnerable children. The use of this principle, in conjunction with all other principles and rights of the child, is the ultimate guarantor that children will remain children, regardless of the reasons for which they chose or were forced to migrate.

6 The UN Global Pact for Migration and the Imperative Safeguarding of Children in Transit The UN Refugee Agency (UNHCR) annual reports over the last eight years demonstrates a considerable gradual increase in refugees, migrant children, and/or accompanied minors:

118

J. N. Rodrigues

(a) UNHCR Global Trends 2010, says “[by the] end of 2010, there were 43.7 million forcibly displaced people worldwide, the highest number in 15 years. Of these, 15, four million were refugees: 10, 55 million under UNHCR’s mandate and 4.82 million Palestinian refugees registered with [UN relief and works agency for palestine refugees in the near east] UNRWA. The overall figure also includes 837,500 asylum seekers and 27.5 million internally displaced persons (IDPs). . . Women and girls represented, on average, 49 per cent of persons of concern to UNHCR. They constituted 47 per cent of refugees, and half of all IDPs and returnees (former refugees). Forty-four per cent of refugees and 31 per cent of asylum seekers were children below 18 years of age” (UNHCR Global Trends 2010, p. 2–3). (b) UNHCR Global Trends 2011 says “[for] the fifth consecutive year, the number of forcibly displaced people worldwide exceeded 42 million, a result of persistent and new conflicts in different parts of the world. By the end of 2011, the figure stood at 42.5 million. Of these, 15.2 million were refugees: 10.4 million under UNHCR’s mandate and 4.8 million Palestinian refugees registered with UNRWA. The overall figure also included 895,000 asylum seekers and 26.4 million internally displaced persons (IDPs) (. . .) Some 17,700 asylum applications were lodged by unaccompanied or separated children in 69 countries in 2011, mostly by Afghan and Somali children. The number was significantly higher than in 2010 (15,600 claims). (. . .) On average, women and girls constituted 49 per cent of persons of concern to UNHCR. They accounted for 48 per cent of refugees, and half of all IDPs and returnees (former refugees). Forty-six per cent of refugees and 34 per cent of asylum-seekers were children below 18 years of age” (UNHCR Global Trends 2011, pp. 2–3). (c) UNHCR Global Trends 2012 says “[by the] end of 2012, 45.2 million people were forcibly displaced worldwide as a result of persecution, conflict, generalized violence, and human rights violations. Some 15.4 million people were refugees: 10.5 millions under UNHCR’s mandate and 4.9 million Palestinian refugees registered by UNRWA. The global figure included 28.8 million internally displaced persons (IDPs) and nearly one million (937,000) asylum seekers. The 2012 level was the highest since 1994, when an estimated 47 million people were forcibly displaced worldwide.. . . During the year, conflict and persecution forced an average of 23,000 persons per day to leave their homes and seek protection elsewhere, either within the borders of their countries or in other countries.. . . More than half (55%) of all refugees worldwide came from five countries: Afghanistan, Somalia, Iraq, the Syrian Arab Republic, and Sudan.. . . 21,300 asylum applications were lodged by unaccompanied or separated children in 72 countries in 2012, mostly by Afghan and Somali Children. It was the highest number on record since UNHCR started collecting such data in 2006.. . . Refugee women and girls accounted for 48 per cent of the refugee population in 2012, a proportion that has remained constant over the past decade.. . . Children below 18 years constituted 46 per cent of the refugee population in 2012. This was in line with 2011 but higher than a few years ago” (UNHCR Global Trends 2012, pp. 2–3).

Refugees and Migrant Children in Europe

119

(d) UNHCR Global Trends 2013 says “[by the] end of 2013, 51.2 million individuals were forcibly displaced worldwide as a result of persecution, conflict, generalized violence, or human rights violations. Some 16.7 million persons were refugees: 11.7 million under UNHCR’s mandate and 5.0 million Palestinian refugees registered by UNRWA. The global figure included 33.3 million internally displaced persons (IDPs) and close to 1.2 million asylum seekers. If these 51.2 million persons were a nation, they would make up the 26th largest in the world.. . . During 2013, conflict and persecution forced an average of 32,200 individuals per day to leave their homes and seek protection elsewhere, either within the borders of their own country or in other countries. This compares to 23,400 in 2012 and 14,200 in 2011. . . 25,300 asylum applications were lodged by unaccompanied or separated children in 77 countries in 2013, mostly by Afghan, South Sudanese, and Somali children. This was the highest number on record since UNHCR started collecting data in 2006. . . Children below 18 years constituted 50 per cent of the refugee population in 2013, the highest figure in a decade” (UNHCR Global Trends 2013, pp. 2–3). (e) UNHCR Global Trends—Forced Displacement in 2014 says, “[global] forced displacement has seen accelerated growth in 2014, once again reaching unprecedented levels. The year saw the highest displacement on record. By the end of 2014, 59.5 million individuals were forcibly displaced worldwide as a result of persecution, conflict, generalized violence, or human rights violations. This is 8.3 million persons more than the year before (51.2 million) and the highest annual increase in a single year.. . . The number of individuals forced to leave their homes per day due to conflict and persecution increased four-fold in four years. During 2014, conflict and persecution forced an average of 42,500 individuals per day to leave their homes and seek protection elsewhere, either within the borders of their own country or in other countries. This compares to 32,200 in 2013, 23,400 in 2012, 14,200 in 2011, and 10,900 in 2010. . . About 34,300 asylum applications were lodged by unaccompanied or separated children in 82 countries in 2014, mostly by Afghan, Eritrean, Syrian, and Somali children. This was the highest number on record since UNHCR started collecting such data in 2006. . . Children below 18 years of age constituted 51 per cent of the refugee population in 2014, up from 41 per cent in 2009 and the highest figure in more than a decade” (UNHCR Global Trends—Forced Displacement 2014, pp. 2–3). (f) UNHCR Global Trends—Forced Displacement in 2015 says “[global] forced displacement has increased in 2015, with record-high numbers. By the end of the year, 63.3 million individuals were forcibly displaced worldwide as a result of persecution, conflict, generalized violence, or human rights violations. This is 5.8 million more than the previous year (59.5 million). . . More than half (54%) of all refugees worldwide came from just three countries: the Syrian Arab Republic (4.9 million), Afghanistan (2.7 million), and Somalia (1.1 million). . . Asylum seekers submitted a record high number of new applications for asylum or refugee status—estimated at 2.0 million. With 441,900 asylum claims, Germany was the world’s largest recipient of new individual applications, followed

120

J. N. Rodrigues

by the United States of America (172,700), Sweden (156,400), and the Russian Federation (152,500).. . . Unaccompanied or separated children in 78 countries—mainly Afghans, Eritreans, Syrians, and Somalis—lodged about 98,400 asylum applications in 2015. This was the highest number on record since UNHCR started collecting such data in 2006. . . Children below 18 years of age constituted about half of the refugee population 2015, up from 41 per cent in 2009 and the same as in 2014” (UNHCR Global Trends—Forced Displacement 2015, pp. 2–3). (g) UNHCR Global Trends—Forced Displacement in 2016 says, “[by] the end of 2016, 65.6 million individuals were forcibly displaced worldwide as a result of persecution, conflict, violence, or human rights violations. That was an increase of 300,000 people over the previous year, and the world’s forcibly displaced population remained at a record high.. . . During the year, 10, three million people were newly displaced by conflict or persecution. This included 6.9 million individuals displaced within the borders of their own countries and 3.4 million new refugees and new asylum seekers. . . . Unaccompanied or separated children—mainly Afghans and Syrians—submitted about 75,000 asylum applications in 70 countries during the year, although this figure is assumed to be an underestimate. Germany received the highest number of these applications (35,900). Children below 18 years of age constituted about half of the refugee population in 2016, as in recent years. Children make up an estimated 31 per cent of the total world population” (UNHCR Global Trends—Forced Displacement 2016, pp. 2–3). (h) UNHCR Global Trends—Forced Displacement in 2017 says “[globally], the forcibly displaced population increased in 2017 by 2.9 million. By the end of the year, 68.5 million individuals were forcibly displaced worldwide as a result of persecution, conflict, or generalized violence. As a result, the world’s forcibly displaced population remained yet again at a record high . . . . An estimated 16.2 million people were newly displaced in 2017. This included 11.8 million individuals displaced within the borders of their own countries and 4.4 million newly displaced refugees and new asylum seekers. . . . The number of new displacements was equivalent to an average of 44,400 people being forced to flee their homes every day in 2017. . . . This conservative estimate takes into account new applications, asylum seekers, and refugees. It includes 45,500 unaccompanied and separated children who sought asylum on an individual basis in 2017, as reported by 67 countries, and 138,700 unaccompanied and separated child refugees and asylum-seekers as reported by 63 UNHCR operations, with reductions to avoid possible double-counting. . . . Children under 18 years of age constituted about half of the refugee population in 2017, up from 41 per cent in 2009 but similar to more recent years” (UNHCR Global Trends—Forced Displacement 2017, pp. 2–3). (i) UNHCR Global Trends—Forced Displacement in 2018 says, “[the] global population of forcibly displaced increased by 2.3. million people in 2018. By the end of the year, almost 70.8 million individuals were forcibly displaced worldwide as a result of persecution, conflict, violence, or human rights

Refugees and Migrant Children in Europe

121

violations. As a result, the world’s forcibly displaced population remained yet again at a record high.. . . The number of new displacements was equivalent to an average of 37,000 people being forced to flee their homes every day in 2018. . . . Nearly 4 out of every 5 refugees lived in countries neighbouring their countries of origin. . . . Asylum seekers submitted 1.7 million new claims. With 254,300 such claims, the United States of America was the world’s largest recipient of new individual applications, followed by Peru (192,500), Germany (161,900), France (114,500), and Turkey (83,800). . . . About 27,600 unaccompanied and separated children sought asylum on an individual basis, and a total of 111,000 unaccompanied and separated child refugees were reported in 2018. Both numbers are considered significant underestimates” (UNHCR Global Trends— Forced Displacement 2018, pp. 2–3). In total, more than two thirds (67%) of all refugees worldwide come from just five countries: Syrian Arab Republic (6.7 million), Afghanistan (2.7 million), Southern Sudan (2.3 million), Myanmar (1.1 million), and Somalia (0.9 million). Moreover, it states that, for the fifth consecutive year, Turkey welcomed the largest number of refugees worldwide, with 3.7 million people. The main refugee asylum countries were Turkey (3.7 million), Pakistan (1.4 million), Uganda (1.2 million), Sudan (1.1 million), and Germany (1.1 million). It also points out that children under 18 made up about half the refugee population in 2018, up from 41 per cent in 2009, but similar to previous years. In other words, there was a substantial increase in migrant children, including refugees (UNHCR Global Trends 2018, p. 3). For all these reasons and statistical data presented by UNHCR, the adoption of the Global Migration Pact was fundamental, necessary, and urgent.63 The Global Pact for Migration was adopted “by representatives of some 150 countries [during an international conference] which drew criticism and objections from nationalists and supporters of closing the border to immigrants. (. . .) UN Secretary-General Antonio Guterres called the moment “influential” as “the fruit of great efforts” and called for “no fear of misperceptions” about immigration. Guterres called the charter “a road map to avoid suffering and chaos and to promote mutually beneficial cooperation”, criticizing the “many lies” that have been promoted on its text. Guterres said that the Pact provides a platform for “humane, sensitive, and mutually beneficial” action that is based on “simple ideas”. “Firstly, migration has always been with us, but it must be managed and secure; secondly, national policies can be more successful with international cooperation” (Teller Report 2018, p. 1). In fact, although this document is not binding because it is based on the sovereignty of states, it defines international rules for decent, safe, orderly, and regular migration based on responsibility and non-discrimination of human rights, but above all, it recognises the right of every individual to security, dignity, and protection in countries of origin, transit, and destination.

63 The Global Pact for Secure, Ordered and Regular Migration was approved by the United Nations General Assembly on December 19, 2018 (Resolution A/73/L.66).

122

J. N. Rodrigues

This pact is based on 10 guiding principles: (a) People-centredness; (b) International cooperation; (c) National sovereignty; (d) Rule of law and due process; (e) Sustainable development; (f) Human rights; (g) Gender-responsiveness, (h) Child-sensitivity: “[the] Global Compact 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, including unaccompanied and separated children”; (i) Whole-of-government approach; and (j) Wholeof-society approach (Global Compact for Safe, Orderly and Regular Migration 2018, pp. 4–5). It is structured in 23 common objectives, which will be continuously implemented by the signatory states through national plans, so as to cover all relevant dimensions of migratory phenomena and, above all, for safe, orderly, and regular migration, the following actions will take place: (1) Collect and utilize accurate and disaggregated data as a basis for evidence-based policies; (2) Minimize the adverse drivers and structural factors that compel people to leave their country of origin; (3) Provide accurate and timely information at all stages of migration; (4) Ensure that all migrants have proof of legal identity and adequate documentation; (5) Enhance availability and flexibility of pathways for regular migration; (6) Facilitate fair and ethical recruitment and safeguard conditions that ensure decent work; (7) Address and reduce vulnerabilities in migration; (8) Save lives and establish coordinated international efforts on missing migrants; (9) Strengthen the transnational response to smuggling of migrants; (10) Prevent, combat, and eradicate trafficking in persons in the context of international migration; (11) Manage borders in an integrated, secure, and coordinated manner; (12) Strengthen certainty and predictability in migration procedures for appropriate screening, assessment, and referral; (13) Use migration detention only as a measure of last resort and work towards alternatives; (14) Enhance consular protection, assistance, and cooperation throughout the migration cycle; (15) Provide access to basic services for migrants; (16) Empower migrants and societies to realize full inclusion and social cohesion; (17) Eliminate all forms of discrimination and promote evidence-based public discourse to shape perceptions of migration; (18) Invest in skills development and facilitate mutual recognition of skills, qualifications, and competences; (19) Create conditions for migrants and diasporas to fully contribute to sustainable development in all countries; (20) Promote faster, safer, and cheaper transfer to remittances and foster financial inclusion of migrants; (21) Cooperate in facilitating safe dignified return and readmission as well as sustainable reintegration; (22) Establish mechanisms for the portability of social security entitlements and earned benefits; and (23) Strengthen international cooperation and global partnerships for safe, orderly, and regular migration (Global Compact for Safe, Orderly and Regular Migration 2018, p. 6). For each objective, implementation measures are defined, identifying the respective deadlines for implementation and the government areas involved. In addition, paragraph 53 of the pact encourages all member states to develop, as soon as possible, ambitious responses to the implementation of each national reality, seeking

Refugees and Migrant Children in Europe

123

to improve flow management and reception and integration processes. Thus, for example, with regard to the object of this article, which are “refugees, migrant children, and/or unaccompanied minors“, some of the measures envisaged to safeguard the best interests of children and their protection are as follows: • Establish comprehensive policies and develop partnerships that provide migrants in a situation of vulnerability, regardless of their migration status, with necessary support at all stages of migration, through identification and assistance, as well as protection of their human rights, in particular in cases related to women at risk, children, especially those unaccompanied or separated from their families, members of ethnic and religious minorities, victims of violence including sexual and gender-based violence, older persons, persons with disabilities, persons who are discriminated against on any basis, indigenous peoples, workers facing exploitation and abuse, domestic workers, victims of trafficking in persons, and migrants subject to exploitation and abuse in the context of smuggling of migrants; • Develop gender-responsive migration policies to address the particular needs and vulnerabilities of migrant women, girls, and boys, which may include assistance, health care, psychological and other counselling services, as well as access to justice and effective remedies, especially in cases of sexual and gender-based violence, abuse, and exploitation; • Account for migrant children in national child protection systems by establishing robust procedures for the protection of migrant children in relevant legislative, administrative, and judicial proceedings and decisions, as well as in all migration policies and programmes that impact children, including consular protection policies and services and cross-border cooperation frameworks, in order to ensure that the best interests of the child are appropriately integrated, consistently interpreted, and applied in coordination and cooperation with child protection authorities; • Protect unaccompanied and separated children at all stages of migration through the establishment of specialized procedures for their identification, referral, care, and family reunification, and provide access to health-care services, including mental health, education, legal assistance, and the right to be heard in administrative and judicial proceedings, including by swiftly appointing a competent and impartial legal guardian as essential means to address their particular vulnerabilities and discrimination, protect them from all forms of violence, and provide access to sustainable solutions that are in their best interests; • Build on existing practices to facilitate access for migrants in an irregular status to an individual assessment that may lead to regular status, on a case-by-case basis and with clear and transparent criteria, especially in cases in which children, youth, and families are involved, as an option for reducing vulnerabilities as well as for states to ascertain better knowledge of the resident population (Global Compact for Safe, Orderly and Regular Migration 2018, pp. 13–14). These 23 proposed objectives are correlated with each other, as well as the measures, so that with the collaboration of the member states we can truly cover all of the dimensions of the migratory phenomenon and, in particular, because of the

124

J. N. Rodrigues

awareness on the part of the Member States that the best interests of the child must be above any economic, social, and/or legal constraints. We must also not forget that this Global Pact on Migration also provides for the establishment of an international forum for the Evaluation of Migration every four years, that is, as early as 2022. This forum will allow for the sharing and discussion of strategies for implementing the respective objectives, at local, national, regional, and global levels, and we hope that sooner or later they will realise that no man is illegal.

7 Final Considerations The discussion about refugee children, migrants and/or unaccompanied minors is a sterile one, since it does not really make sense to distinguish children. These are, by their very nature, children, defenseless, sensitive and, unable to manage their person and/or assets because of their age. However, throughout history we have seen remarkable progress in the various international, European and/or national legal instruments safeguarding the most basic rights of children. Many of these rights are now embodied in these legal instruments, which are the result of experience and research by a multidisciplinary set of scientific knowledge but, in particular, of children’s sociology and psychology. In this way, the child in all his or her fullness should be the center of policies to safeguard the most elementary human rights, so as to ensure the protection and safety of children and families in transit, helping them to recover a sense of normality. The child should not be seen as an object of adult socialization, but as a subject of socialization process. We must never forget that they are children and, as such, are in a process of emotional, intellectual and social formation. Therefore, redoubled humanitarian assistance is needed with regard to refugee children, migrants and/or unaccompanied minors in the European Union, mainly because their chances in the future, as Men, are strongly dependent and influenced by the current treatment and living conditions we offer upon arrival in the host country. We will not be able to shape the Men of tomorrow if we do not know how to welcome these children with humanist principles of tolerance, affection and in strict respect for the fundamental and human rights of children. We cannot educate the Men of tomorrow if we continue to allow low self-esteem, attempted suicide, early family breakdown, loneliness, physical and psychological abuse, sexual abuse, drug use, school dropout, lack of love, and a demeaned revolt against the host society. In fact, it is not due to the absence of legal instruments that refugee children, migrants and/or unaccompanied minors are invisible victims of the migration process of the twenty-first century. On the contrary, we have good legal instruments and good migration policies. Unfortunately, we have not made good decisions and/or good law enforcement regarding migration issues. And, the first bad decision we have repeatedly adopted is that we continue to privilege legality at the entrance of the European space, to the detriment of the child’s vulnerability. That is, we still do not see the child with all his limitations and weaknesses, but we do see foreign people

Refugees and Migrant Children in Europe

125

entering the European space, without respecting the minimum and necessary rules of entry into the European space. However, we often forget that these “people” are simply children. Therefore, as a way to mitigate these weaknesses of children is necessary: create a single European corridor for migrant, refugee and/or unaccompanied children supported by a multidisciplinary emergency language team; provide these children within this single European children’s corridor with play activities, temporary accommodation, psychological support, spaces for learning, socialization, culture, religion, leisure; build a safe Europe for any child through the implementation of an international child support network; foster multicultural and ethnic learning spaces but not on the fringes of the host society; Raise awareness among border guards about the specific needs of children and their fundamental rights; create a single policy regarding procedures, analyses, applications and/or decisions on applications concerning migrant refugee children and/or unaccompanied minors; create accessible technological devices for any child to request support/help; implement uncompromisingly the principles of non-discrimination, non-refoulement and “in dubious pro-child”. These are some policies or measures that Member States can implement, especially all of which, directly or indirectly, are provided for in international, European and/or national legal instruments; they are simply not implemented because Member States repeatedly forget that they deal with children. It is often easier for member states to treat the migration process simply as one more number than to look into the suffering eyes of the child. Moreover, dealing with refugee children, migrants and/or unaccompanied minors brings added difficulties for member states because they are a group with special needs, since they are doubly vulnerable: due to their age and because they have left their parents of origin (alone or accompanied). Therefore, when considering any request from children, refugees, migrants and/or unaccompanied minors, Member States must take the utmost care to safeguard the best interests of the child and, to this end, must provide technical and financial means to ensure that this principle is never undermined so as to allow the child to remain a child, regardless of the country of destination.

References A World for children. (2002). Report of the special session of the general assembly of basic learning needs. (1990). UNESDOC Digital Library. Retrieved from https://unesdoc.unesco. org/ark:/48223/pf0000097551. Accessed 5 May 2020. Bourbon, M. J. (2017, May 18). Number of migrant and refugee children traveling alone is five times higher than in 2010.. Retrieved from https://expresso.pt/internacional/2017-05-18Numero-de-criancas-migrantes-e-refugiadas-que-viajam-sozinhas-e-cinco-vezes-superior-aode-2010#gs.fNF6kKM . Accessed 29 July 2020. Building the Age of Human Rights for Children, Adolescents – Time line: Towards the Age of Human Rights in the World. (2020). Pernambuco Child and Youth Secretariat. Government of Brazil. Retrieved from http://www.scj.pe.gov.br/scjpe/sites/all/themes/zentropy/pdf/producao_

126

J. N. Rodrigues

scj/CONSTRUINDOAERADOSDIREITOSHUMANOSporjoaocandido.pdf. Accessed 5 May 2020. Charter of Fundamental Rights of the European. (2000). Official Journal of the European Communities. Retrieved from https://www.europarl.europa.eu/charter/pdf/text_en.pdf. Accessed 15 June 2020. Clark, H., Seck, A. M. C., Banerjee, A., Peterson, S., Dalglish, S. L., Ameratunga, S., Balabanova, D., . . . Bhant, M. K. (2020). A future for the world’s children? A WHO-UNICED-Lancet Commision. The Lancet Commissions, 395, 605. Retrieved from https://www.thelancet.com/ action/showPdf?pii¼S0140-6736%2819%2932540-1. Accessed 15 June 2020. Constitution of the Portuguese Republic. (1976). Electronic Journal of the Republic. Retrieved from https://dre.pt/constitution-of-the-portuguese-republic .Accessed 15 June 2020. Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children. (1996). Hague Conference on Private International Law – Conference de la Haye de droit international privé (HCCH). Retrieved from https://assets.hcch.net/docs/f16ebd3d-f398-4891-bf47-110866e171d4.pdf. Accessed 15 June 2020. Convention on the Elimination of All Forms of Discrimination Against Women. (1979). United Nations Human Rights. Office of the High Commissioner. Retrieved from https://www.ohchr. org/en/professionalinterest/pages/cedaw.aspx. Accessed 5 May 2020. Convention on the Rights of the Child. (1989). United Nations Human Rights - Office of the High Commissioner. Retrieved from https://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf . Accessed 29 July 2020. Declaration of the Rights of the Child. (2020). Directorate-General for Education. Retrieved from https://www.dge.mec.pt/sites/default/files/ECidadania/Docs_referencia/declaracao_universal_ direitos_crianca.pdf. Accessed 5 May 2020. Durban Declaration and Programme of Action. (2001). United Nations Human Rights – Office of the High Commissioner. Retrieved from https://www.ohchr.org/EN/Issues/Education/Training/ Compilation/Pages/DurbanDeclarationandProgrammeofAction(2001).aspx .Accessed 15 June 2020. Fontaine, M. (2018, 12, 28). World – Unicef says the world again failed to protect children in 2018. Retrieved from https://www.sabado.pt/mundo/detalhe/unicef-diz-que-mundo-voltou-a-falharna-proteccao-das-criancas-em-2018. Accessed 15 June 2020. Forum Cities. (2016, January 1). United Nations 2030 Agenda – Sustainable Development Goals. Retrieved from https://www.forumdascidades.pt/?q¼content/agenda-2030-das-nacoes-unidasobjectivos-de-desenvolvimento-sustentavel . Accessed 29 July 2020. Global Compact for Safe, Orderly and Regular Migration. (2018, December 10/11). United Nations General Assembly. Retrieved from https://undocs.org/en/A/CONF.231/3 . Accessed 7 September 2020. Guide on Sustainable Development - 17 goals to transform our world. (2015). United Nations Regional Information Center for Western Europe. Retrieved from https://unric.org/pt/wpcontent/uploads/sites/9/2019/01/SDG_brochure_PT-web.pdf . Accessed 29 July 2020. Incheon Declaration and Framework for Action. (2015). UNESDOC Digital Library. Retrieved from https://unesdoc.unesco.org/ark:/48223/pf0000245656 .Accessed 15 June 2020. International Pact on Civil and Political Rights. (1966). United Nations Human Rights. Office of the High Commissioner. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/ccpr. aspx. Accessed 5 May 2020. International Pact on Economic, Social and Cultural Rights. (1966). United Nations Human Rights. Office of the High Commissioner. Retrieved from https://www.ohchr.org/en/ professionalinterest/pages/cescr.aspx. Accessed 5 May 2020. James, A., & James, A. (2012). Key Concepts in childhood studies (2nd ed.). New York: Sage. Jorge, A., Leça, A., Perdigão, A., Laranjeira, A. R., Menezes, B., Fernandes, M. J. L., & Prazeres V (2007). Child and youth maltreatment, health intervention, technical document (pp. 15–18). Lisboa: Directorate General of Health. Retrieved from https://www.dgs.pt/documentos-e-

Refugees and Migrant Children in Europe

127

publicacoes/maus-tratos-em-criancas-e-jovens-intervencao-da-saude-pdf.aspx. Accessed 10 April 2020. Labouisse, H. (1965). The appointment of Henry Labouisse as Executive Director and the Nobel Peace Prize. Retrieved from https://unicef.pt/unicef/a-historia/. Accessed 15 June 2020. de Lima, R.M., Poli, L.M., & José, F.S. (2017). The historical evolution of the rights of children and adolescents: From legal and social insignificance to the recognition of fundamental rights and guarantees. Brazilian Journal of Public Policy (Online), Brasília, V.7 (2), pp. 313–315. Retrieved from https://doi.org/10.5102/rbpp.v7i2.4796. Accessed 10 April 2020. Máximo. L. M. (2015). The 2030 UN Development Agenda: the challenges and potentialities of the Sustainable Development Goals for the African continent. Revista Perspectivas, pp. 10–11. Mendes, M. G. C. (2013). A Criança e as Políticas Públicas: Cidade Amiga das Crianças em Aveiro. Master’s Thesis, Universidade de Aveiro. Retrieved from https://ria.ua.pt/bitstream/10773/ 12330/1/Disserta%c3%a7%c3%a3o.pdf. Accessed 29 July 2020. Minimum Age Convention. (1973). International labour organization. Retrieved from https:// www.ilo.org/dyn/normlex/en/f?p¼NORMLEXPUB:12100:0::NO::P12100_ILO_CODE: C138. Accessed 5 May 2020. Moura, T. B. de, Viana, F. T., & Loyola, V. D. (2013). An analysis of conceptions about the child and the childhood’s insertion in consumption. Psicologia: Ciência e Profissão, 33(2), 474–489. Retrieved from http://www.scielo.br/pdf/pcp/v33n2/v33n2a16.pdf. Accessed 10 April 2020. Neuer, W. (1996). Ambassador of Germany. In A. J. Telo (Ed.), The end of the Second World War and the new directions of Europe (pp. 24–27). Lisbon: Cosmos Editions. Ogata, S. (1999). Refugee Children: Guidelines on Protection and Care. United Nations Refugee Agency (UNHCR). Retrieved from https://www.unhcr.org/protection/children/3b84c6c67/ refugee-children-guidelines-protection-care.html. Accessed 29 July 2020. Optional Protocol to the Convention on the Rights of the Child concerning the institution of a communication procedure. (2011). Public Ministry – Portugal. Attorney General’s Office. Documentation and Comparative Law Office. Retrieved from http://gddc.ministeriopublico.pt/ sites/default/files/documentos/instrumentos/protocolo_facultativo_convencao_sobre_direitos_ crianca_relativo_instituicao_procedimento_comunicacao.pdf. Accessed 15 June 2020. Optional Protocol to the Convention on the Rights of the Child on the establishment of a Communication Procedure. (2011). United Nations Human Rights – Office of the High Commissioner. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/opiccrc.aspx . Accessed 29 July 2020. Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. (2000). United Nations Human Rights – Office of the High Commissioner. Retrieved from https://www.ohchr.org/Documents/ProfessionalInterest/crc-conflict.pdf . Accessed 29 July 2020. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. (2000). United Nations Human Rights – Office of the High Commissioner. Retrieved from https://www.ohchr.org/Documents/ProfessionalInterest/crcsale.pdf . Accessed 29 July 2020. Protection of Children and Young People in Danger Act. (1999). Electronic Journal of the Republic. Retrieved from https://dre.pt/web/guest/legislacao-consolidada/-/lc/115530795/ 202011111544/exportPdf/normal/1/cacheLevelPage?_LegislacaoConsolidada_WAR_ drefrontofficeportlet_rp¼indice. Accessed 29 July 2020. Santos, A. C. C. (2012). Children Refugees: The Principle of the best interest of the child. Master’s thesis, Portuguese Catholic University. Retrieved from https://repositorio.ucp.pt/bitstream/ 10400.14/13325/1/TESE%20Ana%20Carolina%20dos%20Santos.pdf. Accessed 7 September 2020. Silva, F. (2007). Convenção dos Direitos da Criança. Janus, pp. 2–3. Retrieved from http://www. janusonline.pt/arquivo/2007/2007_3_9.html# . Accessed 29 July 2020.

128

J. N. Rodrigues

Silva, A. N. L. T. (2016, 9, 23). Conference 10 years rewarding Good Practices (2020) – Pediatric Hospital of CHUC – Coimbra. Retrieved from https://www.arslvt.min-saude.pt/frontoffice/ pages/2?news_id¼1044. Accessed 10 April 2020. Teller Report. (2018). The ratification of Marrakech on the Global Charter for Migration. Retrieved from https://www.tellerreport.com/news/%2D%2Dthe-ratification-of-marrakech-onthe-global-charter-for-migration-.Byudgx3yE.html. Accessed 7 September 2020. The Dakar Framework for Action - Education for All: Meeting our Collective Commitments. (2000). UNESDOC Digital Library. Retrieved from https://unesdoc.unesco.org/ark:/48223/ pf0000120240. Accessed 15 June 2020. The Sustainable Development Agenda. (2015). United Nations Sustainable Development Goals. Retrieved from https://www.un.org/sustainabledevelopment/development-agenda/. Accessed 29 July 2020. UN News. (2020). Global perspective human stories-UNICEF. Retrieved from https://news.un.org/ en/tags/unicef. Accessed 15 June 2020. UNHCR Global Trends. (2010). 60 years and still counting. United Nations Refugee Agency (UNHCR). Retrieved from https://www.unhcr.org/statistics/country/4dfa11499/unhcr-globaltrends-2010.html . Accessed 7 September 2020. UNHCR Global Trends. (2011). A year of crises. United Nations Refugee Agency (UNHCR). Retrieved from https://www.unhcr.org/statistics/country/4fd6f87f9/unhcr-global-trends-2011. html . Accessed 7 September 2020. UNHCR Global Trends. (2012). Displacement – The New 21st Century Challenge. United Nations Refugee Agency (UNHCR). Retrieved from https://www.unhcr.org/statistics/country/ 51bacb0f9/unhcr-global-trends-2012.html . Accessed 7 September 2020. UNHCR Global Trends. (2013). War’s Human Cost. United Nations Refugee Agency (UNHCR). Retrieved from https://www.unhcr.org/statistics/country/5399a14f9/unhcr-global-trends-2013. html . Accessed 7 September 2020. UNHCR Global Trends - Forced Displacement. (2018). United Nations Refugee Agency (UNHCR). Retrieved from https://www.unhcr.org/statistics/unhcrstats/5d08d7ee7/unhcr-global-trends2018.html . Accessed 7 September 2020. UNHCR Global Trends – Forced Displacement. (2014). World at War. United Nations Refugee Agency (UNHCR). Retrieved from https://www.unhcr.org/statistics/country/556725e69/unhcrglobal-trends-2014.html. Accessed 7 September 2020. UNHCR Global Trends – Forced Displacement. (2015). United Nations Refugee Agency (UNHCR). Retrieved from https://www.unhcr.org/statistics/unhcrstats/576408cd7/unhcr-global-trends2015.html. Accessed 7 September 2020. UNHCR Global Trends – Forced Displacement. (2016). United Nations Refugee Agency (UNHCR). Retrieved from https://www.unhcr.org/statistics/unhcrstats/5943e8a34/global-trends-forced-dis placement-2016.html. Accessed 7 September 2020. UNHCR Global Trends – Forced Displacement. (2017). United Nations Refugee Agency (UNHCR). Retrieved from https://www.unhcr.org/statistics/unhcrstats/5b27be547/unhcr-global-trends2017.html . Accessed 7 September 2020. UNICEF. (1946). UNICEF Mission. Retrieved from https://www.unicef.org/brazil/missao-dounicef. Accessed 15 June 2020. UNICEF. (2019). Convention on the Rights of the Child. Retrieved from https://www.unicef.pt/ media/2766/unicef_convenc-a-o_dos_direitos_da_crianca.pdf. Accessed 10 April 2020. UNICEF. (2020). UNICEF for every child. UNICEF Data: Monitoring the situation of children and women. Retrieved from https://data.unicef.org/. Accessed 15 June 2020.

Refugees and Migrant Children in Europe

129

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules). (1985). United Nations Department of Public Information. Retrieved from https:// www.ncjrs.gov/pdffiles1/Digitization/145271NCJRS.pdf. Accessed 5 May 2020. Universal Declaration of Human Rights. (2018). United Nations information center in Portugal. Government of Portugal. Retrieved from https://www.cig.gov.pt/wp-content/uploads/2018/01/ Declaracao-Universal-dos-Direitos-Humanos.pdf. Accessed 5 May 2020. World Statement on Child Survival, Protection and Development. (1990). European Commission. Retrieved from https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/world_declara tion_on_children_1990_en_1.pdf . Accessed 5 May 2020. Worst Forms of Child Labour Convention. (1999). International Labour Office. Retrieved from https://www.ilo.org/wcmsp5/groups/public/%2D%2D-ed_norm/%2D%2D-declaration/docu ments/publication/wcms_decl_fs_46_en.pdf. Accessed 15 June 2020.

José Noronha Rodrigues, Ph.D., Professor of Law and Coordinator of the Department of Economic and Law at the University of Azores. Researcher at several centres, including Center for the Study of Applied Economics in the Atlantic (CEEApla), Instituto de Derecho Iberoamericano (IDI), Centro de Investigação e Desenvolvimento sobre Direito e Sociedade (CEDIS). José’s work focuses on Asylum Seeking, Refugees and Immigrants in the European Union. Publications include A proteção da parentalidade em matéria de organização do tempo de trabalho: uma perspectiva jurídica-económica comparada and A Carta dos Direitos Fundamentais.

Unaccompanied Foreign Minors and Asylum Seekers Under Italian Law: The Issue of Minors Attaining Majority Alessandra Cordiano

1 Introduction The Italian regulation of the delicate issue of unaccompanied minors (Caritas Italiana 2018; Moro 2012) has always been fragmented and stratified in various multigovernance and multilevel acts (Cordiano 2015; Miazzi 2008). The framework is one of internal law rules protecting minors, issued and designed for minors holding the Italian citizenship (Long 2012; Tribunale di Prato 2012) and which would need adaption to the current migratory dynamics (Carapezza Figlia 2018). These rules, in turn, operate within a heterogeneous factual reality, in which operational practices are geographically different and are influenced by the financial resources available to the local authorities concerned. This is further exacerbated by diverse anthropological elements (Favaro and Colombo 1993; Calcagno 2002; Morozzo della Rocca 2013; Mazza 2014). At the same time, it must also be conceded that a cultural and legal heritage about minors has always existed. This heritage stems from international charters and universal principles, all of which are focused on minors’ rights, as part of some sort of natural law (Patroni Griffi 2010; Saccucci 2010; Margiotta 2012; Sirianni 2006; Pascucci 2011). This probably contributed to the formation of a basically positive stereotypization of foreign unaccompanied minors (Locchi 2011), in an ideological, social and legal construction putting together the typical (and generally positive) social perception of minors and the (generally negative) one of foreign persons (Petti 2004). This is not relevant for younger minors, but is essential for “adult” minors, id est teenagers or approaching majority. Adult minors are the majority of the new entries

A. Cordiano (*) Law Department, University of Verona, Verona, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_5

131

132

A. Cordiano

into the national territory (Ministero del Lavoro e delle Politiche Sociali 2020) and are certainly harder to integrate, being subject to social and relational risks. Even before the enactment of the new Law N. 47/2017, the complexity of this issue was evident (Lenzerini 2010; Moro 2006; Cordiano 2015). However, the new Law is surely an opportunity for progress, despite having some critical points, since it repositions the issue of unaccompanied foreign minors within the fitting borders of positive perception (Senigaglia 2017; Cordiano 2017, 2018).

2 The Notion of Unaccompanied Foreign Minor in Italian Law The Law N. 47 of 2017 retains the definition of Unaccompanied Foreign Minor (UFM) which was previously found in Art. 1, par. 2 of the Prime Ministerial Decree N. 535 of 13 April 1999. Under Art. 2 of the Law, a UFM is a minor who is not an Italian citizen or a EU citizen and who is within Italian territory or is subject to the Italian jurisdiction, and who is not assisted and represented by his or her parents or by any other adult of legally recognized significance bearing a legal responsibility towards him or her (Moro 2012; Ricco 2007). The Law also includes in the definition of UFM a minor seeking asylum, thus aligning its provisions to Art. 19 of Delegate Decree N. 142 of 2015. The said Decree reformed the “first acceptance” and “second acceptance” system for asylum seekers, equating protection seeking and non-protection seeking UFMs, and granting to both categories access to the acceptance measures adopted by the local Authorities. This equivalence has consequences. If the minor, even in the first stages of his or her identification, applies for international protection, or if his or her need for international protection is apparent anyway, the case is forwarded to the Department for Civil Rights and Immigration of the Ministry of Interior, rather than to the Directorate General for Immigration, for the granting of the relevant permits. Therefore, the diplomatic or consular representatives for the minor will not be contacted (as established by Art. 5, par. 3), in order to avoid possible persecutions. The equivalence actually generates a “double track”. When the minor enters the national territory, two alternative procedures can be started. The first procedure is in front of the Territorial Committee established within the Prefecture for the granting of international protection (and, before that, humanitarian protection) (Savino 2012; Bonetti 2011; De Bonis 2011; Consoli 2011). The second is the ordinary, administrative procedure for the granting of a permit by the Police HQ (Questura), with the advice of the General Directorate for Immigration. However, the double track system is not so straightforward. Prima facie, it appears to protect minors by granting them a double, strengthened protection on the national territory. However, it can actually produce distortive effects, with different organs being competent to release different permits (Moyersoen 2015).

Unaccompanied Foreign Minors and Asylum Seekers Under Italian Law: The. . .

133

3 Rights and Equal Treatment The Law N. 47 introduces a rule of fair and equal treatment for Italian, EU and non-EU minors. This is an attempt to protect these undeniably more vulnerable subjects (Art. 1) and build some sort of legal status for UFMs, including asylum seekers and refugees. Article 3 grants further fundamental rights to UFMs, adding to the prohibition to deport a prohibition of border rejection; deportation, in fact, was already forbidden by Art. 19, par. 1 of the Immigration Code. The measures to protect unaccompanied minors in Art. 19, 32 and 33 of the Immigration Code, in Regulation N. 394 of 1999 and in Regulation N. 535 of 1999 already ruled out the possibility to deport an unaccompanied minor (Morozzo della Rocca 2015). The minor still has the right to follow his or her deported parents or custodian; at the same time, he or she can be deported on grounds of public order and State security (Corte di Cassazione 2013). The notions of public order and State security must be interpreted taking into account the paramount interest of the minor, who can thus be deported on grounds of international terrorism and not on the basis of any criminal record. An exceptional request to deport the minor on these grounds must come from the Police HQ to the relevant Juvenile Court, under Art. 31, par. 4 of the Immigration Code. The paragraph was amended so that that the deportation order cannot entail «a risk of serious damage to the minor»; furthermore, the Court must rule on the request promptly and no later than thirty days—which is an ambitious timeframe (Cordiano 2015; Margiotta 2012). The amended Art. 3 adds a prohibition to reject a UFM at the border. A border rejection is different than a deportation for its lack of durable effects and because the relevant decision is adopted as the concerned person crosses the border or immediately afterwards (Art. 10 of the Immigration Code). The prohibition of border rejection could already be inferred by the rules previously in force. In fact, Art. 33, par. 4–5 of the Adoption Law provides that, whenever a minor unlawfully enters the national territory, any official or authorized organization having knowledge of his or her entry must inform the relevant Juvenile Court as well as the International Adoptions Committee, so that the country of origin of the minor can be contacted and a suitable accommodation or the return of the said minor can be arranged. This commendable rule can be difficult to enforce in practice. The well-intentioned prohibition of border rejection is impaired by the practical impossibility, in the framework of a quick and urgent proceeding such as the border rejection one, to identity the minor and determine his or her age. In such a case, in theory—but probably not in practice, the favor minoris rule should imply a presumption of minority. As for the rights of foreign minors, there are some noteworthy innovations. The Law N. 47 commendably establishes a compulsory guardianship (which actually already existed). In every Juvenile Court, a register of voluntary guardians must be kept. The said voluntary guardians are private citizens willing to be appointed as guardians for UFMs, after having being selected and trained for such task. The

134

A. Cordiano

provisional or permanent guardian is a paramount figure in the legislation regulating each step of the treatment of a UFM: the identification (Art. 5), the family investigation and assisted repatriation (Art. 6–8), the permits (Art. 10–13), the acceptance (Art. 4–12); in the field of the right to education and to health: the enlisting in the National Health Service, the drafting of specific education and training projects (Art. 14); in the field of the right to be heard in judicial and administrative proceedings (Art. 15); and, finally, in the field of the right to legal assistance (Art. 16). The new rules establish, under Art. 15, a specific right of the unaccompanied foreign minor to be heard in a judicial or administrative proceeding concerning him or her, as well as his or her right to be involved in the said proceeding by means of a legal representative, ensuring that a cultural mediator is also present (Gambini 2018; Ruscello 2002). Art. 16, in particular, grants UFMs legal aid, within a yearly cap (Danovi 2014). The Law N. 46 of 2017, which used to prevent the application of the decree to UFMs (Art. 19 bis) (Asprella 2017), was subsequently integrated by Art. 2, par 4 of amending Decree N. 220 of 2017. Therefore, the application of the new rules establishing the jurisdiction of Specialized Immigration Benches and regulating judicial and administrative proceedings for the granting or denial of international protection has been extended to UFMs (Gambini 2018). As for classical rights, such as the right to health, health assistance and education, Art. 14 of the new Law amends Art. 34 of the Immigration Code (Giova 2016), granting UFMs the right to enlist in the National Health Service and to an equal treatment, with a full equivalence in rights and duties, to Italian citizens, for the purposes of «compulsory contribution, assistance granted in Italy by the National Health Service and its legal duration», even if the minor’s application for a permit is still pending after his or her retrieval in national territory. Above all, the legislation provides for the enrolment in the National Health Service to be requested, on behalf of UFMs, by whoever has parental duties, even temporarily, or by the person in charge of the first reception facility. This solves the problem of UFMs for whom a guardian has yet to be appointed. In Art. 14, further provisions can be found. After the minor is inserted into a reception facility, schools of all level, as well as the training organizations recognized by the Regions and Autonomous Provinces, must take steps in order to facilitate the fulfilment by UFMs of their education and training obligations. These measures include: specially designed projects which shall include, whenever possible, a cooperation or coordination by cultural mediators; and agreements aimed at promoting specific training programmes. Furthermore, the final qualifications and degrees issued by schools at all levels for UFMs shall include the identification data which were acquired at enrolment, even when the minor has come of age during the course of studies. The provisions summarized above create a complex system and some sort of legal statute, which undoubtedly attempts to ensure a comprehensive protection of foreign minors. However, at a first glance the system also shows some weak spots, which will have a widespread impact on the system itself.

Unaccompanied Foreign Minors and Asylum Seekers Under Italian Law: The. . .

135

4 The Proceeding Required in Order to Identify a Person and Establish His or Her Age The identification proceeding, which was previously inferred by analogy from Presidential Decree N. 448 of 1988 on the criminal responsibility of minors under 14 and from Prime Ministerial Decree N. 234 of 2017 on proceedings regarding minors which had been victim of trafficking, is now regulated by Art. 5. As soon as the minor has been reported or found or has taken contact with the competent Authorities, he or she must be quickly identified. If there are no documents securely confirming the age declared by the minor, or there are doubts on the truthfulness of the declaration, age must be established under a different proceeding than that used in the past, with a purely radiographic method replaced by a multidisciplinary clinical approach. Qualified personnel must attend and the minor must be interviewed in order to trace back his or her personal and family history (Senigaglia 2017). The proceeding must abide to the typical rules of informed consent and the legal guardian, including the provisional legal guardian, must attend. If there still a doubt, and only after obtaining a prior authorization by the Prosecutor’s Office to the Juvenile Court, it is possible to have the minor examined by the health services, which can perform paediatric, radiographic and bone tests. The said exams must take place in appropriate premises, be as uninvasive as possible and respect the dignity of the minor, according to principles of graduality and progressivity. If even the health examination is inconclusive, the subject is presumed to be a minor, under a favor minoris rule. The decision establishing the age must be notified to the concerned person and to his or her legal guardian. It can be challenged by filing a complaint under Art. 737 of the Civil Procedure Code; the judge must rule on the said complaint within ten days (Del Vecchio 2018). This new system is commendable insofar as it respects the minor’s personality and procedural and substantial rights; however, it has some critical issues. It requires a strong and continuous training of the personnel charged with establishing the age of foreign minors; furthermore, the interview is a costly tool for identification. At the same time, it must be stressed that the new rules aim at avoiding any medical intervention (including interventions aimed at identification) without a free and informed consent; an adult minor must be heard and involved in the proceeding (Gambini 2018), and his or her legal guardian, even if provisionally appointed, must attend. The issue of the guardian’s appointment has always been contentious in this field (Corte di Cassazione 2017) and is of paramount importance, including in the first interventions of prophylaxis and viral outbreak remediation; such interventions must be performed quickly, but cannot be performed without the consent of a legal guardian. There is some uncertainty on the competence to appoint a guardian to an unassisted minor, since Art. 343 et sequitur of the Civil Code attribute to the tutelary judge the power to appoint a guardian, but Art. 10, par. 2 of the Adoption Law empowers the full Court to adopt all the temporary decisions which are required in

136

A. Cordiano

the interest of the minor, including the appointment of a provisional guardian, pending the assessment that the minor has been abandoned and can therefore be adopted. Under the new rules, the Juvenile Court has the sole power to appoint a tutor to an UFM, pending an international protection application or during the minor’s acceptance and identification proceedings. Establishing an exclusive competence of the Juvenile Courts on these issues (including deportation, establishment of age, repatriation and some permit-related issues) can be considered a good policy, also taking into account the tradition of cooperation between the said Courts and their Prosecutor’s Offices. This will make easier for both bodies to cooperate in protecting the minor. It must not be forgotten, however, that Juvenile Courts and their respective Prosecutor’s Offices have a peculiar geographical competence, overlapping the Court of Appeals District. Therefore, Juvenile Courts are not necessarily “proximity judges”, in contrast to tutelary judges, who sit in the minor’s place of residence (and habitation) and could therefore be useful in monitoring UFMs’ journey of integration, acting as liaison and supervising figures.

5 UFMs’ First and Second Acceptance Article 4 of the new Law regulates the so-called “first acceptance” of the minor, id est his or her admission into a first aid facility after the landing—if the minor has arrived from the sea—or after the first contact with the relevant authorities. Unaccompanied minors to then escorted into specifically dedicated first aid facilities, where they will stay for the time strictly necessary for their identification and for no more than thirty days; the identification proceedings cannot take more than ten days. The new provisions are commendable in theory, but their implementation is hindered, once again, by the lack of an integrated, well organized and territorially homogeneous acceptance system; this will make very hard to respect the legal timeframe (Piluso 2016). The same applies to the so-called “second acceptance”. After the first phase, and pending a decision on the minor’s application for international protection or for a permit, the “second acceptance” phase begins: UFMs, whether they have applied for international protection or not, are inserted into the protection system and into specifically dedicated facilities and projects, taking into account their needs and their paramount interest (Giova 2016). Therefore, Art. 7 of Law N. 47 empowers local authorities to promote the awareness and training of foster parents. Family custody is adopted as a primary acceptance tool, to be preferred to the placement in a reception facility; however, there are currently few families willing to take charge of an UFM. In order to give a comprehensive evaluation of the articulated process by which UFMs are inserted into the local acceptance network, it must be stressed that in no case the minor can be placed in facilities for adults. If dedicated facilities are temporarily unavailable, the minor’s acceptance is a task of local Municipality; the

Unaccompanied Foreign Minors and Asylum Seekers Under Italian Law: The. . .

137

minor can the moved to another Municipality, however. Furthermore, in case of UFMs arriving in large numbers and Municipalities being unable to accept them, the Prefect will assume a leading role and activate temporary acceptation facilities reserved for minors over 14; each facility must accommodate no more than 50 minors. This solution will last only for the time strictly necessary before the minor can be moved to an ordinary facility. Whenever an unaccompanied minor is accepted into a facility, the manager of the facility must notify the local Municipality, in order to allow a cooperation with local services; whenever an adequate foster family is available, the placement with the said family must be preferred, rather than keeping the minor in a facility.

6 Familiar Investigation and Voluntary Assisted Repatriation For familiar investigation and voluntary assisted repatriation, Art. 2 and Art. 7 of Prime Ministerial Decree N. 535 of 1999, as well as Art. 33 of the Immigration Code, established the competence of the Directorate General for Immigration of the Ministry of Labour. Since a UFM cannot be expelled, he or she is entitled to assisted repatriation, with various mechanisms ensuring that the decision is taken in the paramount interest of the minor and that the minor will be reunited with his or her family or returned to the relevant authorities in his or her home country. Once the minor is found on Italian soil, the General Directorate (GD), on one hand, will interview him or her, provided that the minor is over 12 or at least capable of understanding, since the minor’s will is fundamental in order to adopt a repatriation decision (Ministero del Lavoro e delle Politiche Sociali 2013).1 On the other hand, the GD will start an investigation through the local social services and international social services in the minor’s home country, in order to identify the minor’s family of origin and assess the family’s suitability. The family is suitable when they are able to grant the minor a family environment allowing his or her psychophysical development and overall well-being. The awareness of the family of the eventual prejudice for the minor if he or she remained in Italy, as well as their willingness to accept the minor back, are assessed, among other things. The GD will also bear the cost for the repatriation and ensure that a project of social and familiar integration is drafted for the minor, in partnership with the relevant authorities. If the minor feels that the repatriation decision was adopted against his or her interest, he or she can challenge it, through his or her guardian, in the Ordinary Court (Miazzi 2000; Morello di Giovanni 2011), moving for an annulment of the decision (Corte Costituzionale 2003a). If the Directorate General rules that the minor should not be subject to assisted repatriation, he or she will be granted a residence permit.

1

See Article 7 of Prime Ministerial Decree N. 535 of 1999.

138

A. Cordiano

For foreign minors who are not asylum seekers, the competence of the General Directorate for Immigration is maintained over family investigation, under Art. 2, par. 2(f) of Prime Ministerial Decree N. 535 of 1999. However, Art. 6 of Law N. 47 innovated on this for UFMs who are asylum seekers. For the latter, the Department for Civil Liberties and Immigration of the Ministry of the Interior is now competent. The said Department will, with the advice and consent of the Ministry of Justice and of the Ministry of Foreign Affairs, take care of the family investigation in the paramount interest of the minor. The result of the investigation will be notified to the minor and his or her guardian, including the provisional guardian. Given the sensitiveness of similar cases, any research or attempt to identity the minor’s family can be started only in the absence of risk, after obtaining an informed consent from the minor. The investigation will be performed in strict confidence, in order to protect the safety of the applicant and his or her family. A decision of voluntary and assisted repatriation is adopted when, after hearing the minor and the guardian, in light of the results of the family investigation performed in the minor’s home country or in a third country, and taking into account the report filled by the social services on the minor’s stay in Italy, the said repatriation is deemed to be in the paramount interest of the minor. After the amendment to Art. 33, par. 2-bis and par. 3 of the Immigration Code, a decision of assisted repatriation is adopted by the Juvenile Court, rather than by the Directorate General for Immigration; the Court is thus the body establishing what is in the best interest of the minor. Therefore, investigations and reports fall under the competence of different bodies and Ministries, despite the fact that they can have the same outcome. However, the competence to adopt a final decision belongs to the Juvenile Court, which is now expected to supervise, execute and draft projects for the assisted repatriation of minors. It is unclear if anyone, between the professional and lay judges composing the Court, will be able to support the delicate planning of repatriations, and what would happen if, as planned, Juvenile Courts were abolished together with their lay judges. The juvenile offices of social services will be unable to draft specific project to submit to the Court approval, since planning an assisted repatriation requires relationships with consular authorities and with private social operators in the minor’s home territory (Daniele 1995). On one hand, the attribution of the final competence over this matter to a Court must be appreciated. On the other hand, the hope is for a robust and structured partnership to be established between all the involved authorities. Otherwise, the inherent vulnerability of UFMs will be further exacerbated, rather than mitigated under the equal treatment principle.

7 Permits for UFMs Before the entry into force of Law N. 47, when the Directorate General ruled against an assisted repatriation, the UFM was entitled to receive a permit of residence on grounds of minor age, to be granted by the Police HQ, under Art. 28, par. 1(a) of

Unaccompanied Foreign Minors and Asylum Seekers Under Italian Law: The. . .

139

Presidential Decree N. 394 of 1999. After the 2017 reform, the rules applying to permits changed. Art. 10 of the reform established two new kinds of permit, to be granted by the Police HQ upon request by the concerned person. The permit on grounds of minor age under par. 1(a) can be granted upon application from a UFM who was found on national territory and reported to the relevant authorities. The application can be filed by the minor personally or by the holder of parental authority, even pending the appointment of a guardian. The permit is valid until the minor comes of age. Under these circumstances of clear, increased vulnerability, a minor can personally apply for a permit or residence from the Police HQ. This theoretically commendable provision allows minors falling under this category to apply for a permit without an appointed guardian, even a provisional one, and without the need to rely on the person in charge of the reception facility, under Art. 6, par. 3.2 In particularly complex territorial contexts, the granting of such a permit will not always be followed quickly by the appointment of a guardian; the minor will thus be granted a permit to stay without a person with guardianship duties (Senigaglia 2017). The permit of family grounds under par. 1(b) is targeted at 14-year-old minors who are in custody (of a family or facility, or in de facto custody) or have a guardian and cohabit with an Italian citizen. Minors over 14 who are in custody (of a family or facility, or in de facto custody) or have a guardian and cohabit with an Italian citizen or a legally resident foreign citizen are also eligible. This provision refers to Art. 9, par. 4 of the Adoption Law, which allows the granting of a permit to a minor in de facto custody (id est whose custody is not based on any formal decision) of relatives, even beyond a IV degree kinship relation. This appears dangerous for foreign minors, also because the provision does not require, for de facto custody, any formal verification of the relatives’ statement or of the kinship relation itself, but only a possible “confirmation” (Corte di Cassazione 2010). It is also questionable to distinguish between a 14-year-old minor for whom only the custody of Italian cohabiting adults is allowed, and a minor over 14 for whom the custody of Italian or foreign, regularly residing cohabiting adults is allowed. It is unclear why the regulation should be different according to age, since in both cases the underlying issue is legal guardianship. In theory, younger minors should benefit more from the recognition of a legally sanctioned and emotionally significant relationship. These rules on permits which can be granted to a foreign minor are virtually complemented by those regulating international or conventional protection permits (Favilli 2011); the letter should, for greater precision, classified into measures which are differ both in quality and quantity. Permits of this kind are granted after a hearing of the applicant by the Territorial Committee. The Committee will then file the request for the corresponding permit with the Police HQ; in case of denial, a judicial proceeding in the Specialized Bench of the Ordinary Court is possible. This

2

Under Article 3, par. 1 of Law N. 184/1983 (“Adoption Law”).

140

A. Cordiano

obviously applies also to UFMs, but permits can be granted on different grounds and by different bodies. For the delicate step of the coming of age by the minor, the amended Art. 13 allows for the permit of residence granted to a minor to be converted, at the coming of age, into a permit of residence on grounds of education, access to work, autonomous or subordinate work, or health (Cocozza 2018). The conversion can be granted to minors who, under Art. 2 of the Adoption Law, have been in custody of a family or a community facility (Consiglio di Stato 2007), or, alternatively (Moro 2012), have been appointed a guardian (Corte costituzionale 2003b; Tribunale amministrativo regionale Lazio 2007), with the advice of the General Directorate (Art. 32, par. 1 bis of the Immigration Code) (Cottatellucci 2014). The conversion is also allowed, without any advice, for unaccompanied minors who “have been admitted, for no less than two years, to a project of social and civil integration managed by a public or private body of national relevance”. The said body must be enlisted into the Register of the Prime Minister’s Office (Art. 52 of Presidential Decree N. 394 of 1999). In this case, the managing body must prove that the minor has been on national territory for no less than three years and has taken part to an integration project for no less than two years. The minor must also have an available accommodation and be in a training or working process (Corte costituzionale 2011; Tribunale amministrativo regionale Abruzzo 2017). Finally, the Juvenile Court, upon request from the social services, can order the prolongation of protection and assistance measures after the coming of age by the minor. Art. 13, par. 2 indeed established a tool which was already existing and operating, the so-called “administrative continuation” (Dogliotti 1989; Figone 2004). This allows social services to apply to the Juvenile Court for the custody of a minor who has started an integration process, but is in need of “continued support in order to ensure a positive outcome of the said process, and the minor’s independence”, until the minor is twenty-one at most.

8 Conclusions: The Coming of Age as a Critical Junction Unfortunately, a sizable number of criticalities has been detected in a legislation which cannot be deemed organic. A paramount issue is indeed the allocation of competences between judicial, administrative and police bodies tasked with protecting UFMs. This problem was not solved by the recent reform, which has finally prioritized the role of Juvenile Courts and their Prosecutor’s Offices. The said Courts and Offices have now jurisdiction over reports of UFMs found in national territory. The Police HQ has the competence to grant a permit of residence on grounds of minor age and on familiar grounds under Art. 10 of Law N. 47, as well as to convert the said permit when the minor comes of age, subject to the conditions established by Art. 32, par. 1 bis of the Immigration Code, with the advice and consent of the Directorate General for Immigration. Different rules are established for minors

Unaccompanied Foreign Minors and Asylum Seekers Under Italian Law: The. . .

141

applying for international protection. As said above, these minors will take part to the administrative proceeding in the relevant Territorial Commission; if they are refused international or conventional protection, they will be able to start a judicial proceeding in the Specialized Bench. In the framework of this “double track”, the coming of age becomes a treacherous crossroad. The two tracks—leading to a regular permit and to international and conventional protection, respectively—are not very straightforward and they can trigger distortive effects and opportunistic behaviours: for instance, if a minor applies for international or humanitarian protection and is rejected by the Territorial Commission after his or her coming of age, then he or she will be unable to get a permit on grounds of minor age or on grounds of custody, or even a permit on grounds of majority under Art. 32, par. 2 of the Immigration Code, since he or she will lack the established requirements. This could force on the minor a very difficult choice between the fuller protection track—the application for international protection, which would entitle him or her to a passport and to quickly become an Italian citizen, but which would entail the risk of a denial after the coming of age—and the less advantageous track leading to a permit of residence—which could be converted after the coming of age through the General Directorate for Immigration. The double track is apparently aimed at supporting minors and strengthening their protection on Italian territory. However, in fact it exacerbates an overcomplex system, with overlapping procedures and competent Authorities. Instead, a minor’s vulnerability would deserve an unitary consideration and treatment, under one procedure managed by a single competent body (Moyersoen 2015). The situation was further worsened by the Decree-Law N. 113 of 2018 (the so-called “Salvini Decree”), converted into Law N. 132/18. The Decree included some amendments which did not specifically target UFMs, but have had a relevant impact on their status, especially after the coming of age. Before the entry into force of the Decree N. 113/18, most UFMs seeking asylum were granted a permit of residence on humanitarian grounds: this is a form of protection established by the Italian legislation to implement Art. 10, par. 3 of the Italian Constitution. Art. 5, par. 6, of the Immigration Code provided that “a permit of residence can also be denied or rescinded under a convention or an international agreement which is executive in Italy, when the foreign citizen does not fulfil the requirements to reside in a Contracting State, unless there are serious grounds, particularly humanitarian grounds or grounds related to constitutional or international obligations of the Italian State, preventing such denial or rescission”. Many foreign minors used to apply for asylum, even if they did not fulfil the requirements for international protection, since they could reasonably expect to be granted humanitarian protection. After the abolition of humanitarian protection by the Decree N. 113/18, most UFMs applying for asylum will be rejected by the Territorial Commissions. When the minor is denied asylum before turning 18, he or she can still get a permit on grounds of minor age; if the minor fulfils the related requirements, he or she will be able, after coming of age, to convert the permit into a permit on grounds of education, labour or job-seeking (under Art. 32 of the Immigration Code).

142

A. Cordiano

However, if the asylum application is rejected after the minor has turned 18, most Police HQ will not allow the newly legal adult to apply for a permit of residence on grounds of education, labour or job-seeking under Art. 32, even if the concerned person fulfils the legal requirements. In such a case, minors which could have be granted a permit on grounds of education, labour or job-seeking at the end of the so-called “administrative track” will be unable to regularise themselves after choosing the “international protection track” instead (ASGI-INTERSOS 2018). Unfortunately, the legislation in force for UFMs does not fit their needs, since it is highly fragmented and scattered in different contexts, uncoordinated and often uninformed. This is made worse by the existence of a double track, composed by an “administrative track” for permits on grounds of minor or legal age, and an “humanitarian track” for asylum applications to Territorial Commissions and Ordinary Courts. This double track should not exist, since a UFM is inherently a vulnerable subject, regardless of his or her entitlement to international protection (Long 2006).

References Asprella, C. (2017). Il nuovo rito applicabile in materia di protezione internazionale, nonché per il contrasto dell’immigrazione irregolare. Il Corriere Giuridico, p. 855. Bonetti, P. (2011). Il diritto d’asilo nella Costituzione italiana, p. 35. In C. Favilli (Ed.), Procedure e garanzie del diritto d’asilo. Padua: Cedam. Calcagno, M. (2002). La protezione dei minorenni nomadi e immigrati. In L. Lenti (Ed.), Trattato di diritto di famiglia Zatti, VI (p. 211). Milan: Giuffrè. Carapezza Figlia, G. (2018). Tutela del minore migrante ed ermeneutica del controllo. In L. Corazza, M. Della Morte, & S. Giova (Eds.), Fenomeni migratori ed effettività dei diritti (p. 201). Naples: Esi. Caritas Italiana. (2018). XXVII Rapporto Immigrazione. Dossier statistico (p. 173). Rome: Caritas italiana. Cocozza, G. (2018). Il contributo del giudice amministrativo nella tutela dei minori stranieri non accompagnati. In L. Corazza, M. Della Morte, S. Giova (Eds.). Fenomeni migratori ed effettività dei diritti, p. 236. Consiglio di Stato. (2007). Sentenza 12 febbraio 2007, n. 564. Diritto della Famiglia e dei Minori, 389 (2007), with a comment by Morozzo della Rocca, P. Consoli, D. (2011). Il riconoscimento in via giurisdizionale del diritto d’asilo. In C. Favilli (Ed.), Procedure e garanzie del diritto d’asilo (p. 209). Padua: Cedam. Cordiano, A. (2018). The best interest of foreign child e gli istituti di diritto minorile: Un caso di convergenze (quasi) parallele. Diritto delle successioni e della famiglia, p. 409. Cordiano, A. (2017). Prime riflessioni sulle nuove disposizioni in materia di misure di protezione dei minori stranieri non accompagnati. Nuova giurisprudenza civile commentata, p. 1299. Cordiano, A. (2015). Diritti sociali e diritto privato: Il caso dei minori stranieri non accompagnati fra rete di protezione e complessi intrecci istituzionali. In C. Fratea, I. Quadranti (Eds.), Minori e immigrazione: Quali diritti? Naples: Esi, p. 57, 74, 79. Corte costituzionale. (2011). Ordinanza n. 325, anno 2011. Gazzetta Ufficiale della Repubblica Italiana, 7 December 2011, n. 51. Corte costituzionale. (2003a). Ordinanza 10 luglio-4 agosto 2003, n. 295. Corte Costituzionale. Gazzetta Ufficiale della Repubblica Italiana, 13 August 2003, n. 32.

Unaccompanied Foreign Minors and Asylum Seekers Under Italian Law: The. . .

143

Corte costituzionale. (2003b). Sentenza 5 giugno 2003, n. 198. Diritto della famiglia e delle persone, 616 (2003). Corte di cassazione. (2017). Sentenza 12 gennaio 2017, n. 685. Foro italiano, I, 522 (2017), with a comment by Poliseno, B. Corte di cassazione. (2013). Sentenza 3 maggio 2012, n. 6694. Famiglia e diritto. (2013), p. 155, with a comment by Palermo, P. Corte di cassazione. (2010). Sentenza 8 novembre 2010, n. 22687. Nuova giurisprudenza civile commentata, I, 217 (2011), with a comment by Long, J. Cottatellucci, C. (2014). Diritti fondamentali dei minori stranieri ed effettività della tutela giurisdizionale. Minori e giustizia, p. 170. Daniele, L. (1995). L’adozione del minore straniero in stato di abbandono in Italia e intervento consolare. Famiglia e diritto, 362. Danovi, R. (2014). L’avvocato del minore nel processo civile. Famiglia e diritto, p. 179. De Bonis, A. (2011). La procedura amministrativa per il riconoscimento della protezione internazionale in Italia. In C. Favilli (Ed.), Procedure e garanzie del diritto d’asilo (p. 187). Padua: Cedam. Del Vecchio, I. (2018). L’effettività nella tutela del minore straniero non accompagnato tra interventi strutturali ed emergenziali: La legge «Zampa» e il caso della relocation. In L. Corazza, M. Della Morte, S. Giova (Eds.), Fenomeni migratori ed effettività dei diritti, p. 125. Dogliotti, M. (1989). Beneficenza, assistenza e intervento rieducativo. Il diritto di famiglia e delle persone, p. 5. Favaro, G., & Colombo, T. (1993). I bambini della nostalgia. Milan: Mondadori, passim. Favilli, C. (2011). Procedure e garanzie del diritto d’asilo. Padua: Cedam, passim. Figone, A. (2004). Affidamento al servizio sociale e prestazioni assistenziali dopo il raggiungimento della maggiore età (p. 307). Famiglia e diritto. Gambini, M. (2018). Il diritto di ascolto del minore «vulnerabile». In L. Corazza, M. Della Morte, S. Giova (Eds.). Fenomeni migratori ed effettività dei diritti, p. 143, 162. Giova, S. (2016). I minori stranieri non accompagnati. Tutela della persona e controllo dei flussi migratori. In Rivista giuridica del Molise e del Sannio, p. 108, 197. Lenzerini, F. (2010). La protezione dei minori stranieri non accompagnati nel diritto internazionale. In R. P. Mazzeschi, P. Pustorino, & A. Viviani (Eds.), Diritti umani degli immigrati. Tutela della famiglia e dei minori (p. 271). Naples: Editoriale scientifica. Locchi, M. C. (2011). I diritti degli stranieri (p. 93). Rome: Carocci. Long, J. (2012). Il lavoro dei minori stranieri in affidamento familiare: Tra protezione dallo sfruttamento e diritto al lavoro. Minorigiustizia, p. 132. Long, J. (2006). Il ruolo del principio del superiore interesse del minore nella disciplina dell’immigrazione. Minorigiustizia, p. 251. Margiotta, M. (2012). Diritti del minore ed esigenze di ordine pubblico: Il (tormentato) impatto dei nostri giudici con gli istituti di protezione del fanciullo. Famiglia, persone e successioni, p. 800–801. Mazza, C. (2014). Il trattenimento illegittimo di minori stranieri non accompagnati: Prassi e anomalie del sistema d’accoglienza e del funzionamento dei centri per migranti. Minorigiustizia, p. 186. Miazzi, L. (2008). Minori non accompagnati. In P. Morozzo della Rocca (Ed.), Immigrazione e cittadinanza: Profili normativi e orientamenti giurisprudenziali (p. 337). Turin: Giappichelli. Miazzi, L. (2000). Il rimpatrio assistito del minore straniero: Ancora un caso di diritto speciale? Diritto, Immigrazione e Cittadinanza, p. 34. Ministero del Lavoro e delle Politiche Sociali. (2020). Dati. Ministero del Lavoro e delle Politiche Sociali. https://www.lavoro.gov.it/temi-e-priorita/immigrazione/focus-on/minori-stranieri/ Pagine/Dati-minori-stranieri-non-accompagnati.aspx Ministero del Lavoro e delle Politiche Sociali. (2013). Linee guida sui minori stranieri non accompagnati. Ministero del Lavoro e delle Politiche Sociali. https://www.lavoro.gov.it/temi-

144

A. Cordiano

e-priorita/immigrazione/focus-on/minori-stranieri/Documents/linee-guida-minori-stranierinon-accompagnati-def.pdf Morello di Giovanni, D. (2011). Immigrazione e diritti umani: Contrasto giurisprudenziale e una sentenza «salomonica» delle SS.UU. Famiglia e diritto, p. 425. Moro, A. C. (2012). Manuale di diritto minorile (pp. 79–81). Bologna-Rome: Zanichelli. Moro, A. C. (2006). Minori stranieri e tutela giuridica. In V. Belotti, R. Maurizio, & A. C. Moro (Eds.), Minori stranieri in carcere (p. 21). Milan: Guerini e associati. Morozzo della Rocca, P. (2015). Immigrazione, asilo, cittadinanza (p. 139). Santarcangelo di Romagna, Maggioli. Morozzo della Rocca, P. (2013). Il permesso di soggiorno per motivi di protezione sociale ai fini del reinserimento dell’adolescente straniero. Minorigiustizia, p. 139. Moyersoen, J. (2015). Nuove norme in materia di minori stranieri, in particolare non accompagnati, richiedenti e non richiedenti protezione internazionale. Minorigiustizia, p. 68. Pascucci, L. (2011). Diritto all’unità familiare dello straniero. Famiglia e diritto, p. 827. Patroni Griffi, A. (2010). Lineamenti della tutela costituzionale dei minori stranieri. In R. Pisillo Mazzeschi, P. Pustorino, & A. Viviani (Eds.), Diritti umani degli immigrati. Tutela della famiglia e dei minori (p. 255). Naples: Editoriale scientifica. Petti, G. (2004). Il male minore. La tutela dei minori stranieri come esclusione (p. 42). Verona: Ombre corte. Piluso, G. (2016). Il rischio di «default» per la ragion di Stato? La disciplina sui «minori stranieri non accompagnati» e la recente attuazione delle direttive comunitarie, con particolare riguardo alla realtà dei comuni siciliani. Federalismi.it, 2016, 10, p. 2ff. Ricco, F. (2007). Soggiorni climatici di bambini stranieri. Problemi aperti. Famiglia, persone e successioni, p. 874. Ruscello, F. (2002). Garanzie fondamentali della persona e ascolto del minore. Familia, p. 933. Saccucci, A. (2010). Diritto all’istruzione e discriminazione scolastica di minori stranieri alla luce delle norme internazionali sui diritti umani. In R. Pisillo Mazzeschi, P. Pustorino, & A. Viviani (Eds.), Diritti umani degli immigrati. Tutela della famiglia e dei minori (p. 297). Naples: Editoriale scientifica. Savino, M. (2012). Le libertà degli altri. La regolazione amministrativa dei flussi migratori. Milan: Giuffrè, passim. Senigaglia, R. (2017). Considerazioni critico-ricostruttive su alcune implicazioni civilistiche della disciplina sulla protezione dei minori stranieri non accompagnati. Jus civile, p. 710, 719, 726. Sirianni, G. (2006). Il diritto degli stranieri all’unità familiare (pp. 39–97). Milan: Giuffrè. Tribunale amministrativo regionale Abruzzo. (2017). Sentenza 7 febbraio 2017, n. 63. Reti di Giustizia. https://www.retidigiustizia.it/file/sentenzatar.pdf Tribunale amministrativo regionale Lazio. (2007). Sentenza 7 maggio 2007, n. 4025. Famiglia e diritto, 181 (2008), with a comment by Caparello, S., Tribunale di Prato. (2012). Sentenza 11 gennaio 2012. La nuova giurisprudenza civile commentata, I, (2012), p. 529, with a comment by Salvi G.

Reviews and Gazettes Diritto della Famiglia e dei Minori. Il Caso.it. http://www.ilcaso.it/dirittofamigliaminori.php Diritto delle successioni e della famiglia. Edizioni Scientifiche Italiane spa. https://www. edizioniesi.it/e-shop/diritto-delle-successioni-e-della-famiglia-2-19.html Diritto, Immigrazione e Cittadinanza. Diritto, Immigrazione e Cittadinanza. https://www. dirittoimmigrazionecittadinanza.it/la-rivista Famiglia e diritto. Wolters Kluver. https://shop.wki.it/periodici/famiglia-e-diritto-s13043/ Famiglia, persone e successioni. Turin: UTET.

Unaccompanied Foreign Minors and Asylum Seekers Under Italian Law: The. . .

145

Familia. Familia. http://www.rivistafamilia.it/ Federalismi.it. Federalismi.it. https://federalismi.it/nv14/la-rivista.cfm Gazzetta Ufficiale della Repubblica Italiana. Rome: Istituto Poligrafico e Zecca dello Stato spa. Giurisprudenza di merito. Judicium. http://www.judicium.it/category/giurisprudenza-di-merito/ Il Corriere Giuridico. Wolters Kluver. https://shop.wki.it/periodici/il-corriere-giuridico-s13017/ Il diritto di famiglia e delle persone. Giuffrè Francis Lefebvre. https://shop.giuffre.it/diritto-difamiglia-e-delle-persone-il-1.html Jus Civile. Jus Civile. http://www.juscivile.it/ La nuova giurisprudenza civile commentata. Wolters Kluver. https://shop.wki.it/periodici/lanuova-giurisprudenza-civile-commentata-s9247/ Minorigiustizia. Franco Angeli Edizioni. https://www.francoangeli.it/riviste/Sommario.aspx? IDRivista¼29 Rivista giuridica del Molise e del Sannio. Edizioni Scientifiche Italiane spa. https://www. edizioniesi.it/pubblicazioni/riviste/diritto_-_riviste/rivista-giuridica-del-molise-e-del-sannio270025.html

Alessandra Cordiano, Ph.D., Associate Professor at the Law Department of Verona University. Alessandra has a particular interest in studying and supporting vulnerable individuals through legal instruments of protection. Recent publications related to the Rights of the Child include Responsabilità dei genitori Art. 336–336 bis-337 c.c. Commentario Schlesinger (book) and Un enfoque legal global para la protección de los menores extranjeros migrantes en el ordenamiento italiano: acompañados, no acompañados y solicitantes de asilo (Revista general de derecho público comparado).

Unaccompanied Minors Seeking Asylum in Denmark: Best Interest, Crime Prevention or Immigration Policy? Caroline Adolphsen

1 Introduction Danish society is build upon a strong welfare state and on the unity of family, and these structures are challenged in cases of unaccompanied minors. The focus of this chapter is how unaccompanied minors are treated by authorities in Denmark upon arrival and the problems they face. I address some inherent problems in the legislation as well as the problems arising from the child not having a parent or guardian to care for him or her. When a child in Denmark applies for a financial or social welfare service or a certain status, we as a society generally count on the parents to act on behalf of the child and in the best interest of the child. Unless the case involves problems associated with the parent/child relationship, there is therefore a tendency to equate the child’s needs with those of the parents,1 and a tendency towards relying on the parents to advance the child’s case. Of course, these presumptions do not apply in cases where unaccompanied minors seek asylum, as these children by definition are without parental protection. In any case, the State is responsible for the child as for any citizen under the State’s jurisdiction. However, in cases regarding unaccompanied minors, the State must

1 This was made clear in regard to asylum cases in the spring of 2017, as The Ministry of Immigration and Integration stated that it was up to the parents to volunteer information, if their child had an independent motive for asylum separate from the motive of the family. A specific inquiry into the child’s asylum motives would therefore not be made. The practice was broadly criticized by legal scholars. See: https://www.information.dk/indland/2017/03/jurister-stoejbergpiger-risikerer-omskaering-maa-danmark-handle and https://www.information.dk/indland/2017/ 03/stoejberg-svarer-paa-kritik (last entered on January 28th 2020).

C. Adolphsen (*) Department of Law, Aarhus University, Aarhus, Denmark e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_6

147

148

C. Adolphsen

assume a more active role in the child’s life—the role of a care provider and guardian. This role is part of the State’s responsibility to protect the child and to ensure the best interest of the child as stipulated in article 3 of the United Nations Convention on the Rights of the Child (UNCRC). On the other hand, the State has, at least from a legal standpoint, a legitimate interest in protecting its borders and controlling the influx of individuals from other countries—primarily an economic interest, but also an interest in maintaining the existing (strong) welfare system that is based on taxes, and therefore is a somewhat exclusive club for the citizens of Denmark. As unaccompanied children seeking asylum by definition have been subject to conditions that are unsuitable according to Danish standards, and thus cannot create the basis for good health and proper development of individuals, the State will (or should at least) furthermore presume that the children upon arrival will be in need of special care and protection up until a decision is made about granting a stay for the minor or rejecting the application. Therefore, the children will typically be placed in an asylum center for children (Børnecenter) or a social welfare institution and some of them in secured juvenile institutions, where the doors and windows can be locked. Child protection and child welfare is expensive, and therefore it is evident that it also entails a conflict of interests, i.e. economic interests vs. protection. A children’s rights scholar may find it odd that the dilemma has not been shown much attention in Danish social science research and in the public debate. It seems as if it has been accepted that the State’s interest in a financially viable and strict immigration policy carries more weight than the protection and best interest of the unaccompanied child. But how is that possible when Denmark has ratified the UNCRC that obligates States Parties to protect all children under their jurisdiction irrespective of the child’s (among other things) national, ethnic or social origin, property, disability, birth or other status (Article 2(1) of the UNCRC)? An educated guess is that it can be attributed not only to the policies of the shifting governments in recent years, but also to the way in which Denmark has chosen to implement the UNCRC. However, such structural or systemic explanations are not considered valid excuses for not taking into account the best interest of the child and instead focusing on the immigration perspective. In my opinion, that is the conversation we need to have. This chapter provides a legal dogmatic2 analysis of the current legislation (Evald and Schaumburg-Müller 2004) and the reasoning behind it, a sociological approach to address the issues in a different and more child-friendly manner and a de lege ferenda-approach combining the two in order to make suggestions for a new way of looking at regulation in the area.

2

The legal dogmatic approach (doctrinal approach) has the purpose of establishing state of the law, and how the legislation should be interpreted. Based on this analysis, the writer can make suggestions to a better legislation.

Unaccompanied Minors Seeking Asylum in Denmark: Best Interest, Crime. . .

149

I use a child’s rights perspective, as a purely structural analysis seems insufficient to give direct suggestions on the study object at hand which is the asylum procedure and the placement of asylum seeking children in the period in which their case is pending.

2 Historic Perspective: Public Focus on Placement of Children Seeking Refugee Status Very little attention has been given to the living conditions of asylum-seeking children in Denmark. One explanation could be the political agenda on immigration that has been almost solely aimed at decreasing the number of individuals from outside of the European Union entering into Denmark. Another explanation could (just as well) be that the public are not aware of the conditions. It was not until 2018 that media focus was given to children living in Denmark without a residence permit, and these were not unaccompanied children, but children living in deportation centers with their parents who had no right to stay in Denmark but could on the other hand not be deported to other countries.3 The Danish Ombudsman4 strongly criticized the conditions that the children were living under and deemed them ‘qualified to substantially impede the children’s upbringing and limit their possibility for natural development’ (my translation) but stated that though he thought that the main consideration when deciding whether the children (and thus their parents) should move out of the deportation centers should be the best interest of the child,—the question about where to place asylum-seekers who had their application denied was a matter for the governing body. He did, however, conclude that the conditions altogether did not constitute a breach of the UNCRC. The current government has committed itself to move the children out of the deportation center. Though the living conditions at the deportation centers were indeed very poor, the children were not separated from their primary caregiver, or parents. The situation is therefore fundamentally different, though the centers do have some similarities with the institutions for unaccompanied children. A common denominator is, however, that it is accepted that it should not be too pleasant to stay in Denmark when ones’ asylum case is pending. Restrictions in ones’ everyday life are accepted to a wider extent than what would be the case for other children living in out-of-home care. Children living in out-of-home care are supposed to be cared for in an including way proving them care and helping them towards a good and healthy adulthood. Therefore, they are not to be punished or

3

The reason why they could not be deported was either that they would risk being subjected to torture or inhume treatment upon arrival, or that no country would allow them to enter their territory. 4 https://www.ombudsmanden.dk/find/nyheder/alle/boern_i_udrejsecenter_sjaelsmark/

150

C. Adolphsen

excluded. Unaccompanied minors, on the other hand, can be excluded from participation in activities at the center/institution, if he or she does not comply with the house rules.5 The same only applies for Danish children placed in secured institutions due to criminal behavior or for crime-preventive purposes.6 The child cannot complain about such a sanction, as it is not considered sufficiently intrusive to constitute force. The example shows in my opinion that the unaccompanied minor is not primarily looked upon as a child that should be met with an open mind, but as a (potential) problem for the institution.

3 Current Situation 3.1

Rights for the Children When Entering Denmark

As a main rule, the asylum procedure is the same irrespective of the applicant’s age. However, if the Danish Immigration Service7 finds special reasons to assume that an unaccompanied minor is unfit to go through an asylum procedure, he or she can be given a residence permit on humanitarian grounds, and thus avoids the asylum case.8 The special reasons can e.g. be personal circumstances, or if there is reason to assume that the minor will be put in an actual emergency situation upon returning to his or her country of origin due to lack of family network or no possibility of living in a reception or care center. As the humanitarian ground for the residence permit is the child’s vulnerability by virtue of being a child, the residence permit cannot be extended after the child turns 18. Usually, the permit is given for a year at a time, and it cannot be extended beyond the age of 18,9 where the child as a main rule must leave the country. Had the child been recognized as a refugee, the permit would have been given for one to five years until the child turns 18, where he or she can apply for permanent residence, if the criteria are met.10 The difference between the two sets of rules is due to the fact that the refugee status is based on other grounds than the humanitarian stay—grounds that do not depend upon the age of the child. Therefore, it can be questioned whether the humanitarian residence permit is indeed in the best interest of the child, as the considerations behind it are narrowly linked to the time immediately after the child’s arrival, whereas the rights for a refugee are linked to a longer time perspective.

5

See section 62 b, subsections 6–7 of the Aliens Act (act. no. 1022 of 2 October 2019). See section 4, subsection 4 of the Adult Responsibility Act (act no. 764 of 1 August 2019). 7 The decision not to put the child through an asylum procedure cannot be put before a higher authority. See section 46 a, subsection 3 of the Aliens Act. 8 Pursuant to section 9 c, subsection. 3, no. 1 of the Aliens Act. 9 Pursuant to section 9 c, subsection. 3, no. 1 of the Aliens Act. 10 See section 11 of the Aliens Act. 6

Unaccompanied Minors Seeking Asylum in Denmark: Best Interest, Crime. . .

151

Here it seems that the government is trying to apply a best interest-perspective, however the best interest is closely linked to the immediate protection of the child, whereas little consideration is taken to the child’s need in the long run, and the child’s need to know that he or she is permanently safe.

3.2

Parental Protection and Care?

It is a cornerstone in the understanding of children’s rights that the child has one or more adult(s) to care for the child and to act on behalf of the child or help the child to do so himself. As the unaccompanied minor per definition has no parental figure in his/her life, he/she will as a clear main rule have an appointed representative to act on his behalf until a custody holder is found or appointed, the child turns 18 or the child leaves the country.11 The appointment is made by the Agency of Family Law (“Familieretshuset”)12 after recommendation from the Danish Red Cross,13 and— as a main rule—after consulting with the child, if he/she is 12 years old or older. If a child below the age of 12 is considered sufficiently mature to handle the consultation, he/she must also be heard.14 The child is not, and, in my opinion, should not be, given the power to decide which procedure should apply in the case. But the child’s right to be heard according to Article 12(1) of the UNCRC does give cause for letting the child play a more active role in the process than intended in the rules bearing in mind that although the child is vulnerable and may need more protection than other children, he/she can also have a need for and a wish to offer his/her perspective and speak his/her mind. There is no hindrance in the legislation against letting the child suggest who should be appointed as the representative, but there is no right for the child to do so. The right only extends to being heard about the suggested representative, if the child is considered capable of giving his or her opinion. If the child is not granted a stay on humanitarian grounds, and therefore must go through a normal asylum procedure, he/she furthermore gets an appointed lawyer to handle the case.15 Neither the representative nor the lawyer has actual parental rights over the child, and no custody holder is appointed, until the decision to grant a residence permit or asylum status is made. In other words, only the child’s procedural rights are ensured

11

Section 56 a, subsections 1 and 7 of the Aliens Act. See section 56 a, subsection 4. The Agency handles cases regarding adult guardianship as well. According to section 56 a, subsection 5, the decision can be brought before the Family Court—a division under the district court. 13 See guideline no. 9259 of 20 March 2019—Treatment of cases regarding representatives for unaccompanied foreign minors. 14 See section 56 a, subsection 2 of the Aliens Act. 15 Section 56 a, subsections 8–9 of The Aliens Act. 12

152

C. Adolphsen

during the case, but the duty to care for the child is not undertaken. It is presupposed that the staff at the reception or care center provides day-to-day care, but it is not care at a similar level to the overall care that a custody holder is obliged to provide. Though we do not know at this point, whether or not the child will actually stay in Denmark, there is no reason not to appoint a special caregiver to take care of the child’s more substantial rights connected to care, especially bearing in mind the child’s right to protection under the UNCRC.

3.3 3.3.1

Regulation of the Place Where the Child Is Staying Protection of the Child

As mentioned above, the child will typically be placed in a center when the case is pending, and as the child is unaccompanied, it will typically be in a special center for unaccompanied minors. The child has a duty and a right to receive education and to participate in any necessary steps in the case. Little is known about the extent and outcome of the education provided but the children will not have a right to exactly the same level of education as Danish children living at home or in care. First and foremost, the child will receive no more than 20 hours of school and second of all the children participate in class with other children who may be there for shorter periods of time where new students arrive in the middle of the semester making it hard to maintain progression in the curriculum. Especially since classes must as a main rule be conducted in Danish.16 The centers are institutions and are run as such; and though the individual rooms can be compared to private homes in the sense that the rooms the children are staying in are covered by the protection of one’s ‘home’ in Article 8 of the European Convention on Human Rights (ECHR) and the Danish Constitution,17 the staff can set up rules and intervene with force in the rights of the residents. The rules are very similar to those that apply for children placed in institutional care by the social welfare authorities both regarding types of force and interventions which the staff can make use of (i.e. use of physical force, room searches and drug testing), and the procedural rights for the child and the representative or custody holder (right to complain, right to a lawyer and a special legal procedure). The rules were incorporated in The Foreigners Act (chapter 9a) in 2017. It stands to reason that the behavior of people living together in state-financed facilities must be covered by regulation, and this is also recognized in Danish legal theory and practice (Christensen et al. 2016). It also stands to reason that since the residents are children/adolescents, it is necessary with regulations that take into account the immaturity and special needs of this group of children/adolescents. It

16 17

See Chapter II of administrative order no. 1224 of 12 august 2020. Act. no. 169 of 5 June 1953.

Unaccompanied Minors Seeking Asylum in Denmark: Best Interest, Crime. . .

153

can finally be argued that it is reasonable that the same rules apply to socially damaged or vulnerable Danish children who are taken away from their parents and placed in institutions by social services, and unaccompanied children who are placed by immigration services, but who are also very vulnerable. However, I argue that the adoption of the social services rules misses some very important points that makes one wonder whether they are indeed in the best interest of the child. This is due to the fact that although the same safeguards apply on paper, they are arguably not the same in practice. Though both groups of children have the same independent procedural rights from age 12—the right to complain and the right to a lawyer being the most important ones—it is safe to assume that a child with a complex, different background, both culturally and linguistically, will find it harder to participate actively in a case than a child who grew up in the Danish society, and who speaks the language. Several studies have furthermore shown that the interpreters employed by Danish authorities are often so poor that they miss fundamental parts of the crucial information. Something inter alia The Danish Institute for Human Rights18 has pointed out. One could therefore argue that these children need better procedural protection than other children, for instance by making the right to a lawyer a duty. Bearing in mind that not all people in the world share the Danish trust in their authorities or the judicial system. Again, it is also important to bear in mind that the person acting alongside or on behalf of the child comes from a very different starting point in the immigration regime than that of the custody holder in the social services cases. The custody holder will have a practically innate interest in protecting the child and the family from the authority, whereas the representative in the asylum case is appointed for the purpose of the case and not to protect the child while in care. This is also reflected in the fact that while the parent has an independent right to a lawyer in the case about use of force, the same does not go for the representative. Though typically a lawyer himself, the representative will not have specialized knowledge about social services rules and is therefore in need of a qualified advisor. Therefore, it can be argued that the representative should also have a right to a lawyer—especially if the child should still be able to reject having a lawyer in the future.

3.3.2

The Purpose of the Stay at the Institution

As a lawyer, one tends to focus on procedural rights and legal frameworks as the most important thing when assessing new rules. However, regarding the rules of force and other types of regulations for unaccompanied minors on a procedural stay, the biggest legal problem is that the rules have been adopted from a legal field where

18

https://www.information.dk/debat/2016/03/uprofessionel-tolkning-trussel-retssikkerheden

154

C. Adolphsen

everything begins and ends with helping the child to a legal field, where the rules must regulate ‘law and order’ in an institution. When the social services place a child in an institution, the decision is based on social inquiries of the child and the family19 that have resulted in an evaluation of the child’s need for help and care.20 This evaluation has manifested itself into a plan of action explicitly stating how to help the child, why and with which tools.21 All of this to make sure that the child is placed in a facility that can offer the needed help and support for the child. When the immigration authorities place a child in a center, it is the intention to keep the child there while the case is pending to prevent the child from running away. No inquiry of the child’s special needs has been made, and thus no evaluation of the suitability of the placement or a plan of action to help the child has been made. The purpose is to keep the child safe and supervised and not to ensure help and support, and actions against the child are thus not put into force with the purpose to ensure the best interest of the child. This fundamental difference makes it necessary for the authorities to further investigate, whether the same rules can be used without being directly harmful for the unaccompanied minors.

4 Challenges Unaccompanied Youth Face As the analysis above shows that the unaccompanied child or adolescent is faced with a number of legal problems and challenges as no authority or individual is responsible for ensuring the best interests of the individual child. The child is neither capable of acting on his/her own nor protected by a caregiver and he/she is not fully protected by Danish legislation as this requires a more permanent residency than that of an asylum seeker. The legislation and the legal system seem to be a patchwork of rules from other regulations where the child or client is protected by a broader framework of rules that do not apply for asylum-seeking child. The child is therefore left in a grey area where the social welfare services do not apply to their full extent but where the child on the other hand does not fall under the scope of the legal protection that apply for adult asylum seekers. The Child is therefore left without the absolute protection that children in Denmark enjoy simply by virtue of being minors. The child furthermore only has professional adults to help him or her, and while this offers the child legal protection during the asylum process it cannot begin to compare with the love and protect

19

A very particular and thorough procedure under section 50 of The Social Services Act. Under section 52 subsection 3, no. 7 or section 58 (voluntary or involuntary placement) of The Social Services Act. 21 See section 140 of The Social Services Act. 20

Unaccompanied Minors Seeking Asylum in Denmark: Best Interest, Crime. . .

155

provided by a parent. Love and care that the social welfare authorities attempt to provide for Danish children whose parents are not capable of doing so.

5 Relevance of the Clinical Sociological Approach Denmark has very little tradition for solving social problems for vulnerable groups outside of the public social welfare system. This makes sense, as the system is supposed to offer solutions for all social problems. Volunteers or paid private actors have traditionally played a minor part in helping to solve social problems, and the relevant actor to look at is therefore the State (Kirsten Ketscher 2014). As shown above, the legislation is made up of immigration law, financial considerations and only to a lesser degree a social welfare understanding of the child’s right to protection. Below I will challenge this understanding of the subject at hand using clinical sociology. Using clinical sociology as an approach seems suitable when looking at the State’s understanding of asylum-seeking children while suggesting another understanding, namely a child’s rights/best interest approach (Fritz 1989). The goal is thus to foster ‘. . . the development if in an environment where change is possible’, by documenting the state-of-the-law and pinpointing its’ weaknesses as done above (Morten 2001). Only by suggesting a new frame of understanding and not adopting the State’s values as given is it possible to make the rules more coherent with the best interest of the child (Gouldner 1989). While it is the hallmark of a democracy that the rules are the same for everybody and that the rules and how they are enforced are foreseeable, it is both possible and beneficial to make rules that take into account special circumstances in each individual case. The best interest approach does just that—look at the individual child. The outset for making better rules must therefore be curiosity and identification; where are the children coming from? Which cultural religious background do they come from and is it possible to take these matters into account (to some extent) in the individual case? Identification is key to offering the necessary help and this is fully recognized in the social welfare-rules protecting Danish children in need of protection.22 A thorough investigation done by a skilled professional who is capable of assessing the information given by the child, not only from an immigration viewpoint but from all angles of the child’s live would bring valuable knowledge for the legislators in moving forward with a new legal framework. Very little is also known about the well-being of the children after they are placed in the special institutions. We rarely hear about them, unless a child has committed a crime—typically theft— against a Danish citizen. This can be because the children just emerged into society

22

See section 50 of The Social Services Act.

156

C. Adolphsen

and become integrated citizens, but in fact we do not know. Knowledge about the development into adolescence and adulthood for vulnerable Danish children in need of social welfare-service has been a determining factor in making the rules for these children and the same is necessary when it comes to unaccompanied children. Again this is not possible when looking at them as immigration-cases, but only when looking at them as children. A key-point in this is education for both the professionals and authorities working with the children and for the children—the latter being at least primary and secondary school. Little is known about the outcome of the education offered to the children, and while longitudinal studies are difficult to perform as some of the children leave Denmark it is to some extend possible to evaluate and asses the outcome of the teaching while it is provided to the child. As mentioned in paragraph 3, a large group of the unaccompanied children will lose the right to stay in Denmark when turning 18 and one could therefore argue that it is especially necessary for these children to continue speaking their native language as well as obtaining skills in English, Spanish or other widely spoken languages. This is just an assumption, but one that could be investigated. Finally, it is relevant to note that a lot of the challenges faced by unaccompanied minors are similar to those faced by children of parents who are refuges. Assessing the strengths of what works well for unaccompanied children will therefore be beneficial to this group also.

6 Relevance of the UNCRC 6.1

The Danish Understanding of International Law

Before elaborating further on how asylum-seeking children could greatly benefit from a best interest approach, it is important to give some general remarks on the Danish legal tradition when dealing with international law. Though a member of the European Union and a party to The European Council and signatory to The European Convention of Human Rights (ECHR), Denmark has a dualistic approach to international law. This means that Denmark only considers itself bound by international treaties and conventions when having signed or ratified them, and only considers them directly applicable for the courts and the citizens, when they are incorporated into Danish legislation (Christensen et al. 2016; Terkelsen 2017). As the UN Convention on the Rights of the Child and the UN Convention on the Rights of Refugees are not fully incorporated into Danish legislation, one cannot apply these conventions directly in cases regarding unaccompanied minors. Though the overall principles of the conventions do serve as guidelines in the interpretation of Danish legislation where the authorities are entrusted with a discretion in their decision-making, they cannot set aside Danish legislation, and in cases of conflict between the rules, the Danish rules take priority (Terkelsen 2017).

Unaccompanied Minors Seeking Asylum in Denmark: Best Interest, Crime. . .

157

In general, Denmark is reluctant to view Denmark as being obligated to follow judgments from The European Court of Human Rights that are delivered against other countries than Denmark, after Denmark became a party to The European Convention of Human Rights, as this is considered an unconstitutional delegation of sovereignty (Evald and Schaumburg-Müller 2004). Finally, and very importantly, Denmark has opted out of the EU collaboration regarding justice and home affairs and therefore is not bound by the EU rules regarding asylum. However, Denmark has implemented the European Council’s Return Directive23 and part of the Dublin Regulation (Dublin II), and is therefore bound by at least parts of the EU-framework. Furthermore, it should be noted that Denmark also is a signatory to the Lisbon Treaty and therefore bound by the principles in the EU Charter of Fundamental Rights of the European Union (EU Charter).24

6.2

Does the Best Interest Principle Apply in Danish Immigration and Asylum Law?

The Danish rules governing the right for immigrants and refugees to access and stay in Denmark do not entail a rule stating that decisions in cases regarding children should focus on the child’s best interest. The rules thereby differ from rules regarding interventions in the lives of children already residing in Denmark.25 This should be seen in connection with the fact that the rules reflect the authorities’ interest in controlling and restricting who enters into and stays in the country. When dealing with children’s rights from an international perspective it is, however, common to have the best interest of the child as an overall framework. The principle is laid down in Article 3(1), of the UNCRC, which states that the best interest of the child shall be a primary consideration in all matters concerning the child.26 The Convention does not apply directly to Danish law. Below, I will,

23 Council of the European Union, Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, 16 December 2008, Doc No 2008/115/EC. 24 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, Doc No 2000/C 364/01. 25 In social services cases the purpose is to provide special support to children in need thereof in order to give them the same opportunities in life as other children (section 46 of the Social Services Act). In cases concerning custody, residence and access when the child is not living with both parents, the best interest of the child is written directly into the law (section 4 of the Parental Responsibility Act) with Article 3(1) of the UNCRC as an explicit role model. 26 The Committee on the Rights of the Child, General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art 3, para 1) paragraph II 12 and IV A 1(a) 17.

158

C. Adolphsen

however, argue why I believe that the principle is indeed part of the framework for the authorities’ discretion in cases regarding unaccompanied minors seeking asylum. Firstly, the principle of the best interest of the child is found in Article 24(2) of the EU Charter stating that the best interest of the child shall be a primary consideration. Though the Charter in itself is not part of treaty law, several, different legislative instruments refer to the Charter,27 and the Charter is accepted as having great legalpolitical importance (Bugge et al. 2009). Secondly, the principle of the best interest of the child is written directly into Articles 5(a) and 10 of the European Council’s Return Directive,28—the latter article specifically regarding unaccompanied minors—which has, as mentioned, been implemented into Danish legislation.29 Finally, the principle is used by the European Court of Human Rights, which, on more than one occasion, has found itself competent to interpret the UNCRC and to construe the European Convention on Human Rights in the light of the principle of the best interest of the child.30 The European Convention on Human Rights covers ‘everyone’ within a state’s jurisdiction, and it does not contain express references to children’s rights. Children are, however, undoubtedly covered by the Convention, which has its own independent relevance for all individuals, including children, under the State Parties’ jurisdiction.31 Though the case law where the ECHR has applied the principle, may not be directly binding for Denmark, it is therefore safe to say that it will be part of the rules applied by the court, if a case against Denmark would be brought before the court. In that respect, it is also important to keep in mind that the ECHR considers the rights under the convention to entail both negative and positive obligations for the national authorities, which for instance can impose a duty to grant the child a residence permit even though he/she does not qualify to become a refugee.

27 Amongst others a number of rules regarding children and asylum that are not legally binding for Denmark. See for instance Articles 25 1 (a) and 6 of the Asylum Procedure Directive (2013/32/EU), and the preamble of the Directive on Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. Parts of the directive were subject to an annulment case (pursuant to Art 230 EC), C-540/03, Parliament v. Council on inter alia the grounds that the directive was not in coherence with the best interest of the child. The ECJ found, however, that the best interest of the child had been taken into consideration and was sufficiently implemented (paragraphs 73–74), and thus there was no reason for annulment. 28 Council of the European Union, Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, 16 December 2008, Doc No 2008/115/EC. 29 In accordance with Protocol no. 22 (25.03.1957) on the position of Denmark. 30 See for instance Popov v. France (App Nos 39,472/02 and 39,474/07 of January 2012, para 90). 31 The European Court on Human Rights has for instance stated that it was a breach of Article 3’s absolute prohibition on a degrading and inhumane treatment that the Belgian state did not take adequate measures to provide care and protection for an unaccompanied 5-year-old girl with no legal basis for her stay in Belgium. See Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, App No 13178/03 12 October 2006, para 55.

Unaccompanied Minors Seeking Asylum in Denmark: Best Interest, Crime. . .

159

In conclusion, it is safe to say that the best interest of the child must be taken into account when dealing with children seeking asylum. Not as a legal basis itself for granting asylum, but as part of the discretion made by the authorities. It is a challenge with the UNCRC and the ECHR that the rules are very broad and open to interpretation. This is actually one of the reasons why Denmark is generally reluctant to incorporate conventions and treaties. The wording of Article 3(1) of the UNCRC does not clearly lay down how states should ensure the rights of the child thereby leaving considerable discretion to the individual state. How then do we know, whether we act in accordance with the Convention? What we do know is this; the Convention does not distinguish between different areas of the law, and regardless of which authority is in charge of the subject matter or type of decision, the best interest of the child shall be a primary consideration. However, the Convention cannot be interpreted in such a way that it obliges the States Parties to structure society or the rules of special relevance to children in the best way from a child’s perspective. The best interest of the child is based on many individual considerations and must be seen together with financial and political considerations in the state. In order to ensure that the Convention has actual legal authority, the best interest of the child cannot, however, be disregarded altogether, if the decision or procedure at hand may have an effect on children in the state. If a rule is open to interpretation, it is mandatory to choose the result that is most coherent with the best interest of the child. Denmark is therefore obliged to consider how to ensure the best interest of the child and provide justification for the adopted laws and regulations that regard children. Furthermore, in May 2015, the Danish legislator adopted an optional protocol under the Convention granting children a right to complain directly to the UN Committee on the Rights of the Child,32 which underlines the Danish legislator’s understanding that the Convention, and thus the principles of the Convention, does carry some weight. While the best interest of the child can be said to have some legitimacy in Danish law, the same cannot be said, at least not with the same certainty, regarding Article 22(1) of the UNCRC demanding that ‘States Parties shall take appropriate measures to ensure that [both unaccompanied and accompanied children seeking asylum] . . .receive appropriate protection and humanitarian assistance in the enjoyment of the rights under the convention and in other international human rights or humanitarian instruments to which the said States are Parties’.33 Since Denmark has a dualistic approach to international law, this is of less importance, as it is still necessary to look at each legal instrument individually in order to determine, whether it is applicable in Danish law.

32

Optional Protocol to the Convention on the Rights of the Child on a communications procedure (of December 19th 2011). 33 Though the Convention has not been incorporated into Danish law, it has been ratified, and it is recognised without a doubt that Denmark is a party to the Convention.

160

C. Adolphsen

7 How to Use the Best Interest Principle to Improve the Rights of Asylum-Seeking Children When taking the starting point in Article 3(1) of the UNCRC, focus will shift dramatically. Instead of looking at the child as an immigration issue, a financial problem or even a social welfare problem one would have to look at the child. As a minor, the individual is never first or foremost an immigrant, a client or a criminal—he or she is a child. By basing all decisions on the best interest of the individual child, the keywords of the UNCRC; provision, protection and participation will help in designing a childfriendly system with sufficient safeguards that still allows the child to participate, if he or she is capable of doing so. This is not to be confused with leaving the child to him-/herself and thereby neglecting it, as the framework and the support system will make sure that the child is sufficiently protected. With a best interest-approach it becomes hard to argue that the child should not be appointed a caregiver whose only job is to make sure that the child’s needs are met. Though it is generally accepted that children seeking asylum do not necessarily have a right to receive exactly the same level of services than children residing permanently in the state, it is very problematic that the specific placements and interventions do not take the best interest of the child into account (Søvig 2009). Though the best interest of the child does not impose a duty to structure the entire society in a specific way, it is very concerning that no thoughts have been expressed on the very vulnerable situation an unaccompanied minor lives in.

8 Summary and Recommendations As shown above, current legislation does not offer sufficient protection for the child. The rules therefore need an evaluation to ensure that the best interest of the child is indeed met. An idea could be to get inspiration from the Norwegian legislation where the issue of care during the procedural stay for unaccompanied minors is specifically regulated34 in order to ensure the best interest of the child. However, in my opinion this evaluation cannot be made with small adjustments of the legal framework, but only by starting anew and by looking at the regulation from a child’s rights perspective. The State needs a new set of values not just more rules. In order to do so, it may be necessary to invite the relevant stakeholders into the discussion about the legislation at an earlier point than usual. It is crucial that the unities actually working with the children are invited to give their perspective in a

34

Act no. 100 of 17/07/92 chapter 5a.

Unaccompanied Minors Seeking Asylum in Denmark: Best Interest, Crime. . .

161

way where the data can be analyzed and put together in a way that is suitable for implementation into legislation. A combined legal and clinical sociological method seems a good way to assess the data, identifying the needs put forward by the stakeholders and developing a best-practice model, that can be made into legislation. The Danish legislative tradition is much less influenced by lobbyism, and the government or parliament mainly initiates legislation. Only after the bill is written will the stakeholders be heard about the content of the bill. This means that the theme of the hearing is locked, as it pertains to the suggested bill not to the best way to go about legislating on the subject matter. By inviting the stakeholders into the preliminary work and focusing more on what problems the unaccompanied child faces, we have a much better chance of succeeding in finding a legal framework that promotes the best interest of the child. This type of cause-and-effect view on legislation is not something that neither the legislators nor the government officers are familiar with, and in my opinion, it is much more relevant to use a clinical sociological approach here.

References Bugge, T. D., Elholm T., Starup, P., & Steinicke, M., Grundlæggende EU-ret (2009). Copenhagen: Jurist-og Økonomforbundets Forlag, p. 37. Christensen, J. P. et al. (2016). Dansk Statsret. Copenhagen: Jurist-og Økonomforbundets Forlag, pp. 187–188 and pp. 205–206. Evald, J. & Schaumburg-Müller, S. (2004). Retsfilosofi, retsvidenskab og retskildelære. Copenhagen: Jurist-og Økonomforbundets Forlag, pp. 226–236 and pp 350–355. Fritz, J. M. (1989). The history of clinical sociology. Sociological Practice, 7(1), Article 11, p. 72. Gouldner, A. W. (1989). Explorations in applied social science. Sociological Practice, 7(1), Article 5, pp. 38–39. Ketscher, K. (2014). Socialret – principper, rettigheder, værdier (pp. 42–43). Karov Group: Copenhagen. Morten, M. A. (2001). Social policy. In H. M. Rebach & J. G. Bruhn (Eds.), Handbook of clinical sociology (pp. 252–254). New York: Kluwer Academic/Plenum Publishers. Søvig, K. H. (2009). Barnets Rettigheter på Barnets Premisser – udfordringer i møtet mellom FNs barnekonvensjon og norsk rett. Bergen: Det Juridiske Fakultets Skriftserie nr. 115, Det juridiske fakultet, Universitet i Bergen, p 116. Terkelsen, O. (2017). Folkeret og dansk ret. Copenhagen: Karnov Group 2017), pp. 18–19, pp. 91–99 and 129–134.

Caroline Adolphsen, Ph.D., is an Associate professor at the Department of Law of Aarhus University teaching Children’s Law and Family Law. Caroline does extensive teaching outside the university in different aspects of Children’s Law for professionals working with children. Her motivation for working with children’s rights stems from a strong belief in protecting vulnerable groups and making sure that their voices are heard. Research and publications related to the Rights of the Child include her PhD Dissertation “Children’s Rights Regarding Medical Treatment”; “Legislating Use of Force on Children Living in Out-of-home Care at Open Institutions—a Danish Perspective” (NST); “Adolescents and Sexual Violations Online” (Juvenile and Family Court Journal).

The Right to Education of Unaccompanied Minors and the Persistence of an Education Gap in their Transition to Adulthood Isolde Quadranti

1 Introduction The arrival of unaccompanied foreign minors (UFMs) must still be considered as a long-term feature of immigration to the European Union (European Commission 2012, p. 2).1 This remains valid even taking in consideration the downward trends after the peak of 2015, with 92,000 unaccompanied minors applying for asylum. Only for this category there are accurate aggregated data at European level. According to Eurostat (2020), in 2019 the number of unaccompanied minors applying for asylum in the 27 Member States of the EU dropped to 13,800, with a decrease of 20% compared to 2018 (16,800). The percentages across age groups remain instead similar: two-thirds of the applicants were 16–17 (9200), while those aged 14 to 15 accounted for 22% (3100) and those aged less than 14 for 11% (1500). Two in three asylum applicants classified as unaccompanied minors in the EU in 2019 were the citizens of six countries: Afghanistan (30%), Syria and Pakistan (both 10%) and Somalia, Guinea and Iraq (5%). Compared to previous data (Eurostat 2019), the number of Afghan unaccompanied minors has almost doubled (16% in 2018), while Eritrean citizens decreased (10% in 2018). The UFMs issue requires a common approach based on the respect for minors’ rights, as defined in the United Nations Convention on the Rights of the Child (UNCRC) and in the Charter of Fundamental Rights of the EU (CFR). The Committee on the Rights of the Child (CRC) underlined that in the search for short and long-term solutions, the assessment of the child’s best interest requires, in the case of UFMs, a «clear and comprehensive assessment of the child’s identity, 1 This was pointed out by the EU Institutions even before the migration crisis in the Mediterranean and Western Balkans.

I. Quadranti (*) Department of Law, University of Verona, Verona, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_7

163

164

I. Quadranti

including her or his nationality, upbringing, ethnic, cultural and linguistic background» (CRC 2005), par. 20; see also Kanics (2018), pp. 37–58).2 It follows that the child’s protection, rather than immigration policies, must be the leading principle for Member States and the European Union when dealing with minors. The assessment of the child’s best interest and other key principles inside the directive 2013/33 require that «the Member States shall ensure that standard of living is met in the specific situation of vulnerable persons». However, minors are de facto frequently treated by the authorities «as delinquents who have infringed immigration laws rather than as individuals who have rights on account of their age and particular circumstances» (European Parliament 2013; Council of Europe 2017).3 UFMs arrive in Europe in uncontrolled forms of migration for various and frequently concomitant reasons, including persecution and discrimination, wars and geopolitical instability, natural hazards, but also inequality, economic and occupational reasons, all of these factors leading minors to look for a better future. In taking the decision to leave their country, they are often influenced by their family and/or by (not always accurate) reports by acquaintances who are already living abroad. However, as soon as they enter the EU, they face challenges and difficulties in integrating in society, especially in their access to accommodation, healthcare and education, as well as to other services that could facilitate their insertion, such as language and cultural integration courses or professional training. These difficulties increase the vulnerability of minors who are unprotected by their family or a normal livelihood. UFMs are consequently more exposed to economic and social issues, as well as to emotional and psychological problems (Sedmak et al. 2018, p. 6).4 It must be stressed that the situation can be different in every case, since each personal condition is unique. Furthermore, no uniform and effective level of protection across the EU Member States exists, with reception and care of UFMs varying considerably from one country to another.

2 Kanics outlines the multidisciplinary approach to determine in practice the general principle of the best interests of the child included as a general principle in CRC. 3 The Action Plan on the Protection of Migrant and Refugee Children 2017-2019, adopted by the Council of Europe, is considered a model which States should carefully consider in order to implement the principle under which, in the context of migration, children should be treated first and foremost as children. This objective requires an effective guardianship system in each Member State, appropriate shelter for children and their families during emergencies and mass arrivals, support to children and families in restoring family links and reunification in accordance with existing norms, measures to avoid resorting to the deprivation children’s liberty on the sole ground of their migration status and guarantees that children are protected from violence, including trafficking and sexual exploitation. 4 These factors hinder UFMs’ ability to independently achieve a good quality of live.

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

165

2 The Right to Education and the Right in Education of Asylum Seekers and Unaccompanied Foreign Minors The right to education is recognised as a universal fundamental right in a range of national and international legal instruments, starting with Article 26 of the Universal Declaration of Human Rights (1948) establishing the principles of non-discrimination, free access to education and compulsory primary education.5 Regardless of the minor’s migration status, the aforementioned right is confirmed and broadly construed in other relevant international instruments, including hard law instruments, in which the right to education is appreciated as instrumental in order to realise other human rights and therefore as a source of obligations for the Contracting Parties (UN CESCR 1999, para. 1; see also Verhellen 1999; Saccucci 2010; Quennerstedt 2015).6 The most relevant instruments include the UNESCO Convention of 1960 against Discrimination in Education (Art. 4–5), the UN Convention on Economic, Social and Cultural Rights of 1966 (ICESCR Art. 13) and, at the European level, the first Additional Protocol of 1952 to the European Convention on Human Rights (Art. 2), the European Social Charter as revised in 1996 (Art. 7 and 17.2) and the European Convention on the Legal Status of Migrant Workers of 1977.7 These provisions are reinforced and considered from a child’s rights perspective by the Convention on the Rights of the Child (CRC) of 1989. This treaty, in addition to confirming the principles of free education, compulsory education and non-discrimination (Art. 28, in conjunction with Art. 13 and 32), regulates not only the right to access to education, but also the content of education in terms of

5 Art. 26 of the Declaration is similar to Article 34 of the Italian Constitution, the latter providing that «school is open to everyone. Lower education has a minimum duration of 8 years and is mandatory and free. Skilled and worthy students, notwithstanding their financial means, have the right to reach the highest ranks of the school system. The Italian Republic makes this right effective by providing scholarships, family allowances and other providences [. . .]». 6 As highlighted by the UN Committee on social and cultural rights, education is both a human right in itself and an instrumental factor to realise and enhance other human rights as well as potential abilities. 7 The European Social Charter directly safeguards the right to education of children and young people (Art. 17.2), granting them a right to free primary and secondary education and encouraging their regular school attendance. Indirect safeguards established by the Charter include imposing restrictions to the occupational rights of minors, in order to allow them to benefit from compulsory education (Art. 7). The European Convention on the Legal Status of Migrant Workers asserts that «the child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of either parent or by reason of the irregularity of the child’s stay in the State of employment».

166

I. Quadranti

values,8 including the development of the child’s cultural identity, encompassing the language and values of her of his country of origin (see also: Pobjoy 2017, pp. 139–144; Russo and Parodi 2020, pp. 141–158). In general, and especially when dealing with refugee and migrant minors’ rights, the main priority is ensuring fair and effective access to education, particularly to prevent discrimination and educational segregation. Nevertheless, an effective implementation of the right to a high-quality and inclusive education should also cover educational contents and participatory processes. This requires that the general well-being of the student is taken into consideration, not only in terms of scholastic needs, but also of social, physical and emotional needs. Support should also be offered to teachers in order to manage multilingual and multicultural classes, enlisting the help of assistants and cultural mediators, since «the school environment needs to adapt to and support the specific needs of those on the move». For this purpose, different key components must be present. As underlined by the UNESCO Global Educational Monitoring Report (2019, p. 7): Placing immigrants and refugees in the same schools with host populations is an important starting. The right to education is furthermore linked to the right in education, i.e. the right of children to be respected as holders of human rights and to benefit of educational contents fostering their knowledge and ability to exercise human rights both as children and young people. This means also that the educational institution has the responsibility to allow minors, as holders of rights, to exercise their human rights in the educational setting, or, in other words, to guarantee the rights in education (see Quennerstedt 2015, pp. 206–210; Verhellen 1999, pp. 228–230). Another relevant aspect of an inclusive and effective education is the offer of lifelong learning and a substantial, rather than merely formal recognition of the credentials acquired by the student. Otherwise, as stated in reports of the UN Special Rapporteur, «considerable pools of knowledge are ignored, talent is wasted and opportunities for social inclusion are jeopardized» (Muñoz 2010). Even if some States and regions promote the reciprocal recognition of learning, the Rapporteur underlined how the trend is largely to focus on formal, certified and academic qualifications. The consequence is that “the potential of migrants is also being wasted because their skills are not being recognized: over a third of immigrants with higher education in richer countries are overqualified for their jobs, compared to a quarter of natives” (UNESCO 2019). As regards to refugees, the European Qualifications Passport for Refugees, based on the Council of Europe Lisbon Recognition Convention, has been developed by the Council of Europe as a document providing an assessment of the higher education qualifications based on available documentation and a structured interview for integration and progression towards employment and admission to further studies.

8

Art. 29 of the Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by the General Assembly resolution 44/25 of 20 November 1989, entered into force on 2 September 1990.

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

167

The importance of education and vocational training, as an integral part of a young person’s education, are recognized in both an individual and collective dimension. They are effective and powerful tools for a successful integration process in society and for facilitating the transition to adulthood (UNHCR-COE 2014, p. 31). At the EU level, the Institutions are not competent to determine the content or the scope of national educational provisions. However, the EU law protects the migrant children’s right to access to education; according to their status, the protection can be equivalent or similar to that afforded to children who are EU citizens (Council of Europe/FRA 2018, pp. 144–147).9 In fact, asylum-seeking children, whether accompanied or not, are entitled under article 14 of the EU Reception Conditions Directive (Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013) to access primary and secondary education «under similar»—but not equal— «conditions as their own nationals» no later than «three months from the date on which the application for international protection was lodged by or on behalf of the minor». The EU law recognises that the reception of migrant children is not determined only by a safe and appropriate accommodation, but also by «any necessary support services» to secure the child’s best interests and wellbeing, «such as independent representation, as well as access to education, healthcare, psychosocial support, leisure and integration-related measure» (European Commission 2017, p. 8). However, reception facilities remain in some instances far below the minimum standards set out in the EU Reception Conditions Directive, Italian and Greek hotspots being a notorious example. The European Union Agency for Fundamental Rights affirmed in FRA (2019) that «despite the efforts to improve the situation since November 2016, many of the suggestions contained in the 21 opinions FRA formulated at the time remain valid» (on the hotspot approach, see also: Kourachanis 2018, pp. 1153–1167; on the Italian legislation and practice: Gornati 2016; Leone 2017; Masera 2017). The implementation of these provisions is in several cases inadequate or simply lacking, for different and interrelated reasons. Firstly, in a significant number of EU Member States, but not everywhere (See: FRA 2018, p. 9),10 education is considered to be compulsory for all school-age children, regardless of their status, including children who are illegal residents or detained.

9 Article 24 of the Charter of Fundamental Rights, based on the common constitutional traditions of Member States and on Article 2 of the Protocol 1 to the ECHR, extends the access to vocational and continuing training and adds the principle of free compulsory education. 10 Until 2019, there were not legislative obligations to provide undocumented migrant children with access to education in five EU countries: Bulgaria, Finland, Hungary, Latvia and Lithuania. Even though education for children is mandatory under the constitution of these countries, the decision to admit minors to schools is at the discretion of the individual institution. Moreover, enrolment in public schools can be delayed between 3 and 6 months in various EU Member States, for reasons including a lack of knowledge of the host language.

168

I. Quadranti

Child detention is not rejected completely by the EU law,11 but it should be used only in exceptional circumstances, for the shortest time and when it is demonstrable that all alternatives have been considered beforehand (FRA 2020; see also Chap. “Refugees and Migrant Children in Europe” of this book).12 Although no reliable statistics exist about immigration detention of children in Europe, studies and reports of International Organisations and NGOs found that not only it is extensively used, but also increasing in some EU Member States, including France, Greece and Malta (FRA 2020, pp. 18–20; Novak 2019, p. 460). In Italy, although the detention of children is forbidden, media and NGOs continue to report on cases of unaccompanied children under detention in Trapani and on the border between France and Italy «vulnerable people, including unaccompanied children, were detained under inadequate conditions before being sent back to Italy» (FRA 2020, pp. 19–20). In case of detention, and regardless of its duration, the child’s right to education should always be respected. Nevertheless, at least up to 2017, only three EU Member States (the Netherlands, Poland and Slovakia) were able to guarantee this for detentions of any duration (FRA 2017, pp. 80–81). Furthermore, under Article 17 (3) of the Return Directive (Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008), children who are detained pending a return procedure must have access to education “depending on the length of their stay”. For children whose deportation has been postponed or who have been granted a voluntary departure term, the guidelines of the European Commission in the Return Hand-book underline that the length of stay requirement should be interpreted restrictively. At the same time, the guidelines consider the practice in existence in the Member States, which normally provides for access to the education system only if the length of the stay is above 14 days, as acceptable (European Commission 2015, p. 75). The international organisations for human rights are unanimous in declaring that schooling should be provided preferably «outside the detention facility in community schools wherever possible and, in any case, by qualified teachers through programmes integrated with the education system of the country» (United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules) 11 On the basis of Art. 8.2 of Directive 2013/33/EU migrants can be detained for immigration-related reasons, either as asylum applicants, to ensure transfer under the Dublin Regulation procedure 73 or to facilitate their return, «when it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively». 12 Detention conditions of children «remained poor or even deteriorated in 2019». The European Court of Human Rights (ECHR), ruling on cases under its jurisdiction, over time has outlined in increasingly punctual terms the positive protection and assistance obligations deriving from Art. 3 of the European Convention of Human Rights, in the case of particularly vulnerable children exposed to degrading situations. Even though the ECHR has not always condemned the detention of minors, it requires that there must be no other less coercive measures. According to the Court, the individual case must be based on three factors: age, conditions of detention and duration of the detention.

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

169

adopted by the General Assembly resolution 45/113 of 14 December 1990, par. 38; see also FRA 2017 p. 81; Council of Europe 2005; European Commission 2015); however, in general the delay in asylum-seeking procedures, and the consequent prolongation of temporary accommodation, prevent the detained minor from quickly accessing mainstream education or even any education. The enrolment in the public schools can be delayed for 3–6 months in various EU Member States, for example due to the lack of knowledge of the local language. The time required before entering a stable school setting differs in the Member States, exceeding 6 months in some cases. Therefore, in order to avoid excessive delays, Article 14 of the EU Reception Conditions Directive provides that «such education may be provided in accommodation centres» and «preparatory classes, including language classes, shall be provided to minors where it is necessary to facilitate their access to and participation in the education system». Preparatory classes aim at providing more time for teaching and learning the language used in the local education system. However, a prolongation of separate schooling will accentuate deficits, disadvantage children in some curriculum subjects and hinder their effective integration into the school system, increasing their risk of dropout (Eurydice 2019a, pp. 91–96).13 The possibility to study with nativeborn peers may constitute an important element of social cohesion, but only on the condition that the contents and the use of language are adequate to multicultural and multilingual classes (Council of Europe Parliamentary Assembly Committee on Migration, Refugees and Displaced Persons 2018, par. 4.2). The use of special programmes and special classes is particularly common for students over 16. For young people who have not entered the regular schooling system at the compulsory age, in practice adult evening classes or vocational training seem to be the «most viable solutions». The access to secondary and higher education is often hardly possible, despite the EU requirement that «Member States shall not withdraw secondary education for the sole reason that the minor has reached the age of majority». Most European countries have not adopted a specific approach to integrate asylum seekers and refugees into higher education (Eurydice 2019b, p. 24)14; at best, there are broad measures focused on linguistic support, financial support and guidance (Nilsson and Bunar 2016 p. 411; see also Eurydice 2019a). Further causes of «educational poverty» are the shortage of financial support, the inadequate level of synergies between the

13

A comparison between the different approaches adopted by the European education systems to the contents of preparatory classes is made. In a number of education systems belonging to the Eurydice network, the regulations or recommendations about preparatory classes are under the responsibility of the central authorities, while in Italy and in the United Kingdom the related decisions are taken by local authorities and schools. The curricula of preparatory classes and language classes also differ significantly. 14 Germany is considered an example that could inspire future initiatives, because «its approach to the integration of asylum seekers and refugees has combined policymaking at several levels (federal, regional and at higher education institutions) with comprehensive measures implemented through responsible bodies, and with a clear monitoring system».

170

I. Quadranti

different stakeholders involved in the education of refugees and migrants, the insufficient training of teachers and administrative staff in working with multicultural and multilingual classes and the excessive distance between the local schools and the minors’ place of stay (NESET 2017). Foreign minors could thus be deprived of the opportunity to access learning in the same way as their peers and to freely experiment and develop their skills and aspirations. As underlined by the Council of Europe Strategy for the Rights of the Child 2016–2020, local and regional authorities have a key role in ensuring access to rights and child-friendly procedures, enhancing the integration of children, taking practical measures to reduce barriers to access and speeding up refugee children’s integration into mainstream schooling (Council of Europe 2016; see also Congress of Local and Regional Authorities – Council of Europe 2018; Council of Europe Parliamentary Assembly 2018; Committee on Migration, Refugees and Displaced Persons of the Council of Europe Parliamentary Assembly 2018).15 Nevertheless, in absence of any systemic approach in this area, there are «a plethora of local solutions of varying quality, leading to diverse outcomes». Children and young people from a migrant background face various issues, depending on their country of origin and on the general socio-economic and political context in the country of destination, but also on their life stories. Educational systems may pose additional barriers, such as clustering and marginalising migrant children in underperforming schools, as well as offer inadequate support to improve their knowledge of the language used in the local school system, with implications on their learning and development (OECD 2018, pp. 26–29).16 A sense of belonging is in fact particularly important if these minors are to be successfully integrated within their school community and achieve their potential. The process of integration into school and, at the same time, in the local society, is hindered by a number of stumbling blocks that require different answers. The importance of motivation to contrast disengagement and the subsequent need to encourage the interaction of migrant students with other members of the community has been stressed by several informal vocational education programmes and educational settings that encourage intercultural dialogue and intercultural learning (European Parliament Committee on Culture and Education 2019, pp. 44–46).17 The Guidelines regarding reception and integration of foreign students adopted by

15

Specifically, The Committee on Migration, Refugees and Displaced Persons of the Parliamentary Assembly of the Council of Europe highlighted in 2018 the gap between the international legal provisions and their implementation by the Council of Europe member States and adopted some recommendations to improve the existing conditions in order to ensure migrant children’s education. 16 The survey illustrates that students of migrant background are more than twice as likely to be low achievers as other students. In order to prevent the marginalisation of young people, it is vital to have inclusive and equitable education systems that foster cohesive societies. 17 For students from migrant backgrounds and/or for those who speak a language at home which is different from the language of education, having a sense of belonging is particularly important in order to be successfully integrated within their school communities and to achieve their potential.

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

171

the Italian Minister of Education, University and Research underline that teachers working with these students need to be flexible and ready to adapt their teaching techniques to their students’ cultural heritage in a context of communication. These experiences should be shared between classmates and used by teachers to build specific learning programs (MIUR 2014, p. 21). In general, foreign students entering for the first time in a scholastic system are the most exposed to fail in school and school integration for the different reasons mentioned above. In the case of UFMs, the situation is even more critical. Gaps and differences persist in the national regulations not only for the first phase of access, but, taking into account UFMs’ average age (16–17 years),18 also for the continuation of studies beyond the compulsory school age in order to complete compulsory or, more rarely, non-compulsory education. The low rate of UFMs regularly attending school in the official statistics has been identified as a general problem affecting also the States with the most protective legislation (UNESCO Global Education Monitoring Report 2019, p. 45). Equally, according to the 2019 Global Education Monitoring Report (UNESCO Global Education Monitoring Report 2019, p. 45), the overall number of UFMs held in detention centres is rising. Due to a shortage of suitable move-on shelters for UFMs, they are at risk of staying longer than other migrants in first reception centres, with no access to education and training. Under Italian law, pursuant to the Legislative Decree n. 142/2015, as modified and implemented by the Law n. 47/2017, minors cannot be detained in the so-called “Centri di permanenza per i rimpatri (Detention Centres for Return—CPR)”, the former “Identification and Expulsion Centres (CIE)” (Legislative Decree 142/15, article 19, comma 4), and cannot be hosted in the same accommodation structures as adults (De Luca 2020, pp. 2095–2102).19 Nevertheless, reality can be different. Various sources report cases of minors being detained in adult centres after having been wrongly identified as adults and a significant number of UFMs detained alongside adults in the so called «hotspots», promoted by the European Commission since May 2015 (Grigt 2017, p. 16).20 Their stay in the first reception centres, which should allow Authorities to take charge of the child, is supposed to last up to 30 days (60 days before the enactment of the Law n. 47/2017), until a suitable place for second reception is found. In fact, this can be

18

This is the average age at the national and European level; in this second case, only asylum seekers who are unaccompanied minors are counted. 19 The amendments introduced by the Law 47/2017 on the legislative Decree 142/2015 mean implement guarantees and protection forms in favour of the unaccompanied minors as the institute of the personal interview and, after this, the compilation of a social folder by qualified personnel and the right to be heard. 20 On 30th December 2019 the ECHR, under Rule 39 of the Rules of Court, granted interim measures to five UFM asylum seekers, who had been living for many months in a hotpot and in the “jungle” of Samos Island. The Court took into account the reception conditions, the extreme vulnerability of the children, and the exposition of minors to an imminent and irreparable harm to their physical and mental integrity.

172

I. Quadranti

prolonged, impacting also on the enrolment of minors in education and training services.21 The following statement effectively sums up the possible divergence between a minor’s expectations, also in terms of education, and her or his reception in practice. Sono arrivato in Calabria, e ho fatto richiesta di asilo. Sono stato sette mesi in un centro. Non ci trattavano male, ma non ci facevano fare niente, non ci avevano iscritti a scuola, non ci insegnavano l’italiano, niente. . .e vedevo i ragazzi più grandi che uscivano, non riuscivano a trovare lavoro, nessun lavoro. Così sono partito. Ho un cugino in Francia, voglio andare da lui. Io voglio lavorare. T., 15 anni, Darfur – Sudan22. This difference, together with the length of the procedures, the ineffectiveness of the legal pathways to reach family members legally residing in other EU States and the inadequate information and support in accessing them, ensure that thousands of unaccompanied minors disappear from the State care system every year in the EU. The slowness and cumbersomeness of the current system of family reunification under the Dublin III Regulation (EU Regulation No. 604/2013) leads many UFMs or newcomers to rather transit through Italy and try to cross the northern borders, exposing themselves to great risks. In 2019, 64 new cases of unaccompanied foreign minors eligible for the family reunification procedure were registered under Art. 8 and 17, par. 2 of the Dublin Regulation; 100 cases of ongoing procedures were registered in previous years. In 164 cases in total, 24 subjects left before the opening of the procedure or, in most cases, during the procedure, after their application had been rejected in first instance (Ministero del lavoro e delle politiche sociali 2019b, p. 23). The cases of deportation registered in Italy by the end of 2019 were 2676 (Ministero del lavoro e delle politiche sociali 2019b, p. 20). The school integration of UFMs is found to be significantly complex, especially in the early stages. Minors are disoriented, suspended between two worlds interrelated by the experience of a journey that has often left indelible scars in their lives. They are often in a condition of low or no literacy and their psychological profile is marked by their previous deprivations, according to very specific patterns.

For the first reception of UFMs and in order to make this first phase more structured, the Law n. 47/2017 provides the opening of specific governmental centres. However, the centres are not operational yet. Therefore, the first reception of minors is based centres financed by the Asylum, Migration and Integration Fund (FAMI), an emergency intervention by municipalities and further last resort solution which are not always suitable. In the second reception phase, all UFMs should be accommodated only for a long term stay in the framework of the Protection System for Asylum and Refugees (SIPROIMI, the former SPRAR). However, if no SIPROIMI accommodation is available, other less protected alternatives are provided: local social-educative communities managed by the municipality or, only as long this is strictly necessary, Extraordinary Reception facilities. 22 Translation by the author: «I arrived in Calabria and I applied for asylum. I was in one centre for 7 months. I was not mistreated, but we were left without anything to do, we were not enrolled in a school or taught Italian, nothing. . . and I could see the older boys who went out, they could not find a job, any kind of job. So I left. I have a cousin in France, I want to go to stay with him. I want to work». 21

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

173

In the case of minors outside their families of origin, educators and researchers have highlighted deprivation-specific psychological patterns (see MIUR-AGIA 2017, p. 6). Specific skills are required to perceive the signs of malaise, while educational and didactic plans, methodologies, ad hoc interventions and experiences of cooperative learning and tutoring among peers are needed to strengthen relational dynamics. However, if this complexity is duly addressed with reception and education mentoring practices based on multidimensional educational care, school might become an “insertion bridge” and thus a fundamental instrument to integrate UFMs in the new context and grant them an opportunity to self-fulfilment (Augelli 2020, pp. 39–48, spec. pp. 39–40; ISMU 2019, pp. 72–77; Simoneschi 2017, pp. 45–53).

3 The Right to Education and the Multidimensional Assumption of Responsibility for Unaccompanied Minors in Italy In the concluding observations on the combined fifth and sixth periodic reports on Italy adopted by the Committee on the Rights of the Child at its meeting held on first February 2019, the Committee recommended to the Italian Government to take urgent measures in five areas of concern: education, asylum seeking and refugee children, children in situations of migration, allocation of resources and non-discrimination (CRC 2019, par. 4).23 While appreciating the actions implemented to ensure a free, equitable and quality primary and secondary education, the Committee recommends, inter alia, a human rights-based approach more inclusive towards children belonging to minority groups (Nino 2013, pp. 499–513)24 and migrants; a fast mainstreaming of the national student register and regional registers in order to identify all children of compulsory age who are not attending school or doing vocational training or apprenticeship. Finally, the Committee stressed the urgency of taking measures to address disparities between the various regions in primary areas including education (CRC 2019, par. 31). Before analysing the right to education for UFMs in Italy, and the challenges raised by the said minors attaining majority, it is necessary to contextualise the subject within the multicultural evolution of the Italian school system (see reference to the previous paper «Unaccompanied Foreign Minors and Asylum Seekers Under Italian Law: The Issue of Minors Attaining Majority» in Chapter X). 23

Even though the protection measures envisaged by the Law n. 47/2017, the on the Committee on the Rights of the Child expressed concern about possible consequences of the Law n. 132/2018 and several problematic issues concerning the treatment of UFMs for which it calls for urgent measures by the State. 24 Particular attention is dedicated to Roma, Sinti and Caminanti, who remain subject to high rates of school drop-out, as noted above, and forced evictions. The case-law of the ECHR has also dealt with the schooling of Roma, Sinti and Caminanti, ruling that Member States are under an obligation to guarantee the schooling of the Roma people and eliminating any form of school segregation.

174

I. Quadranti

The presence of students without Italian citizenship has become a constant in 80% of the educational institutions at the national level. In the school year 2016/ 2017, students from migrant backgrounds exceeded 800,000, representing 9% of the school population. This proportion was 2 out of 100 at the beginning of 2000. It is therefore evident that school is evolving in a multicultural direction. Foreign students born in Italy represent the more relevant component (60.9%) of students without Italian citizenship in all grades of schools, apart from the second level of secondary schools (ISMU 2019, pp. 11–15). At the same time, in recent years there has been a slowdown in the growth of foreign students, with an increase of only 11,000 between 2015/2016 and the following school year, compared to an increment of 70,000 between 2006/2007 and the following school year. Among the major interrelated reasons behind this trend, in addition to the general reduction of migratory flows towards Italy, the significant number of students without Italian citizenship who are outside the educational-training system is paramount; these subjects, mostly 17–18, have no access to education or drop out of it. Another reason, which is also one of the main causes for early school drop-out, is low educational achievement at all school levels, which is more pronounced among children and young people from migrant backgrounds. The percentages of the latter provided by ISMU (2019) are: 12.4% in primary school (1.7% of Italian students); 32.4% in lower secondary school (5.5% of Italian students) and 58.2% in upper secondary school (20% of Italian students). Finally, as it will be further discussed, it is significant to consider that even today only a minority of UFMs regularly attend school and appear in the official statistics, despite the attempt with the Law n. 47 of 2017 to strengthen their rights, including the right to education at all levels; also the Legislative Decree no 142 of 2015, implementing Directive 2013/33/UE, aims at integrating all children in schools and at granting unaccompanied and undocumented minors access to Italian language classes. In principle, the Italian school system is very inclusive. Education is compulsory for all school age children regardless of their status; separate educational tracks or institutions for children with special needs are not envisaged.25 According to the Constitution, education and training are an integral part of the democratic State, of individual rights and universal principles. Article 34 of the Italian Constitution, similarly to Article 26 of the Universal Declaration, envisages an education which is open to all, with a mandatory and free lower education having a duration of at least 8 years for all minors. The minimum duration is nowadays 10 years between the age of 6 and 16, including the first 2 years The Law n. 517 of 4 August 1977 stands out as a first milestone towards a school system aimed at tackling different forms of disadvantage. The Law abolished special education schools and integrated pupils with disabilities into ordinary classes. After 40 years, the spirit of the Law was renovated by the Legislative Decree n. 66 of 2017, mandating a scholastic inclusion compliant with the right to self-determination, to a reasonable accommodation and to the respect of the cultural and educational identity of every child with disabilities. Under the Decree, an educational individualized plan must be elaborated and shared among schools, families and territorial entities.

25

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

175

of upper secondary education.26 Even if education is free of tuition, in order to ensure equal educational rights it is necessary to consider how extra cost may indirectly hinder the lower social classes: access to education by itself is not sufficient, if not combined with quality education and training. The right/duty to education and training of minors who are non-Italian citizens is regulated by the general legislation on education and training and by the immigration law. In particular, Art. 38 of the Legislative Decree n. 286 of 1998 (Immigration Code, «Testo Unico sull’Immigrazione—TUI») provides that all foreign minors on Italian territory are subject to compulsory school. Moreover, all the provisions in force concerning the right to education and access to educational services apply to them, including the provision regarding participation to the school community life. Emphasis is put on the intercultural educational horizon chosen by the Italian school system, with the educational community embracing the linguistic and cultural differences as values to be appreciated on a basis of mutual respect, exchange between cultures and tolerance. The effectiveness of this right is also guaranteed by the State, Regions and local authorities through the activation of specific courses for the learning of the Italian language. Article 45 of the Presidential Decree n. 394 of 1999, implementing and executing the Legislative Decree n. 286 of 1998, grants to all foreign minors the right to education, regardless of their legal status. Nevertheless, practice shows that «training centres often refuse to enrol unaccompanied minors (particularly asylum seekers) who do not have a residence permit». This practice by some municipalities has been declared discriminatory and unlawful by Trib. Milano with an order issued on 11th February 2008 (in Minorigiustizia, 4, 2008, p. 388 ss; see also: Rozzi 2017, pp. 247–284; Grigt 2017, p. 22). Even in case of missing personal data or incomplete or irregular documents, students can still be accepted in schools. If a child is unable to present any identity document, she or he will be enrolled on a reserve list, which will allow her or him to addend classes and obtain the relevant final certification (ASGI 2014, p. 5; Grigt 2017), p. 13). Enrolment can be requested at any time during the school year— although schools sometimes try to avoid this in order to avoid the related difficulties (Presidential Decree n. 394/1999; see: Augelli 2020, p. 43)—and is subject to the same conditions applicable to Italian minors for normal and mixed classes (Presidential Decree n. 394/1999; MIUR-GAI 2017. Bureaucratic and/or administrative reasons are not legitimate grounds to refuse enrolment. The submission of the enrolment application for a UFM is a duty of his or her guardian, a paramount figure in the legislation thoroughly regulating the treatment of these minors, including their right to education. Pending the appointment of the guardian, the application can be submitted by the person in charge of the reception facility hosting the minor

26

Art. 1 co. 622 of Law n. 296 of 27 December 2006.

176

I. Quadranti

(MIUR-GAI 2017, p. 10; see: Cukani 2019, p. 267; Thiene 2018, pp. 121–123; Bianconi 2018, p. 147).27 Under Art. 45 of the Presidential Decree n. 394 of 1999, migrant children subject to compulsory education have the right to be included in a class matching their age, unless the teachers’ panel rules otherwise, taking into account the school system in the minor’s country of origin, her or his curriculum and an assessment of the student’s level. If the panel rules otherwise, according to the 2014 Guidelines, the child should be enrolled in the previous or next grade, in order to limit as much as possible age differences between children in the same class (MIUR-GAI 2017, p. 10). In order to avoid concentration phenomena, the Guidelines call for a balanced distribution of enrolments, through a coordination between schools and with the local authorities. A ministerial decision of 8 January 2010 sets the maximum limit for the presence of foreign students at 30% of the total number of students enrolled. The limit can be increased by the Director-General of the Regional School Office if foreign students have adequate language skills; in complex cases, the DirectorGeneral can also lower it. The last data published by the Ministry of Education on school year 2016–2017 reveal a modest increase in the number of schools (5.6%) exceeding the threshold. In fact, the Guidelines point out that there are more students enrolled in classes lower than their age than necessary, mostly because their knowledge of the Italian language is considered too limited to participate to educational activities. In order to avoid educational delays, the focus should instead be on offering adequate support in the learning of the Italian language; otherwise, even students entering a lower class will not be prevented from accumulating advantages in other subjects. All students in the 16–18 age group, the one of greatest interest for UFMs (Augelli 2020, p. 42),28 have the «right-duty to education and professional training» in order to achieve a diploma or a professional qualification through professional training courses or apprenticeships. Despite the lack of data at the national level about the type of schools attended by UFMs, researches on the subject and local surveys confirm that most of them are enrolled in one of the 126 Provincial Centres for Adult Learning (CPIA) operating on national territory, because they are unable to certify their completion of compulsory schooling for a duration of at least 9 years.29

27

The guardian must enclose with the registration his appointment by the judicial authority and the certificate of compulsory vaccinations required under Art. 3 bis of the Law n. 119/2017. The guardian has a duty to monitor the insertion process and to have a constant dialogue with the teachers of the minor. 28 In the last few years before majority, minors will have to attend the course to obtain the final qualification of the first cycle, even if they are not yet able to take the final exam, in order to fulfil their right-duty to education as provided by the Legislative Decree n. 76 of 15 April 2005. The hours of attendance will be counted in the subsequent school year in order to enable these students to take the exam in advance. 29 CPIAs are a type of autonomous educational institution established by the Presidential Decree n. 263 of 29 October 2012. They have their own staff and a specific educational and organizational

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

177

In CPIAs, students generally attend Italian language literacy courses, as well as courses for obtaining the final qualification of the first cycle of secondary education. As students wait for the courses to start or restart, for example during the summer periods, they are crucially offered literacy courses by private social workers. A student must be 16 to enrol in a CIPIA,30 but some agreements at the local level between the Region and the Regional Scholastic Office might allow enrolment at 15 (ISMU 2019, p. 74; Augelli 2020, p. 41).31 As already stated for foreign minors in general, the inclusion in the school context and the overall success of the educational and training project depend not only on the active participation of the minor in the decision-making process, but also on the «synergic collaboration of all those involved» (MIUR-GAI 2017, p. 19), including school staff, social services, psychologists and educators of the reception centre, in order to realise the individualized educational plan (Barzaghi 2020, p. 34). Once again, the guardian has an important role in coordinating this relational network (Cukani 2019, p. 267; Thiene 2018, pp. 111–126; Bianconi 2018, p. 147). The problems that often arise concerning, on one hand, the identity of the minor and the processing of their trauma. At the same time, on the other hand, the cohesion of different professional subjects involved in the management of the reception project, who should share some important values as working in team, in order to prevent cases of overlapping, or lack of planning sharing. The important contribution that a clinical sociology approach can offer consists in the possibility to analyse the situation in operational terms and in intervention techniques which are useful to take charge each individual project and to share the responsibilities of the interventions (Siza 2006, pp. 25–26). An analysis conducted according a clinical sociology approach is useful to avoid the risk to fall in the self-referentiality of the project and, on the other hand, to strengthen the effectiveness of the interventions. The multidisciplinary territorial team should build together with the minor a project suitable to his/her age, culture and gender. This objective and necessity become even harder in absence of a migration project, or when this is only and idealization far from the factual reality.32 Due to the average age of UFMs and their condition, Art. 14 of the Law n. 47/ 2017 provides for a series of measures to be adopted within the reception facility and during the minor’s process of insertion to support the fulfilment of compulsory

structure. CPIAs are divided into territorial service networks: Art. 1 of Presidential Decree n. 263 of 29 October 2012, Regolamento recante norme generali per la ridefinizione dell’assetto organizzativo didattico dei Centri d’istruzione per gli adulti, ivi compresi i corsi serali, implementing Art. 64, comma 4, of Decree-Law n. 112 of 25 Juve 2008, n. 112, converted with amendment into the Law n. 133 of 6 August 2008. In GU No. 47, 25 February 2013. 30 Art. 3 of Presidential Decree n. 263 of 29 October 2012. 31 It has been pointed out that they could also be enrolled in secondary schools, so that they are «in are a sort of educational limbo». A third possibility is that the start of the courses at the CPIA is postponed until the age of 16, preceded by private social literacy courses. 32 Testimony collected from Silvio Masin, director of the reception center for unaccompanied minors Comunità San Benedetto Opera Don Calabria in Verona.

178

I. Quadranti

schooling or training. The law provides for schools of all level, as well as the training organizations recognized by the Regions and Autonomous Provinces, to be in charge of tailored projects including, whenever possible, a cooperation or coordination role for cultural mediators and agreements aimed at promoting specific training programmes. Clearly, the effectiveness of these projects also depends on the funding made available for this purpose. Therefore, the budget limitations established by the legislation (Cukani 2019, pp. 268; Carlassare 2015, pp. 137–153)33 do not bode well for the actual implementation of the above measures, aimed at ensuring the effectiveness of a fundamental right for particularly vulnerable subjects, as prescribed by the international and European norms and by the principle of the «best interest of the child».

4 The Persistence of an Education Gap in the Transition of Unaccompanied Minors to Adulthood As the UFM comes of age, her or his legal status changes, with the loss of specific guarantees (safeguards against deportation, prohibition of border rejection, obligation to detain in dedicated reception facilities) and rights to support by the public services. Above all, in States in which the level of protection is high—at least theoretically—as long as the foreign citizen is a minor, the transition to adulthood is a critical moment, jeopardising the integration efforts already made and the psychological wellbeing of UFMs; many of them disappear, as soon as they lose their right to stay in the country (UNHCR/Council of Europe 2014, p. 29). The objective fact that most children enter the Italian territory at 16–17 constrains the process of integration and transition to autonomy within a limited, difficulty ridden timeframe. After the Law n. 132/2018, the possibilities of integration for the minors when they turned 18 are different, depending not only on the category of the previous reception structures, but also on their legal status, namely applying a permit for studies, work or waiting for employment, or pending the outcome of the asylum (De Michiel 2020, pp. 102–106). The experience of shelters and social services emphasises that offering the minor effective accompaniment and guidance as she or he approaches majority is an essential requirement (ISMU 2019, pp. 70–72; Guerra and Brindle 2018; Magnano and Zammitti 2019; Satoko 2018). This remains essential even though at the European level progress has been made to extend the provision of care, subject to clear and specific requirements, beyond the legal age

33 Art. 14, co. 3 of the Law n. 47/2017 (free translation by the Author): «The administrations concerned shall implement the provisions of this paragraph within the limits of the financial, instrumental and human resources available under current legislation and in any case without putting new or increased burdens on public finances».

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

179

and up to 21. In Italy this is the case when a decision of “administrative continuation” («prosieguo amministrativo») is adopted (Morozzo delle Rocca 2018, pp. 182–183; ASGI 2019, pp. 3–5); in an increasing number of States, the support to foreign young people can be extended until they are 24 or 26 (based on OECD 2016). Under Art. 13 of the Law n. 47/2017, the Juvenile Court or the Prosecutor’s Office to the Juvenile Court may order administrative continuation in all cases in which an unaccompanied foreign minor, after coming of age, is in need of further support to achieve autonomy, provided that she or he has undertaken a path of social integration. The above-mentioned conditions for «prosieguo amministrativo» are fulfilled by many minors close to the age of majority who have been hit by the pandemic health emergency (ASGI 2020).34 In fact, the COVID-19 emergency has caused an abrupt slowdown in the paths to inclusion, thus increasing disorientation and restlessness in minors and in the staff of reception centres, as guardians are not appointed and the expiration terms of permits of residence granted to minors approach (Gruppo di Lavoro per la Convenzione sui Diritti dell’Infanzia e dell’Adolescenza 2020; CRC 2020). It has been pointed out that a divergence or dissonance exist at this critical junction. On one hand, it would be expedient for the former minor to continue her or his education in order to facilitate the transition to adulthood and the search for a job; on the other hand, access to education in general is seriously undermined just in this moment of transition (UNHCR-Council of Europe 2014, pp. 30–33). According to a study conducted under the supervision of the Council of Europe and the UN Refugee Agency, young migrants require access to education, independently of their age, as well as to apprenticeships as a transition tool to adulthood. The combination of practical work experience and theoretical studies should be encouraged, and reception facilities chosen in accordance with the young migrant’s educational situation in order to enable continuity (UNHCR-Council of Europe 2014, p. 34).35 In order to encourage social and working integration of young vulnerable migrants, the Directorate General of Immigration and Integration Policies of the Ministry of Labour and Social Policy has implemented since 2016 a project based on a financial support due to the European Social Fund and services for a personalized plan of intervention and since 2019 the project “Protezione unita a obiettivo integrazione” (Ministero del Lavoro e delle Politiche Sociali 2019a) also addressed to foreign citizens legally residents who recently turned over the age of 18 and entered in Italy as unaccompanied minors. Among the innovations introduced by the Law 47/2017 for education and training, one particularly impacting on the transition to adulthood allows for final 34

The Association for Juridical Studies on Immigration, in an operational document on the situation of unaccompanied foreign minors in light of the health emergency, has recommended to social services and guardians to apply for «prosieguo amministrativo» in advance, as soon as the requirements are met. 35 Unaccompanied and separated asylum seeking and refugee children were specifically interviewed.

180

I. Quadranti

qualifications and degrees to be issued by schools at all levels to UFMs, even when the minor has come of age during the course of studies. The said qualifications and degrees will include the identification data acquired at the moment of enrolment. The general objective of these new norms on education and training is to foster the acquisition of a degree which can facilitate job-seeking and therefore allow the conversion, at the minor’s coming of age, of his or her permit of residence on grounds of age into a permit on grounds of education, access to work, autonomous or subordinate work (Art. 32, co. 1 of the Immigration Code). The Law n. 47/2017 improves the legal status of UFMs attaining majority, introducing new types of residence permit for family reasons (Art. 10). However, unequal conditions of treatment and reception after majority remain and have even increased after the enactment of the Legislative Decree n. 113/2018, converted into Law n. 132/2018. These differences in treatment depend on the minor’s legal status and residence permit, her or his reception in a SIPROIMI Center before the coming of age, and the granting of a «prosieguo amministrativo» decision (see ASGI 2019, pp. 1–3; Morozzo della Rocca 2018, pp. 179–182). The Decree No. 113/2018 also suppressed some pathways to integration that the previous «SPRAR» protection system opened to UFMs until their autonomy was achieved (Cukani 2019, p. 267). In the absence of an administrative continuation decision, an individual who has just attained majority, is a resident in a SIPROIMI facility and has applied for the conversion of his permit of residence on grounds of age into a permit on grounds of education, access to work, autonomous or subordinate work will not be allowed to stay in the facility for more than 6 months or be guaranteed at least the right to be accepted in a facility for adults outside SIPROIMI. The transition to adulthood and the exit path should be followed not only at bureaucratic level (as if it were the passage of a file), but as a delicate phase of an educative process towards the autonomy that has to begin in the reception centre still before the major age. It is determinant to accompany the minor in this progressive passage ensuring that conditions are met. Among the main preconditions there are the experimentation of apartments for minors on their own, but with an oversight of the educators, which is less restrictive than in the centre, as well as the network of contacts with local enterprises in order to realize experiences of traineeships that facilitate their entrance in the work environment. Even in the presence of these stringent constraints «the transition to independent life can be successful», but this requires a well-honed coordination by all the stakeholders involved, based on the paramount interest of the person concerned and taking into consideration not only that person’s needs, but also her or his abilities, potential and wishes.

References ASGI. (2014). Minori stranieri e diritto all’istruzione e alla formazione professionale. Sintesi della normativa vigente e delle indicazioni ministeriali (aggiornata con le linee guide del MIUR del febbraio 2014). Associazione per gli Studi Giuridici sull’Immigrazione. Retrieved from http:// asgi.it/wp-content/uploads/2014/05/1_0014_scuola_def_asgidocumenti.pdf

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

181

ASGI. (2019). L’accoglienza dei minori non accompagnati dopo il compimento dei 18 anni. Scheda per i tutori e gli accompagnatori che seguono minori non accompagnati. Associazione per gli Studi Giuridici sull’Immigrazione. Retrieved from https://www.asgi.it/wp-content/uploads/ 2019/07/Scheda-accoglienza-MSNA-dopo-i-18-anni.pdf ASGI. (2020). Emergenza COVID-19 e percorsi dei minori non accompagnati dopo i 18 anni. Associazione per gli Studi Giuridici sull’Immigrazione. Retrieved from https://www.asgi.it/wpcontent/uploads/2020/04/Nota-COVID-19-e-percorsi-dei-MSNA-ai-18-anni.pdf Augelli, A. (2020). Cos’è chiamata a fare la scuola? In N. Pavesi (Ed.), La scuola incontra i minori stranieri non accompagnati. Soggetti, compiti e diritti. Guida ISMU. Fondazione ISMU. Retrieved from https://www.ismu.org/wp-content/uploads/2019/12/02.-Scuola-e-msna_Guida-alta-def.pdf Barzaghi, A. (2020). Chi si occupa di loro? In N. Pavesi (Ed.),La scuola incontra i minori stranieri non accompagnati. Guida ISMU. Fondazione ISMU. Retrieved from https://www.ismu.org/wpcontent/uploads/2019/12/02.-Scuola-e-msna_-Guida-alta-def.pdf Bianconi, C. (2018). I diritti e i doveri del tutore, la responsabilità. In J. Long (Ed.), Tutori volontari di minori stranieri non accompagnati. Materiali per l’informazione e la formazione (pp. 145–152). Milan: Wolters Kluwer. Retrieved from http://hdl.handle.net/2318/1666031 Carlassare, L. (2015). Diritti di prestazione e vincoli di bilancio. Costituzionalismo.it, 3, 137–153. Retrieved from https://www.costituzionalismo.it/download/Costituzionalismo_201503_533. pdf. CESCR. (1999). CESCR General Comment No. 13: The right to education (Art. 13). RefworldUNHCR. Retrieved from https://www.refworld.org/pdfid/4538838c22.pdf Congress of Local and Regional Authorities – Council of Europe. (2018). Unaccompanied refugee children: The role and responsibilities of local and regional authorities. Council of Europe. Retrieved from https://rm.coe.int/unaccompanied-refugee-children-current-affairs-committeerapporteur-na/1680791c99 Council of Europe. (2005). Twenty guidelines on forced return. Council of Europe. Retrieved from https://www.coe.int/t/dg3/migration/archives/Source/MalagaRegConf/20_Guidelines_Forced_ Return_en.pdf Council of Europe. (2016). Strategy for the Rights of the child (2016-2021). Council of Europe. Retrieved from https://rm.coe.int/CoERMPublicCommonSearchServices/ DisplayDCTMContent?documentId¼090000168066cff8 Council of Europe. (2017). The action plan on the protection of migrant and refugee children 20172019. Council of Europe. Retrieved from https://edoc.coe.int/en/children-s-rights/7362-councilof-europe-action-plan-on-protecting-refugee-and-migrant-children-in-europe-2017-2019.html# Council of Europe – FRA. (2018). Handbook on European law relating to the rights of the child. Publications Office of the European Union. Retrieved from https://op.europa.eu/en/publicationdetail/-/publication/592fe28a-44e1-11e7-aea8-01aa75ed71a1/language-sl Council of Europe Parliamentary Assembly Committee on Migration, Refugees and Displaced Persons. (2018). Integration, empowerment and protection of migrant children through compulsory education. Parliamentary Assembly – Council of Europe. Retrieved from https:// assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid¼24555&lang¼en CRC. (2005). General comment no. 6. United Nations Human Rights – Office of the High Commissioner. Retrieved from https://www2.ohchr.org/english/bodies/crc/docs/GC6.pdf CRC. (2019). Concluding observations on the combined fifth and sixth periodic reports of Italy. CRC/C/ITA/CO/5-6. United Nations Human Rights – Office of the High Commissioner. Retrieved from https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx? symbolno¼CRC/C/ITA/CO/5-6&Lang¼En CRC. (2020, 8 April). The Committee on the Rights of the Child warns of the grave physical, emotional and psychological effect of the COVID-19 pandemic on children and calls on States to protect the rights of children [press release]. Retrieved from https://tbinternet.ohchr.org/ Treaties/CRC/Shared%20Documents/1_Global/INT_CRC_STA_9095_E.docx

182

I. Quadranti

Cukani, E. (2019). Soggetti vulnerabili a tutela dei diritti: il caso dei minori stranieri non accompagnati. Consulta Online, Issue 2019-2, 257–270. Consulta online. Retrieved from http://www.giurcost.org/studi/cukani3.pdf De Luca, C. (2020). Le sanzioni applicabili a minori stranieri mon accompagnati nei centri di accoglienza: una recente pronuncia della Corte di Giustizia. Cassazione penale, 5, 2094–2102. De Michiel, F. (2020). La protezione e l’inserimento lavorativo dei minori stranieri non accompagnati. Lavoro e diritto, 35(1), 89–115. European Commission. (2012). Mid-term report on the implementation of the action plan on unaccompanied minors. European Commission. Retrieved from https://ec.europa.eu/homeaffairs/sites/homeaffairs/files/e-library/docs/uam/uam_report_20120928_en.pdf European Commission. (2015). Commission Recommendation of 1.10.2015 establishing a common “Return Handbook” to be used by Member States’ competent authorities when carrying out return related tasks (Return Handbook). European Commission. Retrieved from https://ec. europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migra tion/proposal-implementation-package/docs/commission_recommendation_establishing_a_ return_handbook_for_member_states_competent_authorities_to_deal_with_return_related_ tasks_en.pdf European Commission. (2017). Communication of the European Commission to the European Parliament and European council, the protection of children in migration. EUR-lex. Retrieved from https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri¼CELEX:52017DC0211& from¼en European Parliament. (2013). Resolution of 12 September 2013 on the situation of unaccompanied minors in the EU. European Parliament. Retrieved from https://www.europarl.europa.eu/sides/ getDoc.do?pubRef¼-//EP//NONSGML+TA+P7-TA-2013-0387+0+DOC+PDF+V0//EN European Parliament Committee on Culture and Education. (2019). Research for CULT. Committee – Education and Youth in the European Union – Current challenges and future prospects. European Parliament. Retrieved from https://www.europarl.europa.eu/RegData/ etudes/STUD/2019/629204/IPOL_STU(2019)629204_EN.pdf Eurostat. (2019). Almost 20000 unaccompanied minors among asylum seekers registered in the EU in 2018, one fourth are Afghans or Eritreans. European Commission. Retrieved from https://ec. europa.eu/eurostat/documents/2995521/9751525/3-26042019-BP-EN.pdf/291c8e87-45b54108-920d-7d702c1d6990 Eurostat. (2020). Almost 14000 unaccompanied minors among asylum seekers registered in the EU in 2019. Almost one-third are Afghans. European Commission. https://ec.europa.eu/eurostat/ documents/2995521/10774034/3-28042020-AP-EN.pdf/03c694ba-9a9b-1a50-c9f429db665221a8 Eurydice. (2019a). Integrating students from migrant background into schools in Europe. Eurydice Italia. Retrieved from http://eurydice.indire.it/wp-content/uploads/2019/01/Integrating-Stu dents-from-Migrant-Backgrounds-into-Schools-in-Europe-National-Policies-and-Measures.pdf Eurydice. (2019b). Integrating asylum seekers and refugees into higher Education in Europe. Eurydice Italia. Retrieved from http://eurydice.indire.it/wp-content/uploads/2019/02/Integrat ing-Asylum-Seekers-and-Refugees-into-Higher-Education-in-Europe_-National-Policies-andMeasures-Report.pdf FRA. (2017). European legal and policy framework on immigration detention of children. European Union Agency for Fundamental Rights. Retrieved from https://fra.europa.eu/sites/ default/files/fra_uploads/fra-2017-immigration-detention-children_en.pdf FRA. (2018). Current migration situation in the EU: Impact on local communities (update). European Union Agency for Fundamental Rights. Retrieved from https://fra.europa.eu/sites/ default/files/fra_uploads/fra-2018-february-monthly-migration-report-focus-local-communi ties-update_en.pdf FRA. (2019). Update of the 2016 FRA opinion on fundamental rights in the hotspots set up in Greece and Italy. European Union Agency for Fundamental Rights. Retrieved from https://fra.

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

183

europa.eu/en/publication/2019/update-2016-fra-opinion-fundamental-rights-hotspots-setgreece-and-italy FRA. (2020). Children in migration in 2019. European Union Agency for Fundamental Rights. Retrieved from https://fra.europa.eu/sites/default/files/fra_uploads/fra-2020-children-in-migra tion_en.pdf Global Education Monitoring Report Team. (2019). Global education monitoring report, 2019. UNESDOC. Retrieved from https://unesdoc.unesco.org/ark:/48223/pf0000265866 Gornati, B. (2016). Le nuove forme di trattenimento dello straniero irregolare in Italia: dall’evoluzione dei CIE all’introduzione dei c.d. hotspot. Diritti umani e diritto internazionale, 2, 471–480. https://doi.org/10.12829/83873. Grigt, S. (2017). The journey of Hope: Education for refugee and unaccompanied children in Italy. Education International. Retrieved from https://download.ei-ie.org/Docs/WebDepot/Journey_ Hope_EN.pdf Gruppo di Lavoro per la Convenzione sui Diritti dell’Infanzia e dell’Adolescenza. (2020). Editoriale Speciale Covid – 19 n.1. Gruppo di Lavoro per la Convenzione sui Diritti dell’Infanzia e dell’Adolescenza. Retrieved from http://gruppocrc.net/editoriale-specialecovid-19/ Guerra, V., & Brindle, D. (2018). Promoting the social inclusion of migrant children and young people. European Social Network. Retrieved from https://www.esn-eu.org/sites/default/files/ publications/25.01.2018_VGReview_Migration_Report_Final.pdf ISMU. (2019). A un bivio. La transizione all’età adulta dei minori stranieri non accompagnati in Italia. Fondazione ISMU. Retrieved from https://www.ismu.org/wp-content/uploads/2019/12/ 191204_Report_LONG_ITA1-1.pdf Kanics, J. (2018). The best interests of unaccompanied and separated children: A normative framework based on the convention on the rights of the child. In M. Sedmak, B. Sauer, & B. Gornik (Eds.), Unaccompanied children in European migration and asylum practices. In whose best interests? London and New York: Routledge. Koehler, C. (2017.) Continuity of learning for newly arrived refugee children in Europe. NESET. Retrieved from https://nesetweb.eu/wp-content/uploads/2019/06/Continuity-of-learning-fornewly-arrived-refugee-children-in-Europe.pdf Kourachanis, N. (2018). Asylum seekers, hotspot approach and anti-social policy responses in Greece (2015–2017). Journal of International Migration and Integration, 19, 1153–1167. Leone, C. (2017). La disciplina degli hotspot nel nuovo art. 10ter del D.lgsl. 286/98: un’occasione mancata. Diritti, immigrazione e cittadinanza, 2, 1–25. Magnano, M., & Zammitti, A. (2019). Career guidance for unaccompanied young migrants. A report on an Italian experience. Journal for Perspectives of Economic Political and Social Integration, 25(2), 41–63. Masera, L. (2017), I centri di detenzione amministrativa cambiano nome ed aumentano di numero, e gli hotpost rimangono privi di base legale: le sconfortanti novità del Decreto Minniti. Diritto Penale Contemporaneo, 3, 278–384. Diritto Penale Contemporaneo. Retrieved from https:// archiviodpc.dirittopenaleuomo.org/pdf-viewer/?file¼%2Fpdf-fascicoli%2FDPC_3_2017. pdf#page¼278 Ministero del Lavoro e delle Politiche Sociali. (2019a). Progetto PUOI - Protezione Unita a Obiettivo Integrazione. Ministero del Lavoro e delle Politiche Sociali. Retrieved from https:// www.lavoro.gov.it/notizie/Pagine/Proroga-termini-avviso-del-Progetto-PUOI-ProtezioneUnita-a-Obiettivo-Integrazione.aspx Ministero del lavoro e delle politiche sociali. (2019b). Report di monitoraggio. Ministero del Lavoro e delle Politiche Sociali. https://www.lavoro.gov.it/temi-e-priorita/immigrazione/ focus-on/minori-stranieri/Documents/Report-di-monitoraggio-MSNA-31-dicembre-2019.pdf MIUR. (2014). Linee guida per l’accoglienza e l’integrazione degli alunni stranieri. Ministero dell’Istruzione-Ministero dell’Università e della Ricerca. Retrieved from https://www.miur.gov. it/documents/20182/2223566/linee_guida_integrazione_alunni_stranieri.pdf/5e41fc48-3c682a17-ae75-1b5da6a55667?t¼1564667201890

184

I. Quadranti

MIUR – GAI. (2017). Linee guida per il diritto allo Studio delle alunne e degli alunni fuori dalle famiglie di origine. Autorità garante per l’infanzia e l’adolescenza. Retrieved from https://www. garanteinfanzia.org/sites/default/files/linee_guida_per_il_diritto_allo_studio_delle_alunne_e_ degli_alunni_fuori_dalla_famiglia_di_origine.pdf Morozzo Della Rocca, P. (2018). I minori di età nel diritto dell’immigrazione. In P. Morozzo Della Rocca (Ed.), Immigrazione, asilo e cittadinanza. Santarcangelo di Romagna: Maggioli Editore. Muñoz, V. (2010). Report of the special rapporteur on the right to education. Refworld-UNHCR: Vernor Muñoz. Retrieved from https://www.refworld.org/docid/4c075ddf8c.html. Nilsson, J., & Bunar, N. (2016). Educational responses to newly arrived students in Sweden: Understanding the structure and influence of post-migration ecology. Scandinavian Journal of Educational Research, 60(4), 399–416. Nino, M. (2013). Corte europea dei diritti umani, divieto di discriminazione e diritto all’istruzione della minoranza rom. Diritti umani e diritto internazionale, 2, 499–516. Novak, M. (2019). The United Nations global study on children deprived of liberty. Omnibook. Retrieved from https://omnibook.com/view/e0623280-5656-42f8-9edf-5872f8f08562 OECD. (2016). Making integration work. OECD iLibrary. https://doi.org/10.1787/ 9789264251236-en OECD. (2018). Pisa 2018. OECD. Retrieved from https://www.oecd.org/pisa/PISA%202018% 20Insights%20and%20Interpretations%20FINAL%20PDF.pdf Pobjoy, J. M. (2017). The child in international refugee law. Cambridge: Cambridge University Press. Quennerstedt, A. (2015). Education and children’s rights. In W. Vandenhole, E. Desmet, D. Reynaert, & S. Lembrechts (Eds.), Routledge international handbook of Children’s Rights studies (pp. 201–214). London and New York: Routledge. Rozzi, E. (2017). In primo luogo minori? I diritti violati dei minori stranieri non accompagnati in Italia. In D. Licata, & M. Molfetta (Eds.), Il diritto d’asilo. Report 2017. Minori rifugiati vulnerabili e senza voce (pp. 247–284). Todi: Tau. Russo, D., & Parodi, M. (2020). The implementation of the convention on the Rights of the child in the Italian legal order: A provisional balance. Diritti umani e diritto internazionale, 14(1), 141–158. Saccucci, A. (2010). Diritto all’istruzione e discriminazione scolastica di minori stranieri alla luce delle norme internazionali sui diritti umani. In R. Pisillo Mazzeschi, P. Pustorino, & A. Viviani (Eds.), Diritti umani degli immigrati: tutela della famiglia e dei minori (pp. 297–334). Editoriale Scientifica: Naples. Satoko, H. (2018). Accountability, dependency, and EU agencies: The hotspot approach in the refugee crisis. Refugee Survey Quarterly, 37(2), 204–230. Sedmak, M., Sauer, B., & Gornik, B. (Eds.). (2018). Unaccompanied children in European migration and asylum practices. In whose best interests? London and New York: Routledge. Simoneschi, G. (2017). I tre livelli di cura educativa nel processo di integrazione dei minori stranieri. Minorigiustizia, 3, 45–53. Siza, R. (2006). Le professioni del sociologo. Milan: Franco Angeli. Thiene, A. (2018). Minori stranieri non accompagnati. Compiti e responsabilità del tutore volontario entro e oltre la scuola. Annali online della Didattica e della Formazione Docente, 10(15–16), 111–126. UNHCR-Council of Europe. (2014). Unaccompanied and separated asylum–seeking and refugee children turning eighteen: what to celebrate? Council of Europe. Retrieved from https://rm.coe. int/16807023ba Verhellen, E. (1999). Facilitating Children’s rights in education. Expectations and demands on teachers and parents. In B. Stark (Ed.), Human rights and children (pp. 427–435). Edward Elgar: Chetenham and Northampton.

The Right to Education of Unaccompanied Minors and the Persistence of an. . .

185

Isolde Quadranti, Ph.D, is the Head of the European Documentation Centre (EDC) of University of Verona – Department of Law. Isolde’s main areas of research and interest cover international and European protection of Human Rights, Migration law, freedom of expression and communication policy. At the EDC she is responsible for didactic laboratories and seminars. She is engaged in several projects regarding EU Migration Law, EU Human rights Law, Education and Migrants. Isolde is the contact person for the University of Verona for the networks Scholar at Risk and Manifesto Università Inclusiva (UNHCR). Her motivation to work in the field of the Rights of the Child comes from her commitment to protect the rights of migrant children. Publications include Protecting and Promoting Human Rights in Italy: the Renewal of the Proposal for a National and Independent Commission of Human Rights and «Crisi dei rifugiati», emergenza umanitaria e protezione dei minori stranieri non accompagnati.

Voluntary Guardianship for Unaccompanied Children in Italy: Strengths and Weaknesses of a New Model Joëlle Long

1 Introduction Voluntary guardianship is an essential legal tool for providing “special protection and assistance” to unaccompanied foreign children (art. 20 par. 1 and art. 22 CRC).1 According to the Council of Europe, “an effective guardianship system constitutes an essential safeguard for the protection of the rights of unaccompanied and separated children in migration and (...) guardians play a key role in the safeguarding of children’s best interests and the exercise by these children of their rights”.2 Usually, guardian and foster parent are distinct roles and functions and therefore the guardian does not live with the minor, who is placed in a residential care facility or, more rarely, in a foster family. In fact, the guardian legally represents the child in This work could not have been written without the experience I gained as coordinator of the research committee established by the three-year convention (2018–2020) between the University of Turin, the University of Eastern Piedmont, the Regional Ombudsman for Children, the Piedmont Region, the Aosta Valley Region, the National Association of Italian Municipalities (Piedmont section) and the three banking foundations of the territory (Compagnia di San Paolo, Cassa di Risparmio di Torino and Cassa di Risparmio di Cuneo). Therefore, my heartfelt thanks go to all the partners. 1 Although guardianship is not explicitly recognised as a protection tool, the CRC indirectly sees the guardian as a central figure in the child’s life. In article 5 of the CRC, for instance, it is stated that State Parties shall respect the responsibilities, rights and duties of (. . .) legal guardians in a manner consistent with the evolving capacities of the child. General Comment no. 6 of the Committee on the Rights of the Child states that a guardian should be appointed as soon as the separated child is identified (paragraph 21 and 24). 2 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.

J. Long (*) Law Department, University of Turin, Turin, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_8

187

188

J. Long

the performance of acts that he or she could not validly perform alone due to being under age, for instance, the request for a green card or for an evaluation of refugee status, school enrolment or the signature of an employment contract, or the provision of informed consent for medical treatments. The hope is that, in addition to taking care of the child when he/she is under age, the guardian will become an affective and educational reference for him or her, providing support for the transition into adulthood, a phase in which social services’ responsibility usually ends and in which there is therefore a risk of material and emotional vulnerability. In Italy, the figure of the voluntary guardian of unaccompanied foreign children is quite recent, having been codified nationally by Law no. 47 of 7 April 2017 (“Provisions on Protective Measures for Unaccompanied Foreign Minors”). Until the entry into force of this legislative text, the Municipality was usually appointed as public guardian of an unaccompanied foreign minor, being the territorial authority responsible for social services. Although the new law does not explicitly indicate the appointment of a voluntary guardian as being preferential to that of the public body, both preparatory works and a theological interpretation of the law argue in favour of this interpretation. In practice, today, Juvenile Courts always appoint voluntary guardians when available: at the date of 31 December 2018 there were 3189 voluntary guardianships in force (AGIA 2019a). Furthermore, a (currently isolated) decision by the Juvenile Court of Palermo addresses the lack of sufficient voluntary guardians to cover the needs of unaccompanied foreign minors in Sicily, appointing the Municipality as temporary guardian and simultaneously entrusting it with the transfer of unaccompanied foreign children to other Italian regions that have voluntary guardians available and where the children would therefore receive better care (Tribunale per i minorenni of Palermo, 20 June 2018, in Minorigiustizia, 2018, no. 3, 198). The novelty for Italy of the formalisation of the role of voluntary guardian, combined with the high number of unaccompanied foreign minors nationally (10,787 at 31 December 2018; 6054 at 31 December 2019, according to data from the Ministry of Labour and Social Affairs 2019) and the high number of appointments made in these first 2 years of the new rule (3902 in 2018 alone), makes the Italian experience an interesting one to analyse. The aim is to identify issues and good practices which ensure that voluntary guardianship is a true protective factor in the growth of unaccompanied foreign minors. Thus, in the following paragraphs, we will examine the Italian experience of voluntary guardianship by integrating tools of legal analysis with clinical sociology. Indeed, in the past 3 years, the Law Department of the University of Turin has been coordinating training and support for voluntary guardians of unaccompanied foreign minors residing in the Piedmont and Aosta Valley regions (approx. 30,000 km2 and 4,500,000 inhabitants). The activities were carried out in the context of an agreement signed between the University of Turin, the University of Eastern Piedmont, the Regional Ombudsperson for Children, the Piedmont Region, the Aosta Valley Region, the National Association of Italian Municipalities and three banking foundations of the local area (Compagnia di San Paolo, Cassa di Risparmio di Torino and Cassa di Risparmio di Cuneo). From July 2017 to date, 779 persons presented a

Voluntary Guardianship for Unaccompanied Children in Italy: Strengths and. . .

189

declaration to the Regional Ombudsperson stating their willingness to be appointed as guardian, 527 of them were trained and 360 are now in the Guardians’ Register held by the Juvenile Court of Turin, with 294 guardians appointed at 15 May 2020 (data updated to 15 May 2020). Support activities for appointed guardians, namely a legal advice service through an online platform (with 235 guardians enrolled as at 11 February 2020) and mutual aid groups (attended by about 100 guardians), allowed us to identify strategies and good practices, building upon the real experiences of over 200 guardians. In the following paragraphs, the results of our empirical analysis will be compared with studies carried out at locally, nationally and internationally. At local level, qualitative research on guardianship was conducted in 2018 by the Ombudsperson of the Municipality of Milan, interviewing 15 guardians (Ortugno and Balena 2019). At national level, the National Ombudsperson for Children publishes annual reports in implementation of the monitoring tasks expressly attributed to it by law (AGIA 2019a, b). At international level, as early as in 2010, a group of NGOs carried out 127 interviews with children and 68 interviews with guardians in eight European countries with the aim of formulating Reference Standards for guardians of unaccompanied minors (project, co-funded by the European Commission, Daphne Program: Goeman et al. 2011). In 2015 the European Union Agency for Fundamental Rights published a report on guardianship systems for children deprived of parental care in the European Union (FRA 2015).

2 The Strengths of Voluntary Guardianship Until the entry into force of Law no. 47 of 2017, the appointed guardian for unaccompanied foreign children was usually a public body,3 most often the Municipality, being the territorial authority responsible for social services. One weakness of this appointment, however, is the difficulty for the public authority to give individual attention to the child due to the high number (in large cities, several hundred) of guardianships involved. More specifically, it takes quite some time for the public guardian’s delegate to meet the child initially; visits are infrequent and the possibility for the child to contact and receive immediate attention from the guardian is limited. Furthermore, an overall risk involved in the appointment of the public guardian is a possible conflict of interest. As, in most cases, the public guardian is the authority in charge of social services, the situation created is that of an entity controlling itself: as guardian, in fact, it must assess the suitability of the care provided by social services (namely, itself).

3 According to Art. 354 of the Italian Civil Code, for children who need legal protection but have no parents or whose parents are unable to provide their children with care and legal representation, the tutelary judge can appoint as guardian a childcare institution or authority in the municipality in which the minor resides.

190

J. Long

To overcome these limitations of public guardianship, the Italian legislator intervened, promoting voluntary guardianship with Law no. 47 of 2017. To ensure a direct and personal relationship between the voluntary guardian and the child, the new law establishes a maximum number of three children under a single guardianship, unless there are special reasons, for example, the protection of a group of siblings (art. 11 Law no. 47 of 2017). In our experience, this limit is reasonable as, although it is true that each protection has its own specific aspects,4 each situation requires from the guardian an average of up to 5 h of activity per week. The presence and accessibility of the guardian for the child are functional to the establishment of a personal relationship between them. With these objectives, Core Standard no. 9 for guardians of separated children in Europe by Defence for Children and Save The Children requires that the voluntary guardian “can be reached easily, lives near enough to the child to be able to respond quickly to difficulties, sees the child as soon as possible after his/her appointment and pays visits to the child on a frequent basis” (Goeman et al. 2011). We note, as good practice to encourage an individual relationship with the minor, the organisation of periodic meetings at least weekly and on a fixed basis (for example, a pizza every Thursday evening) so that the child knows he/she can rely upon the legal guardian. Availability is, in fact, an important element to be able to ensure that the guardian becomes an educational and sometimes affective reference point for the child. In the words of an unaccompanied minor in Ireland: “The guardian is on my side. Whatever happens he comes immediately.” (Goeman et al. 2011). Our experience indicates that guardians are perceived by children as very present and active in the relationship with their protégé. As evidence of this, we note the phenomenon we observed of requests originating from unaccompanied foreign children with a public guardian to be appointed a voluntary guardian with whom to develop a private affective relationship similar to that observed in the experience of peers living in the same community but having a voluntary guardian. According to Core Standard no. 8 for guardians of separated children, “The guardian forms a relationship with the child built on mutual trust, openness and confidentiality” (Goeman et al. 2011). One concrete example of the bond of trust is offered by the story reported to us by a female guardian of a pregnant Nigerian girl who agreed to start taking folic acid only through her trust in the guardian, overcoming fears of voodoo and “distant” curses, as well as of Western medicines. Another guardian told us that he received a call in the middle of the night from a boy asking him to go and collect him as he had been found by the French gendarmerie while trying to pass illegally from Italy to France through the mountains. The French

4

One example is Albanian minors: almost all these minors arrive accompanied by their parents who then leave them in Italy with relatives or acquaintances, with the task of attending school, learning a job and then returning to their homeland economically autonomous and able to help the family. This is how a guardian of two Albanian minors describes the guardianship: “an economic exploitation of our rules. In fact, I do not agree with the permissiveness of the Italian State to accept these young Albanians who are sent by their families only to have free education in Italy, even though they could afford it. I would prefer that our efforts go to children who need it most”.

Voluntary Guardianship for Unaccompanied Children in Italy: Strengths and. . .

191

police had left him a few kilometres away from the Italian border, in the middle of the woods and the boy was terrified. Finally, we share the experience of a guardian who told us that a boy “tells strong stories (...) says that he comes from a village in a small province, his father is a Kurdish partisan, every day they arrest him and massacre him. He involved his son and police abuses followed “....“ He was with us [the guardian’s family] for four days at Christmas. One evening he was in the room and singing. He later told the lawyer that in Turkey it is illegal to sing Kurdish songs: so, I made a connection with the episode of his song a few nights before. He was savouring freedom!” Another important strength of voluntary guardianship is prevention of the risk of conflict of interest. In fact, the guardian is independent both from social services (see also Ortugno and Balena 2019 who identify the non-belonging of the guardian to the public authority as a strength of voluntary guardianship), and—in the vast majority of cases—from foster carers. In relation to the first aspect, as already highlighted above, one risk of public guardianship lies precisely in the unification in the same body of the role of controller of the adequacy of solutions adopted for the care of the minor and of the controlled. The example of the request for so-called prosieguo amministrativo (administrative continuation) can clarify the situation. Pursuant to Art. 13 second paragraph of Law no. 47 of 2017, “When an unaccompanied foreign minor, at the age of majority, despite having undertaken a path of social integration, needs prolonged support aimed at the success of such a path with a view to gaining autonomy, the juvenile court can order—also at the request of social services, with a motivated decree—the assignment to social services, but not beyond reaching 21 years of age”. However, since the costs of this care extension are borne by the social services, the latter, when appointed guardians of unaccompanied foreign minors, may be less likely to request such a continuation due to lack of funds. Conversely, the voluntary guardian should not have anything else in mind other than the interest of the child and should therefore be able to conduct the assessment without conditioning. In fact, in our experience, with the spread of voluntary guardianship, the number of requests for administrative continuation has increased exponentially. In the words of one guardian “When I proposed administrative continuation, they looked at me really angrily, as if to say “shut up”, also because they explained the care would have been charged in full to the municipality” (Guardians’ support group 14.12.2019). A second aspect concerns independence from educators working in the residence facility or from the foster family. It is precisely this autonomy that allows the guardian to be a “watchdog” (see standard no. 4 in Goeman et al. 2011) exercising true control over the adequacy of the child’s placement which, if the role of guardian and foster care/residence facility manager overlap, would be excluded. A female guardian, for example, proved to be essential in the case of a Nigerian girl entrusted to a compatriot who lived with her and with other children (under public guardianship) in a situation of considerable material and social degradation: the guardian’s report pressed the judicial authority to assess the situation and eventually led to the removal not only of the voluntary guardian’s protégée, but also of the other children,

192

J. Long

multiplying the beneficial effects. Voluntary guardians can also play a significant monitoring role in cases of children entrusted to so-called “relatives”: one guardian, for instance, reported the complete neglect of a 16 year old Turkish boy on the part of the foster carer and supposed “cousin”. Moreover, the fact that the guardian does not cohabit with the child does not mean that there is no significant emotional bond. On the contrary, this bond often exists and sometimes even assumes quasi parental value for one or both protagonists. The National Ombudsperson for Children, in the aftermath of the entry into force of Law no. 47 of 2017, highlighted the “social parenting” of the guardian (AGIA 2017). Some guardians report: “since he met me he has been very close—too much—he says that I am his Italian father (after only a month) and that he trusts my decisions that I make for him ... he sends me a message every morning and in the evenings “how did you sleep?” and “how did the day go?” (Guardians’ support group 26.10.2018); “I will continue to see her even as an 18-year-old. I will continue the relationship with her, it’s not the case that just because she turned 18 I will say goodbye” (Guardians’ support group 26.10.2018); “He used a photo of the two of us together as his mobile wallpaper, replacing that of CR7. Before she called me (...), now mum ... I don’t know how to take it.” (GAT 10.11.2018). This bond helps to continue relationships even after the age of 18: “I still monitor him even though he is of adult age. We keep in touch via WhatsApp” (Guardians’ support group 10.11.2018). On the other hand, the experience of others is different: “I don’t feel like a social parent, I’m a person trying to help, that’s all. Explaining the rules and what to do. The term parent is excessive, because it is full of too engaging personal and emotional expectations. He has a family and I have nothing to do with it, I am a legal guardian” (Guardians’ support group 13.12.2018).

3 The Weaknesses 3.1

The Novelty of the Role

Several critical issues encountered by voluntary guardianship relate to its novelty, which determines continuing inadequate recognition of the role by the law and by the entire unaccompanied foreign children’s protection network. Voluntary guardians report uneven and not always transparent practices within the Juvenile Court responsible for appointing and managing the guardianship. They stress, for instance, that in matching the child with the prospective guardian, the judge does not give due significance to their specific resources (e.g. knowledge of a particular language that could facilitate the relationship with a specific group of minors) or even to the place of residence (they report being appointed guardians of minors who live a considerable distance away from them, entailing significant problems for guardians who travel by public transport or who are still active at work and who must subtract the hours spent on the journey from the relationship with the child). Furthermore, there is a lack of homogeneity with regard to the

Voluntary Guardianship for Unaccompanied Children in Italy: Strengths and. . .

193

inventory (which is required by law but not requested by all judges), the timing of the reports, the possible appointment of the pro-tutore (“under tutor”, also mandatory by law but almost never appointed in cases of unaccompanied foreign children, probably due to the considered specialty of the subject) and its motivations, the possibility for the guardian to delegate someone else for the performance of specific tasks (a relative or a friend or even social services). As already mentioned, guardians highlight the difficulty of affirming their role in relation to the other entities involved in the network. For example, we report the difficulties encountered in getting some residential care facilities to allow guardians to see the child’s medical documents or in letting the guardian take the child out for a walk or an ice cream. Furthermore, guardians rarely receive notices of criminal hearings in proceedings against the child, in which they are thus prevented from participating. One guardian writes: “I am dissatisfied with social workers who never share their plan and decisions; they take action without even making a phone call and it is impossible to contact them when you need to. I am more satisfied but not entirely so with the residential care facility, which puts a good face on a bad game, but at least they let you enter. Then they lock you in a room and you cannot walk freely around the facility unless you are escorted, it’s worse than a prison, but at least when you ask questions they answer you”. The data is also confirmed by the aforementioned Milan research which indicates that more than half of interviewees believe that the voluntary guardian is a new figure and that the various stakeholders (Court, residential care facility, social services) do not fully and properly consider his/her role (Ortugno and Balena 2019). The impression is that, given the novelty of the role, it is difficult for both guardians and professionals to pinpoint the correct level of involvement of the guardian in the child’s life. Some services report a certain amount of anxiety in some guardians, possibly caused by the need to accelerate the process of approaching and gaining knowledge of the child. Several examples of behaviours are reported to have caused disorientation not only in the child concerned but also in other children living in the facility, for example, giving gifts to the child or making frequent requests to take him/her out to dinner, thus creating a difference in treatment between unaccompanied children living in the same facility. Guardians even complain that some professionals try to dissuade them from playing an active role. In the words of one guardian: “Initially, the residential care facility and social services were suspicious about the figure of the guardian, as if they felt that the guardian cared too much about the child, creating a bit of imbalance in the group” (Guardians’ support group 14.12.19). Another guardian told us about a medical examination performed on the child to assess his age: “In the end, we went... the educator who accompanied the other boys was very annoyed by my presence (. . .). The boy’s anxiety was a ball... she (the educator A/N) also passed and did not even acknowledge us. She pulled up straight and told us to follow her, she never spoke to us. When we got to the last room (body weight, height, etc.) I asked the boy if he wanted me to enter, he said yes. The educator jumped in, telling me what role she thought I had ... I asked the doctor and

194

J. Long

he told me that I could enter. I only left when they lowered his pants. Eventually the doctor told him the test result in English. The educator took the document and did not want to give it to me as “it is not procedure”. To date, I still do not have the medical report. I know that he was recognised as a minor. It was very unpleasant, I also felt concerned about my role, I no longer knew how I could collaborate properly” (Guardians’ support group 12.10.2018). Another guardian says: “the first thing the residential facility manager told me was ‘here are the proxies’. When I told her that I had not done a year’s course to sign proxies, both sides (residential facility and social services) slowly understood that they could all benefit from the presence of the guardian, as I live in the specific area, while all the professionals come from Turin. I have all my relationships and I have been able to make proposals and offer resources, expand the network” (Guardians’ support group 21 October 2018). On the other hand, other players seem to try to burden the guardian with tasks that are not part of the role, e.g. accompanying the minor to various appointments by car; going to look for the minor when he does not return in the evening. An initial meeting with the aunt and uncle foster carers of one boy was described as follows by the guardian: “The first thing these careless relatives said to me is:” why don’t you take him home with you?” (Guardians’ support group 26 October 2018). Furthermore, the law itself only partially recognises voluntary guardianship. In employment law, for example, the guardian is discriminated against compared to foster carers. It is certainly true that foster carers welcome the child into their home and take care of him/her materially and directly, thus having to be able to absent from work if the child’s health requires their presence (illness of the young minor or accompaniment and support during medical treatment for older minors, for example). However, it may well be the case that the guardian also has similar needs, although probably less frequently. Unfortunately, Italian law currently does not yet grant any right to the guardian to leave work so that he/she may accompany the protégé in key moments, such as interviews with the Territorial Commission for the recognition of refugee status. Thus, the guardian can only be present by taking a day off or by taking advantage of special leave, if required by the specific employment contract. The significance of the problem is confirmed by both quantitative data and qualitative research. 77.8% of guardians are employed (AGIA 2019a, b). In the aforementioned Milan research it was found that half of the interviewees saw the lack of employment leave as an obstacle (Ortugno and Balena 2019). One of our guardians reports “I teach, and I can’t tell the principal that I have to go away. Yesterday the boy had to go to A&E because he was terribly ill. I heard from the doctor who said that if the pain didn’t go away, he would have to go to A&E. The manager of the residential facility told me that she didn’t know how she would be able to take him as she was short-staffed ... I had to mediate with the facility, but luckily his condition improved and we made a visit the next day” (Guardians’ support group 23.11.2018). Another guardian reports that she is unable to devote all the necessary attention to one of her two protégés as “I am using all my hours of leave from work for the other boy” who has a more problematic situation (by hours

Voluntary Guardianship for Unaccompanied Children in Italy: Strengths and. . .

195

of leave the tutor means hours away from work unpaid or recognised as holidays N/A). In addition, unlike foster carers, voluntary guardians do not have insurance for civil liability and reimbursements of expenses for the activity performed. As to the first aspect, we refer to the guardian’s patrimonial liability for damages caused by the unaccompanied minor to third parties. The areas are indeed very limited. Under Italian law, in fact, if the child is incapable of understanding or intending, compensation is due from those who were given custody of him/her, thus the foster parent or the residential facility hosting the child (Art. 2047 Civil Code). If the minor is capable of understanding (as is the case for almost all unaccompanied foreign minors), the liability of the guardian is limited to the rare case where there is cohabitation between him and the protégé (Art. 2048 Civil Code). In addition, the guardian may be held liable for damages caused maliciously or negligently to the minor during the exercise of protection. Currently, there is no case law on the topic. Reimbursements, as well as any indemnity, were excluded by a recent ruling of the Constitutional Court which deemed them incompatible with the qualification of “voluntary” as per Law no. 47 of 2017 (Corte costituzionale, 29 November 2018, no. 218). The case concerned the request by a guardian of an unaccompanied foreign minor to receive an allowance, similarly to what is normally granted for guardians of vulnerable adults: in the absence of any assets held by the child, the implicit request was for social services to pay the allowance. As is evident, the lack of any reimbursement risks limiting voluntary guardianship to people who have the financial resources to cover the travel costs to reach the minor’s place of residence and the other small expenses that guardianship entails.

3.2

The Need for Training and Support and the Lack of Adequate Resources

In order for the legal, but also cultural and social, project of voluntary guardianship to be successful, prospective guardians must be adequately trained, and appointed guardians must receive continuous training as well as adequate support.5 Interdisciplinary knowledge and skills are required from the guardian.6 He or she must be familiar with the organisation of territorial and specialist social-welfare services and the socio-economic characteristics of the relevant territory. Indeed, he Under Core standard no. 9 for guardians of separated children in Europe “The guardian is equipped with relevant professional knowledge and competences” (Goeman et al. 2011, p. 6). 6 General Comment no. 6 of the Committee on the Rights of the Child mentions that a guardian should have the necessary expertise in the field of childcare (paragraph 33). Other elements necessary for appropriate training are: knowledge on the principles and provisions of the Convention, knowledge of the country of origin of the separated child, appropriate interview techniques, knowledge on child development and psychology, and cultural sensitivity and intercultural communication (ivi, paragraph 96). 5

196

J. Long

or she is involved in the network supporting the child and a lack of knowledge by the guardian of his/her interlocutors or of the content and limits of voluntary protection is likely to weaken the protection of the protégé. For example, he or she must inform the child about his or her rights and duties in the relationship with the other players involved (Goeman et al. 2011) and must also be able to assess the adequacy of the protection instruments adopted. It is also necessary to have knowledge of “children’s rights, migration and asylum law, child developmental psychology, trauma, trafficking, intercultural communication, child abuse and protection, social welfare, the situation and life in the home country of the child” (Goeman et al. 2011). The guardian, for example, must be “able to recognise any signs of abuse or trafficking, know how to act in case of injury, forms of distress or potential dangers for the minor and immediately report this information to the competent authorities and institutions” (ibidem). Another aspect on which the guardians themselves feel they need continuous training is transcultural psychology and cultural anthropology. In fact, the guardian must treat “the child unprejudiced with respect to (. . .) cultural differences and (with a N/A) flexible approach tailored to the individual needs of the child (Goeman et al. 2011). A guardian of a Pakistani child, for example, reports a “series of problems related to the life/training project of the child entrusted to me which I believe have a cultural connotation”. Some female guardians encounter difficulties in some Muslim minors having a relationship with them due to their gender (Ortugno and Balena 2019): “He, being a Muslim, and I notice it from the speeches he makes, does not give importance to decisions of women. His reference figures are all male (apart from the mother). So, I noticed that his relationship with my husband is better, he hugs him, he gives him a role” (Guardians’ support group 10.11.2018); “I have always been accompanied by my husband because Muslims do not have high esteem for women ... I explained to him that we are a family and we do things together (Guardians’ support group 12.10.2018)”. Another female guardian reports “When the guardian calls me mother, I must also have a cross-cultural approach. Is it because I have been too caring or because in his culture all women of this age are called mother? We have to understand the situation well: in fact, a guardian reports “She calls me mum, I took it badly at first, but then I realised that in the community they used the figure of the mother, that is, someone you can trust, to describe the guardian”” (Guardians’ support group 12.10.2018). Others highlights transcultural problems with psychological treatment: “Among other things, they offered him psychological support and he curled up into a ball because going to the psychologist in his country means being sick and mad” (Guardians’ support group 23.11.2018); “person arrives and presents psychological distress, but talking about it in front of others is not good because they are things that are faced in the family” (Guardians’ support group 26.10.2018). In Italy, the training of prospective voluntary guardians is attributed by law to the responsibility of the Regional Ombudsperson for Children (art. 11 law no. 47 of 2017). However, no specific funds are allocated: the law has a financial invariance clause: in accordance with Art. 20 “The implementation of this law, with the exception of the provisions of article 16 and article 17, paragraph 3, must not result

Voluntary Guardianship for Unaccompanied Children in Italy: Strengths and. . .

197

in new or greater charges for public finances”. The lack of resources threatens to undermine this important cultural project as the Regional Ombudspersons have very different finances: some, as for the Piedmont Region, have no budget at all of their own and therefore to comply with legal obligations they have to take action to promote collaborations, for example with universities, and/or with professional associations of lawyers, psychologists and social workers who act as pro bono trainers. Elsewhere, training has been delegated to private social institutions already operating in the field of migration. Training often takes place many months after the request of the prospective tutor, with the risk of guardians losing motivation (thus Ortugno and Balena 2019; the data is also confirmed by our experience: we calculate an average waiting time of 7 months between the application and attendance on the training, which takes place once a year). In addition to training, adequate support for appointed guardians is required. All those guardians interviewed in the Milan research confirmed that they are part of at least one informal, national or local, network created independently by some guardians (Ortugno and Balena 2019). However, they emphasised how these autonomous networks are not able to respond fully to their needs, stressing the need for stable institutional reference figures to attend after being appointed (ibidem). In our experience, the appointed guardians have several needs: firstly, a legal assistance service concerning specific issues that may emerge in managing the guardianship. At the same time, there is a need for support groups to help in the emotional and psychological aspects of the experience: about half of the guardians appointed welcomed our offer to participate in these groups. Some guardians continue to attend them even after the end of the guardianship as an investment for the future, pending a new appointment. Finally, mutual aid groups are one way of guaranteeing the sustainability over time of projects to support voluntary guardians: after a suitable period of time, they may be converted into self-help groups without the presence of a leader. While discussing the strengths and weaknesses of the experience as a voluntary guardian, one guardian states that a positive element of the experience is the “support groups for guardians, very important in order not to get lost between the two experiences [referring to the two guardianships], very important to read and understand our reactions and ways of thinking that alone, at least, would take much longer to grasp and interpret ... but also [the behaviours] of the kids!” (Guardians’ support group 15.6.2019). The issue of the lack of adequate financial resources also arises for the support of nominated guardians even more than for training. In fact, training is a function attributed by law to Regional Ombudspersons for Children and it therefore seems reasonable to believe that the regions should place the Regional Ombudspersons in a position to be able to perform the task assigned by law to them. Instead, the law provides no support. Insofar as we are aware, the Piedmont experience is the only one in Italy to offer appointed guardians comprehensive support after the appointment that includes both legal assistance, support and mutual aid groups led by a transcultural psychologist or facilitated by a social work expert. More generally, the lack of adequate resources, particularly staffing and funds from Regional Ombudspersons, risks incurring inefficiencies at various levels. We

198

J. Long

already mentioned difficulties in managing training and support to guardians, but the delicate phase of the selection of guardians, also attributed by law to Regional Ombudspersons, must not be forgotten. In the Piedmont experience, for example, while, at an initial stage, the Ombudsperson was able to meet the prospective guardian individually during a private interview for 30–40 min, as the applications grew, the practice of group meetings with a dozen aspiring guardians was developed. All interviewees of the Milan research reported that they had not had an actual psycho-aptitude assessment, but only a preliminary interview with the Regional Ombudsperson, followed by a final interview after the training, both proving to be totally unsuitable for a true evaluation of the trained guardian (Ortugno and Balena 2019).

4 Strategies for the Future The experience of two and a half years of voluntary guardianship in Italy and in particular in the Piedmont region enables us to identify strategies for overcoming the critical issues encountered. The key issue to be addressed seems to be the coordination and networking of guardians with other players. As indicated above, the boundaries between the role and functions of the guardian, of the foster carer, of the educator of the residential facility and of the social worker are not always clear. In this perspective, public events of dialogue between guardians and professionals are useful for discussing the most recurrent difficulties and also documents such as guidelines and protocols drawn up by groups or working groups representing all interested parties. Shared strategies at national level would hopefully lead to a standardisation in the management of voluntary guardianships, while today—as pointed out above—there are still significant differences. One example of good practice can be given by periodic meetings convened by the Foreign Minors Office of the Municipality of Turin with the guardians of children hosted in residential facilities or in foster families of the municipal territory. A new modus operandi must be built. All players involved in the protection and promotion of unaccompanied foreign children’s rights need to work together. In fact, the guardian must be aware that he/she is just one of the many people working in the child’s interests. According to core standard no. 5, “the guardian is a bridge between and focal point for the child and other actors involved” (Goeman et al. 2011). He or she must therefore work together with the different professionals (lawyer, social worker, psychologist, paediatrician, migration authorities, school teacher, foster parents, (extended) family members) integrating and coordinating his or her intervention with theirs, in order to avoid overlaps and any wasting of resources. This obviously does not mean to deny the guardian’s autonomy in interpreting the child’s interest, for example by asking the judge to authorise a specific placement or school enrolment, or to remove the fact that the guardian’s task is to evaluate the appropriateness and correctness of the care services rendered by public and private

Voluntary Guardianship for Unaccompanied Children in Italy: Strengths and. . .

199

authorities. It must also be recognised that the guardian can make decisions contrary to the assessments of the social services and even against the will of the child: in both situations, this must be adequately motivated and explained to the child. A concrete strategy could be the activation of an “educational pact” involving the child, social services, educators of the residential facility and the guardian.

References AGIA. (2017). Linee guida per la selezione, la formazione e l’iscrizione negli elenchi dei tutori volontari ex art. 11 della legge 7 aprile 2017, n.47, at https://www.garanteinfanzia.org/sites/ default/files/Linee%20guida%20tutori%20volontari.pdf Autorità Garante per l’Infanzia e l’Adolescenza (AGIA). (2019a). Il sistema della tutela volontaria in Italia. Legge 7 aprile 2017 n.47 art. 11. L’attività dei tribunali per i minorenni. Primo rapporto di monitoraggio. Periodo di rilevazione: 6 maggio 2017-31 dicembre 2018. Roma: AGIA Autorità Garante per l’Infanzia e l’Adolescenza (AGIA). (2019b). Minori stranieri non accompagnati: nuovo ruolo per l’Autorità garante. Retrieved from https://www. garanteinfanzia.org/news/nuovo-ruolo-l%E2%80%99autorit%C3%A0-garante-l%E2%80% 99infanzia-e-l%E2%80%99adolescenza-pronte-le-linee-guida-la-selezione-la FRA. (2015). Guardianship systems for children deprived of parental care in the European Union. Vienna: European Union Agency for Fundamental Right. Goeman, M., et al. (2011). Core standards for guardians of separated children in Europe Goals for guardians and authorities, Defence for Children, Save the Children. Retrieved May 24, 2020, from https://www.refworld.org/docid/4ee998592.html Italian Ministry of Labour and Social Affairs. (2019). Report mensile minori stranieri non accompagnati (MSNA) in Italia, Rome. Ortugno, F., & Balena, D. (2019). Il tutore volontario: opportunità e criticità Progetto pilota di monitoraggio nel comune di Milano. Milan: Garante per l’Infanzia e l’Adolescenza di Milano. Retrieved May 24, 2020, from https://www.comune.milano.it/documents/20126/44700/Il +tutore+volontario+opportunit%C3%A0+e+criticit%C3%A0.pdf/8c941bcc-ba62-6bba-3a929e0c4a2d5d62?t¼1557918097686

Joelle Long, Ph.D, is an Associate Professor at the Department of Law of the University of Torino where she teaches Family Law, Children’s Right and Vulnerable Adults’ Law and coordinates the Family Law and Children’s Rights Clinic. Her main field of research is the impact of International Law and European Union Law on domestic family law, with a strong focus on the United Nations Convention on the Rights of the Child and the European Convention on Human Rights. As part of her research, she was involved as a national expert on the human rights-based approach to Family Law and Children’s Rights in the European Program for Human Rights Education for Legal Professionals of the Council of Europe and coordinated a study on vulnerable adults’ protection commissioned by the European Parliament's European Added Value Unit. Joelle co-edits the journal Minorigiustizia, sponsored by the Italian Juvenile and Family Judges Association. Publications include Foster Careof Foreign Minors inItaly: an Intercultural or Neo-Assimilationist Practice? and The Impact of the UNCRC in the Italian Legal System.

Detention of Unaccompanied Migrant Children in Portugal: A Call for a Clinical Sociology Intervention Ana Rita Gil

1 Introduction Care and reception of unaccompanied migrant children is a relatively new challenge in Portugal. The first shelter for refugee and asylum-seeking children was only recently built, and, at the beginning, it was perfectly sufficient to accommodate all unaccompanied children that would arrive to this country. However, this scenario has deeply changed after the so-called “refugee crisis” which affected European Member States from 2015 onwards. The Portuguese Border Administration has witnessed the arrival of an unprecedented number of unaccompanied minors (the majority of whom were aged more than 14 years old) and the first shelter soon became overcrowded. As a result, care provided to unaccompanied children became uncertain. In some cases, other institutions came forward offering their premises to receive these young people. In other cases, migrant youngsters have remained in detention centers that do not offer adequate conditions. Detention was also seen as a temporary solution for cases where there were suspicions of trafficking of human beings. In this Article, we will first explain the applicable legal standards regarding the reception of unaccompanied migrant children in Portugal. We will then move into the analysis of the practice, recurring, as paramount sources of information, to the reports of the National Preventive Mechanism against Torture (NPM) and of the Asylum Information Database (AIDA). After analyzing what happens in real life, we will explain why a clinical sociology approach would be of the utmost importance, in order to understand the possible impacts that the practices to which unaccompanied children are subjected to—whether detention or care—may have in their lives. Migration and arrival to a new country, especially without any responsible adult, is per se, a pivotal experience, which would shape these youngsters’ being. But the

A. R. Gil (*) School of Law, University of Lisbon, Lisbon, Portugal © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_9

201

202

A. R. Gil

response that they will receive from the authorities can also be decisive to their participation in a new society. We will later finish by briefly recalling how the Convention on the Rights of the Child may have a leading role on the authorities’ decisions towards these children. Bringing this basic text to the table will be a guaranteed help to regain legal certainty and discover the best ways to treat unaccompanied migrant children. It is, then, an unquestionable tool to help intervention from clinical sociologists.

2 Context: Portugal as a Recent “Immigration” Country Portugal, as in the rest of the European Union (EU), witnessed a profound change in its migration patterns after 2015 and the so-called “refugee crisis”. A country which was usually represented as an “emigration country”, and which had an approximate number of 150 asylum requests per year, experienced a dramatic increase in the numbers of these requests. Although these records suffered slight changes during these periods, we can show this expressive increase with the following comparison: in 2008 there were only 161 asylum requests in Portugal, whereas in 2017 that number reached the peak of 1750. In 2018, the last statistic available, it registered 1272 asylum seekers (SEF 2008, 2018). The country has also witnessed a change in the migration patterns, namely as regards arrivals of children—whereas accompanied or unaccompanied. This tendency followed the EU’s trend, which was duly reported by UNCHR, IOM and UNICEF (2018).1 In 2015, asylum requests made by unaccompanied children in Portugal peaked at 73. This number has been decreasing since then—as the last official report demonstrates, referring to 36 asylum request. To this number, one must add the number of unaccompanied migrant children that were directly taken by the Portuguese Government from the Greek Islands and Italy.2 Moreover, there are still several children who are neither registered as unaccompanied nor as minors. During the so-called “refugee crisis”, and unlike other EU countries, Portugal did not witness a rise of political populism, with few and irrelevant exceptions. Besides a culture of welcoming non-citizens, especially notorious towards citizens from Portuguese-Speaking countries, the constitutional prohibition of political parties with fascist or xenophobic ideology may explain why there is a relative consensus on the Parliament as regards the duty to receive asylum seekers. Besides this political context, one must nonetheless point out that the limited numbers of asylum seekers

1

Between January and December 2018, some 30,085 children arrived in Greece, Italy, Spain and Bulgaria, of whom 12,717 (42%) were unaccompanied or separated children (UASC). Arrival of children overall in 2018 dropped by 7% compared to 2017 (32,963) (UNHCR, UNICEF & IOM 2018). 2 For example, in April 2020, Portugal announced that it is ready to airlift 50 unaccompanied migrant children from the Greek islands.

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

203

arriving to the Portuguese borders may have contribute to a general attitude of tolerance and even protection towards migrants. The Portuguese asylum law has also been regarded as particularly generous, in what concerns recognition of rights to those who seek international protection in the country. Even though, as both the reports of the NPM and some NGOs show, the Portuguese official borders’ police has been subjected to several criticism as to guaranteeing those rights in practice. The reception and eventual detention of migrant children are the key elements of this criticism, which show the need for a deep analysis of the “law in action”, and the advantages of a clinical sociology approach in this regard. We will now analyse the accommodation of unaccompanied children since their arrival in the country, pointing out some discrepancies between the law (encompassing both the international and the domestic laws) and the reported practice.

3 Current Legal Framework 3.1

International Standards on Detention of Migrant Children

However disconcerting it may seem, in the year of 2020, detention of children in migration contexts is not (yet) expressly prohibited neither by international law nor by EU law. In the latter case, it is important to recall Directive 2008/115/EC on standards and common procedures in Member States for the return of third-country nationals in irregular situation (commonly called “Return Directive”), which led to widespread protests when it was adopted, precisely for allowing detention of migrant children. The same can be said regarding the Directive 2013/33/EU laying down standards for the reception of applicants for international protection (the “Reception Directive”), which sets forth that “unaccompanied minors shall be detained only in exceptional circumstances”, and that “efforts shall be made to release the detained unaccompanied minor as soon as possible”. It does, then, allow for detention, leaving the door opened for States to use it and to justify “exceptional circumstances” more often that the ratio legis would admit. Also, neither the European Convention on Human Rights forbids detention of migrant children, except in cases where it may amount to arbitrary detention or to torture, inhuman and degrading treatment.3 The same can be said as regards the International Covenant on Civil and Political Rights and even the Convention on the

3

The case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (application no. 13178/03, ruling dated of 12/10/2006) is a striking example of a situation where it was considered that detention of an unaccompanied child had violated Article 3 of the European Convention on Human Rights. In this case, a 5 year old child was separated from the only relative that was accompanying her, and placed in a detention centre with adults. The Court considered that this treatment would amount to torture.

204

A. R. Gil

Rights of the Child, which only affirms that no child shall be unlawfully or arbitrarily deprived of his or her liberty and the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time (Article 37). However, the jurisprudence of these organisms has been lately affirming more limits to detention of migrant children, as we will see in the last section of this chapter. This can be particularly observed in the General Comments made by the UN treaty-based committees, as well as in the general conclusions and recommendations made to States during periodic evaluations. However, domestic law and worldwide practice seem to remain somehow oblivious to these developments. Portugal is not an exception.

3.2

Domestic Legal Standards on the Detention of Unaccompanied Migrant Children

Portugal would have all the conditions to easily accommodate those unaccompanied migrant children arriving to the territory. However, even in this traditionally tolerant and welcoming country, migrants, and unaccompanied children in particular, have been facing some challenges to their basic human rights. The most problematic situations concern detention measures and their conditions. We will start by briefly explaining the legal provisions in the matter, before moving on to the analysis of the practice.

3.2.1

The Status of Unaccompanied Migrant Children Under the Portuguese Domestic Law

Portugal has not adopted a common and unified legal status on unaccompanied migrant children. Norms that regulate the status of these children can be found in two legal diplomas: the Asylum4 (AL) and the Immigration Law (IL).5 The Asylum Law defines “unaccompanied children” as anyone who is a third country national or a stateless person, under the age of 18, who meets the requirements described in the EU Reception Directive: a minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he or she has entered the territory of the Member States.

4 5

Law n. 27/2008, of 30 July, as last amended by Law n. 26/2014, of 5 May. Law n. 23/2007, de 04 July, as last amended by Law n. 28/2019, of 29 March.

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

205

Although the definitions just mentioned are not restricted to children who have made an asylum application, sometimes in practice the administration adopts a narrow interpretation. In some cases, it seems that unaccompanied migrant children who had not requested asylum would only be subjected to the Immigration Law. Such a perspective would undoubtedly leave unprotected several migrant children, who could be subjected to return procedures and other practices without consideration to their specific vulnerability. However, bearing in mind that migrant children are “most are foremost, children”, we consider that, in the absence of a unique status of “unaccompanied children”, migrant children should receive the same treatment, regardless of whether they have or not applied for asylum (Gil 2019). This is, undeniably, the interpretation that most suits the best interest of the child. Still, we consider that it would be important to create a single legal status for unaccompanied migrant children. As long as the law does not expressly adopt this perspective, there may be practices that can amount to treating unaccompanied children differently on the account of having or not requested asylum—that is to say, to have their treatment dependant on a mere procedural onus. This would be profoundly unfair. Indeed, if most of adult asylum seekers are not fully aware of their procedural onus, this is, naturally, even more obvious when children are concerned. The mere idea of guaranteeing more rights to children who are unaccompanied by responsible adults, only because of having completed administrative procedural steps, seems almost Kafkaesque. It is clear that, before having a legal guardian, they can hardly realize that they need to apply for asylum. The best interest of the child would then require that all unaccompanied migrant children should receive the same treatment immediately upon arrival to the country. However, and before moving into the analysis of the practice, we shall stress that the AL contains certain rules that address the protection needs of unaccompanied migrant children who have not filed an asylum application. Art. 79, paragraph 13 provides that child and youth protection commissions with responsibilities for the protection of all children staying in the territory may file an application for international protection on behalf of the child awaiting a decision on repatriation. Nevertheless, this may happen only (1) where the commission is aware of the presence of the unaccompanied child in the territory and (2) if, after assessing the child’s personal situation, the commission considers that she may need international protection. We will get back to this provision later.

3.2.2

Legal Permission for Detaining Migrant Children Under Portuguese Law

The Immigration Law sets forth that families with children whose entry in the territory is refused may be kept in the airports’ detention centres, when their return is not possible during the next 48 h (Article 38/4 IL). Migrant families and their children may also be detained when they are found irregularly staying in the Portuguese territory, during a return procedure. In both cases, however, detention

206

A. R. Gil

is seen as a last resort measure, as the EU “Return Directive” would require (Article 15 of the Directive). As for the Asylum Law, it clearly states that a person cannot be detained for the only reason of having asked for asylum (Article 35-A/1 AL). However, this scenario changed deeply after the Law’s revision of 2014,6 as several exceptions were introduced, making detention of asylum seekers easier. One of the new exceptions concerns asylum applications made at the borders. Despite the maintenance of the “last resort” rule, according to the Portuguese NPM’s and AIDA’s reports, persons who apply for asylum at the border are now systematically detained (NPM 2018; AIDA 2018).7 As for unaccompanied children arriving to the territory, the Portuguese Law also recognises their possible detention, although repeating its “last resort” nature (in line with EU Law). Several measures shall be preferably applied to these children, such as their accommodation with other adult family members or their accommodation in specialized homes—which must be: establishments deemed adequate, according to international standards recognised by UNHCR, Red Cross and UNICEF” (Art. 26/2 AL) and shall “be accompanied by specialized personnel (Article 35-B/6 AL).

The Asylum Law foresees several alternatives to detention, such as periodic presentation at the Aliens and Borders Service (ABS), or obligation to stay in the dwelling using electronic surveillance means. Both AL and IL require that detention measures which may last for more than 48 h must be communicated to the judge, who shall then authorize the migrant’s or asylum seeker’s permanence in detention centres. Procedures differ deeply depending on whether the foreigner was found illegally staying in the national territory or on whether he or she was found entering the country at the border. In the former situation, the foreigner is personally presented to the judge, as soon as possible, who will decide which measure shall be applicable (Art. 146 IL). The foreigner has access to a lawyer and the procedure is adversarial: they may present evidence, showing that there is no risk of absconding, or that they have minor children, whose best interest must be taken into consideration. Thus, in these cases, lawyers can discuss alternative measures with the judge. The same is not true as regards foreigners who are found at borders, whether trying to enter illegally or who apply for asylum therein. In these situations, the IL and AL do not mention expressly that the judge must hear the detainees before deciding on whether these persons are kept in the airports’ detention areas. It only sets forth that the detention must be communicated to the judge, who will decide on whether the migrant will remain in the centre (Article 38/4 IL and 35-A/6 AL). Of course, constitutional guarantees on effective justice and fair proceeding require that a judicial authorization in this context encompass a mandatory judicial and adversary hearing, legal representation and the need to take into account the best interest of the

6 7

Amended introduced by Law n. 26/2014, de of 5 May. Asylum Information Database, https://www.asylumineurope.org/

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

207

involved children (Art. 20 Constitution). In practice, however, the ABS only informs the Court, by fax or email, that a certain group of foreigners is to be retained in the airport’s detention centre, and the Judge merely confirms—by the same means—that such persons may remain therein. This procedure has been leading to a systematic application of a detention measure, irrespective of the involvement of children. Without hearing the detainees, judges can hardly evaluate on the possible application of an alternative measure. On the other hand, they can hardly take into consideration the best interest of the children at stake.

3.2.3

Material Detention Conditions Under Portuguese Law

Both AL and IL set forth which material conditions shall be applied for detention of asylum seekers or immigrants with irregular status. We may begin by pointing out that, contrarily to IL, the AL avoids using the expression “detention”, preferring to refer to “placement in a temporary installation centre or equivalent space”. Nonetheless, such placement corresponds undoubtedly to deprivation of liberty, as foreigners do not have the right to freely leave the space, being locked inside a specific area. In both cases, detention must not be extended any longer than necessary, never exceeding 60 days. Even though, the decision may be reviewed before that time— officially or at the request of the applicant—, if relevant or new information arise. Article 35-B AL sets forth the rights for detained asylum seekers. First, they must be immediately informed in writing, in a language that they understand or it is reasonable to assume that they understand, the reasons for their detention, available judicial remedies, as well as the possibility of benefiting from legal aid. They must also be provided with information about the rules in force in the facilities in which they are located, as well as on their rights and duties. Irregular migrants have the same information rights, as set forth in Art. 146-A/5 IL. AL also sets forth that asylum seekers are authorized, on request, to contact their legal representatives, their family members, and representatives of UNHCR or PCR, as well as other organizations working in this area. Art. 29/6, in this context, points out that the asylum applicant’s lawyers, UNHCR representatives and PCR and representatives of other NGOs organizations active in this area are entitled to access fenced areas, such as places of detention or transit. In this context, paragraph 4 of Art 35-B AL sets forth that the access to the facilities of temporary installation centres may only be limited for reasons of security, public order or administrative management, provided that access is not severely limited or prevented. IL also allows for some contact rights: Art. 146-A foresees that detained migrants may be authorized, on request, to contact their legal representatives, their family members and the competent consular authorities. They are also guaranteed with the right to communicate with the lawyer or defender in private. Moreover, the IL also foresees that the ABS may celebrate protocols with national or international organizations with recognized work in immigration, with a view to provide visits to detained migrants. As we will see later, this provision remains to be implemented.

208

A. R. Gil

As for material conditions, the laws do not provide detailed requirements. One of the basic demands is that detainees must have access to outdoor spaces. There are, then, specific conditions foreseen for families and children. Families must receive separate accommodation that guarantees the necessary privacy and, in the case of female applicants, also separate accommodations must be provided. Vulnerable persons must be guaranteed regular monitoring and adequate support, considering their specific situation, including their health status. Although the law does not provide a general definition for who can be considered as “vulnerable persons”, it provides some examples, including minors (especially unaccompanied minors), persons with disabilities, older persons, pregnant women, families with young children and people who have been victims of torture, rape or other serious forms of psychological, physical or sexual violence. As for unaccompanied children, the AL repeats the idea that: they shall be accommodated in institutions with staff and facilities that take into account the personal needs of the minors’ age.

The IL, on its turn, sets forth that detained accompanied migrant children must be able to participate in leisure activities, including games and recreational activities appropriate to their age and, depending on the length of stay, access to education (Art. 146-A/7 IL). It remains uncertain why this provision only refers to “accompanied children”. Probably it was written on the assumption that unaccompanied minors would not be subjected to detention measures—which is a contradiction with other sections of the IL and the practice, as we will see below.

4 Challenges Faced by Unaccompanied Minors: The Law in “Practice” 4.1

Migrant Children as “Double Vulnerable” Persons

Both EU Law instruments and the domestic law qualify unaccompanied children as “vulnerable persons”.8 This concept is being increasingly used in International and European Human Rights Law, and has been subject to criticism from some scholars, who claim that it may give the idea that some persons are, in their essence, more fragile than others—which could lead to possible pernicious effects. We do not intend to enter this discussion. In fact, we consider that children and young migrants are especially vulnerable, not only because of their age, but also due to the fact that their situation leaves them particularly exposed, as they are uprooted from their environmental and familiar context, as well as from their relatives and persons of reference (Gil 2019). We may also claim that they need international protection in a

Article 21 of the “Directive on Reception Conditions”, Article 3/9 of the “Return Directive” and Article Article 2/1/y AL and Article 146-A IL.

8

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

209

double perspective: not only because of their age, but also due to specific types of persecution that particularly target children. Children are subject to increased menaces in the countries of origin and transit countries, such as the risk of military recruitment, forced marriage or genital mutilation / initiation rites, but are also more prone to exploitation (Nair 2016). Thus, when arriving to their final destination, they reclaim more urgent protection. Unfortunately, that is not what happens in several countries—Portugal not being an exception. One of the most striking practices in this context is the detention of unaccompanied migrant children.

4.2

The Practice of Detention of Unaccompanied Migrant Children in Portugal

After providing a legal framework and highlighting its main principles, we shall now move into the analysis of the unaccompanied children’s reception in Portugal. But before proceeding, we must make a disclaimer: it is very difficult to find a trend or a homogeneous practice concerning detention of unaccompanied children in Portugal. A clinical sociology perspective would be of the most importance in this very first step of analysis: what is really the reason behind this uncertainty? We will refer to the “official discourse”, leaving some space for further research on this topic.

4.2.1

The Systematic Detention of Accompanied Children and the Uncertainty of the Unaccompanied Children Treatment

As we mentioned earlier, until 2017, Portugal was relatively faithful to the idea that no one should be kept in detention for the sole reason of having applied for asylum. However, as it can be seen from the Asylum Information Database reports, the year of 2017 marked a decisive change in this context (AIDA 2018). Legal exceptions began to be seen and peacefully accepted as the “new normal”. In mostly all the asylum requests made at the border, an asylum accelerated procedure was applied and asylum seekers would remain in detention centres located in the international airports’ areas. Migrant children were also subjected to the same procedure, namely when accompanying their parents. From 2017 onwards, then, a new trend emerged in Portugal: that of the systematic detention of asylum seekers and accompanied children. According to data from the ABS, the total number of children detained from 2017 to 26 June 2018 amounted to 169. This represents an extremely high number of child detentions on migration or asylum procedures, namely when compared to the number of entries of foreigners in Portugal. The International Organization for Migration has been actively advocating for alternative measures to detention on migration contexts. Workshops, conferences and trainings have been developed, some of them dedicated to judges—who,

210

A. R. Gil

ultimately, are the authority that decides on maintaining migrants in detention. The Ombudsman has also been encouraging the application of alternative measures in several fora, namely through alternative reports and statements made to UN bodies (Ombudsman 2018, 2019). As a result of the advocacy work of several stakeholders, the Minister of Internal Affairs issued an order, in July 2018, according to which all children aged below 16 could only stay in the temporary detention centres located in the international airports’ for a maximum period of 7 days. After this period, they must be accommodated, with their family members, in the Shelter for Refugee Children, which is a non-detention centre ran by the Portuguese Council for Refugees (PCR), an NGO acting in Portugal on the behalf of the UNHCR. As for unaccompanied children that would arrive to the airport, the Aliens and Borders Service would allegedly apply a different treatment, although there was no formal written rule in this regard. According to its information, these children would be directly forwarded to the Shelter for Refugee Children, and the Family and Children Court would be immediately informed. According to the ABS, this procedure was used for all unaccompanied children, irrespective of having applied for asylum.9 This practice was certainly to be applauded. But we believe that protecting unaccompanied children cannot be dependent only on good practices, whether they are supported or not by dispatches or ministerial orders that are not sufficient to meet legal certainty. For example, this practice did not avoid, as other ABS’s officials reported, the detention of unaccompanied migrant children in the airport’s detention centre, “only for the minimum period of time necessary for their identification” (NPM 2019). During the year of 2019, the NPM reports a step back in this context. During this year, all PCR’s shelters were seriously overcrowded, and asylum seekers were being accommodated in hostels in Lisbon. The same happened with the shelter for refugee children and, as a result, unaccompanied children had to remain in the airport’s detention centre for longer periods of time (NPM 2019). Moreover, unaccompanied children who had not asked for asylum ceased to be transferred to the PCR’s children’s shelter. According to the official explanations, the existing practice was completely dependent on the accommodation capacity of the PCR’s shelter. As this capacity decreased, the ABS responded to this problem by recurring to accommodations in detention centres. It is not clear at what extent would be possible to find other suitable solutions. And, since the law is extremely vague on how to receive and how to protect unaccompanied children, it would not be surprising that, at the time of this study’s publication, another procedure might already be put into practice.

9

IOM/ABS Conference on Alternatives to Detention, 22 October 2018, Lisbon.

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

4.2.2

211

Material Reception and Detention Condition

Reception Conditions at Children’s Shelters As we mentioned, Art. 26/2 of Asylum Law sets forth that “the temporary accommodation” of unaccompanied or separated children obeys to special conditions, in internationally recommended terms, namely by the UNHCR, UNICEF and the International Committee of the Red Cross. The PCR’s Children’s Shelter, which is not a detention centre, is managed by a multidisciplinary team of social workers, psychologists, sociologists, cultural mediators and lawyers, and adopts a multidimensional approach to its residents, based on cultural, social, legal and educational support. Children have access to several social rights, such as education and leisure activities and are guaranteed free access to basic needs and services (e.g. nutrition, healthcare, education, psychosocial assistance, legal assistance, protection, recreational activities, etc.). For that purpose, PCR has several protocols with different entities, such the UNHCR, the Social Security Institute, and educational entities. These shelters only function as temporary accommodation. They offer age-appropriate housing and reception conditions for an average stay period of 7 months, after which children will be treated according to the general rules of protection of children in danger in Portugal (e.g., accommodated in family foster homes or in Institutions for Children),10 and will be integrated in the national education public system. However, the number of unaccompanied children that overstay in this shelter is growing, since it is being more difficult to find long-term solutions to many of these young persons. As a result, the Shelter for Refugee Children reached and surpassed its full capacity, which led to several problems as regards finding suitable accommodation for further children. In cases where migrant children are accompanied by their family members, they may be placed in Refugees’ Shelters for adults and families. Nevertheless, these have also been overcrowded. As a result, the ABS and PCR have been resorting to hotels or hostels, placing more than a hundred migrants in several of these establishments. This solution has also been proven to be unsuitable for accommodating children.11 A fortiori, accommodation in hostels for receiving unaccompanied children would not be an option, as, besides all the reported problems, they would lack the necessary services and human support required. Consequently, the ABS has been considering that is better to keep children detained in the airports’ areas, as they will be looked upon by professionals. This is clearly a dilemma where the clinical sociology perspective would be beneficial. 10 Law on Protection and Promotion of Children and Youngsters in Danger, Law n. 147/99 of 1 September, as last amended by Law n. 26/2018 of 5 July. 11 During the COVID-19 pandemic crisis there was an outbreak of contamination in one of these hostels. Asylum seekers had to be moved to a military camp, which raised a deep public commotion. The media then reported the extremely bad conditions in which more hundreds of asylum seekers were living in hostels, in small rooms shared by several families who would sleep in bunk beds and share overcrowded common and dining places.

212

A. R. Gil

Even if we may understand the ABS’s justification regarding professional monitoring, we strongly believe that child detention would always be contrary to their best interest. In our opinion, any solution should be first and foremost searched in all existing institutions aimed at protecting children and youngsters in danger, irrespective of having been specially designed to migrant children. We would need clinical sociologists that could help the administration to evaluate the most suitable institutions, as they were all built and modelled while having in mind Portuguese resident minors (and the Portuguese speakers). Detention Conditions in Temporary Detention Centres Although we consider that detention of migrant children is always contrary to their best interest, some detention centres may raise more concerns than others when regarding their wellbeing. First and foremost, we must begin by recalling that, in Portugal, migrants may remain in the detention centres for 60 days. This time limit is applicable to all detention centres. Families with children or unaccompanied children who were found illegally staying in the territory, and who are waiting for a return procedure, are normally detained in a special detention facility (called temporary accommodation centre) in Oporto (Unidade Habitacional de Santo António). This facility is prepared to receive children: it provides daily activities for detainees, an educational room for children, and access to psychologists and medical doctors. The Jesuit Service for Refugees has a permanent office therein. A new centre dedicated to asylum seekers is also being constructed in the Lisbon periphery with the same characteristics. This centre—as the new one—respects, broadly, the material conditions foreseen in the law. However, it only receives migrants who are being subjected to a return procedure, and while they are waiting for their removal from the country—that is to say, this centre is destined for the application of the “Return Directive”. Where asylum seekers are concerned, we have already mentioned that the majority of those who apply for asylum at the border, are detained in the centres located at the internal airports’ areas. In such cases, these centres are the first accommodation facilities in Portugal, both for asylum seekers or for migrants whose entry was refused, and thus, constitute the first experience in the country. They often remain therein for the whole period of 60 days, namely when they asked for asylum. According to the NPM’s reports, these centres raise many concerns, as they do not offer the minimum guarantees for receiving any person for long periods of time—especially children—and do not respect the legal standards explained above. They are extremely small and are, oftentimes, overcrowded. The Lisbon’s centre has two wings: one for asylum-seekers and another for migrants whose entry in the country was refused. In each wing there is only one room with tables and chairs and a TV. There are only two dormitories for men and for women, with many bunk beds and one room for showers in each one.12 Sometimes dormitories become 12 Both IL and AL require that families must not be separated on detention (Article 146-A/6 IL and Article 35-B/7 AL). However, in some airports’ detention centers, there are no “family rooms”, and

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

213

so overcrowded that people need to sleep on the floor, between the bunk beds, or in the corridors. Children aged below 14 years old stay in the women’s dormitory, with no personal space. After that age, they will be kept in the dormitory of their own sex. No specific solution is provided to transgender persons. As the NPM reported, until 2019 the food consisted in catered meals as offered in plane travels, which would undoubtedly be completely inadequate for children (NPM 2018, 2019). Healthcare—which is a right expressly foreseen in the law—, is only provided by the Doctors of the World, a NGOs that visits the centre three times per week. In case of need, urgent medical treatment and a visit to the hospital may be arranged. Detainees do not have access to their personal belongings during the mentioned 60 days. Any access to their luggage, located outside the detention area, must be preceded by a request and an authorisation from the ABS. In cases of detention, especially in a foreign country, access to personal belongings can be important to maintain a reference to one’s self, one’s project or one’s history. The NPM also found, several times, small children in the airports’ centres with no access to toys, books or other leisure materials—which is a clear violation of the IL. During many months, these centres did not have anything but their furniture. Lack of access to personal goods are even sterner in this context as access to outside world contacts is also severely restricted. Detainees claim that they are not allowed to pick their cell phones from the luggage, being forced to use a telephone booth located in the centre. According to their reports, they are only allowed a right to talk for 5 min, to whoever they wish, during the entire the stay. This concern was shared between many of the detainees, who showed profound anguish for not being able to give and receive news to their family and children (again, we must recall, this lack of news can remain for 60 days). However, as it results from the NPM 2019 report, some ABS officials deny these claims, and report that migrants have access to more phone time if they “so ask”. Whatever it may be, we must point out, once again, the importance of legal certainty. Clear rules on the functioning of the centre as well as information to detainees are paramount to provide a minimum guidance to their stay—which, must we recall, is expressly required by both laws. Indeed, talking to detainees, the NPM acknowledged that all of them were unaware that they could ask to use more phone time. Actually, they shared the exact opposite belief. After some insistence from the Ombudsman, the Centre’s responsible personnel have acquired some toys for children, although recreational activities for youngsters and adults have remained scarce, besides some chess and other board games (NPM 2019). Moreover, recreational activities are still not organised. Recreation is not a matter of mere comfort or contentment, as it may be indispensable for maintaining mental well-being during long periods of detention. As a result, in the airports’ centres the despair among detained migrants is quite visible. Detainees can only circulate between the dormitory, the living room, and an inner cement patio. Besides

detainees are separated by sex, which means that members of the family remain separated during sleep hours.

214

A. R. Gil

being detained, they will be imprisoned inside themselves, which can be exasperating considering the long period of stay. It is not difficult to understand that living in these conditions for 2 months poses a serious risk for one’s mental health—especially for those who are already vulnerable, after fleeing from their countries of origin and passing through heavy migratory odysseys. Unaccompanied children, of course, will be one of the most endangered persons in this inhuman context. In this scenario, we recall that, due to stakeholders’ advocacy, the Government decided that children aged below 16 could only stay for 7 days in these centres. In our opinion, even this seven-day period may represent a very traumatic experience for young children. As for children aged above 16, we must stress that they correspond, precisely, to most part of unaccompanied minors who arrive in Portugal. That being the case, besides the “last resort” rule, nothing prevents them from being imprisoned in these centres for 2 months. This is even more aggravated as, according to the NPM’s reports, there are no psychosocial assistance whatsoever or other protection measures to vulnerable detainees—although the laws so demand. NGOs or volunteers are not allowed to enter the detention area to provide some support to these persons. For example, in Oporto’s airport detention centre, the NPM found a young lady who claimed that she was a minor. She was staying alone in the women’s wing, without the company of other person whatsoever, besides the cleaning lady who would go to the wing daily. The ABS insisted that it was dubious whether she was a minor or not. However, due to the isolation to which she was being subjected to, the NPM asked for her transfer to the centre built for return procedures, as this centre provides more support, as we have seen.13 It remains uncertain how many other similar cases might happen or will happen, without the NPM’s knowledge. The centres are also completely closed to researchers, being the NPM the only independent body that has the prerogative to enter the premises. Moreover, in Lisbon’s airports, lawyers are required to pay a fee of 13 euros, to be accredited by the airport authority to enter into the international area. The NPM has also claimed several times that, besides disrespecting the applicable AL and IL laws, this practice violates the fundamental right to access to Justice, enshrined in Article 20 of the Portuguese Constitution. Due to this scenario, on its last evaluation of the Portuguese State’s implementation of the Convention on the Rights of the Child, the UN Committee on the Rights of the Child expressed concern about the practice of holding in temporary detention unaccompanied or accompanied migrant children, and highlighted the inadequate conditions of these centres (CRC 2019). In the same context, the Committee against Torture noted with concern an excessive retention of asylum seekers, and that transit facilities at airports were not equipped for extended retention, especially for 13

In 2019, the NPM issued a recommendation to the ABS Director, in order to transfer every person who would be isolated for more than 7 days in a detention centre to the Centre destined for return procedures. The ABS did not follow the recommendation, claiming that the latter had a specific purpose and could not accommodate asylum seekers (cf. Recommendation no. 2/2019/NPM), available at http://www.provedor-jus.pt/?idc¼127&dta¼2019

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

215

unaccompanied and separated children, families with children and pregnant women. It also raised concern as regards the entrance fee for accessing the airport terminal, which could impede access by lawyers to meet individuals held in detention, and stressed the State to guarantee that retained asylum seekers and irregular migrants have unhindered, prompt and adequate access to counsel, including legal aid services (CAT 2019). The Ombudsman, the IOM, several NGOs, Lawyers and even the ABS itself recognised that these temporary detention centres are completely inadequate to receive any person for more than 48 hours. In European Migration networks, this topic was widely discussed, and the Portuguese NPM reached the conclusion that Portugal was a very bad example in this context: in all other European States, migrants could only be detained in temporary centres located at the airport during 48 h hours, on average—but either way, only temporarily -, and before moving to another placement centre, which would provide more conditions and an opened access to the civil society (NPM 2019). Detention of migrants in the Lisbon airport’s international area only ended in April 2020, after a Ukrainian citizen was allegedly beaten to death by ABS’ inspectors inside the premises.14 According to the Ministry of Internal Affairs, the centre will be renovated and, when reopened, will only keep detained migrants whose entry in the territory was refused and who have not asked for asylum. It is to be seen how unaccompanied children who are denied entry in the territory and who do not request international protection will be treated in this context.

4.2.3

Especially Vulnerable Children

We mentioned that unaccompanied migrant children should be considered twice as vulnerable persons. Still, there may be children who may be encountered in an even more fragile situation, whether due to their personal characteristics or due to their history. That is the case of minors who have been victims of any form of abuse, neglect, exploitation, torture, inhuman and degrading treatment. According to Article 78/3 of the Asylum Law, the competent authorities must ensure that they have access to rehabilitation services as well as psychological assistance. When needed, they are referred to specialised institutions or bodies. Prevention and response mechanisms for missing children (risk assessment, creation of safety care plans, reporting, etc.) in reception centres must be in place. These provisions enshrined in the Portuguese Law, according to the applicable EU Directives on matters of reception of asylum seekers, do not raise criticism. Nevertheless, the Portuguese NPM has stressed several times that the ABS does not use standardized procedures aimed at identifying especially vulnerable persons (NPM 2018, 2019). The Committee on the Rights of the Child and the Committee against Torture recommended that the State should improve its mechanism and

14

https://www.reuters.com/article/us-portugal-crime-airport/portuguese-immigration-officersarrested-on-suspicion-of-killing-ukrainian-idUSKBN21H1PP

216

A. R. Gil

procedures for the identification and care of child victims of sale, sex trafficking and forced labour and adequately train professionals on these procedure to ensure that victims receive the support they are entitled to under the law (CRC 2019; CAT 2019). As a matter of fact, children who were victims of trafficking represent a special concern in Portugal.15 As highly broadcasted,16 there were several suspicions of trafficking of children who arrived at the airports, accompanied with adults, but whose family links were not duly proven. These cases raise serious challenges as, very frequently, these families claim that they have forgotten or lost their documents. That might be indeed the case, when they are fleeing from countries where there are civil or military conflicts, or even other types of destabilizations that may lead to loss or destruction of official registries. Thus, proving the authenticity of the family links may be particularly troublesome. This may be even more problematic in cases where children have left their home countries accompanied with other relatives, as uncles or other close genuine acquaintances. In these cases, any intervention that leads to the separation of the child and his or her travel companion, may result in a traumatic experience, if the child’s relative or friend was in fact the child’s only personal reference. Depriving the child from that only company, in a foreign country, turning her into a truly solitary person, can be very violent. In these cases, the ABS is faced with a real dilemma, especially when traffickers have already gained the child’s confidence and sometimes even their affection. In these cases, it is difficult to find a solution that, on one hand, does not imply a forced separation between the child and a possible genuine relative and, on the other hand, that prevents the child’s disappearance at the hands of a trafficker. In most cases, thus, they are kept in the airports’ detention centre. This might not the best solution, because, as we have showed, these places of detention do not offer the minimum conditions for receiving children. In case of victims of trafficking they may even lead to double victimization. On the other hand, the ABS claims that their placement in open centres may be risky. In fact, the PCR’s Children’s Shelter has recorded several cases of disappeared children from its premises.17 Many cases concern children who voluntarily escaped. However, they can be more prone to fall victims of networks of trafficking. In cases of doubt, thus, we consider that the best solution could be to accommodate both the child and the accompanied adult in an adequate “housingtype” detention centre. As mentioned earlier, currently there is only one the Oporto Centre for returnees. In some cases, the ABS could prove accompanied adults were indeed using Portugal as a “port of entry” to conduct trafficked children to other European

15

The National Report for Internal Security mentioned that trafficking of children for the purpose of forced labour and sexual exploitation remained a concern at the air borders (RASI 2018). 16 See, among others, https://www.jn.pt/nacional/sinalizados-120-menores-vitimas-de-trafico-deseres-humanos-em-portugal-11417513.html 17 See, among other reliable piece of news https://rr.sapo.pt/2019/11/06/pais/trafico-de-menorespedem-asilo-e-depois-desaparecem-quantos-todos/noticia/170703/

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

217

countries. In these cases, the victim is separated from the accompanied adult and is accommodated in a special centre for victims of trafficking which provides not only for their health needs and their recovery, but also to their protection and security, in completely anonymous locations.

5 The Advantages of a Clinical Sociology Intervention After presenting the existing gap between the law “in books “and the “law in action” as regards detention of unaccompanied children in Portugal, it is time to point out how could a clinical sociology intervention be of the utmost importance in this context. According to Jan Marie Fritz, clinical sociologists work with the aim to assess situations and avoid, reduce, or eliminate problems through a combination of analysis and intervention (Fritz 2008). This method does not only have a purpose of describing the status quo, but is also intended to provide a positive change in the object of the analysis. Once again, a clinical sociological approach would be advantageous to unaccompanied migrant children in the context above described. First of all, due to its analytic perspective. We have tried to show how unclear and broad the legal norms are in this matter. They are limited to establish general principles, which may be dealt with by the ABS in very different manners. It is important, therefore, to analyse the outcomes that these different approaches may impact on the functioning of the system as a whole and also on the individual child or youngster. The perspective of clinical sociology as an applied practice that focuses on health intervention, such as working with medical practitioners, community health services and social policy is pivotal in this respect. Secondly, we must take the benefits of the intervention activities of clinical sociologists as active change agents. As some authors point out, “like other disciplines that are engaged in intervention, clinical sociology is active, humanistic, and change orientated” (Rebach and Brunh 2012). Clinical sociology uses theories, concepts, and methods to carry out examinations with the primary purpose to not only translate findings, but also design, implement, and evaluate interventions meant to improve outcomes and solve challenges. For example, Clinical sociology has already proven to work in detention contexts. In some well-reported cases, clinical sociologists worked with individual cases to provide specific solutions for detainees, and personnel training in specific areas. As Rebach & Brunh point out, “because of their sensitivity to the many levels at which social interactions occur”, clinical sociologists are particularly well suited to practice with persons deprived of liberty in general. Clinical Sociology has also proven to work regarding young people’s experiences of welcoming and “un-welcoming” in new countries. The integration of young people in the region of Ile de France (Paris), was studied by Leal, more specifically in what concerns “those who are relegated outside the childcare institutional walls” (Leal 2018). Following a clinical sociological approach, Leal’s research noticed the many effects of a policy of un-welcoming and analysed several strategies to develop

218

A. R. Gil

towards un-welcoming policies, as well as the existent types of support available to migrant youngsters. There is also an interesting study on Mexico’s Street Children, focusing in this deeply socially excluded population. This work also involved both simultaneous research and intervention (Taracena 2008). Detention or inadequate reception conditions of unaccompanied children are also a broad topic that would undoubtedly benefit from both an analysis and an intervention from a clinical sociology point of view, in the terms as it is currently designed by J.M. Frizt. Understanding the impact experienced by unaccompanied children when welcomed in the country requires more than just looking at their physical or psychological consequences. That personal effect is indeed critical, as their accommodation or detention will be the first impression they may keep on the arrival to the new country. That will undoubtedly deeply shape their migratory experience and may have some long-term personal consequences. But clinical sociology goes further, as we have pointed out, claiming for a change in the system. For example, it may compare and address on whether children who have received separate treatments have suffered their experiences differently. And in which dimensions were those differences manifested? Moreover, “the clinical sociologist has a tool not only for portraying the manner in which social elements make their ingression into the personality and emerge as behaviour regarded as a problem by society, but also for studying the social structure and culture of a given society, as it is mirrored in the experience of the person” (Dunham 1982). Seen at this light, clinical sociology may determine the extent to which the system of norms, legal uncertainty, lack of information and or reference, different practices and cultural setting interwoven with human experience may related to inadequate socialization. This would be the importance of the second mission of clinical sociology, as contributing to forming and shaping those social policies necessary for fully respecting human rights and allow the best human flourishing of every migrant children. Ethical and human rights’ norms are sometimes not sufficient to work as a “motor of change” of laws and practices. That is the case of the detention of unaccompanied children in Portugal, where the law is insufficient and the agents work in a somewhat “ad hoc basis”, leading to disorientation and adoption of inadequate measures in inadequate settings. A clinical sociologic perspective could act as such motor of change, demonstrating the effects that the current system may provoke in future Portuguese citizens, not in the sense of adopting an alarmist perspective, but on a scale of providing the best to the new generations and to construct new models of treating these vulnerable children. This was already proven efficient and beneficial in other contexts, as with the intervention of street children in Mexico. As E. Taracena shows us in her work, her team of researchers were asked by the Secretariat of Public Education to submit an educational model that would take into account the cultural characteristics and way of life of these young people (Taracena 2008). The same approach could be used for designing a plan for the first reception stages of unaccompanied migrant children in Portugal. Such plan would be aimed at

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

219

providing an “itinerary” for welcoming young isolated newcomers who arrive to the country, foreseeing several possibilities, including scenarios of overcrowding or suspicions of trafficking. Its design had to take into account the age, nationality, language, personality of the migrants but also the dynamics that already exist in some institutions. In a normative level, the plan should, most and foremost, be based in the Convention on the Rights of the Child as the primary source of inspiration. It should also be in line with the most recent developments in international law instruments that are clearly pushing States to a more progressive approach towards migration.

6 The CRC as the Guiding Instrument The role of the Convention on the Rights of the Child for providing orientation on how to treat unaccompanied migrant children is unreplaceable. First, because it places the focus of migrant minors on their quality as children—first and foremost, they are children.18 Secondly, because it has affirmed what is seen, today, as the central principle as regards children’s rights: the best interest of the child, according to which, all decisions, in all matters that may affect children, must take into account their best interest.19 Finally, it is based on the so-called 3 P’s strategy, that is to say, on providing provision, protection and participation to children. These ideas must be embedded on the “reception plan’s” philosophy.

6.1

Provision of Rights to Children

The mere arrival of an unaccompanied child to the country creates a duty on the State to provide care to them. This State’s duty of protection encompasses medical, educational, leisure, psychological, social and basic rights. As Article 22 of the Convention reads, the State shall take appropriate measures to ensure that a child who is seeking refugee status receives appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the Convention and in other international human rights or humanitarian instruments to which the State concerned is a Party.

18 Based on this idea the Council of Europe’s plan of Action for Protecting Migrant and Refugee Children in Europe highlights that “in the context of migration, children should be treated first and foremost as children. It concerns all children in migration who arrive/have arrived in the territory of any Council of Europe member State, including asylum-seeking, refugee and migrant children”. 19 In this context, the CRC commented that in Portugal there was an “inconsistent assessment of the best interests of the child in refugee status determination procedures, as well as in deportation procedures of migrant families with children” (CRC 2019).

220

A. R. Gil

Provision of basic rights to unaccompanied children requires another urgent step: to designate a legal tutor who will be responsible, at the outset, for representing the child’s interests in the procedure. A reception plan must point out that, when acknowledging the presence of an unaccompanied children in the border, the ABS shall immediately notify the Family and Children Court so that a legal tutor may be designated. The tutor shall be responsible for representing the unaccompanied child in all procedures, namely the asylum request, the request for family tracing, amongst others. The designation of a legal tutor by the Court is a very sensitive issue. Normally, family and Children Courts have been designating the PCR as tutor for all unaccompanied migrant children, since they are usually accommodated in the Children Refugee Shelter ran by this NGO. However, in 2019, due to the overcrowding of this shelter, the Courts had to opt for other entities. In one case, the Court considered that the unaccompanied child, not having a place in the PCR’s centre, should be placed in the detention centre located at the airport—and the ABS, itself, was designated as the legal tutor. Obviously, this decision is to be criticized, and for two serious reasons that can be easily identified: on one hand, the highly questionable choice of placing the child in detention, especially in premises that, as we have shown, do not provide minimum conditions; secondly, the designation of the ABS as the child’s tutor which, in our opinion, is completely unthinkable. That is so because this authority holds, simultaneously, the competence on borders’ policing, but also on deciding the asylum requests. If the mere fact of holding these two competences may raise several issues, this is even more concerning when the ABS will also assume the role of legal representative of an asylum applicant. This goes against the basic principles of a fair procedure and also, naturally, would hardly respect the best interest of the child. In the 2019 Portuguese periodic evaluation, the CRC also issued comments to the Portuguese State on this topic, stating that there were weaknesses in the policy and practice relating to legal representation and guardianship of asylum-seeker children during refugee determination processes. It then recommended Portugal to strengthen policies and practices to ensure that unaccompanied migrant children are provided, immediately after they have been identified, with effective legal representation and an independent guardian (CRC 2019). We will add a brief final note on this topic: we consider that the Portuguese State should invest more in training professional individual legal guardians and, as it already occurs on other EU Members-States, each of them should only represent a maximum number of unaccompanied children. Finally, according to Article 22 no.2, of the Convention, the State shall make efforts to trace the parents or other members of the family of the unaccompanied child, and to obtain information necessary for reunification with his or her family (including co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations). This goes in line with Art. 10 of the Convention, which highlights that “applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner”. Thus, the “reception plan” shall include a State’s duty to immediately begin the procedure for finding the child’s family and initiate the family reunification

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

221

procedure. Art. 79 of the AL already provides for such tracing procedure. However, the Portuguese Law does not grant that unaccompanied minors have access to family reunification procedures before having the international protection status. In this case, we consider that Portuguese Law must be read at the light of the Convention’s principle, and, due to the principle of their best interest, unaccompanied minors must be prioritised in family tracing and reunification procedures. However, we must stress that these principles are subjected to the best interest’s assessment. Thus, family reunification must only take place when it corresponds to the child’s best interest. That might not be case, for example, with children who were victims of ill-treatment from their family members.

6.2

Protection of Children

As for protection of unaccompanied minors, our first concern is to work towards severely restrict their detention, especially in the airports’ temporary detention centres. As we have described, detention in these centres may indeed result in inhuman treatment, forbidden by Article 37 of the Convention. This Article also sets forth that every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs of persons of their age. In particular, they have the right to maintain contact with their family through correspondence and visits, save in exceptional circumstances. These requirements would already result from the EU law, but must be reminded on a Convention-based “reception plan”. In this context, we must recall some recommendations that the Committee on the Rights of the Child has made to Portugal in 2019. The Committee expressed concern about the practice of holding unaccompanied children in temporary detention and the inadequate conditions of the detention centres. Thus, it recommended the State to prioritize the immediate transfer of asylum-seeking children and their families out of detention. Furthermore, the Committee referred to its general comments on migrantbased detention (Joint Comment no. 3 and no. 4 (2017) with the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and Comment no. 22 and no. 23 (2017) on the human rights of children in the context of international migration) and recommended Portugal to revise the law, so to ensure that any form of detention of migrants and asylum seekers under the age of 18 is avoided, and to guarantee the implementation of alternatives to detention. Besides this, Art. 79, paragraph 13 of the Asylum Law, as already mentioned, provides that commissions with responsibilities for the protection of all children staying in the territory may file an application for international protection on behalf of the child waiting for repatriation. However, this may happen only (1) where the commission is aware of the presence of the unaccompanied child in the territory and (2) if, after assessing their personal situation, the commission considers that she may need protection in the Portuguese territory. This provision does not apply at the entry of an unaccompanied child in the territory (in which case the ABS shall notify the

222

A. R. Gil

Court for the designation of a legal tutor), but in cases where these local commissions are aware of an unaccompanied child already present therein.

6.3

Child Participation

Finally, the right to participation of the child in every decision that affects them, as enshrined in Article 12 of the Convention, has a double role in this work. First, children who had already the experience of arriving to the country could help to design the plan according to their points of view and experiences. Secondly, the plan itself must foresee the possibility of children to participate in the reception procedure at the maximum extent possible. In this context, it is important to mention that since the arrival of the unaccompanied child, the right to a fair procedure must be guaranteed. This implies that the child’s view must be taken into consideration at all stages of the procedure. Article 78 of the AL already highlights that the best interest of the Child must be taken into account during the procedure, and the child’s opinion, according to her age, is paramount to determine her best interest (n. 2, h)). But that being so, this should also be applicable on the modalities of reception or accommodation. In order to fully participate in the procedure, unaccompanied minors should be provided with information on several important subjects, such as: identification and registration procedures, including data protection rights; rights in the host country; administrative and legal procedures and safeguards; international protection, asylum and immigration status; family tracing and reunification; material reception conditions and entitlements; roles and responsibilities of all actors working in the procedures; protection systems; guardianship arrangements; legal assistance; social services; complaint mechanisms and appeal procedures; etc. Moreover, we consider that the right to participation must be exercised according to the principles on child-friendly justice, as affirmed by the Council of Europe.20 Information provided to unaccompanied minors should be adapted to their age, maturity, level of understanding, gender, language, culture, special needs and individual circumstances. Communication shall take place freely and in a confidential environment and should be conducted by especially trained professionals. However, neither the AL nor the IL foresee special requirements on how information shall be provided to unaccompanied minors.21 In general, however, it shall, at least,

20

Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers of the Council of Europe on 17 November 2010, available at https://rm.coe.int/16804b2cf3 21 Currently, the type of information generally provided to migrant children may be considered insufficient. ABS has designed a specific information leaflet for unaccompanied children regarding the asylum procedure, reception conditions, rights and duties including legal representation and age assessment. However, according to AIDA’s 2019 report, the information is brief and not considered user-friendly particularly in the case of unaccompanied children. Moreover, they are available in a

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

223

be provided in a language that they understand. For this purpose, the Portuguese High Commissioner for Migrations has a telephone service that provides translators and cultural mediators when needed, which could be very helpful for allowing the child to understand the procedures.22 Art 24. AL sets forth that the final decision on the application is notified to the asylum-seeker, and to the legal guardian in a written form. However, according to child-friendly justice, it is not sufficient to only be formally notified of final decisions. These decisions must be explained to minors in a language that they understand. One of the most controversial phases of the procedure involving unaccompanied children concerns age assessment. Informed consent should be obtained from unaccompanied minors and their guardians or legal representatives prior to conducting an age assessment. The AL sets clearly that the child must be informed on the procedure and may refuse to perform it. Refusal to undertake a medical exam shall not preclude the analysis of the application for international protection, nor shall it preclude a decision to be given thereon. In case of doubt, the applicant is deemed to be a minor until there is a proof on the contrary (Art. 79 AL). Nonetheless, paragraph 6 of that provision reads that the administration may use medical expertise through a non-invasive expert examination. Although there is no specific rule demanding that medical exams may only be used in last resort, in practice they are indeed only applied when no other methods are available, as the mentioned Article reads as follows: “in order to determine the age of the unaccompanied minor, the ABS may use medical expertise through a non-invasive expert examination, assuming that the applicant is a minor if there is reasonable doubt”. It must be pointed out that the ABS normally recognises that documents are usually enough to prove the applicant’s age. However, again, there are no clear “plans” on how to proceed with age assessment evaluations, which is one more aspect that is decided on an ad hoc basis. The CRC also commented that the Portuguese State did not have standard measures to conduct age assessments and recommended to continue to enforce multidisciplinary and transparent procedures for age assessments that are in line with international standards (CRC 2019).

7 Towards an End of Migration-Based Child Detention? We will end our chapter with a positive a note, even though we are writing this text during a pandemic crisis that made the world more indeterminate. In fact, we do not know, at the moment, where the future of International Law will lead this debate

limited number of languages (e.g. French, English, Arabic) and is not distributed systematically (AIDA 2019). 22 https://www.acm.gov.pt/pt/-/servico-de-traducao-telefonica

224

A. R. Gil

after this crisis. However, we can still point out which were the trends being affirmed before the pandemic. In reality, it seemed that we were experiencing a growing and almost consensual trend of condemnation of children-based detention by both regional and global institutions. In this context, the Committee on the Rights of the Child has been particularly active on advocating that detention of children is always contrary to their best interest. As it is broadly known, it has issued a joint comment with the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, on the human rights of children in situations of international migration, stressing precisely that children should not be detained only due to their migratory status (CRC 2017). Other recent International developments, especially after the so-called “refugee crisis”, have also been urging States to stop detention of migrant children. One of the first initiatives in this context was the 2016 UN Secretary General’s report, which condemned the recourse to administrative detention of migrants as a measure with deterrent intent. It highlights that these detentions are often undertaken without adequate guarantees and without searching on whether less coercive measures could be applicable. Moreover, it recalls that migrants in detention can be exposed to overcrowding, poor sanitary facilities and violence (SG 2017). This report preceded the Global Compact for Safe, Orderly and Regular Migration, adopted in December 2018. Objective 13 of the Global Compact urges States to use immigration detention only as a measure of last resort and work towards alternatives. This principle reaffirms an achievement that human rights’ bodies and mechanisms have been stressing in their jurisprudence: the last resort nature of the detention measure in migratory contexts. One of the most assertive statements of the Global Compact concerns the commitment to end child detention. The SG’s report highlighted the devastating effects that detention has on children: even if this is only for short periods of time, it has grave and lasting effects on a child’s mental health and development, and always contravenes the principle of the best interest of the child (SG 2017).

Bearing this in mind, the Global Compact recognizes that “detention for the purposes of determining migration status is seldom, if ever, in the best interest of the child”, and, thus commit states to “work towards the ending of this practice”. It recalls, in this matter, the range of alternative measures in non-custodial contexts that can be adopted, favouring community-based care arrangements. This goes in line with one of the main principles set out in the Pact—that of the recognition of Children as a central concern of the migratory regulation. However, as we know, this instrument is not legally binding, which naturally leaves States a broad margin of appreciation on when and how to implement it (Gil 2019b).

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

225

8 Summary/Recommendations As we have seen in this Chapter, the Portuguese system remains somehow ambivalent on how to treat unaccompanied migrant children who arrive at its borders. The law is quite parsimonious on establishing specific measures for treating these children. It adds little more than just saying that these children must be recognised and treated as vulnerable persons, and that they shall be accommodated in centres that meet specific standards. Besides repeating the EU’s general rule that detention of unaccompanied children shall be seen as “last resort of the last resort’s measures”, it did not follow (yet) neither the UN Committee on the Rights of the Child nor the Global Compact points of view, which point out towards the direction of ending migration-based child’s detention. As we have also noted, the practice demonstrates this ambivalence. Where there are not clear rules or prohibitions, we observe variations between keeping children in detention (including in places that can be considered as truly damaging for their well-being) or accommodating them in opened and child-friendly homes. What dictates the decision have been conjuncture’s situations—as overcrowding of spaces, fears of absconding, etc. We hardly see the best interest of the child mentioned in the procedures we have consulted in these contexts. In addition, it is also profoundly uncertain whether the treatment of the unaccompanied children may vary or not depending on having requested for asylum. We are writing these lines during the COVID-19 pandemic crisis, which has deeply affected several migrants worldwide. In Portugal, all asylum seekers during this crisis are not being detained, and they receive a temporary residence permit. The Ministry of Internal Affairs has already announced that the temporary detention centres located at the airport’s international areas will no longer receive asylum seekers, which will be transferred to new detention home-model centres. As to other migrants, they will still be kept in detention in these centres. We have showed that unaccompanied children’s treatment in Portugal is highly variable and dependent on conjuncture factors. We cannot assume, then, that children will not be detained in these centres again (let us think of suspicions of “fake families”, or cases where a legal tutor was not yet appointed to the child, who remains with no asylum-seeker status). Due to this uncertainty, a clinical sociology approach would be very beneficial. First, to understand and to map the possible criteria in which current administrative decisions are based and the effects that they may produce. Secondly, to design a “reception strategy” for unaccompanied migrant children, which should deeply rely on the Convention on the Rights of the Child—namely on the best interest principle and on the three P’s strategies. This reception strategy would culminate, in practice, with a unified and standardized status for all unaccompanied migrant children, irrespective of having requested asylum. Finally, if we are to take the “best interest of the child” seriously, then we have to agree that, under any circumstances, can a detention based purely in migration status be aligned with this principle. The law should, thus, and simply put, expressly state

226

A. R. Gil

that unaccompanied children should not be subject to detention under any circumstances. We began this conclusion by mentioning the uncertainty that we will face after COVID-19. Well, it must bring good changes in this chapter after all: in fact, during this crisis, there were several International bodies that called for the release of detained migrants. Some countries did not opt for this solution, others emptied their detention centres, and others still, like Portugal, decided to regularize all illegal migrants for the purpose of public health.23 As Emanuela Roman points out: the Covid-19 epidemic may become an opportunity to test alternative approaches to immigration detention based on cooperation between institutional actors and civil society, and on the active involvement of migrants (Roman 2020).

References AIDA, Asylum Information Database. (2018). Country Report: Portugal - 2018. https://www. asylumineurope.org/reports/country/portugal. Accessed 13 June 2020. AIDA, Asylum Information Database. (2019). Country Report: Portugal. Retrieved June 13, 2020, from https://www.asylumineurope.org/reports/country/portugal. Accessed 13 June 2020. CAT, Committee Against Torture. (2019). Concluding observations on the seventh periodic report of Portugal, CAT/C/PRT/CO/7. Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families. (2017). Joint general comment No. 4 (2017) of the and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return. 2017. CMW/C/ GC/4-CRC/C/GC/23. CRC, Committee on the Rights of the Child. (2017). Comment no. 22 and no. 23 on the human rights of children in the context of international migration. CRC, Committee on the Rights of the Child. (2019). Concluding observations on the combined fifth and sixth periodic report of Portugal, CRC/C/PRT/CO/5-6. Dunham, H. W. (1982). Clinical sociology: Its nature and function. Clinical Sociology Review, 1, 5. Fritz, J. M. (Ed.). (2008). International clinical sociology. New York: Springer. Gil, A. R. (2019). O papel dos Tribunais Judiciais na proteção das crianças migrantes – exigências decorrentes do Direito Internacional e Europeu. Julgar, 37, 109–142. Gil, A. R. (2019b). Guiding principles of the global compact on migration. In The relevance of migration for the 2030 Agenda for Sustainable Development: The Global Compact for Safe, Orderly and Regular Migration. Constança Urbano de Sousa (pp. 193–222). Lisboa: Universidade Autónoma de Lisboa. Leal, A. B. (2018). Building my place in the world: A clinical sociological approach of young migrants experience in France. Paper presented at the XIX ISA World Congress of Sociology, Toronto. Nair, S. (2016). Refugiados – Frente a la catástrofe humanitária, una solución real. Barcelona: Crítica. NPM. (2018). Portuguese National Preventive Mechanism Annual Report - 2018. Retrieved June 13, 2020, from http://www.provedor-jus.pt/site/public/archive/doc/MNP_2018.pdf NPM. (2019). Portuguese National Preventive Mechanism Annual Report - 2019. Retrieved June 13, 2020, from http://www.provedor-jus.pt/site/public/archive/doc/MNP_2018.pdf

23

Order no. 5793-A/2020, of 26th May 2020.

Detention of Unaccompanied Migrant Children in Portugal: A Call for a. . .

227

Ombudsman. (2018). Alternative Report of the Portuguese Ombudsman on the Implementation of the Convention on the Rights of the Child in the Process of Review of the Fifth and Sixth Periodic Report of Portugal. Retrieved June 13, 2020, from http://www.provedor-jus.pt/site/ public/archive/doc/Rel_Alternativo_CRC.pdf Ombudsman. (2019). Alternative Report of the Portuguese Ombudsman on the Implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the Process of Review of the Seventh periodic report submitted by Portugal under article 19 of the Convention pursuant to the optional reporting procedure. Retrieved June 13, 2020, from http://www.provedor-jus.pt/site/public/archive/doc/Rel_Alternativo_CRC.pdf RASI. (2018). Relatório Anual de Segurança Interna. Sistema de Segurança Interna. Retrieved June 13, 2020, from https://www.portugal.gov.pt/download-ficheiros/ficheiro.aspx?v¼ad5cfe370d52-412e-83fb-7f098448dba7 Rebach, H. M., & Bruhn, J. G. (2012). Handbook of clinical sociology. New York: Springer. Roman, E. (2020). Rethinking immigration detention during and after Covid-19: Insights from Italy. Border Criminologies blog. Retrieved June 13, 2020, from https://www.law.ox.ac.uk/ research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/06/ rethinking SEF: Serviço de Estrangeiros e Fronteiras. (2008) Relatórios Estatísticos Anuais. Retrieved June 13, 2020, from https://sefstat.sef.pt/Docs/Rifa_2008.pdf SEF: Serviço de Estrangeiros e Fronteiras. (2018). Relatórios Estatísticos Anuais. Retrieved June 13, 2020, from https://sefstat.sef.pt/Docs/Rifa2018.pdf SG: UN Secretary-General. (2017). Making migration work for all. Retrieved June 13, 2020, from https://refugeesmigrants.un.org/report-secretary-general-making-migration-work-all-0 Taracena, E. (2008). Mexico’s street children. In J. M. Frtiz (Ed.), International clinical sociology (pp. 228–243). New York: Springer. UNHCR, UNICEF & IOM. (2018). Refugee and migrant children in Europe, overview of trends in January–June 2018. Retrieved June 13, 2020, from https://eea.iom.int/publications/refugeeand-migrant-children-europe-overview-trends-january-december-2018

Ana Rita Gil, Ph.D., Assistant Professor at the School of Law of the University of Lisbon. Ana Rita is particularly interested in the empowerment of children as agents in decisions affecting their present and future, stressing the need for legal frameworks to evolve and to understand children as full subjects of law. Her work on Children’s Human Rights is reflects her interest in contributing to a legal systems that have a child-approach perspective and do not only envisage children as vulnerable or weaker persons. Publications related to the Rights of the Child include O papel dos Tribunais Judiciais na proteção das crianças migrantes—exigências decorrentes do Direito Internacional e Europeu [The role of judicial courts in protecting migrant children—requirements arising from international and European law] (JULGAR) and Crianças Não Acompanhadas Carecidas de Proteção Internacional: Que Soluções a Longo Prazo? [Unaccompanied Children Lacking International Protection: What Long-Term Solutions?] (Lex Familiae). Ana Rita’s PhD thesis in Law on Human Rights of Migrants, awarded by the Nova School of Law, Lisbon.

Unaccompanied Children at the US-Mexico Border Yvonne Vissing

1 Introduction The Trump administration’s deliberate and systematic separation of thousands of migrant children from their parents was, according to humanitarian groups and child welfare experts, an unparalled abuse of the human rights of children. The American Academy of Pediatrics says the practice will leave thousands of kids traumatized for life (Soboroff 2020, p. xiiii).

Children and youth trying to enter the United States (US) at the Mexico border have found themselves in the middle of an international conflict which was not of their making. Before they fled their home countries, many children experienced poverty, violence and trauma. During the journey to the border, most were exposed to additional different types of assaults. Some as young as 4 years of age traveled alone. Older youth came on their own, looking for work and a new life in America. Others traveled with families or people they knew. At the border, hoping they would finally be safe, many found themselves subjected to more traumas and abuses when separated from parents, siblings, and others with whom they had traveled. Thousands of children, from teens to nursing babies, were put into detainment centers for long periods of time, separated from anyone they knew. While detained, allegations of maltreatments including physical, emotional and sexual abuses have been reported. Some children have been adopted or put into foster care in far-away states without consent while others remain in institutional care. A few have been reunited, and some were sent back to live in the conditions from which they originally fled. Many children are unsure whether they will ever see their families again. Datatracking systems are weak to nonexistent, making it hard for families to reconnect, or for officials to determine where the children are or what happens to them.

Y. Vissing (*) Salem State University, Salem, MA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_10

229

230

Y. Vissing

US immigration policies have ebbed and flowed over the years under different presidents but under President Donald Trump’s administration thousands of children have been separated from families and put into what amounts to incarceration as their human rights, as described in the United Nations Convention on the Rights of the Child, have been violated (Bernstein 2019). While many children have resilient attributes, the long-term negative impacts of how they are treated could be significant. Separating children from families has become a political ploy used as weapons to prevent immigration. Organizations overseeing care of these children may have personal and political relationships with government authorities, and have benefitted financially as a result. This chapter will explore how this problem occurred, what is going on now, and the impacts on the children. Use of clinical sociology and the framework contained in the Convention on the Rights of the Child will be explored as to how they could provide protections to children.

2 Legislative History of the Issue There are a series of historical legislative components that contribute to the situation. The experiences children have had in their home countries also lay the foundation of the current problem. In order to understand the current situation that unaccompanied children and youth are experiencing at the US-Mexico border, it is important to realize that it has been decades in the making. US immigration policy has had strategic moments of inclusion and moments of exclusion. There was not a single law or policy decision, but a set of interrelated laws and decisions, that led to the detention of children and their separation from family. Around 1909 the US government built its first border fence along the MexicoCalifornia border to prevent farmer’s cattle from wandering between the two countries. Mexican and American citizens regularly flowed back and forth for work, shopping, and socializing as family and friends lived on both sides of the border. International tensions occurring during the Mexican Revolution and Pancho Villa era made locals consider the utility of a barrier between the nations. During wartime, neither Mexican nor US governments wanted their troops flowing back and forth. In 1918, Felix Penaloza, mayor of Nogales, Mexico, ordered construction of a fence running along the national boundary line through the center of his side of the city and the Nogales side in Arizona (St. John 2018). The purpose of the fence was to direct the flow of people crossing the border through two gateways to make it easier for soldiers and officials to oversee transborder movement of people between the Mexico and US. The fence consisted of six wires strung to a height of six feet. Penaloza met with US representatives to discuss a parallel fence being built on their side of the boundary, with the assumption that fences made good neighbors (Frost 1914). There was no animosity between the nations or anti-immigrant sentiments on either side of the original fence—the fence was merely to be helpful in controlling traffic.

Unaccompanied Children at the US-Mexico Border

231

During the 1990s, underlying conditions for the current border problem emerged. The economies in countries south of the US border were struggling and many young men crossed the border to find jobs in which they could earn money to send back to their families. Few children came during that time. Over the years, when children did arrive it was not unusual for them to be detained by government officials. During the Clinton administration, a lawsuit challenged the government’s child detention policies in what is known as the Flores Agreement. It became the nation’s policy mandating the transfer of unaccompanied minors from Customs and Border Protection (CBP) to the Department of Health and Human Services (DHHS) within 72 h, with 20-day limits on how long minors could remain incarcerated. The Homeland Security Act of 2002, Section 462, transferred responsibilities for the care and placement of unaccompanied alien children (UAC) from the Commissioner of the Immigration and Naturalization Service to the Director of the Office of Refugee Resettlement (ORR). Since then, ORR has worked with over 175,000 children according to provisions established by the Flores Agreement, the Trafficking Victims Protection Act and Trafficking Victims Protection Reauthorization Act (TVPRA) (ORR 2020). In 2008 President George W. Bush reauthorized the Trafficking Victims Protection Act (TVPA) that streamlined rules for special immigrant juveniles who had been abandoned by one or both parents to give them permanent residency. He created an institute which supports immigration because “America is strengthened by the contributions made by immigrants. For the US economy to flourish to its full potential, outdated immigration policy must be modernized.”1 Under President Obama, the Department of Homeland Security broadened entry for people requesting asylum by removing mandatory detention without bond, as previously required by the Illegal Reform and Immigration Responsibility Act (IIRIRA). The IIRIRA contained a rule governing detention of non-citizens who present themselves at a US port of entry where they had to pass a “fear” test to meet eligibility requirements for asylum. The Deferred Action for Childhood Arrivals (DACA) program was created in 2010 to provide work authorization to a small subset of children and youth who were brought illegally to the US. News of these changes garnered attention of people in the triangle countries of Honduras, Guatemala and El Salvador, which were overrun with poverty and gang violence. It was rumored that US work authorizations would be given to parents who brought their children, so more families began traveling to the border. Unaccompanied minors who qualified as abandoned could petition for green cards that would enable them to work in the US. Immigrants found that if they could pass the fear test at a port of entry by reporting they were afraid to return to their home country they may be allowed to stay. Publicity of greater protection of youth resulted in parents hiring “coyotes” or people who would escort children on the journey from their countries to the Mexico-US border for a price. This resulted in more people arriving at ports of entry at the border. With an increased flow of both children and families coming to the border seeking admittance, the Immigration and Customs

1

https://www.bushcenter.org/publications/resources-reports/reports/immigration.html

232

Y. Vissing

Enforcement (ICE) began to hold families together in special family detention units as they waited to be seen by an immigration judge. Holding families in detention centers violated the Flores Agreement, which resulted in the government releasing many people who crossed the border with a child. Anti-immigration sentiments rose in the US and became a focus of the Trump administration. Fear of immigrants is nothing new. All around the world throughout time there have been suspicions about the worthiness of “invaders” coming into one’s country or community. These fears are often related to economic factors, fearing that immigrants may take away jobs, cause crime, or require resources that taxpayers would have to pay for (Levinson 2011; Porter and Russell 2018). This anti-immigrant, pro-economy view of taking care of “America First” became Trump’s 2016 campaign slogan. Soon after going into office, despite a decline of immigration numbers, he responded to immigrant entry at the border by cutting off the ability of asylum seekers to enter. He ordered them put into detention, as mandated by IIRIRA. This resulted into asylum seekers wishing to avoid coming across the border at ports of entry and many began to cross the border illegally. If caught, they could be guaranteed a bond hearing before an immigration judge and usually get parole, which would enable them to live in the country until their hearing. When adults came to the border with children, especially if they did not cross at official ports of entry, Trump had ICE capture them and transfer jurisdiction over them to the US Marshall’s Service as criminals who violated the law. Their crime, in most instances, was coming across the border illegally. This law allowed for the separation to all people waiting for a court hearing, with adults going to a detention facility and children transferred to Health and Human Service (HHS) authorities. Once the parents were detained, their children were taken from them; it did not matter how young these children were. ICE authorities were ordered to take very young children, even nursing babies, away from their parents, since merely crossing the border illegally constitutes them as criminals (Loria 2018; Wildes 2018). Trauma was inflicted upon children as they were physically pulled away from parents or people with whom they had traveled; children screamed and cried, parents had no idea where their children were being taken or when they would again be allowed to see them. The process used was dehumanizing and failed to protect the children’s rights, according to child rights legal representatives (Chapin 2019d). According to the US Refugee Act of 1980, anyone who arrives “whether or not at a designated port of entry . . . irrespective of” their status may apply for asylum (Mousin 2019). Prior to 2018, asylum seekers were not prosecuted but authorities would examine their asylum claims (Amnesty International 2019). Despite the historic lows in the number of immigrates attempting to cross the border from October 2017 through April 2018, which were less than those in October 2016 through April 2017, President Trump claimed there was an immigration crisis (Mousin 2019). In 2018 Trump’s administration launched the “zerotolerance“immigration policy. Under this policy any “illegal alien” caught crossing the border, either at a designated port of entry or not and whether seeking asylum or not, was to be prosecuted. The government defines an unaccompanied alien child to

Unaccompanied Children at the US-Mexico Border

233

be someone under age 18, have no lawful immigration status in the US and no parent or legal guardian available to provide care and physical custody. Because parents may not have a lawful immigration status, the government deemed they had the authority to separate the children, thus rendering them unaccompanied, without having a parent or legal guardian beside them to care for them. Thus some children who arrive at the border may come on their own, unaccompanied, while others are made unaccompanied because of the US government’s policies and practices. Attorney General Jeff Sessions announced that it was policy to take children away from immigrant away from parents: “We need to take away children” he said directly. Rod Rosenstein reportedly said that it didn’t matter how young the children were –they were to be removed (Shear et al. 2020). And they were. Infants nursing at the breast of their mothers were ripped away and put into nurseries where they cried for their mothers. Children who cried too much or engaged in “troublesome” behavior were reportedly drugged to keep them quiet and compliant. Many slept on concrete floors with only mylar blankets. Their supervisors were observing them, as if they were criminals, from a watch tower (Soboroff 2020). The separation of migrant children from their parents for months or even years, was at the heart of the Trump administration’s assault on immigration, assuming that the word would get out that children would be taken away from parents and that would become a deterrent to illegal immigration. Trump, as president, reportedly demanded as many prosecutions as possible, and deportations were often swift and without adequate legal representation (Shear et al. 2020). The Physicians for Human Rights said the children’s mistreatment meets the United Nations definition of torture and the American Academy of Pediatrics called it “government-sanctioned child abuse.” (Soboroff 2020). By all humane measures, what happened to these children is nothing short of cruelty administered at the hands of the US government. The border legislation came under heated criticism, especially from pediatricians, child advocates and lawyers. Legislation now allows for the separation of children from their parents and for parents to be deported while their children are detained in the US. Courts demanded that children detained be identified and mechanisms worked out to reunite them with their parents within 6 months, which has not happened (Swartz 2019). Children have been regarded as pawns in a game of international chess, expendable, that allow the president to make good on his campaign promise to reduce immigration (Council on Foreign Relations 2020; Polk et al. 2018; Star Tribune 2018). The US has historically been a world leader in refugee resettlement which offers a haven to those fleeing war, persecution and violence in their homelands. Those seeking asylum are not breaking the law, according to the Immigrant Law Center of Minnesota. They are following international standards that this country has agreed to. Under any previous administration, the U.S. would be condemning this practice, not initiating it (Star Tribune 2018). President Trump has tried to blame previous administrations for the current catastrophe. Certainly, the foundation for what is happening at the border today was laid decades ago by both democrat and republican presidents and administrations. But the strategic cruelty with which Trump has forced separations and “cared

234

Y. Vissing

for” vulnerable infants, children and youth is unprecedented (Mazza 2020). It is seen through a Congress and government divisions that follow his orders instead of standing up for children’s rights. Usually wives of presidents have a genteel approach when it comes to children. But for First Lady Melania Trump, when she visited detention centers where children were being placed, she wore a coat that had written on the back “I really don’t care—do U?” This was perplexing for the public to interpret what she meant. But evidently she doesn’t care, according to information in which she was recorded saying “I don’t give a fuck” about Christmas or about the border children, reportedly saying “‘Oh, what about the children that they were separated?’ Give me a fucking break” (Impelli 2020; Shear 2020). Often rhetoric goes back to the “necessity” of building the wall. Legislation allows for the construction of wall between the US and Mexico. Expert opinion is that the wall is meaningless to stop illegal immigrant traffic (Felbab-Brown 2017; Hulseman 2019; Nunez 2018). A wall of various forms existed for years prior to the Trump administration across most of the US-Mexico border—some areas have no barrier at all, others have wires, fences or tall, metal formidable barriers with barbed wire across the top. If someone crosses at unofficial locations, that crossing could constitute them being considered “criminals” because that action broke the law. A central reason that emphasis on building a wall has become an international issue thought to appease Trump’s campaign promise to “build that wall”—even if it is at a cost skyrocketing up from 11 billion dollars, over $20 million a mile for 576 miles that will be minimally effective in changing immigrant entry (Burnett 2020). The administration is collecting DNA samples from immigrants at the border. Ostensibly announced as a way to expose immigrants posing as families when they cross the border, this maneuver to curb “fake families” or “recycled children” is questionable since data indicates that only one-half to one-percent of children coming across the border are with people to whom they are not related. Child recycling is a process where a migrant child who has made it into the U.S. is returned to Central America to be teamed up with a new “family member” for a return journey to the US (Price 2019). There also concerns of child trafficking and smugglers who “rent” a child or kidnap them merely to get across the border, and then have authorities send the child back, only for the cycle to occur again (Upadhayaya 2019). DHS says it defines the family unit only as mother-child or father-child; DNA tests are less reliable the more distant family members are from each other, so grandparents, aunts, cousins, half-siblings may not show up as related, and stepchildren or adopted ones would certainly not. The testing process is the same type that crime labs across the US have been using for the last two decades to match crime scene samples to state and federal databases of felons. It appears that there may be other motivations behind the collection of genetic information. Refugee and Immigrant Center for Education and Legal Services reports that collecting biometric information of children brings kids into state surveillance systems at an early age, making it impossible for them to enjoy a life truly free from state scrutiny. While lawyers with the American Civil Liberties Union state that the government says it has no plans to store or share the information collected from these tests, the fact that it is building this surveillance infrastructure—

Unaccompanied Children at the US-Mexico Border

235

using the pretext of the border—should be very troubling, as it could be used in the future to stigmatize people (Hayes 2019; Molteni 2019; Sands 2020).

3 The Numbers It is unclear how many families and unaccompanied children have crossed the US-Mexico border. Data reports vary, depending on the time period, whether people came through legally, illegally, were detained, deported, or fell into other categories. According to the Congressional Research Service (2019), in the first 11 months of 2019, over 72,873 unaccompanied youth were identified. In 2018 an estimated 540,000 family members and unaccompanied children crossed over (Ruiz-Grossman 2019). A US Customs and Border Patrol report stated that the number arriving at the border hovers between 400,000 and 600,000 annually with about three-quarters being families or children (Aratani and Horton 2019). It is estimated that 3000 children were separated from their parents in a single month, between May and June 2018, and that number is considered to be much lower than actual separations because the government lacked the ability to track where each went afterwards (Chapin 2019a, b, c, d, e). At the end of 2018 over 5400 detained migrant children were sleeping in shelters with more than 1000 other children and 9800 were in facilities with over one-hundred other children. This is in comparison to the month before Trump took office when the same federal program had 2720 migrant youth in its care (Burke and Mendoza 2018a, b). No one actually knows how many immigrant children have disappeared while they have been in US custody (Bogado 2020). Comprehensive data is not being collected at the border, just cursory information primarily about their legal status. Once children are no longer detained at the border, whether moved on to be with relatives, friends, go into foster-care, or be deported, no data is collected on them at all. Data, of course, does not count children who have slipped through the cracks in the system or found alternative ways of entering the country. Data indicates that deportations of undocumented immigrants have been rising. ICE deported more than 5700 undocumented immigrants who came to the U.S. as family units―a 110% increase in the deportations of family members compared to the previous year. The agency also deported over 6000 unaccompanied minors, which is a 14% increase over 2018. Over 540,000 family members and unaccompanied children crossed the border last year, most of whom were released into the U.S. While more than 86% of those arrested by ICE had criminal convictions or pending charges, per the agency, the vast majority of these were for drug- or drivingrelated offenses. It is reported that the biggest criminal offense was merely crossing the border illegally; that action alone gave them the designation of having committed a crime, hence being a criminal. There was a 68% increase of migrants apprehended at the U.S.-Mexico border this year compared to last, per CBP data―and nearly 65% were families and unaccompanied children (Ruiz-Grossman 2019). Over 55,000 people have been sent back to Mexico (Chapin 2019a, b, c, d, e). Child separations

236

Y. Vissing

have become common under the current administration, but the public is not provided with accurate numbers (Burnett 2019a, b). This may be because accurate numbers aren’t available; reported numbers are likely under-counts in order to diminish public outrage over the separations. It must be emphasized that the actual numbers of immigrants at the border, and especially of unaccompanied youth, are likely much higher than those which are reported.

4 Life in Home Countries The primary reason why children are arriving at the border concerns their desire to flee violence and poverty in their home countries (Martínez Sainz 2018; RYOT Studio 2019). Violence in Mexico is reported to be high with over 150,000 people intentionally killed between 2006 and 2015, 580,000 people kidnapped, a 600% increase in reported cases of torture, and at least 26,000 people missing many believed to be as a result of enforced disappearances. Over 2000 children were killed between 2006 and in 2014 the homicide rate of adolescents doubled, reaching over 15.8 per every 100,000 inhabitants (Amnesty International 2014; Al Hussein 2015; Open Society Foundations, 2016; Martínez Sainz 2018). The northern triangle countries of Honduras, El Salvador and Guatemala are regarded as turbulent, violent, corrupt, dangerous, with high rates of poverty, large numbers of gangs, and little chance for economic opportunity (Vickers 2019). Over 265,000 people left annually until 2019, when it doubled with numbers of people trying to get away (Cheatham 2019). The lives of children who live in these countries are hard. Poverty confronts them at home and in their communities. Education is poor and life-opportunities are low. Children as young as 11 are often forced to join drug cartels in those countries (Beckhusen 2013). Children are attacked by gangs, sexually and physically abused, exploited as a cheap labor force. Because children have constitutional immunity, with maximum sentences of 3–10 years when they are under age 18 in most countries, they are often forced by gangs, traffickers and other adults to participate in drug-running, suicide attacks on security forces, murder, kidnapping, torture or other crimes. If they refuse to participate, they or their family members could be harmed (Martínez Sainz 2018; Toribio et al. 2010). Violence against children is not limited to crime-related incidents. Data shows over 70% of children have experienced discipline-related violence, either in their families or at school; and two-thirds of the children in primary and secondary schools have reported physical aggression. Their lives are filled with anxiety and uncertainty (IACHR 2015; UNICEF 2014, 2017). Just as immigrants over time and across the globe have immigrated to escape bad living situations in hopes of obtaining better lifestyles, people arriving at the US-Mexico border are no different. But how children have been treated there seems to have become unexpectedly challenging for them when upon the arrival.

Unaccompanied Children at the US-Mexico Border

4.1

237

The Journey

At some point, children or parents hit a tipping-point when they decide that it is time to venture to the US-Mexico border in hopes of finding safety and prosperity. Older children may attempt to leave their families and communities to make the long trip northward on their own. This has been common with young men who come to the US to find work, live a better life, and hope to be able to send some money back home to their families. Younger children may join family members on a journey to escape the trauma and chaos of their home countries as they travel to the US. Whereas US border representatives define family to consist of biological parents, the concept of family in other parts of the world may be more fluid and inclusive. Family members may be biological, step, or adopted; children may travel with aunts and uncles, siblings, cousins, grandparents, or people they know in the community. Others may travel in groups with people that they barely know. Parents may scrape together money to try to get their children out of the country and to the US, where they pray their children will be safe and their lives will be better. Parents may be heart-broken to do this, but feel it is the best chance for their children to make-it, since the risks are so high for their survival in their home countries. Parents may pay escorts, often referred to as coyotes, 10,000 dollars to maneuver them across the border. Children as young as 3 or 4 years old may be sent to make the trip alone. Everyone realizes when they do this that they may never see each other again (Chapin 2019a, b, c, d, e). There are dangers all along the way for children as they travel northward. They may be sexually assaulted, have what few possessions they have stolen, and be subjected to emotional and verbal abuse. There may be no safe place for them to sleep, insufficient food or little water to drink. There will be no place for them to shower or maintain good sanitary hygiene. If they are sick or tired, there is nowhere and no time for them to rest and recover. Temperatures may be extreme. Sometimes there are camps or places where travelers can rest, but often they are over-crowded, with few toilets or places for people to clean themselves. Being in close proximity with others increases the likelihood of communicable disease spread. Their conditions may thus deteriorate as they get near the border. Dehydration is common, as are respiratory and gastro-intestinal disorders (Chapin 2019a, b, c, d, e). Immigrant rights advocates are concerned that travelers are manipulated to cross the border at remote locations where there are few resources. Major ports of entry limit how many people can cross request asylum each day. As a result, people may be forced to wait in Mexico for weeks or months before they can officially cross the border, which may be in situations that are not fit for human habitation and are full of risks (Narea 2019). While they wait, they have become targets for crime by local as well as transnational gangs and cartels, including violent assaults, rape, murder, torture, kidnapping, and property crime (Mukherjee 2020). Mexico was unprepared for the influx of asylum seekers and is resorting to a variety of means, humanitarian and otherwise, to deal with thousands who arrive needing help (Frederick 2019). Some immigrants attempt to find work-arounds and come across the border at

238

Y. Vissing

unofficial locations in dangerous and challenging ways. When people get to the border, many try to swim across the Rio Grande river but be too weak or unable to do so safely. Children have drowned (Chapin 2019a, b). The Mexican government, local communities, organizations or individuals may try to help the travelers on their journey by providing them space, food, water, and other resources. But there are also those who choose to make the lives of asylum seekers harder in order to dissuade them from crossing the border, as documented by US Border Patrol agents dumping out water left for thirsty travelers onto the ground (Wang 2018). Making the journey itself is dangerous and challenging, especially for children.

5 Border Processing The US immigration system is very complex and confusing, according to the American Immigration Council (2019), with rules that change depending on who is in charge. When children arrive at the US border from Mexico, another challenging journey begins that can alter their life-course (Domonoske and Gonzales 2018). These are discussed next.

5.1

Multi-organizational Processing of Unaccompanied Children

The US has multiple agencies involved with children who arrive at the border; there is not one single organization that oversees them from arrival to placement. The Departments of Homeland Security (DHS) and Health and Human Services (HHS) share responsibility for the processing, treatment, and placement of unaccompanied children (UAC). DHS’s Customs and Border Protection (CBP) apprehends and detains UAC arrested at the border. DHS’s Immigration and Customs Enforcement (ICE) handles custody transfer and repatriation responsibilities, apprehends UAC and represents the government in removal proceedings. CBP’s U.S. Border Patrol (USBP) and Office of Field Operations (OFO) are responsible for apprehending and processing unaccompanied children that arrive, respectively, at or near U.S. ports of entry (POEs). Most UAC are apprehended between POEs and are transported to USBP facilities while UAC apprehended at POEs by are escorted to CBP secondary screening areas. HHS’s Office of Refugee Resettlement (ORR) coordinates and implements the care and placement of UAC in appropriate custodial settings while awaiting immigration proceedings (Congressional Research Services 2019; Office of Refugee Resettlement 2020). When arriving at the border, asylum-seekers are taken to a facility for processing. These facilities are designed for short-term stays—some are tents, converted warehouses, or other buildings. As numbers surpassed existing capacity, immigrants of

Unaccompanied Children at the US-Mexico Border

239

all ages and conditions have been put into caged areas or remain outside, on concrete slabs or dirt with no beds, chairs, or accommodations for extended periods of time. Concerns have been raised by healthcare professionals and lawyers about how children are treated upon first contact with the US border authorities. The children arrive physically and mentally exhausted, hungry, traumatized from experiences before and during their journey, and may be sick. Medical experts are concerned that children aren’t receiving adequate medical screening before being placed in Border Patrol facilities. The CBP facilities and processing procedures are deemed inappropriate for children’s wellbeing, according to the National Center for Youth Law. After two children died in CBP custody in December, the Department of Homeland Security issued a memo saying every immigrant under 18 had to receive a medical assessment. Minors were provided medical attention on an “as needed basis” (Chapin 2019d). Unaccompanied minors are legally not to be held for more than 72 h, after which border patrol representatives are supposed to release them to the Office of Refugee and Resettlement (ORR). The ORR is an agency within the federal Department of Health and Human Services, which matches them with shelters and is supposed to find them long term placements with relatives. Children detained at the border and put into facilities receive health checks to determine if they have tuberculosis, sexually transmitted diseases, are pregnant; they may be bathed, given clean clothes, food, or necessary medical care, which may include routine vaccines—but not necessarily vaccines against the flu or viruses (Bursztynsky 2019; Centers for Disease Control 2020; Jordan 2019a, b). Government officials report that they provide good care for these weary young travelers by giving them food, clean clothes, showers, a place to sleep, and suitable accommodations; however, this is hotly debated, depending upon what children or where they are detained. Despite authorities reporting that children receive good care and are well-treated, numerous reports challenge that assertion. Reports of their maltreatment are extensive. Physician, lawyer, and personal accounts indicate that many children did not receive medical examinations or treatment, even though they had headaches, coughs, fevers, body aches and other flu-like symptoms, and some have died from preventable conditions (Chapin 2019a, b, c, d, e). The ORR is supposed to place children in the least restrictive setting that is in the best interests of the child, taking into consideration danger to self, danger to the community, and risk of flight. It is to evaluate each child’s unique situation when making placement, clinical, case management, and release decisions. The ORR is to be in contact with parents, guardians or relatives and the process of finding a suitable sponsor to transfer the children. The ORR classifies children into four tiers— Category 1 applies to children who have a parent or legal guardian in the states; Category 2 have immediate relatives such as a grandparent or cousin, while Category 3 is a release category for a distant relative or unrelated adult. Children with no sponsor are placed in Category 4 (Bogado 2020). While transfers are supposed to be speedy, they often aren’t. Children could be held in detainment facilities while transfer arrangements are being made, some for months at a time. The ORR shelters are reportedly overwhelmed and move children out to placements as soon as they

240

Y. Vissing

can make arrangements. These arrangements include finding someone the child can live with, making sure that that person isn’t a criminal or an overt danger to the child, and getting them to pay for the transfer of the child from the detention facility to them. This process can be short or long, depending on the situation. Children may be placed in at least 170 facilities and programs in 23 states funded by ORR. How these facilities and programs are selected and vetted is unclear, but there are concerns that they all may not be selected because they serve the best interests of the children; there is big money to be made from sheltering migrant children and who gets the contracts are competitive (Fernandez and Benner 2018). All ORR-funded facility services are supposed to include education, mental and medical health services, case management, recreation, and make efforts to unify children with their families or sponsors. The ORR is to facilitate safe and timely release to family members or other sponsors who can care for them, conduct home studies prior to unification, looking at sponsor criminal records and legal status (Habbach et al. 2020; Health and Human Services 2020). In some cases this is done but reports indicate that the best interests of the child do not always occur. The disparity between the types of treatment children receive appears to be significant. Through interviews I conducted and from extensive literature reviews, it appears that some children do get much-needed medical care, food, clothes, toys, and have safe places to sleep. Lawyers and government workers convey working hard to care for traumatized, sick, and children in need of care. On the other hand, it is abundantly clear that many children are so lucky, as described next.

5.2

Lack of Legal Representation

Reports indicate that with thousands of people crossing the border at the same time, border patrol agents shuffle people quickly to expedite the process. There are multiple issues to be dealt with simultaneously, including obtaining demographic and personal data, language barriers, determining legal status, health conditions, criminal violations, family sponsors, to name a few. Once they move to the next processing stations, they may find there is still no legal representation, as some centers have had legal funding for migrants cut or eliminated (Ainsley and Soboroff 2019). Laws have been adjusted to make it hard for children to qualify for admission into the US or receiving legal support to do so (KIND 2020). Make-shift, tent courts have been created to deal with the influx instead of regular court rooms. While some children have received some legal representation shortly after arrival, many do not. Children may be alone and have to fend for themselves with legal authorities, not speak the language to understand questions or the ramifications of their answers, and feel frightened and intimidated to speak with authorities. They have been found to say things just to keep themselves safe. Children may be afraid to disclose maltreatment at the hands of government representatives for fear of retaliation. Even toddlers have been found to have to represent themselves legally just to

Unaccompanied Children at the US-Mexico Border

241

document the government met the letter of the law. Toddlers are developmentally unable to give informed consent (Buncombe 2018; Chapin 2019a, b, c, d, e; Corbett 2019). In immigration proceedings, children, just like adults, have a right to an attorney “at no expense to the Government.” What that means in practice is that if a child cannot afford an attorney or secure one pro bono, she must represent herself against an experienced government prosecutor. Under immigration law, it’s the immigrant’s job to prove she’s eligible for protections like asylum or lawful permanent residence. Unrepresented children must not only defend themselves in court, but they are also tasked with completing complicated immigration forms, assembling necessary evidence, and making their cases before the court, all on their own” (Hlass 2018a, b). Thousands of children go to immigration court alone as a result (Egkolfopoulou 2018).

5.3

Unaccompanied Through Separation

Many children arrive with family members but become unaccompanied due to how the authorities process them. Parents historically were kept with their children, but under Trump administration policies, many parents were deemed “criminal” merely for coming across the border illegally, which resulted in children being separated from them. Few were found guilty of drug-running or violent crimes. Unless parents are able to provide birth certificates or official documentation that the children they are with are theirs, children may be removed and put into detention facilities or shipped out to foster care homes, some of which are many states away (Ainsley 2019; Cumming-Bruce 2018). Families are regarded as foundational for the building of a strong society (Murguia 2019). Under previous presidential administrations, parents were not usually separated from children, with some administrations working actively to keep families together. But memos indicate that under the Trump administration, parent-child separations at the border were part of a strategic administrative plan discourage immigration by traumatizing families by taking their children away. As a campaign promise, Trump vowed to deport 11 million undocumented immigrants in the US, regardless of whether they had a criminal conviction. Babies, even those who are nursing, have been removed from their mothers at the borders and taken to detainment nurseries. Reports of hysterical children being ripped out of parent’s arms are common. Children may be separated and put into different facilities depending upon their age or sex. This means that siblings may be separated by gender and age and not allowed to see each other for extended periods of time. Migrant children have strategically been denied asylum hearings (Corbett 2019; Hathaway et al. 2018). Even the 6 million children already living with their undocumented parents in the US could be at risk of separation. Even mixed-immigration-status families, those that include American citizens, legal immigrants and undocumented members, could find parents deported and children detained in facilities or foster homes. The

242

Y. Vissing

administration’s attempt to terminate the Temporary Protected Status, or T.P.S., and Deferred Action for Childhood Arrivals, or DACA, programs would change the status of a million people from “documented” to “undocumented”. The threat of parent-child separations continue as children living with undocumented parents fear they will be taken way during work-site raids, routine check-ins, or accidental disclosures to school or other authorities (Amnesty International 2019; Corbett 2019; Hathaway et al. 2018; Sanchez 2018). Under the administration’s “zero-tolerance” policies, data collection systems are so bad that there is not a clear sense of how many families have been separated, where the parents are sent (since they could be deported or sent to jail), where the children are sent, or how many have been reunited (Ainsley 2019). It is likely that parents and children may never be able to find each other again. Experts report that the separation policy is pointless and totally destructive to families and children’s wellbeing. Investigators found dirty, hungry, sick, scared children held far longer than the 72-h limit imposed by law, with some children detained for weeks or more. Abuse was common, filthy living conditions, and inhuman treatment that violated conditions laid out in human rights treaties (Long and Mukherjee 2019; Office of the Inspector General 2019). In short, some unaccompanied children arrive at the border on their own without parents or guardians. Many arrive with parents, other family members, or friends who have accepted the responsibility to look after the children on the journey. Some fled here to find safety because they were abused, neglected, threatened by gangs. Others come with family but the government separates them, supposedly for their best interest because their parents were deemed criminal. For a variety of reasons, including documentation and criminal status, children may be forcibly removed from these caregivers, transforming them into unaccompanied children. They are then sent to facilities where they are truly on their own, and live their lives without familial protectors (Linton et al. 2020; O'Toole 2019).

5.4

Detainment

Unaccompanied children are housed, or detained, while government authorities negotiate placements for them. This process is ideally to be short in duration, perhaps days or weeks. Supposedly the processing period when children are first apprehended by authorities is to be 72 h, but for many it may be weeks or longer before children are placed. Unaccompanied immigrant children have a year from when they come to the U.S. to claim asylum, but unless they have a lawyer who makes them aware of this and helps them to apply, it’s unlikely unaccompanied children will figure this out on their own. For some children, detainment goes on for months and their facility ends up being their home until age 18, when they are no longer considered minors. Upon turning 18, they face the danger of being deported since at that age the federal government removes them from its care designation. Many are turned over to Immigration and Customs Enforcement, which places the

Unaccompanied Children at the US-Mexico Border

243

teens in adult detention facilities and begins expedited removal proceedings (Gamboa 2019). Institutionalized detainment of migrant children at the border was counted at 16,000 in 2018 (Burke and Mendoza 2018a, b). That year over 9800 children were put in facilities housing more than 100 young people; 5405 of those were in three facilities with more than 1000 youths, two in Texas and one in Florida. Texas had the most growth, going from 1368 in 2017 to 8700 by the end of 2018. The five largest providers are Southwest Key, San Antonio-based BCFS Health and Human Services, Florida based Comprehensive Health Services Inc., Cayuga Centers in New York, and Chicago-based Heartland Alliance, with 11,600 children—or more than 80% of the 14,314 migrant youth in ORR custody as of December 2018 (Burke and Mendoza 2018a, b). The accommodations and care detained children receive appears to vary dramatically, depending on where the children are placed (Dickson 2019). Instead of finding home-like residences for the children, detainment facilities have housed thousands of children. There is variation in the safety and quality of detention centers and the “good ones” are showcased as if they are representative of the whole, which they are not. For instance, Baltimore Board of Child Care shelters 50 migrant children amid 28-acres of cottages and grassy lawns; Rite of Passage in Arizona has 100 children at facilities that look like posh, private schools surrounded by trees and fields and Virginia’s Youth for Tomorrow houses 110 migrant kids on a 215-acre campus with soccer fields and volleyball courts, music and art therapy (Burke and Mendoza 2018a, b). Some detention facilities are in renovated hotels with beds and blankets and stuffed animals, but other children have found themselves sleeping on concrete with no blanket or only silver “space” blankets (Raff 2018a, b). Empty big-box stores have been converted into shelters. At Tornillo, Texas, over 2745 teens are held at this large detention center in massive tents. Military facilities have been transformed into detention centers, which is very problematic because many are riddled with toxic leftovers from past military operations, including hazardous waste spills and dumps, chemicals, polluted water, dirt of objects, or unexploded weapons on site. As numbers of unaccompanied children arriving at the border have increased, the Trump administration is considering building migrant jails for youth at military bases in Georgia, Montana and Oklahoma. Each base is home to at least one Superfund (toxic chemical) site, many of which have been closed because of the toxic conditions which is why they are available (Burke and Mendoza 2018a, b; Fernandez 2018; Ludwig 2019).

5.5

Maltreatment as a Normal Condition for Detained Children?

While government officials state that the children are well-cared for and protected, many reports indicate that this is not the case. The general view is that detainment

244

Y. Vissing

facilities are not suitable or healthy places for young people to stay for extended periods of time. Most resemble jails, not summer camps (Anapol 2018). They are regimented, and the physical structures are more like prisons than homes. Security is high and youth have no freedom of movement. Some detention facilities have schools where children learn rudimentary English and math, education is usually designed on how to survive in a new culture and little more. Some have soccer fields and recreation for youth, others don’t, as recreation is seen as a luxury that should not be a governmental expense. Some refuse to provide children with bed, toothbrushes or soap (Papenfuss 2019; Valencia 2019). A lawsuit alleged that Latino youths at the Shenandoah Valley Juvenile Center in Virginia were beaten while handcuffed and locked up for long periods in solitary confinement, left nude and shivering in concrete cells (Burke and Mendoza 2018a, b). A chaotic scene of sickness and filth is unfolding in an overcrowded border station in Clint, Tex., where hundreds of young people who have recently crossed the border are being held, according to lawyers who visited the facility this week. Some of the children have been there for nearly a month. Children as young as 7 and 8, many of them wearing clothes caked with snot and tears, are caring for infants they’ve just met, the lawyers said. Toddlers without diapers are relieving themselves in their pants. Teenage mothers are wearing clothes stained with breast milk. Most of the young detainees have not been able to shower or wash their clothes since they arrived at the facility, those who visited said. They have no access to toothbrushes, toothpaste or soap. . .[Stench fills the air]. Dickerson 2019a, b

It is a general opinion of pediatricians and child protection experts that most facilities are ill-equipped for the detention of children that put them into hazardous physical and emotional conditions (Acer 2019a, b; Aratani and Horton 2019). Almost all of these detainment centers have been alleged to provide treatment that ranges from inadequate to cruel. Staff working with the children are often poorly trained with no credentials in caring for children or running therapeutic organizations (Smith and Smith 2018). Poor services and maltreatment appear to be normative (Chapin 2019a, b, c, d, e; Focus for Health nd; Huffington Post 2020). While government representatives regale the public with stories of good care, such reports are starkly different than those coming from children, healthcare professionals, lawyers, and child rights advocates. It has taken children dying in their care for the public to pay attention to what goes on behind closed doors (Moore 2019). Attorney Hope Frye (2019), who conducted a Flores monitoring visit of facilities sheltering border children, testified in a U.S. House of Representatives Committee on Oversight and Reform Subcommittee on Civil Rights and Civil Liberties For a Hearing on Kids in Cages: Inhumane Treatment at the Border that Some children were too traumatized to even interact with us. Children who were lucid enough to interact with us were glad to see us. They were grateful for the opportunity to sit in an office which is warmer than their cages, to sit on a chair not on a concrete floor, to sit close to us—adults with smiling faces—and talk to a respectful person glad to see them, about the horrendous things that are happening. As the conversations unfolded, we struggled to maintain our composure, emotions carried away by the cruelty and deprivation all the children describe. We are uniformly incredulous at how the government can treat children so inhumanely in our name and saddened to find the children more traumatized and in worse shape than even the most experienced of us had imagined.

Unaccompanied Children at the US-Mexico Border

245

She found that after 2 years of government-ordered remedies to horrific conditions disclosed in a 2017 federal court order, the same problems were present. These included violation of the Flores requirements to provide children: (1) adequate food; (2) adequate access to drinking water; (3) adequate hygiene (bathrooms, soap, towels, toothbrushes), and (4) adequate sleeping conditions and by keeping the temperature too cold. She concluded that ensuring basic human needs were still missing for children in CBP custody. There are significant concerns that many of the detention facilities are for-profit based and receive lucrative reimbursements from the government as a result. The concerns range from abuse of children, no oversight of the organizations, poor quality staff, as well as incentives to expand facilities and keep detaining children, rather than releasing them to be placed with families. The detainment centers have been labeled as internment camps, prisons. Children, whose only “crime” is that they tried to flee danger and oppression in home countries, are reportedly separated from family and maltreated at facilities as incentives to deter their coming to the US (Kates 2019). A Department of Homeland Security report evidently stated that removing children from parents, putting them in intentionally squalid conditions and acting cruel to children is part of a strategic plan to act as a deterrent for prospective migrants (Aratani and Horton 2019; Woo 2019). Children in the detention facilities report that instead of feeling well-cared for and supported, they are scared ad feel like they are “in prison” (Chapin 2019a, b, c, d, e) (Dickerson 2018, 2019a, b, 2020).

5.6

Foster Care and Adoption Placements

Many teenagers come into the U.S. without parents and have no family, relatives or guardians. They ran here to safety because they were abused, neglected, threatened by gangs. Immigrant teenagers have a year from when they come to the U.S. to claim asylum, but unless they have a lawyer who makes them aware of this and helps them to apply, it’s unlikely teenagers will figure this out on their own. When unaccompanied children arrive in the US, they could be deported, sent to live with family or sponsors in the US, detained in facilities, or put into foster care. The older a child is, the less likely they will be put into foster care and the more likely they will be detained in facilities like the ones discussed earlier. The foster care situation could be short-term while family or sponsors are located, or could be longterm until the child turns age 18 and is released from government custody. Children whose parents have been deported may be allowed to be adopted. The decisions about what will happen to the children are made by the ORR, whose job it is to place children into living arrangements. The ORR has different systems for releasing a child from federal custody—one is through a sponsor, who takes full responsibility and pays all expenses. Another is long-term foster care when children are turned over to a fostering agency. The agency, licensed by the state, finds a parent who has been vetted and ORR pays them for the care. Foster care is more likely to be provided to younger children than older youth. Foster care is also

246

Y. Vissing

more likely for children whose parents were abusive than for those who came looking for work. The third option, as previously discussed, is to hold children in detention centers until they age-out of the system. This may be more common for older teenagers who came looking for work and independence. Foster care and adoption of border children will be discussed next.

5.6.1

Foster Care

Foster care is a supposed to be a temporary living situation for children whose parents are unable to care for them. Approximately 450,000 children in the US are in foster care in any year, with about a third being in relative foster placements and half being in homes of non-related people (Child Welfare Information Gateway 2019). About half of foster children are reunited with their families, some stay in care for years or until they become age 18, when they are no longer considered children and no longer covered financially by the child welfare system. Foster care is considered preferable to orphanage care because it increases chances of bonding with a caregiver and gives the child a more traditional lifestyle. Children in foster care usually have experienced trauma and have physical, emotional and behavior challenges that caregivers must be equipped to handle successfully. It is essential for foster homes to meet the developmental needs of children in order for them to grow up well (American Academy of Pediatrics 2000; WilliamsMbengue 2016). Foster parents who are carefully screened and well-trained are more successful in meeting the needs of children (Price 2008). This is particularly important when helping border children who are in foster care. Children who have been traumatized before their journey to the US have experienced situations that were often horrific for them. Being separated from their caregivers adds more trauma. When placed in foster care, most are very challenging to care for and require foster parents with significant patience and expertise to help them (Sidner 2018). However, the foster care system has many critics. These include putting parent needs before children’s needs, putting children into placement instead of working with parents to give them the resources they need in order to parent well, or not providing enough support to workers, foster care families and foster children (Teo 2015). Many foster homes have been found to be less-than-adequate for the wellbeing of children, provide poor care, and children are not reunited with family so are left to languish in the system (Azzi-Lessing 2016). Abuses of all sorts may occur, making children even more traumatized and frightened when the person who is supposed to care for them well doesn’t (Focus on Health nd). Reports indicate that border children are separated from parents and put into foster care, some of whom are only months old who are taken away from parents and put into foster homes halfway around the country. Sometimes they are moved in the darkness of night to avoid being seen by the public. The removal of children from parents to be put into the US foster care system is thought to be unnecessary in most cases, further traumatizing already traumatized children and families. The children do not know where they are going, their parents do not know where they went or

Unaccompanied Children at the US-Mexico Border

247

when or how they may ever see their children again. Allegations of maltreatment in foster care are not uncommon. Reports indicate that removing children from parents is designed to penalize immigrating parents from coming, as well as to provide money to foster care programs, especially those that are more conservative and fundamentally-oriented (Associated Press 2019; Atkin 2018; Baldas 2018; NPR 2018; Vaglanos 2018). Churches have become a common vehicle for the placement of migrant children who need foster care. The Migration and Refugee Services of the Catholic church has a twelve-state foster care placement program, the Lutheran church has an Immigration and Refugee Service that places foster children, and Bethany church out of Michigan have become major foster home placement services for border children (Croucher 2018). Children removed from undocumented parents are reported to have found themselves placed in homes of conservative Christians (Filipovic 2019). One of the main foster care and adoption agencies that manages border children is Bethany Christian Services of Grand Rapids, Michigan (Dickerson 2019a, b). In conducting a literature review on this topic Bethany Christian Services indicated that it may have received a government contract to provide both foster care and adoption services because of a political relationship with US Education Betsy DeVos, who has family ties with Bethany. Bethany was awarded contracts to foster children for as much as $700 per night per child (Badash 2019; Macguill 2018).

5.6.2

Adoption

Border children who have been separated from their families have become a viable source of adoptive children for US parents who find it difficult to find children to adopt (Filipovic 2019). When families cross the border, parents may be deported yet their children detained by the US authorities. These children may be put into detainment centers or put up for adoption (Associated Press 2018). At first children may be put into foster care, but some them have become adoptable (Filipovic 2019). If parents have been deported, migrant children may become adoptable because holes in immigration laws are allowing state court judges to grant custody of migrant children to American families without notifying their deported parents or getting their consent (Burke and Mendoza 2018a, b; Rodrigo 2018). It is possible and legal to adopt migrant children without their parent’s consent or knowledge (Raff 2018a, b). Allegations are that it is hard to locate parents after they are deported, as good records aren’t kept. It is unknown how many border children separated from their parents have been adopted (NBC 2018). The Trump administration says it can’t reunite missing migrant children with their families and told a federal court that it would require too much effort to reunite migrant children with their parents, according to the Associated Press (Stone 2018, 2019). It reported that it would require extraordinary and costly effort to reunite what may be thousands of migrant children who have been separated from their parents. It also argued that even if it could, the children would likely be emotionally harmed in

248

Y. Vissing

two ways. One was that reunification would “present grave child welfare concerns” and the other was removing the stability children were receiving from their foster or adoptive homes. There is a reported trend that many of the people who adopt the separated children belong to conservative religious groups who ironically seem to deny the right of mothers and their children to stay together (Filipovic 2019). Bethany Christian Services again seems associated with a link that illustrates how border children have become a business venture for organizations. Some like Bethany have been labeled as adoption trafficking mills with foster homes set up to filter children to adoptive homes, with no intention of trying to reunite children with their biological parents (Joyce 2013; Stone 2018, 2019). Tax filing documents indicate that Betsy DeVos and her husband, Richard, have given over a third of a million dollars to Bethany Christian Services. Bethany received $750,000 in grants from the Richard and Helen DeVos Foundation, which is run by the Education Secretary’s father-inlaw, the billionaire founder of Amway Richard DeVos, and his wife Helen. Brian DeVos, a cousin of Betsy DeVos’s husband, was Senior Vice President for Child and Family Services at Bethany and Maria DeVos, who is married to Dick DeVos’s brother Doug, has served on the board of Bethany (Stone 2018, 2019). While there is no confirmation to this relationship, it poses additional questions about whether and to what degree border children’s rights are being safeguarded and whether the children have become exploited for personal, political and financial reasons. While adoption can be a very positive thing for children and parents, the question posed by adoption critics is whether the government is truly dedicated to keeping children with their parents in the first instance, and whether they are making valiant attempts to reunite them once separated—especially after deportation. It is not for us to know with certainty, but a question to be considered about what happens to unaccompanied children in the long run.

6 Detainment and Profit-Making It appears that both political and economic interests have benefitted from the way children have been treated at the border. Economic benefit to corporations that have political ties can be observed in the ways children are detained, housed, and transported to family members. The US government contracts with many different private agencies to provide shelters, food service, security, and other services for immigrant children (Burke and Menodza 2019). Most detainment centers are not government-run facilities. For-profit, private organizations contracted with the government operate most of the shelters and detainment centers. There may not be oversight organizations that monitor what they do, how they provide services, how they spend money received by the government, or evaluate the quality of care or services delivered. When monitoring occurs, most tend to be underfunded, understaffed, providing infrequent reviews that are of a cursory, surface level. The funding

Unaccompanied Children at the US-Mexico Border

249

and lack of monitoring seems to occur because these organizations have what is termed a “cozy relationship” with the federal government (Bryant 2018). Sheltering border children is big business (Schneider 2018). Top executives at the 20 entities that made the most money from detaining, transporting, or providing goods and services for “unaccompanied alien children” made six or seven-figure annual salaries. For instance, Southwest Key contracts with the federal government to house unaccompanied migrant children, an enterprise that has brought them $1.5 billion contract in 2018 (Najmabadi 2018). Southwest Key runs 26 migrant shelters. Its director, Juan Sanchez made $1.5 million annually. A New York Times report suggested Sanchez and other executives were stockpiling government money and dealing themselves handsome revenues directly and indirectly (Barker 2018). Sanchez and Southwest Key reportedly runs, or is associated financially with, many different types of affiliated organizations, including shelters, charter schools, travel agencies, janitorial services, food services, and who knows what else, making his income even higher than the listed $1.5 million (Benner and Fernandez 2018; Bryant 2018; Burke and Menodza 2019). Consider the multifaceted relationships. When children were separated from family members and detained, the ORR sought to find placements for them. Ideally this was to be with other family members who lived somewhere in the US. The children would have to be relocated from their detainment facility to their placements. Families or sponsors who agreed to sponsor the children are responsible for paying for the transportation of the children to them; many have told, especially by Southwest Key, that there is an agreement with the federal government they must use a small travel agency in Georgia called Copacabana Travel, if they want the children. Copacabana Travel reportedly charges much more for a plane ticket—sometimes triple the cost if families paid for a regular airline ticket. Allegations are that someone in an administrative position over border children who is connected with the government is getting a financial benefit for forcing families to buy wildly overpriced tickets from Copacabana Travel (Ortiz 2019; Rodman 2019; Vine 2019). Allegations of sexual abuse, physical maltreatment, incompetent and mean staff, emotional abuse in their facilities are common, but evidently not sufficient enough to terminate their lucrative contracts with the government (Bradshaw 2019; Grabar 2018; Philip 2018; Reigstad 2018; Tuma 2018). Staff members at a Southwest Key shelter in Phoenix allegedly physically abused three children that led to the closure of the shelter (Burke and Mendoza 2018a, b). Sánchez owns 33 percent of the forprofit company. Employees at a variety of Southwest Key shelters were regularly reported to have engaged in physical, emotional, and sexual abuse of children (Burkitt 2018; Casey 2019; Chavez and Diaz 2019; Heath and Philip 2018; Nanez & Pitzl 2018). Confidential reports indicate that one administrator who was HIV positive raped over a dozen boys and security agents in the shelter knew, but refused to report it for fear that if they did they would be fired and lose their jobs. Homestead shelter, a for-profit detention center for youth in Florida is also accused of child maltreatment and corruption (Burnett 2019a, b; Nicol 2019). The unlicensed Homestead facility, located in both Florida and Texas, is not subject to inspections by child welfare experts and its sponsor, Comprehensive Health

250

Y. Vissing

Services, is a private company that runs unaccompanied migrant children’s shelters. It requires regimentation of 2000 children who get up a 6 am and walk in single lines under the gaze of over 2300 staff members. Staff have been found to be physically, sexually, emotionally and verbally abusive to these dependent children who are confined in detainment centers (Kates 2019). Squalid conditions in which immigrants are kept include unsanitary conditions, dirty clothes, poor or inadequate food, sleeping on cold floors without blankets, having to drink from a toilet, plus physical, sexual, and emotional abuse are reportedly intentional to act as deterrents for prospective migrants (Kotch 2019). The Homestead facility is a former Labor Department Job Corps site, also used during the Obama administration to hold up to 800 migrants from June 2016 to April 2017. It reopened in March 2018 with funding from a contract backed by a private equity company that Trump cabinet official John Kelly had advised as a board member in the months before joining the Trump administration. Kelly, it appears, likely profited from this $1 million-per-day shelter, as he was on the board of Comprehensive Health Services’ parent company, Caliburn International. As the Department of Homeland Security secretary, Kelly first revealed the U.S. government was considering separating families who were migrating to deter others considering traveling north. Three months after leaving the Trump administration, Kelly was spotted by protesters touring the facility east of the Everglades in a golf cart. Authorities confirmed he had visited the site on April 4, on behalf of Caliburn International Corp., which owns the contractor Comprehensive Health Services. Five days later, that company was awarded a no-bid contract for $341 million citing an immediate need to increase bed capacity. The facility underwent a massive expansion from 1350 to 2350 beds, after which federal officials announced the capacity was growing to hold 3200 children because of a surge of migrants crossing the U.S.-Mexico border (Rizzo 2019). The Homestead shelter for unaccompanied migrant children in Florida was shrouded in secrecy and cloaked in controversy from the moment it was reactivated in 2018. Lawmakers have been blocked from visiting; because it sits on federal land, Florida’s child welfare agency is barred from investigating allegations of abuse. Rather than close it, as activists have demanded, the federal government instead gave its operator, Comprehensive Health Services, a contract worth $341 million in which there was no competitive bidding, and it happened under the radar (Madan 2019). The director of Comprehensive Health Services, Gary Palmer, had a salary of $906,408 or about a third of it. Comprehensive Health Services charges $775 per detainee per day, far more than a luxury hotel and restaurant meals would cost. The company operates three other shelters, all in Texas, and has over $292 million worth of ongoing government contracts. In 2017, Comprehensive Health Services paid a $3.8-million fine to settle allegations of “double-charging and mischarging” the government for its services (Kotch 2019). Evelyn Diaz, CEO of Chicago-based Heartland Human Care Services, which operates shelters and provides post-release and home study services, earned $362,445 (Barker 2018; Kotch 2019). Heartland was forced to close four of its facilities after allegations of poor operations and child maltreatment that included

Unaccompanied Children at the US-Mexico Border

251

drugging noncompliant youth, sexual abuse, and threatening them with slowing their reunification process with their families, and other abuses (Sanchez 2019). These are just a few examples of how the for-profit shelter industry in America seeks to profit from the exploitation of vulnerable border children. The question of whether children are being detained for their own good, the purpose of discouraging immigration from other countries, or for them to be a new source of revenue for corporations is a complex one worth considering. It appears that when the COVID pandemic hit, this provided new opportunities for political and economic exploitation of unaccompanied children and youth.

6.1

COVID, Border Children and Financial Exploitation

Trump accused the COVID epidemic surge of being caused by border immigrants, something that experts indicate is not true (Dale 2020). When it was clear that COVID was not going to be short-lived, and when the president started blaming those seeking refuge for spreading the virus, several things resulted. One was a refusal of allowing the children to enter the country, which resulted in a decrease in their numbers. There are currently nearly 22,580 detainees in ICE custody, a dramatic drop from the more than 50,000 migrants detained on average daily during the 2019 fiscal year. He has used the coronavirus epidemic as an excuse to institute an even more aggressive border crackdown (Kanno-Youngs and Semple 2020). The Trump administration started expelling people seeking asylum in the U.S., relying on a public health declaration to set aside those rules. Individuals trying to cross the border have been expelled or sent to Mexico to wait for lawyers to hear their immigration cases (Merchant 2020). Nearly 9000 unaccompanied migrant children have been kicked out of the United States without court hearings under the Trump administration’s coronavirus restrictions at the border (Shoichet 2020a, b). Before March 2020 when the coronavirus pandemic surged, unaccompanied children from Central American children who had crossed into the U.S. were sent to detainment facilities overseen by the Department of Health and Human Services. These facilities included bedrooms, schools, dining areas, bathrooms, and were licensed by the state. Children previously detained were given access to lawyers and ORR sought to place them with family sponsors. While new young people seeking asylum may be denied entry into the US, the government was confronted with a problem of what to do with the unaccompanied children who were already detained. COVID spread through the detainment facilities, infecting countless children and adults (Papenfus 2020). More than 2500 people in ICE custody had tested positive for COVID-19 so ICE reportedly released 900 people considered to have heightened medical risk and reduced the populations at its three family detention centers. But most of the people in family detention centers were deemed to be flight risks because they had pending deportation orders or cases under review (Merchant 2020; Papenfus 2020). At least 1000 immigration detention center employees have tested

252

Y. Vissing

positive for COVID, thereby infecting everyone detained in the centers (KannoYoungs and Semple 2020). Detained children were essentially housed in petri dishes where they were being exposed to the virus and there was nowhere for them to escape. Detainment facilities were found not to be able to comply with World Health Organization or Centers for Disease Control guidelines necessary to sanitize and physical distance children in a safe and sanitary way (Peeler 2020). Children held for more than 20 days at certain ICE-run detention centers should be released (Merchant 2020). Lawsuits on behalf of the children resulted in court orders for detained minors to be released, ideally reunited with their families (Rosenberg 2020). But parents and lawyers have no way of finding the children or monitoring their well-being while they are in custody. Data on where the children are sent or where their parents go is generally not kept, and when data is kept it may not be updated, rendering it useless. Searching for the children has been made nearly impossible because they are not being assigned identification numbers that would normally allow families to track their locations in the highly regulated federal detention system (Merchant 2020). Court orders indicated children could not be detained in federal facilities, but their parents could not be found, so the administration created a secret system to circumvent the issue. Federal authorities resorted to using hotels to house unaccompanied children. Because hotels exist outside the formal detention system, they are not subject to policies designed to prevent abuse in federal custody or those requiring that detainees be provided access to phones, healthy food, and medical and mental health care. The result is that the Trump administration used major hotel chains to detain children and families taken into custody at the border, creating a largely unregulated shadow system of detention. Evidently the practice of detaining migrant children and families in hotels has been ongoing in the past. But hotel owners reported that they were unaware that the government was placing children for extended stays in their rooms as part of a larger national detainment program. Begun as a relatively small, stopgap measure, this type of housing program has been transformed by the Title 42 expulsion policies into an integral component of the immigration detention system for unaccompanied children in U.S. custody. Unaccompanied children as young as a year old were put in hotels under the supervision of transportation workers. These hotels and the detainment oversight employees are not licensed to provide child care. Immigration and Customs Enforcement officials say the children are being adequately cared for during the hotel stays and will protect the country from the spread of the coronavirus. People hired by MVM, the main organization coordinating this program, are not required to have any training in child wellbeing, and appear unequipped to deal with the trauma and special needs of unaccompanied border children. Child advocates question whether transportation vendors should be in charge of changing the diaper of a 1-year old, giving bottles to babies or dealing with the traumatic effects that these children experience (Smith and Smith 2018; Stein 2018; Washington Technology 2018). ICE reports using the contractor MVM Inc. to transport single minors to hotels and to ensure each minor remains safe and secure while in this temporary housing.

Unaccompanied Children at the US-Mexico Border

253

MVM is a private US government security contractor that provides security staffing, training, translation and related services, that has secured multi-million dollar contracts to detain children who are subject to immigration proceedings. The head is Dario O. Marquez, Jr., a former US secret service agent and his son, Kevin. MVM holds multiple multimillion-dollar contracts with several different US government agencies, including the Justice Department, Immigration and Customs Enforcement (ICE), State Department, United States Marshals Service, the Washington, D.C. Public Schools system, and the Federal Bureau of Investigation. It has a contract with ICE for transportation services that is over $162 million and has secured at least $1.9 billion in federal contracts since 2008 (Dickerson 2020; Fernandez and Benner 2018; Fernholz 2018; Merchant 2020; Rawnsley and Ackerman 2018). Once housed in these unofficial detainment hotels, children’s access to legal and protective assistance appears to have dried up. Authorities could move them in swift expulsions without the safeguards or legal protections that are intended to protect the most vulnerable migrants. A lawsuit was filed in court on behalf of an unknown number of children in U.S. custody who were at the hotel but children were reportedly swiftly moved to undisclosed locations and immigration officials have refused to say how many children were being held at the hotel, their names, or where they are now. Children have been expelled without a hearing. They are at the mercy of caregivers with whom they have no relationship, caregivers who have minimal or no training working with traumatized children and who have no control over where they are going or if they will ever see their families again (Dickerson 2019a, b; Dickerson 2020; Fernandez and Benner 2018; Fernholz 2018; Greenfield 2018; Merchant 2020; Papenfuss 2019, 2020; Rawnsley and Ackerman 2018; Rosenberg 2020; Stein 2018; Soboroff 2020). Over 8800 migrant children who were traveling alone and 7600 family members have been kicked out of the US under coronavirus border restrictions to date (Shoichet 2020a, b). Many were moved in the dead of night. It was, in a military sense, a covert operation to move the separated children to who-knows-where. They could have been deported, put into foster care elsewhere, adopted (even though parents never gave up their rights), or institutionalized in some other place. And when they turn 18, they can be considered adults and likely their advanced age will become used as justification for deporting them. I met with officials who were in charge of transferring children separated from their parents. There was no data system in place to follow up where these children went or what happened to them. There was no comprehensive data system in place to know what happened to their parents or where they went. And there was no plan ever made designed to reunite them (Mosbergen 2020). The plan was evidently to have no plan to ever reunite children with their parents once they were forced into separations. When Trump was asked about how he felt about there no identification of the parents for 545 separated children under his zero-tolerance policy, he responded that the children weren’t separated from parents because they were brought to the border “by coyotes and lots of bad people, cartels”. The Refugee and Immigrant Education Center for Education and Legal Services conducted a fact check and reported that

254

Y. Vissing

migrant children separated by Trump came with families, not coyotes (Johnson 2020).

7 Short and Long Term Effects Children are understandably traumatized by the experiences that pushed them to flee their home countries, traumatized on the journey, and then traumatized when they arrive at the US-Mexico border. It is clear that children at the border are suffering a variety of short term effects. These include gang violence, poverty, domestic violence, and future projected for despair and suffering. On the journey to the border, they encountered more trauma, from the physical strain of walking for miles in challenging weather, not having enough food or water, no safe place to get sufficient sleep, lack of hygiene facilities, attacks from others along the way, loss of their meager possessions, to name a few. When they arrive at the border, they may find themselves herded like cattle only to be separated from their family. Alone, many report experiencing physical, sexual, emotional, and verbal abuses at the hands of those who have been given authorization to care for them. They have been physically detained, put in cages, locked facilities, and had their freedom of movement and association curtailed. Separated from people they know and put into a new culture and unfamiliar language and customs, children feel isolated, alone, frightened, anxious, and depressed. They have no certainty of what is going to happen to them because they have lost control over the basic parts of their lives. They may have no idea when, or if, they will ever see their families again. Data on trauma clearly indicate the possibility of a variety of both short and long-term physical, cognitive, psychiatric, behavioral and social problems for children. These include attachment disorders, relationship difficulties, dissociation, self-concept, life-trajectories. Even minor physical traumas can lead to significant psychological difficulties in children and adolescents (Lubit 2013; National Child Traumatic Stress Institute 2020; Black and Trickey 2000). Reports of children being inconsolable from being separated from their families abound. Evidently the ORR routinely administers psychotropic drugs to the children to keep them under control. Chemical shackling is often regarded as less of a violation than doing physical restraint in that it is a more invisible assault. Low reimbursement rates in most Medicaid programs for psychosocial and traumaspecific services contributed to medicating children; when providers are faced with limited availability of first-line mental health services, staff find it more timeefficient to drug children rather than provide mental health and support services to help them deal with their trauma. Medicating border children is typically done without lawful authorization, their consent or the consent of their parents. Reports indicate that sometimes children are harassed and belittled to promote their verbal or physical outbursts that then justify their being medicated. Some children are reportedly held down as staff inject them with medications, are forced to take oral drugs like sedatives, or are given them substances without their knowledge. Children have

Unaccompanied Children at the US-Mexico Border

255

reportedly been threatened that they would not see their parents again unless they complied with taking the medications. Once on medications, they may be transferred to other facilities where they are continued to be on them, without anyone interfering or intervening (Chapin 2019a, b, c, d, e; Schumaker 2018). These drugs can have profound adverse effects on children’s growing brains and bodies and may promote their long-term licit and illicit drug use. The long-term impacts of the separation are yet to be seen, but can certainly be predicted (International Society for Traumatic Stress Studies 2020). Removing children from their families creates preventable trauma and may impact their brain development at critical points in their lives (Healy 2018). Forcible separation puts children at elevated risk for mental health disorders, including post-traumatic stress disorder, anxiety, depression, attention deficit hyperactivity disorder, and conduct problems. The presence of a parent reduces children’s levels of cortisol, a major stress hormone. Forcibly separating children from their parents at the border strips children of their strongest buffer against stress when they need it most (Gee 2018). The American Psychological Association reports that the administration’s policy of separating children from their families as they attempt to cross into the US without documentation is not only needless and cruel, it threatens the mental and physical health of both the children and their caregivers (Loria 2018).

8 A Child-Rights Perspective According to researchers, what is happening to border children is a moral disaster. We are inflicting punishments on innocent children that will have lifelong consequences. No matter how a person feels about immigration policy, very few people hate children—and yet we are passively allowing bad things to happen to them (Burke and Mendoza 2018a, b). Looking at the 3 P’s of the UN Convention on the Rights of the Child—provision, protection and participation, all three are in violation, especially the latter two. When unaccompanied children arrive at the border many are provided food, shelter, clothes, and medical care. The question is about the quantity and quality of those provisions. Concerns about children’s protections have been raised by multiple organizations, professionals, at different facilities in different locations. There seems to be a systematic disregard for protecting children from emotional, verbal, physical and sexual maltreatment. As it pertains to participation, youth appear to have little freedom over what happens to them, or their ability to participate in decision-making on the legal status, housing arrangements, adoption, deportation, or to even talk with outsiders when they are in detained. They may not be able to talk with family members and have little control over the trajectory of their futures. The following articles of the CRC are in violation: Nondiscrimination #2, best interests of the child #3, government protection of their rights #4, the right to live & develop #6, not being separated from parents #9, humane treatment #10, trafficking #11, #35, participation, free expression & own decision-making in legal matters #12,

256

Y. Vissing

freedom of association (family & siblings) #15, privacy #16, abuse & neglect protections #19, #39, suitable care when unaccompanied #20, protection of refugees #22, healthcare #24, #25, #27, education #28, 29, recreation #31, and protection from torture #37. Moreover, research indicates that corporations are making millions of dollars from the detainment of children, thus they are not being provided economic protections as defined in Article 32 of the CRC. The CRC was designed to protect children from harm and to assure that communities and adults do whatever is in the best interests of the children. This orientation should prevail in any decision made by governments and organizations (Vissing 2018). Clearly, as documented by those working with the border children, CRC standards are not in compliance by the US.

9 Benefits of a Clinical Sociology Approach Short-term problems children face are documented and it will take time for the longterm impacts of their treatment at the border to become apparent. There is a fundamental research problem in that data is not being collected or made available that makes the longitudinal analysis of what happens to children to be documented. Children’s parents may be deported and children sent to many different facilities across the country. The lack of systematic detailed data collection on either the children’s journey or their reunification with family makes it challenging for researchers to collect aggregated quantitative data on outcomes. Clinical sociologists know the value of collecting baseline and longitudinal data of both a qualitative and quantitative nature. From a micro perspective, details about what happens to individual children and individual families is lacking. Sometimes a case of a particular child or family may hit the news, or children may receive intervention by a lawyer, physician, or counselor, but that data is not aggregated to know what the best practices or intervening variables that impact outcomes may be. How could children be worked with, and provided for, in ways that would enhance the probabilities of their resilience and success? Individual well-being is essential for good health, cognitive, social, physiological, and brain development, according to experts. From a macro perspective, the government and its affiliate organizations have developed a variety of multifaceted systems to intercept, process, mange, and handle unaccompanied youth. Separating them from family and putting them into detainment facilities is but one option or how they could be viewed. There are multiple alternative systems, funding streams, institutional levels of intervention, and processing mechanisms that influence the costs to nations, governments and taxpayers, costs to organizations and institutions, costs to families and certainly costs to individual children and youth. Chapter one lays out a conceptual framework for how to improve the lives of unaccompanied youth. Applying it to the US-Mexico border crisis could yield more humane, preventative, cost-effective strategies that could improve chances for child

Unaccompanied Children at the US-Mexico Border

257

(and social) wellbeing and success. It is clear that the border children are being traumatized for conditions and interactions at both the individual and institutional levels that could be prevented if a CRC or a clinical sociological approach was taken.

10

Summary

How unaccompanied children who arrive at the US-Mexico border are being managed by the government and its associated organizations is setting children up for both short and long-term preventable difficulties. Two pictures of reality are presented about them—one by the government and one by health-care professionals, and the portrayals are starkly different. A clinical sociological, child-rights framework is used in this chapter that argues that there are many alternative ways that would produce better outcomes for how to deal with the issue of unaccompanied youth coming to the border. A child-rights perspective as defined in the CRC would be of utmost importance to their wellbeing. As Giroux (2019) points out, by defining brown children as a threat to the present rather than the promise of a future, governments can justify the violation of their human rights and the maltreatments inflicted upon them. Children do not need to be separated from their parents at the border in most instances. Defining parents as criminal because they cross the border illegally is quite different than being a violent criminal. The treatment many children are receiving when detained is abusive by CRC standards. Children have become disposable, “unmournable bodies” who are imprisoned, abused, not given adequate healthcare, housing, food, education, or the sustenance any living creature needs in order to survive and strips them, and us, of humanity (Giroux 2019). By regarding them as potentially valuable resources could help them, their families, and society as a whole, to have a greater sense of wellbeing and productivity.

References Acer, E. (2019a). Statement of abuse at the southern border. Press Release. Human Rights First. Retrieved from https://www.humanrightsfirst.org/press-release/statement-abuse-children-south ern-border Acer, E. (2019b). Protecting refugees and restoring order: Real solutions for this humanitarian crisis. Resource document. Human Rights First. Retrieved from https://www.humanrightsfirst. org/resource/protecting-refugees-and-restoring-order-real-solutions-humanitarian-crisis Ainsley, J. (2019). Thousands more migrant kids separated from parents than reported. Article. NBC. Retrieved from https://www.nbcnews.com/politics/immigration/thousands-moremigrant-kids-separated-parents-under-trump-previously-reported-n959791 Ainsley, J., & Soboroff, J. (2019). Federal funds to help are running out. Article. NBC. Retrieved from https://www.nbcnews.com/politics/immigration/federal-funds-legal-help-child-migrantsborder-are-running-out-n1021976

258

Y. Vissing

Al Hussein, Z. R. (2015). Statement of the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, on his visit to Mexico. Online transcript. United Nations Office of the High Commissioner. Retrieved from http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews. aspx?NewsID¼16578&LangID¼E American Academy of Pediatrics. (2000). Developmental issues for children in foster care. PDF. America Academy of Pediatrics. Retrieved from https://pediatrics.aappublications.org/content/ pediatrics/106/5/1145.full.pdf American Immigration Council. (2019). How the US immigration system works. Fact Sheet. American Immigration Council. Retrieved from https://www.americanimmigrationcouncil. org/research/how-united-states-immigration-system-works? g c l i d ¼C j w K C A j w 9 5 D 0 B R B F E i w A c O 1 K D O O 3 C f 8 K _ qPdtQlNMibHVq5A49HgiskI7o9d1CaqES9fgsslocxGIhoCqB4QAvD_BwE Amnesty International. (2014). Out of control. Torture and other ill treatment in Mexico. Online report. Retrieved from https://www.amnesty.org/en/documents/AMR41/020/2014/en/ Amnesty International. (2019). USA: You don't have any rights here. Online article. Amnesty International. Retrieved from https://www.amnesty.org/en/latest/research/2018/10/usa-treat ment-of-asylum-seekers-southern-border/. Anapol, A. (2018). Child detention centers are essentially summer camps. Article. The Hill. Retrieved from https://thehill.com/homenews/media/392922-laura-ingraham-describes-childdetention-centers-as-essentially-summer-camps Aratani, L., & Horton, A. (2019). Children at the border: The crisis America wasn’t prepared for. Article. The Guardian. Retrieved from https://www.theguardian.com/us-news/2019/jun/30/ children-border-crisis-america-wasnt-prepared-for-trump-us-immigration Associated Press. (2018). Deported parents may lose kids to adoption. NBC. Retrieved from https:// www.nbcnews.com/news/latino/deported-parents-may-lose-kids-adoption-investigation-findsn918261 Associated Press. (2019). Migrant children split at the border were harmed in foster care. USA Today. Retrieved from https://www.usatoday.com/story/news/politics/2019/08/16/immigrantchildren-separated-border-abused-foster-care-claims/2027970001/ Atkin, E. (2018). Uncertain fate for migrant children sent to foster care. New Republic. Retrieved from https://newrepublic.com/article/149161/uncertain-fate-migrant-children-sent-foster-care Azzi-Lessing, L. (2016). The hidden harms of the US foster care system. Article. The Conversation. Retrieved from https://theconversation.com/the-hidden-harms-of-the-us-foster-care-system49700 Badash, D. (2019). Devos-Christian linked adoption agency. Article. Raw Story. Retrieved from https://www.rawstory.com/2019/08/devos-linked-christian-adoption-agency-exposed-dozensof-childrens-highly-sensitive-medical-data-online-report/ Baldas, T. (2018). Torn from immigrant parents, 8 month old lands in Michigan. Detroit Free Press. Retrieved from https://www.freep.com/story/news/local/michigan/2018/06/20/baby-boys-sepa rated-immigrant-parents-michigan/714527002/ Barker, K. (2018). He’s built an empire, with detained migrant children as bricks. Article. New York Times. Retrieved from https://www.nytimes.com/2018/12/02/us/southwest-key-migrant-chil dren.html Beckhusen, R. (2013). How Mexico’s drug cartels recruit child soldiers as young as 11. Article. Wired. Retrieved from http://www.wired.com/2013/03/mexico-child-soldiers/ Benner, K., and Fernandez, M. (2018). The billion dollar business of operating shelters for migrant children. Article. New York Times. Retrieved from https://www.nytimes.com/2018/06/21/us/ migrant-shelters-border-crossing.html Bernstein, D. S. (2019). The US border crisis is the top of an international problem. Article. WGBH. Retrieved from https://www.wgbh.org/news/commentary/2019/08/19/the-us-boarder-crisis-isthe-tip-of-an-international-problem Black, D., & Trickey, D. (2000). Long term psychiatric effects of trauma on children. Trauma, 2(4), 261–226.

Unaccompanied Children at the US-Mexico Border

259

Bogado, A. (2020). No one knows how many immigrant kids have disappeared in US custody. Article. Truthout. Retrieved from https://truthout.org/articles/no-one-knows-how-many-immi grant-kids-have-disappeared-in-us-custody/ Bradshaw, K. (2019). Asylum seeker separated from son sues southwest key. Article. Statesman. Retrieved from https://www.statesman.com/news/20190325/asylum-seeker-separated-fromson-sues-southwest-key-other-shelter Bryant, J. (2018). Charter school chain poised to profit off children separated from parents at the border. Article. Education Opportunity Network. Retrieved from https:// educationopportunitynetwork.org/charter-school-chain-poised-to-profit-off-children-separatedfrom-parents-at-the-border/ Buncombe, A. (2018). Trump administration admits migrant children as young as 3 appearing in court alone for their own deportation proceedings. Article. Independent. Retrieved from https:// www.independent.co.uk/news/world/americas/child-immigrants-us-court-border-familymigrant-immigration-trump-latest-melania-a8422101.html Burke, G., & Mendoza, M. (2018a). Separated from parents, some migrant children are adopted. Christian Science Monitor. Retrieved from https://www.csmonitor.com/USA/2018/1009/ Separated-from-parents-some-migrant-children-are-adopted-by-Americans Burke, G. & Mendoza, M. (2018b). The trump administration is holding thousands of migrant kids in mass shelters. Article. Huffington Post. Retrieved from https://www.huffingtonpost.com/ entry/migrant-children-mass-shelters-trump_us_5c1a69d6e4b0ce5184b967f0 Burke, G., & Menodza, M. (2019). Private sector seeks to profit by detaining children. Article. AP News. Retrieved from https://apnews.com/7b9f754aa2fd4a7ba647aebaa98a0693 Burkitt, B. (2018). Jury finds southwest key employee guilty of sexual abuse of unaccompanied minors at shelter. Article. AZ Central. Retrieved from https://www.azcentral.com/story/news/ politics/immigration/2018/09/10/southwest-key-worker-convicted-abusing-minors-arizonamigrant-shelter/1258594002/ Burnett, J. (2019a). Federal immigration agents separated more migrant children than previously thought. Article. NPR. Retrieved from https://www.npr.org/2019/01/17/686198267/federalimmigration-agents-separated-more-Migrant-children-than-previously-thoug Burnett, J. (2019b). Inside the largest and most controversial shelter for children in the US. Article. National Public Radio. Retrieved from https://www.npr.org/2019/02/13/694138106/inside-thelargest-and-most-controversial-shelter-for-migrant-children-in-the-uBurnett, J. (2020). $11 billion and counting: Trump’s border wall would be the world’s most costly. Article. NPR. Retrieved from https://www.npr.org/2020/01/19/797319968/-11-billion-andcounting-trumps-border-wall-would-be-the-world-s-most-costly?sc¼18&f¼1001 Bursztynsky, J. (2019).The US won’t vaccinate migrant children against the flu at border camps. Article. CNBC. Retrieved from https://www.cnbc.com/2019/08/20/the-us-wont-vaccinatemigrant-children-against-the-flu-at-border-camps.html Casey, M. (2019). Will former Phoenix southwest key worker accused of sex crimes take plea deal? Article. Fronteras. Retrieved from https://fronterasdesk.org/content/920166/will-former-phoe nix-southwest-key-worker-accused-sex-crimes-take-plea-deal Centers for Disease Control. (2020). Unaccompanied children: Health information for providers. PDF. Retrieved from https://www.cdc.gov/usmexicohealth/pdf/unaccompanied-childrenfactsheet.pdf Chapin, A. (2019a). Why we will never know exactly how many immigrant families were separated. Article. Huffington Post. Retrieved from https://www.huffpost.com/entry/howmany-immigrant-families-separated_n_5ddebbbbe4b0913e6f782022 Chapin, A. (2019b). Trump administration is not financing legal aid for 3 migrant children’s shelters. Article. Huffington Post. Retrieved from https://www.huffpost.com/entry/legal-aidimmigrant-children-shelters_n_5d72c98be4b0fde50c2657ed Chapin, A. (2019c). This is why children are dying in border patrol custody. Article. Huffington Post. Retrieved from https://www.huffpost.com/entry/why-children-are-dying-in-border-patrolcustody_n_5ce497cfe4b0547bd12ec053

260

Y. Vissing

Chapin, A. (2019d). ‘It feels like we are prisoners’: Migrant children describe trauma at Florida detention center. Article. Huffington Post. Retrieved from https://www.huffpost.com/entry/ migrant-children-describe-life-at-florida-detention-center_n_5cf19b49e4b0a1997b6a85ab Chapin, A. (2019e). Parents stuck in Mexico are sending kids as young as 4 across the U.S. border alone. Article. Huffington Post. Retrieved from https://www.huffpost.com/entry/remain-inmexico-policy-immigrant-kids_n_5deeb143e4b00563b8560c69? ncid¼engmodushpmg00000006 Chavez, N., & Diaz, A. (2019). Shelter worker sentenced to 19 years in prison for sexually abusing migrant boys in shelter. Article. CNN. Retrieved from https://www.cnn.com/2019/02/01/us/ southwest-key-worker-abuse-sentence/index.html Cheatham, A. (2019). Central America’s turbulent northern triangle. Article. Council of Foreign Relations. Retrieved from https://www.cfr.org/backgrounder/central-americas-turbulent-north ern-triangle Child Welfare Information Gateway. (2019). Foster care statistics 2017. PDF report. U.S. Department of Health and Human Services & Children’s Bureau. Retrieved from https:// www.childwelfare.gov/topics/systemwide/statistics/foster-care/ Congressional Research Service. (2019). Unaccompanied alien children. Research overview. Congressional Research Service. Retrieved from https://fas.org/sgp/crs/homesec/R43599.pdf Corbett, J. (2019). Calls for FBI probe of homeland secretary follow child detention memo leak. Article Truthout. Retrieved from https://truthout.org/articles/calls-for-fbi-probe-of-homelandsecretary-follow-child-detention-memo-leak/ Council on Foreign Relations. (2020). Candidate tracker: Donald Trump. Article. Retrieved from https://www.cfr.org/election2020/candidate-tracker/donald-j.-trump?gclid¼Cj0KCQjw6_ vzBRCIARIsAOs54z64ThguqNJMFI9qHHG5lCif-W7RFaSxVKEwiEyzZO_s3ckF_ eBHL2saAqjOEALw_wcB#immigration Croucher, S. (2018). How to help children separated from their families at the border. Article. Newsweek. Retrieved from https://www.newsweek.com/how-help-children-separated-theirfamilies-border-983752 Cumming-Bruce, N. (2018). Taking migrant children from parents is illegal, U.N. tells U.S. Article. The New York Times. Retrieved from https://www.nytimes.com/2018/06/05/world/americas/usun-migrant-children-families.html. Dale, D. (2020). Fact check: Trump falsely suggests kids don’t transmit coronavirus and that US case surge is due in part to protests and Mexican migration. CNN. Retrieved from https://www. cnn.com/2020/07/22/politics/fact-check-trump-coronavirus-briefing-july-22/index.html Dickerson, C. (2018). Migrant children moved under cover of darkness. New York Times. Retrieved from https://www.nytimes.com/2018/09/30/us/migrant-children-tent-city-texas.html Dickerson, C. (2019a). There is a stench’: Soiled clothes and no baths for migrant children at a Texas Center. New York Times. Retrieved from https://www.nytimes.com/2019/06/21/us/ migrant-children-border-soap.html Dickerson, C. (2019b). What it looks like to care for separated migrant children. Article. New York Times. Retrieved from https://www.nytimes.com/2019/06/18/reader-center/separated-migrantchildren.html Dickerson, C. (2020). A private security company is detaining migrant children at hotels. New York Times. Retrieved from https://www.nytimes.com/2020/08/16/us/migrant-children-hotels-coro navirus.html Dickson, C., Winter, J., & Walker H. (2019). Children were urged to ‘build the wall’ at White House Halloween party. Article. Huffington Post. Retrieved from https://www.huffpost.com/ entry/white-house-childre-build-the-wall-halloween_n_5dbdf8b3e4b0576b62a2e141? ncid¼engmodushpmg00000006 Domonoske, C., & Gonzales, R. (2018). What we know about family separation and zero-tolerance at the border. Online article. National Public Radio. Retrieved from https://www.npr.org/2018/ 06/19/621065383/what-we-know-family-separation-and-zero-tolerance-at-the-border

Unaccompanied Children at the US-Mexico Border

261

Editorial Board. (2018). Using kids as pawns to deter border crossings is inhumane. Article. Star Tribune. Retrieved from https://www.startribune.com/using-kids-as-pawns-to-deter-bordercrossings-is-inhumane/485183411/ Egkolfopoulou, M. (2018). The thousands of children who go to immigration court alone. Article. The Atlantic. Retrieved from https://www.theatlantic.com/politics/archive/2018/08/childrenimmigration-court/567490/ Felbab-Brown, V. (2017). The wall: The real costs of a barrier between the United States and Mexico. Article. Brookings Institute. Retrieved from https://www.brookings.edu/essay/thewall-the-real-costs-of-a-barrier-between-the-united-states-and-mexico/ Fernandez, M. (2018). Inside the former Walmart that is now a shelter for almost 1,500 migrant children. Article. The New York Times. Retrieved from https://www.nytimes.com/2018/06/14/ us/family-separation-migrant-children-detention.html Fernandez, M. and Benner, K. (2018, June 21). The billon dollar business of operating shelters for migrant children. New York Times. Retrieved from https://www.nytimes.com/2018/06/21/us/ migrant-shelters-border-crossing.html Fernholz, T. (2018). US defense contractors profit from child detention—and you might, too. Quartz. Retrieved from https://qz.com/1309460/defense-contractors-like-general-dynamicsare-profiting-from-child-detention-and-you-might-be-too/ Filipovic, J. (2019). Adoption of separated migrant kids. Article. The Guardian. Retrieved from https://www.theguardian.com/commentisfree/2019/oct/30/adoption-separated-migrant-chil dren-pro-lifers-deep-disrespect-for-maternity Focus for Health. (n.d.). Sex abuse and Foster Care. Article. Retrieved from https://www. focusforhealth.org/sex-abuse-and-the-foster-care-system/ Frederick, J. (2019). Mexico is overwhelmed by asylum claims. Article. NPR. Retrieved from https://www.npr.org/2019/06/14/732485182/mexico-is-overwhelmed-by-asylum-claims-as-itramps-up-immigration-enforcement Frost, R. (1914). Mending wall. Poem. Poetry Foundation. Retrieved from https://www. poetryfoundation.org/poems/44266/mending-wall Frye, H. (2019). Written testimony, submitted to the U.S. house of representatives committee on oversight and reform subcommittee on civil rights and civil liberties for a hearing on kids in cages: Inhumane treatment at the border. Retrieved from https://docs.house.gov/meetings/GO/ GO02/20190710/109763/HHRG-116-GO02-Wstate-FryeH-20190710.pdf Gamboa, S. (2019). Why can’t immigrant teens be with sponsors, foster families? Attorneys push for changes. Article. NBC News. Retrieved from https://www.nbcnews.com/news/latino/whycan-t-immigrant-teens-be-sponsors-foster-families-attorneys-n1001421 Gee, D. (2018). I study kids who were separated from their parents. The trauma could change their brains forever. Article. Vox. Retrieved from https://www.vox.com/first-person/2018/6/20/ 17482698/tender-age-family-separation-border-immigrants-children. Giroux, H. (2019). Born disposable: Trumps war on youth. Article. Truthout. Retrieved from https://truthout.org/articles/trumps-fascist-politics-treat-children-as-disposable/ Grabar, H. (2018). Shelter in the storm. Article. Slate. Retrieved from https://slate.com/news-andpolitics/2018/07/southwest-key-and-family-separations-was-the-shelter-complicit.html Greenfield, R. (2018). Activists aim at defense contractors over detention policy. Bloomberg. Retrieved from https://www.bloomberg.com/news/articles/2018-06-15/activists-aim-atdefense-contractors-over-child-detention-policy Habbach, H., Hampton, K., & Mishori, R. (2020). You will never see your child again: The persistent psychological effects of family separation. Article. Physicians for Human Rights. Retrieved from https://phr.org/our-work/resources/you-will-never-see-your-child-again-the-per sistent-psychological-effects-of-family-separation/ Hathaway, J., Kossoudji, S., Chih Lin, A.,, & Tsutsui, K. (2018). Detaining refugee children: What’s at stake? Discussion panel. Donia Human Rights Center. Retrieved from https://ii. umich.edu/humanrights/news-events/all-events.detail.html/56409-13896805.html

262

Y. Vissing

Hayes, D. (2019). DNA testing at the border is dangerous. Article. The Hill. Retrieved from https:// thehill.com/opinion/immigration/442050-dna-testing-at-the-border-is-dangerous Healy, M. (2018). The long-lasting health effects of separating children from their parents at the U.S. border. Article. Los Angeles Times. Retrieved from https://www.latimes.com/science/ sciencenow/la-sci-sn-separating-children-psychology-20180620-story.html Heath, B., & Philip, A. (2018). Another southwest key employee arrested for having sex with children at the shelter. Article. AZ Central. Retrieved from https://www.azcentral.com/story/ news/local/arizona-investigations/2018/08/02/southwest-key-employee-accused-molestingeight-teens-mesa-shelter/892084002/ Hlass, L. (2018a). Deport by any means necessary: How immigration officials are labeling immigrant youth as gang members. PDF. Immigrant Legal Resource Center. Retrieved from https://www.ilrc.org/sites/default/files/resources/deport_by_any_means_nec-20180521.pdf Hlass, L. (2018b). Defenseless children. Article. Slate. Retrieved from https://slate.com/news-andpolitics/2018/07/children-detained-at-border-dont-have-lawyers-must-represent-themselves. html Huffington Post. (2020). U.S. judge sides with migrants over ‘inhumane and unsanitary’ border patrol conditions. Article. Retrieved from https://www.huffpost.com/entry/judge-sides-withmigrants-border-patrol-conditions_n_5e4db7d1c5b630e74c4fdb3c Hulseman, K. G. (2019). Trump’s wall is an expensive, ineffective application of eminent domain. Article. Center for American Progress. Retrieved from https://www.americanprogress.org/ issues/immigration/news/2019/04/25/469026/trumps-border-wall-expensive-ineffective-appli cation-eminent-domain/ IACHR, Inter-American Commission on Human Rights. (2015). Situación de los derechos humanos en México. Washington, DC. Impelli, Matthew. 2020. Melania Trump slams personal criticism of child separation. Newsweek. Retrieved from https://www.newsweek.com/melania-trump-slams-personal-criticism-child-sep aration-secretly-recorded-tape-what-about-when-1535929 International Society for Traumatic Stress Studies. (2020). Effects of childhood trauma on adults. Resources. International Society for Traumatic Stress Studies. Retrieved from https://istss.org/ public-resources/what-is-childhood-trauma/effects-of-childhood-trauma Johnson, Jake. 2020. Trump smears victims of mass family separations as “bad people”. Truthout. Retrieved from https://truthout.org/articles/trump-smears-victims-of-mass-family-separationsas-bad-people/?eType¼EmailBlastContent&eId¼6014076d-91f4-461a-9f39-bac890f51dec Jordan, M. (2019a). Migrant children are spending months crammed into a temporary Florida shelter. Article. New York Times. Retrieved from https://www.nytimes.com/2019/06/26/us/ homestead-migrant-children-shelter.html Jordan, M. (2019b). Why border patrol refuse to give migrants flu vaccines. Article. New York Times. Retrieved from https://www.nytimes.com/2019/12/11/us/migrants-flu-vaccines-borderpatrol.html Joyce, K. (2013). The child catchers: Rescue, trafficking, and the new gospel of adoption. New York: PublicAffairs. Kanno-Youngs, Z. and Semple, K. (2020). Trump cites coronavirus as he announces a border crackdown. New York Times. Retrieved from https://www.nytimes.com/2020/03/20/us/politics/ trump-border-coronavirus.html/?2020-03-20T23%3A41%3A42%2000%3A00 Kates, G. (2019). Nation’s largest holding facility for migrant children expands again. Article. CBS News. Retrieved from https://www.cbsnews.com/news/homestead-nations-largest-holdingfacility-for-migrant-children-expands-again/ KIND: Kids in Need of Defense. (2020). Border children. Retrieved from https://supportkind.org/ Kotch, A. (2019). These nonprofits and businesses are making millions from detaining migrant children. Article. Sludge. Retrieved from https://readsludge.com/2019/07/03/these-nonprofitsand-businesses-are-making-millions-from-detaining-immigrant-children/ Levinson, A. (2011). Unaccompanied immigrant children: A growing phenomenon with few easy solutions. The Online Journal of the Migration Policy Institute. Retrieved from https://www.

Unaccompanied Children at the US-Mexico Border

263

migrationpolicy.org/article/unaccompanied-immigrant-children-growing-phenomenon-feweasy-solutions Linton, J., Griffin, M., & Shapiro, A. (2020). AAP policy says no child should be in detention centers or separated from parents. Policy overview. American Academy of Pediatrics. Retrieved from https://www.aappublications.org/news/2017/03/13/Immigration031317 Long, C., & Mukherjee, E. (2019). The whole child separation travesty is pointless. Article. CNN. Retrieved from https://www.cnn.com/2019/08/07/opinions/the-child-separation-travesty-is-apointless-waste-long-mukherjee/index.html Loria, K. (2018). Separating kids from parents at the border mirrors a ‘textbook strategy’ of domestic abuse, experts say. Article. The Independent. Retrieved from https://www. independent.co.uk/news/world/americas/us-border-families-separation-trump-administrationmexico-children-cages-domestic-abuse-damage-a8405901.html. Lubit, R. (2013). Impact of trauma on children. Journal of Psychiatric Practice, 9(2), 128–138. Ludwig, M. (2019). Trump administration considered jailing migrants near a toxic military dump. Article. Truthout. Retrieved from https://truthout.org/articles/trump-administration-consideredjailing-migrants-near-toxic-military-dump/?eType¼EmailBlastContent&eId¼f9d08553-56be44f4-be73-f368d2eba971 Macguill, D. (2018). Christian non-profit faces scrutiny over government foster care contract for separated children. Article. Snopes. Retrieved from https://www.snopes.com/news/2018/06/26/ bethany-christian-services-family-separation-betsy-devos/ Madan, M. O. (2019). Critics detest this migrant shelter whose director got a huge hush-hush no bid deal. Article. Miami Herald. Retrieved from https://www.miamiherald.com/news/local/ immigration/article229744049.html Martínez Sainz, G. (2018). The challenges of teaching children their rights in a violent context. In G. Martinez Sainz (Ed.), International perspectives on practice and research into Children’s rights (pp. 83–110). Mexico City: Centre for Human Rights Studies. Mazza. (2020). Eyewitness exposes the ‘sick’ truth about Trump’s treatment of migrant children. Huffington Post. Retrieved from https://www.huffpost.com/entry/jacob-soboroff-trumpdetained-children_n_5f92560bc5b62333b243b792 Merchant, N. (2020). Migrant kids held in U.S. hotels, then expelled. Huffington Post. Retrieved from https://www.huffpost.com/entry/migrant-kids-detained-in-hotels_n_ 5f185114c5b6128e681f8ca2 Molteni, M. (2019). How DNA testing at the US-Mexico border will actually work. Article. Wired. Retrieved from https://www.wired.com/story/how-dna-testing-at-the-us-mexico-border-willactually-work/ Moore, R. (2019). Inside the cell where a sick 16-year-old boy died in border patrol care. Article. Huffington Post. Retrieved from https://www.huffpost.com/entry/inside-the-cell-where-a-sick16-year-old-boy-died-in-border-patrol-care_n_5de9601ce4b0d50f32b0ad89 Mosbergen, D. 2020. Hundreds of parents separated from their kids can’t be found. Huffington Post. Retrieved from https://www.huffpost.com/entry/migrant-parents-separated-trump-policy-aclu_ n_5f8f8ba1c5b6b005f5f0b1d4 Mousin, C. B. (2019). Rights disappear when US policy engages children as weapons of deterrence. American Medical Association Journal of Ethics, 21(1), E58. Mukherjee, E. (2020). Here’s what happens to the asylum seekers we turn away. Article. Los Angeles Times. Retrieved from https://www.latimes.com/opinion/story/2020-02-11/asylumimmigrants-mexico-trump-immigration-law Murguia, J. (2019). The American family makes this country great, and it’s in danger. Article. The New York Times. Retrieved from https://www.nytimes.com/2019/05/02/opinion/trump-immi gration-families.html Najmabadi, S. (2018). Southwest key CEO has financial state in migrant detention center. Article. The Texas Tribune. Retrieved from https://www.texastribune.org/2018/09/29/sanchez-partowner-property-leased-southwest-key-programs-eller-said-a/

264

Y. Vissing

Nanez, D. M., & Pitzl, M. J. (2018). Report: Migrant child sexually abused at southwest key shelter in Phoenix. Article. AZ Central. Retrieved from https://www.azcentral.com/story/news/politics/ immigration/2018/07/28/reported-abuse-girl-southwest-key-migrant-shelter-stirs-backlash/ 854281002/ Narea, N. (2019). The abandoned asylum seekers. Article. Vox. Retrieved from https://www.vox. com/policy-and-politics/2019/12/20/20997299/asylum-border-mexico-us-iom-unhcr-usaidmigration-international-humanitarian-aid-matamoros-juarez National Child Traumatic Stress Network. (2020). Trauma and its effects. Online article. Retrieved from https://www.nctsn.org/what-is-child-trauma/trauma-types/complex-trauma/effects Nicol, R. (2019). South Florida reps call to close homestead migrant shelter. Article. Florida Politics. Retrieved from https://floridapolitics.com/archives/298038-reps-call-close-home stead-shelter NPR. (2018). Undocumented children become part of the foster care system. NPR. Retrieved from https://www.npr.org/2018/06/26/623451360/undocumented-children-become-part-of-fostercare-system Nunez, A. (2018). Immigration 101: Why the border wall is a terrible idea. Article. America’s Voice: Education Fund. Retrieved from https://americasvoice.org/blog/immigration-101border-wall-terrible-idea/ O’Toole, M. (2019). Family separations a year later: The fallout- and the separations- continue. Article. Los Angeles Times. Retrieved from https://www.latimes.com/politics/la-na-pol-familyseparation-trump-year-later-20190412-story.html Office of Refugee Resettlement. (2020). About the program. Fact sheet. Office of the Administration for Children & Families. Retrieved from https://www.acf.hhs.gov/orr/programs/ucs/about Open Society Foundations. (2016). Undeniable atrocities: Confronting crimes against humanity in Mexico. Online report. Open Society Justice Initiative. Retrieved from https://www.justice.gov/ eoir/file/890121/download Ortiz, G. (2019). Child detention contractor’s shady business practices are getting even shadier. Article. Daily Kos. Retrieved from https://www.dailykos.com/stories/2019/3/4/1839338/Child-detention-contractor-s-shady-businesses-practices-are-getting-even-shadier Papenfus, M. (2019). Justice department argues against providing soap, toothbrushes or beds to detained children. Article. Huffington Post. Retrieved from https://www.huffpost.com/entry/ justice-department-detained-immigrant-children-soap-toothbrushes_n_ 5d0c1f37e4b07ae90d9a8b0d Papenfus, M. (2020). ACLU sues after ICE contractors attack lawyer seeking to aid migrant kids locked in hotel. Huffington Post. Retrieved from https://www.huffpost.com/entry/ice-migrantchildren-hotels-texas-civil-rights-project_n_5f1bae78c5b6128e68261655 Peeler, K. (2020). Thousands of immigrant kids are detained, far from their parents. They need protection from COVID-19, Too. WBUR. Retrieved from https://www.wbur.org/cognoscenti/ 2020/03/20/migrant-kids-coronavirus-covid-19-katherine-peeler Philip, A. (2018) Migrant child sexually abused at Southwest Key shelter in Phoenix. AZ Central. https://www.azcentral.com/story/news/politics/immigration/2018/07/28/reported-abuse-girlsouthwest-key-migrant-shelter-stirs-backlash/854281002/ Polk, S., Sharfstein, J., Hernando, M. A., Moon, M., & Richards, S. (2018). Children as pawns of US immigration policy. The Journal of Applied Research on Children, 10,(1),1–14. Retrieved from https://files.eric.ed.gov/fulltext/EJ1224913.pdf Porter, E., & Russell, K. (2018). Migrants are on the rise around the world, and myths about them are shaping attitudes. Article. New York Times. Retrieved from https://www.nytimes.com/ interactive/2018/06/20/business/economy/immigration-economic-impact.html Price, J. (2008). Effects of a Foster parent training intervention on placement changes of children in Foster Care. Child Maltreatment, 13(1), 64–75. Price, B. (2019). U.S. immigration and customs enforcement (ICE) agents helped confirm a migrant “child recycling” case in the El Paso Sector. Article. Breitbart. Retrieved from https://www.

Unaccompanied Children at the US-Mexico Border

265

breitbart.com/border/2019/05/04/ice-agents-confirm-migrant-child-recycling-case-in-el-pasosector/# Raff, J. (2018a). Kids describe the fear of separation at the border. Article. The Atlantic. Retrieved July 2, 2018, from https://www.theatlantic.com/politics/archive/2018/06/kids-describe-the-fearof-separation-at-the-border/564227 Raff, J. (2018b). Immigrant parents fear losing their children forever. Article. The Atlantic. Retrieved from https://www.theatlantic.com/politics/archive/2018/10/immigrant-parents-fearlosing-their-children-forever/573331/ Rawnsley, A., & Ackerman, S. (2018). Ex-CIA contractor makes millions flying immigrant kids to shelters. The Daily Beast. Retrieved from https://www.thedailybeast.com/intelligencecontractor-makes-millions-flying-immigrant-kids-to-shelters Reigstad, L. (2018). Records reveal southwest key cited with hundreds of violations. Article. Texas Monthly. Retrieved from https://www.texasmonthly.com/news/records-reveal-southwest-keycited-hundreds-violations-last-three-years/ Rizzo, S. (2019). John F. Kelly joins board of contractor running shelters for immigrants. Article. Washington Post. Retrieved from https://www.washingtonpost.com/politics/john-kelly-joinsboard-joins-board-of-contractcor-running-shelter-for-migrant-teens/2019/05/04/e28000fc6e87-11e9-a66d-a82d3f3d96d5_story.html?noredirect¼on&utm_term¼.cbee15425634 Rodman, J. (2019). Shelters referring immigrant families to Lawrence travel agency. The Atlanta Journal Counstitution. Retrieved from https://www.ajc.com/news/state%2D%2Dregional-govt %2D%2Dpolitics/path-reunify-some-immigrant-families-runs-through-atlanta-suburb/ yWU2I0k5uZBxD1SQ61Up4H/ Rodrigo, C. M. (2018). Migrant children may be adopted after parents are deported. Article. The Hill. Retrieved from https://thehill.com/policy/international/americas/410653-ap-migrant-chil dren-may-be-adopted-after-parents-are-deported Rosenberg, M. (2020). Nearly 1,000 U.S. immigration detention center employees test positive for coronavirus. Huffington Post. Retrieved from https://www.huffpost.com/entry/us-immigrationdetention-center-employees-positive-coronavirus_n_5f0d8102c5b63b8fc10e3e29 Ruiz-Grossman, S. (2019). ICE increased deportations of family members and unaccompanied minors in 2019. Article. Huffington Post. Retrieved from https://www.huffpost.com/entry/icedeportations-arrests-2019-families_n_5df18e10e4b01e0f29599db0 RYOT Studio. (2019). Here’s what life is like for child migrants at Mexico border. Article. Huffington Post. Retrieved from https://www.huffpost.com/entry/heres-what-life-is-like-forchild-migrants-at-mexicos-southern-border_n_5dc9868de4b02bf57943ec5c? ncid¼engmodushpmg00000006 Sanchez, R. (2018). Their first day of school turned into a nightmare after record immigration raids. Article. CNN. Retrieved from https://www.cnn.com/interactive/2019/08/us/mississippi-iceraids-cnnphotos/index.html Sanchez, M. (2019). After controversy, Heartland shelter to close four facilities for immigrant youth. Chicago Times. Retrieved from https://www.propublica.org/article/heartland-illinoisshelters-four-to-close-immigrant-youth Sands, G. (2020). Trump administration to collect DNA data from some migrants in custody. CNN. Retrieved from https://www.cnn.com/2020/01/06/politics/dna-samples-migrants-trump-admin istration/index.html Schneider, M. (2018). Migrant shelter operator southwest key also runs a charter school or two. Article. Deutsch29. Retrieved from https://deutsch29.wordpress.com/2018/06/20/migrantchild-shelter-operator-southwest-key-also-runs-a-charter-school-or-two/ Schumaker, E. (2018). US has a long history of drugging children in its custody. Article. Huffington Post. Retrieved from https://www.huffpost.com/entry/family-separation-border-kids-drugs_n_ 5b313595e4b00295f15f8eac Shear, M. (2020). In profane rant, Melania Trump takes aim at migrant children and critics. New York Times. Retrieved from https://www.nytimes.com/2020/10/01/us/politics/melaniatrump-tapes.html

266

Y. Vissing

Shear, M., Bennett, K., & Schmidt, M. (2020). We need to take away children no matter how young they are, Justice Department officials said. New York Times. Retrieved from https://www. nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rodrosenstein.html Shoichet, C. (2020a). Inside the search for the parents of 545 children separated at the border. CNN. Retrieved from https://www.cnn.com/2020/10/22/us/family-separations-search/index.html Shoichet, C. (2020b). 8800 migrant kids were kicked out of the US under coronavirus restrictions. CNN. Retrieved from https://www.cnn.com/2020/09/11/politics/migrant-children-expelled/ index.html Sidner, S. (2018). A foster mom for immigrant kids says their shell-shocked and terrified. Article. CNN. Retrieved from https://www.cnn.com/2018/06/21/us/immigrant-children-foster-parents/ index.html Smith, S., & Smith, D. (2018). Job postings offer clues to inner workings of facilities for immigrant children. Star-Telegram. Retrieved from https://www.star-telegram.com/news/politics-govern ment/national-politics/article213385464.html Soboroff, J. (2020). Separated: Inside an American tragedy. New York: Harper-Collins. St. John, R. (2018). The raging controversy at the border began 100 years ago. Article. Smithsonian Magazine. Retrieved from https://www.smithsonianmag.com/history/raging-controversy-bor der-began-100-years-ago-180969343/ Stein, J. (2018). FBI signs firm accused of mistreating separated children. Newsweek. Retrieved from https://www.newsweek.com/fbi-signs-interrogation-unit-contract-firm-accusedmistreating-separated-1244522 Stone, M. (2018). Devos linked to Christian adoption agency. Article. Patheos. Retrieved from https://www.patheos.com/blogs/progressivesecularhumanist/2018/07/devos-linked-to-chris tian-adoption-agency-implicated-in-state-sponsored-kidnapping/ Stone, M. (2019). Missing migrant children being funneled through Christian adoption agency. Article. Patheos. Retrieved from https://www.patheos.com/blogs/progressivesecularhumanist/ 2019/02/report-missing-migrant-children-being-funneled-through-christian-adoption-agency/ Swartz, M. (2019). Court orders administration to identify separated migrant children within 6 months. Article. NPR. Retrieved from https://www.npr.org/2019/04/26/717380923/courtorders-administration-to-identify-separated-migrant-children-within-6-mont Teo, D. (2015). 10 facts about foster care. Blog. Huffington Post. Retrieved from https://www. huffpost.com/entry/the-10-most-surprising-things-about-foster-care_b_7058474 The Associated Press. (2018). Deported parents may lose their children to adoption. Article. NBC. Retrieved from https://www.nbcnews.com/news/latino/deported-parents-may-lose-kids-adop tion-investigation-finds-n918261 Toribio, L., Solera, C., & Robles, L. (2010). Up to 35 thousand children work for drug cartels in Mexico. Article. Borderland Beat. Retrieved from http://www.borderlandbeat.com/2010/11/upto-35-thousandchildren-work-for.html Tuma, M. (2018). Allegations of mistreatment at a southwest key shelter. Article. The Austin Chronicle. Retrieved from https://www.austinchronicle.com/news/2018-08-03/allegations-ofmistreatment-at-a-southwest-key-shelter/ U.S Department of Health and Human Services. (2020). Unaccompanied alien children. Fact sheet. U.S Department of Health & Human Services. Retrieved from https://www.hhs.gov/ programs/social-services/unaccompanied-alien-children/program-fact-sheet/index.html UNICEF. (2014). UNICEF México 2013. Mexico. Retrieved from http://www.unicef.org/mexico/ spanish/UNICEFReporteAnual_2013_final.pdf UNICEF. (2017). A familiar face. Violence in the lives of children and adolescents. PDF report. UNICEF. Retrieved from https://data.unicef.org/resources/a-familiar-face/ Upadhayaya, V. (2019). House republicans on border tour learn how smugglers recycle immigrant children. Article. Epoch Times. Retrieved from https://www.theepochtimes.com/houserepublicans-on-border-tour-learn-how-smugglers-Recycle-immigrant-children_2888167.html

Unaccompanied Children at the US-Mexico Border

267

US Office of the Inspector General. (2019). Management alert – DHS needs to address dangerous overcrowding and prolonged detention of children and adults in the Rio Grande Valley. Management alert. Department of Homeland Security. Retrieved fromhttps://www.oig.dhs. gov/sites/default/files/assets/2019-07/OIG-19-51-Jul19_.pdf Vaglanos, A. (2018). Video shows unaccompanied kids brought to NYC foster care in dead of night. Huffington Post. Retrieved fromhttps://www.huffpost.com/entry/video-shows-unaccom panied-kids-brought-to-nyc-foster-center-in-dead-of-night_n_5b2a69e4e4b0f0b9e9a787f5 Valencia, N. (2019). US-born teen detained for weeks by CBP says he was told 'you have no rights'. Article. CNN. Retrieved fromhttps://www.cnn.com/2019/07/25/us/us-citizen-detainedNajtexas/index.html Vickers, E. (2019). Why roots of the US border crisis like south of Mexico. Article. Bloomberg. Retrieved fromhttps://www.bloomberg.com/news/articles/2019-07-05/why-roots-of-u-s-bor der-crisis-lie-south-of-mexico-quicktake Vine, K. (2019). Why are separated families told they must use a tiny Georgia travel agency to reunite? Article. Texas Monthly. Retrieved fromhttps://www.texasmonthly.com/news/south west-key-separated-migrant-families-copacabana-reunite/ Vissing, Y. (2018). Why the U.S. should ratify the convention on children’s rights. Online article. Public Seminar. Retrieved from http://publicseminar.org/2018/06/why-the-u-s-should-ratifythe-convention-on-childrens-rights/ Wang, A. (2018). Border Patrol agents dump migrant water. Article. Washington Post. Retrieved from https://www.washingtonpost.com/news/post-nation/wp/2018/01/23/border-patrolaccused-of-targeting-aid-group-that-filmed-agents-dumping-water-left-for-migrants/?utm_ term¼.cf628ea05086 Washington Technology. (2018). The U.S. Marshals Service awarded MVM, a privately held McLean, Va., security staffing company a five-year contract worth $125 million. Retrieved fromhttps://web.archive.org/web/20060428114846/http://www.washingtontechnology.com/ news/16_14/business/17251-6.html Wildes, M. (2018). A history of the US border crisis. Blog. Jewish Standard. Retrieved from https:// blogs.timesofisrael.com/a-history-of-the-us-border-crisis/\ Williams-Mbengue, N. (2016). The social and emotional wellbeing of children in foster care. Newsletter. National Conference of State Legislatures. Retrieved fromhttps://www.ncsl.org/ Portals/1/Documents/cyf/Social_Emotional_WellBeing_Newsletter.pdf Woo, A. (2019). New report finds dangerous overcrowding at detainment facilities. Retrieved fromhttps://twitter.com/i/events/1146186500893077504?lang¼en

Yvonne Vissing, Ph.D., Professor of Sociology and Founding Director of the Centre for Childhood and Youth Studies at Salem State University in Salem, Massachusetts. Yvonne has worked in the area of child and youth advocacy for her entire career collaborating with different child rights groups in the USA. Her work is driven by the pursuit of human rights, community-building, resiliency, peace and justice. Yvonne has worked as a teacher, researcher, consultant, therapist, award-winning filmmaker, mediator, guardian-ad-litem, and helps organizations to decrease child abuse and improve child well-being. She is a former fellow at the National Institute of Mental Health, University of Connecticut Center for Democracy, and Whiting Foundation. Author/co-author of 12 books and hundreds of chapters, professional journal articles and other publications, including Children’s Human Rights as a Buffer to Extremism (Springer); Changing the Paradigm of Homelessness (Routledge) and Out of Sight, Out of Mind: Homeless Children in Small Town America (Lexington).

Hope for Refugees: Challenges in Reception and Integration of Unaccompanied Venezuelan Children in Brazil Maria Mariana Soares de Moura

1 Introduction: Venezuelan Migratory Crisis in Brazil— The Challenge of Unaccompanied Minors In recent years Brazil has experienced a high number of refugees coming from forced displacement due to wars, persecutions and environmental disasters. These individuals have come from countries as far as Haiti after the 2010 earthquake, and as close as Brazil’s South American neighbor Venezuela; especially after the explosion of the economic, political and social crisis that took place there. Thousands entered Brazil in a very short period of time (United Nations High Commissioner for Refugees 2018). For the purposes of this chapter it is important to take a brief tour of the political, social and economic scenario that has placed Venezuelans in a continuous and massive process of withdrawal from their national territory. Venezuelans have found in Brazil an accessible location to escape from the terrible conditions they now encounter in their own country. Over the last few years, economic policies have started to impose unbearable levels of inflation. Basic products have become scarce, freedom has been affected, and political instability occurred where human dignities have been reduced to a very low level in all senses, creating a real humanitarian crisis (Oliveira 2019). It is in this context that the exorbitant emigration rate arises. Other factors have also contributed, such as the massive dismissal of the oil industries in the country, companies and private properties being expropriated, and increased security problems. In the last months of 2019, it was estimated that more than 4.7 million Venezuelans had left their country of origin (United Nations High Commissioner for Refugees 2019). Of these, more than 260,000 emigrated to Brazil. Brazilian government data also reveals that between 2013 and December 2019, 264,000

M. M. S. de Moura (*) Nova School of Law, Lisbon, Portugal © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_11

269

270

M. M. S. de Moura

Venezuelans applied for refugee or residence status in Brazil and that the flow began to intensify in 2016 and 2018, reaching high numbers (Brazil 2020). Whether due to lack of basic health care, hunger, persecution or unemployment, the restrictive measures adopted by the Brazilian government impose a troublesome immigration policy. In an unprecedented decision it expanded the definition of the Cartagena Declaration (United Nations Organization 1984). Serious and widespread human rights violations occur in Venezuela and facilitates the granting of refugee status, and also favours the regularization of those Venezuelans who choose to apply for a residence permit, in its entirety (Agência Brasil 2019). The vast majority of Venezuelans enter Brazil through the State of Roraima along the border between the two countries where the main road that links the two territories is located. This region has low economic capacity due to its lack of industries, businesses and public services. This has resulted in high unemployment and an informal economy which breeds, poverty, homelessness, and other social conditions. This whole situation demands urgent and specific government responses to protect and assist this population and offer lasting and sustainable solutions (Fundação Getúlio Vargas 2020). In March 2018 the Brazilian responded to the Venezuelan flow by launching a Welcoming Operation to coordinate emergency assistance to vulnerable Venezuelan migrants and refugees arriving in Roraima. The operation is supported by United Nations (UN) agencies, the Federal Public Defender’s Office, and other non-governmental organizations. Part of the Welcoming Operation actions are interiorization of Venezuelans present in the state of Roraima to where they can have more job opportunities and access to services beyond the shelters (Brazil 2020). Despite this and other efforts by the federal and regional government and civil society, the migratory flow of Venezuelans into the country reached exorbitant numbers in a very short period of time, so basic services such as, access to health, education and social service actions were quickly overwhelmed (Fundação Getúlio Vargas 2020). In this context, the entry of Venezuelan immigrants into Brazilian territory brought another phenomenon which is of primary concern to this study, the entry into the Brazilian territory of unaccompanied Venezuelan minors. Here, a complex and difficult challenge for government actions occurred by their arrival. Challenges included adequate reception, shelter, and subsequent integration of these unaccompanied minors into Brazilian society to provide them with access to education, health and the labour market. The consideration of this article will be reasoned on raised data based on referral to the protection network for migrant children and adolescents carried out by the Brazilians Federal Public Defenders within the sample space from June 2018 to December 2019. This is a public agency designed to provide free legal assistance and ensure access to the migratory regularization proceedings for children and adolescents in vulnerable situations on the border, and who work at the Pacaraima Mission in the state of Roraima (Defensoria Pública da União 2020).

Hope for Refugees: Challenges in Reception and Integration of. . .

271

2 Definition, Legislation and the Profile of Venezuelan Minors in Special Migratory Difficulties in the Brazilian Context First of all, it is necessary to define unaccompanied children or adolescents as people who do not have any adult person accompanying him/her on their entry into a national territory. There is another relevant concept in this research that defines the legal environment for separated children and adolescents, those accompanied by an adult that is not the legal guardian or who holds family power when entering Brazilian territory (Brazil 2017a). These terms also refer to children and adolescent of other nationalities or stateless persons, who are unaccompanied or separated at a border point. Despite being accompanied by their genitors, if minors do not have identification documents capable of proving the parental link or have only a copy of the original document they may be considered undocumented (Brazil 2017a). In Brazil there is constitutional recognition that children and adolescents are subject to fundamental rights. This allows, within its content, the doctrine of full protection that aims to meet the needs of all children and adolescents without any type of discrimination. This also establishes the principle of absolute priority that presupposes the preference that the government will have in the formulation and the execution of social policies. The constitutional law applies, therefore, also to the protection of unaccompanied or separated children and adolescents (Brazil 1988). In Brazil, to regulate the protection of children and adolescents, Statute (ECA) created (Law n
8.069/1990). Despite defining the guarantee of many rights, it does not specifically mention the situation of unaccompanied migrant children and adolescents which undervalues the peculiarities of this group and presents a double vulnerability (Brazil 1990). The Country edited the Immigration Law (Law n
13.445, of May 24, 2017) which confers the access to public services to migrant citizens regardless of the migratory situation. It complies with child protection laws so there is no lack of access to public services due to a lack of documentation. In this sense, the attendance to essential services becomes immediate. It does not prevent the necessary referrals from being made for the child or adolescent; the idea is that the presence of documentation is not a condition for enjoying the service. This legislation brings special attention to children and adolescents, stipulating that they must dedicate as under XVII of its art 3
“full protection and attention to the best interest of migrant child and adolescent,” despite not defining the mechanism to execute this right. (Brazil 2017b). In relation to children and adolescents unaccompanied by a legal guardian and without express authorization to travel unaccompanied, the Immigration Law, in item V of art 40, points out that the Federal Police, the authority supervising the entry and exit of people from the country, as soon as they are able to identify them, will authorize their admission to the country. Regardless of the travel document they carry, police should refer them to the Guardian Council or, if necessary, the institution indicated by the competent authority (Brazil 2017b).

272

M. M. S. de Moura

Although there is a national legal system that protects children and adolescents when they are in a situation of special migratory difficulty, legislative protection aimed at unaccompanied and separated from their families is still insufficient. The Brazilian legal system edited the Joint Resolution n
.1, of August 09, 2017, to regulate procedure for the purpose of preliminary identification, care and protection for unaccompanied or separated children and adolescents. This was supported by the National Council for the rights of the Children and Adolescents (CONANDA) which joined with the National Committee for refugees (CONARE), the National Immigration Council (CNIg) and the Public Defender’s of the Union (DPU) (Brazil 2017a) to reinforce this change. The situations these unaccompanied youth face, accompanied by the peculiarities and specific circumstances faced by this age group, requires the promotion of specific children’s rights (United Nations High Commissioner for Refugees 1997). This need is based to address the vulnerable situations in which unaccompanied or separated children and adolescents are exposed, and who seek international protection in Brazil. It seeks to provide guidance, protection and care. It also seeks to ensure the migratory regularization of separated and unaccompanied children and adolescents by controlling the authorization to enter the country and by indicating the type of migration appropriate to their best interests (Severo 2015). The Joint Resolution brought an innovation to reduce the serious problems that required legal representation for the asylum application of minors and left them, for a long period of time, without the necessary documents. It now allows The Federal Public Defender’s Office to be legally responsible for migratory regularization requests, document applications, as well as, the Public Defender being the representative of children and adolescents. This means that it is no longer necessary for the Federal Police to require formalization of legal representation to grant the protocol (Thomé 2018). In order to improve the control of the reception, the Joint Resolution strengthened the command of the Immigration Law by establishing that the border authority, which receives the child or teenager with signs of being unaccompanied or separated, shall notify, in addition to the Guardianship Council, the Public Defender’s Office of the Union, the Court and the Prosecutor’s Office for Children and Youth (Brazil 2017a). Since 2018, data shows that thousands of Venezuelan minors, especially those with immigration difficulties, have crossed the Brazilian border in Pacaraima, in the state of Roraima. Data collection by the Federal Public Defender’s, in relation to the support, declared that from August 2018 to the end of 2019 it served 7098 undocumented children and adolescents who were separated or unaccompanied. The majority (90%) are aged between 13 and 17 years old (Public Defender’s of the Union 2020). The role of reception and legal guidance is important because it strives to guarantee from the moment of entry and the first contact the application of the principles of integral protection, non-return that are in the best interest of the children and adolescents. This process involves the preliminary identification, as well as, the attention and protection of minors in particular migratory difficulties. The process dictates that when a minor enters the border an individual interview is conducted for

Hope for Refugees: Challenges in Reception and Integration of. . .

273

a protection analysis, with the support of a multidisciplinary team, along with the team of Ministry of Social Development, and the Guardianship Council of Pacaraíma, to give referral to the cases of minors according to their vulnerability and complexity level (Public Defender’s of the Union 2020). In this sense, it is necessary to understand in which context these children and adolescents who cross the Brazilian border are inserted. The coordination of various factors encourages the promotion and protection of childhood minor migrants. For example, at the Reception and Identification, the first location where migration control happens, there is a legal assistance guarantee by the Federal Public Defender’s Office, supported by the Agency of United Nations International Children’s Emergency Fund (UNICEF), the International Organization for Migration, the United Nations High Commissioner for Refugees (UNHCR) the Association of Volunteers in International Service (AVSI), Ministry of Citizenship, The International Red Cross, the United Nations Population Fund (UNFPA) and Federal Police. All work together so that every child and adolescent has their right to migrate guaranteed. In addition to these immediate actors, the Judiciary, the Public Prosecutor’s Office, the State Public Defender’s Office, the Municipal Guardianship Council, the Municipal Secretariat of Social Assistance and the “Aldeias Infantis” have joined forces to make the child protection network cohesive and capable of meeting the demand (Public Defender’s of the Union 2020). In order to achieve the goals, the treatment of each child must be managed in an individualized way. The process must be conducted in a safe manner that is sensitive to age, gender identity, sexual orientation, disability, religious and cultural diversity, and ensuring the principle of equality, and avoiding the risk of any violation of their physical and psychological integrity, respecting their human dignity, as required by article 9
, §1
of the Joint Resolution (Brazil 2017a). Participation and autonomy by children and youth are to be guaranteed. They are to be consulted and kept informed in a manner appropriate to their stage of development and informed of the procedures and decisions taken in relation to them and their rights (article 6
of Joint Resolution). Equally, access to information must be guaranteed, which means that the beneficiary must receive detailed and clear information about their rights and measures related to their assistance (Brazil 2017a). Vulnerable children and adolescents must have their data safeguarded; their informed consent for its use is to be respected. It is also important that communication is done in a language understood by the child using an interpreter, if necessary. The administrative proceedings involving an unaccompanied or separated child or adolescent must be processed with absolute priority and agility, and the best interest of the child or adolescent must be considered in the decision making (article 3
Joint Resolution) (Brazil 2017a).

274

M. M. S. de Moura

3 Challenges in the Reception, Protection and Accommodation of Unaccompanied Venezuelan Minors The challenges separated and unaccompanied children and youth face are numerous and include the proper management of public policies that guarantee them reception, accommodation, and integration that respects their rights. Here we to report some of them. First of all, children and teenagers need support according to their peculiarities and situation. The process of receiving these migrants, in the care and screening phases, cannot be simplified nor managed without prior training. It is important that the procedure be conducted according to strict principles and taking into account the special needs of the age of the interviewees, such as appropriate language and listening processes during the interview (Thomé 2018). Youth may encounter obstacles at the first contact with border authorities, who must carefully check the context that each child fits into, since this analysis will define the further referrals and services. This implies that–in addition to a multidisciplinary group of professionals trained specifically for the case–there is a need for cooperation, involvement, and dialogue with this entire border protection network to align them with the most diverse situations that the mobility of children and adolescents provides. Another challenge youth face at the border at this initial reception concerns migratory regularization. It depends on the presentation of their travel document (identity card or passport) which, when they do not exist, reduces the options for regular entry into Brazil. However, it should be noted that the documentary situation of children and adolescents faces further difficulties due to the fact that identity documents are not issued to children under the age of nine, which is what represents the absence of these documents in many of the minors served at the border posts. Thus, a referral request (82%) is embodied as a migratory alternative for most cases attended by the Public Defender’s Office due to the documentation difficulties. It should be emphasized that the teenagers’ level of understanding about the migratory option must also be considered at the moment of service in which a choice about the protection alternative appropriate to their special interest is made (Public Defender’s of the Union 2020). In addition, the absence of documents is also due to the fact that a document in Venezuela involves high costs and an associated issue of time. This situation reduces the options for regular entry into the national territory, which means that the majority of minors can only be recognized through the refugee statute. Thus, the absence of documentation increases the vulnerability of children and teenagers, keeping the children undocumented in the country and facing uncertainty with regard to international and national human rights protection laws. One implication of the lack of adequate documentation is that youth are unable to get support from Social Assistance Policies, since access to social assistance benefits is not always intended for children and teenagers in this migratory situation, even if they fit into the requirements. This is relevant because institutions such as the Social

Hope for Refugees: Challenges in Reception and Integration of. . .

275

Assistance Reference Center (CRAS) provides special support for the prevention of situations of extreme vulnerability of families and the Specialized Social Assistance Reference Center (CREAS) seeks to address situations of social risk and rights violation, consequently, being a relevant instrument for the protection of unaccompanied or separated children and teenagers (Thomé 2018). Hence, it is necessary for the State to adopt measures so that the entry into the national territory of these migrants proceeds on a regular basis, even if the valid travel document is absent. In order to confront this problem, the Brazilian Government issued Ordinance n
197, of March 6, 2019, of the Ministry of Justice and Public Security, which establishes procedures for the processing of residence permit, registration and issuance of Portfolio applications National Migration Registry for the child or adolescent who is a national of another country or stateless person, unaccompanied or separated, who is at a point of migratory control at the Brazilian borders or within the national territory (Brazil 2019a) likewise, the edition of Interministerial Ordinance n
2, of May 15, 2019, which amends Interministerial Ordinance n
9, of March 14, 2018, allows children up to the age of nine and in a situation of vulnerability to waive the presentation of their identity card or passport, and can replace them with presentation of the birth certificate for the purposes of applying for a residence permit (Brazil 2019b). Although Brazilian authorities coordinate with other efforts to welcome the thousands of Venezuelan minors who enter the border with Brazil, there are still many shortfalls within these resources. This is especially apparent with regard to the urgency of protection and subsequent monitoring that unaccompanied minors demand for the extremely vulnerable situation they are in. This happens because screening processes may not be able to reach all unaccompanied children and teenagers to guarantee them some protection in an environment suitable for their development. There may also be problems in the local integration of underage refugees in special migratory situations when the non-accompaniment of unaccompanied children and teenagers leads to their abandonment on the streets. This puts them at risk for abuse and recruitment by criminal gangs. The problems with the socioeconomic context of the country, and especially the border regions, are that they have high poverty rates and few opportunities in the labour market. Many young people who enter the Brazilian border are close to the age of maturity and migrate to have a decent life and some sort of job opportunity (Fundação Getúlio Vargas 2020). The labour market (and especially that of the border states) cannot meet this need, so finding some opportunity depends on sending migrants, when they reach adulthood, to the economic centers that have the greatest opportunities, which Operation Welcoming usually does, but without considering this group. All of these factors make it easier for many to engage in prostitution, drug trafficking to survive and become “easy prey” for criminal factions, increasing the social problem of crime. There is no system designed to monitor and help unaccompanied children and teenagers after the Federal Defender’s interview on entering the border. The absence of this integration goes even deeper causing further vulnerabilities; the fact that minors do not have a legal guardian prevents them from having access to basic state

276

M. M. S. de Moura

public policies, such as education access services or the public health network. The access to education for children on the move encounters a barrier in the absence of documentation (Porto 2019). In Brazil access to education is a universal right (guaranteed to all, without distinction) and does not demand formal requirements such as the document or a legal representative. There is, however, a visible flaw regarding the referral of migrant children and teenagers to a school soon after their entry in the territory which interrupts their educational development. Most schools do not have the right conditions for the reception and integration of these unaccompanied, separated migrant children, especially with regard to understanding their language needs and adapting to the school level offered in the country. Added to this problem is the fact that the Brazilian public education network suffers from a lack of available places in schools and the admission process does not always absorb demand. The ideal would be for the State to impose the necessary resources to guarantee this right (Thomé 2018). It is necessary to take a careful look at situations characteristic of human trafficking or smuggling of immigrants, in addition to the recurrent cases of child sexual exploitation. If suspicion exists, the minor is to be referred to a multidisciplinary support team and the situation is communicated to the Federal Police present at the border to check whether there are previous records in the cases of the adult persons accompanying a child or teenagers. These situations occur when the child or teenager does not reveal what family or emotional ties are established between them and the adults who accompany them. The individuals also raise suspicion in situations when there is a lack of clarity regarding their destination in Brazil and, when it’s possible, verifying incompatibilities between the testimony of the child and the adult (Human Rights Watch 2019). This verification is relevant because the Brazilian border with Venezuela in Roraima receives numerous situations of teenagers between 14 and 16 years of age who arrive accompanied by dubious partners (especially girls) with a very large age difference or third parties who do not show affection or family bond. There is concern that the teens may be trafficked or exploited. To ensure their protection, it is necessary in these cases to make a cautious follow-up to document the relationship between the teen and the adults they are with. Protective measures could include institutionalizing the child or teenager (Human Rights Watch 2019). At this moment, the work of assisting these children and teenagers must be focused around developing the children’s awareness of their rights and protections granted by the State and making them aware of the risk that they may be abused or taken advantage of by these adults. This is complex because there are many cases of children and teenagers in a situation of extreme vulnerability, precisely because some of them lose or have no families or affective bonds since their arrival at the border point. Add the difficulties in accessing public assistance policies and resource deficiencies in the protection of this group of children, and a situation of much greater vulnerability with consequences for human trafficking and child sexual exploitation may occur. Thus, it is necessary that there is a reinforcement of the State’s actions to protect these migrants in cases of special difficulty, so that human trafficking does not become a practice associated with the phenomenon of

Hope for Refugees: Challenges in Reception and Integration of. . .

277

enforcement. To achieve this, you create a broad challenge of keeping teams prepared in the border zone to effectively combat human trafficking and child sexual exploitation, in order to identify and protect the most vulnerable victims of this crime (Thomé 2018).

4 The Challenge of Institutional Reception in the Protection of Unaccompanied Children and Adolescents: Roraima’s Case It is known that the challenges posed to the problem of unaccompanied minors takes on several aspects. Among them is the absence of a network that goes beyond the moment of reception and monitors the conditions of development and integral protection of these children. The National Social Assistance Policy extends special protections through a number of services, programs, and projects that aim to help in the following areas: reconstruction of family and community ties, the defense of human rights for families and individuals and, mainly, in the strengthening of potential for opportunities within the community (Brazil 2004).Naturally, this protection extends to all who are in a state of vulnerability. However, some of these situations require a more complex level of social protection, as in the case of minors in special migratory situations. These minors need full individual protection because they are without guidance and/or are threatened. Within the scope of this National Policy, a full institutional protective measure, as a tool, has been established to achieve this level of social protection for these vulnerable groups (Rocha 2020). The special protection given to the public of children and adolescents is based on the Child and Adolescent Statute (ECA), Law number 8069/1990, which defines institutional care as a more suitable safeguard for the protection and promotion of rights of minors in vulnerable situations (Brazil 1990). These considerations are relevant because there are other forms of reception, such as humanitarian reception, introduced by the Immigration Law for the granting of a humanitarian reception visa to the stateless person or to the national of any country experiencing any of the following: in a situation of serious or imminent institutional instability, armed conflict, major calamity, environmental disaster, or serious violation of human rights or international humanitarian rights. This was a solution aimed at migratory regularization, although it was accompanied by practical measures of emergency assistance to welcome people in situations of vulnerability and victims of migratory flow caused by the humanitarian crisis, as define by Law n
13.684/2018 (Brazil 2018). The adoption of these emergency measures involves the expansion of health services, education, social assistance and provides assistance aimed at guaranteeing the minimum support for people in vulnerable situations resulting from the migratory flow caused by the humanitarian crisis. However, this guarantee is not enough to give full attendance to the needs of the population with specifics to vulnerabilities. The humanitarian reception made it possible for shelter constructions and a crossing

278

M. M. S. de Moura

installation in Roraima and each of them was specific to certain groups. Despite this, none met the specific criterion in relation to the care of children and adolescents (Rocha 2020). What is now intended is to claim that the specific condition must always be considered when adopting any protective measure. In the case of children and adolescents who are lacking social and family ties when entering the country or are at risk, the principles of integral protection and the best interests of the child and adolescents must always be respected. It is imprudent and inappropriate to shelter them in reception facilities meant for emergency demand, exposing them to social risks, and without criteria aimed at meeting the Laws concerning institutional reception provided in the Statute of Children and Adolescents and the National Plan for the Promotion, Protection and Defense of Rights from Children and Adolescents to Family and Community Living (Rocha 2020). In this way, Institutional Reception, even though it is not the only protective measure provided for the Statute of Children and Adolescents, has been the easiest to be implemented in one emergency circumstance, a priori. It is able to, with special attention, grant the full protection that unaccompanied minors require. However, in spite of the legislative option for the protection measures implemented by the Institutional Reception for the best interest of children and adolescents, in the real world it is quite different. In the state of Roraima, where most unaccompanied people enter, minors were referred by the Guardianship Council (agencies that ensures the enforcement of children and adolescents rights in Brazil) to only two state shelters for adolescents aged 12 to 17 years old that were completely full. In these cases, the shelter’s director was legally responsible for these minors which allowed them to have easier access to more protection and integration services, including access to education (Human Rights Watch 2019). These shelters are currently unable to provide a dignified welcome to all Venezuelan children and adolescents who arrive en masse. Because of this a judicial decision prohibits them from receiving more minors due to overcrowding and, therefore, not meeting the criteria of minimum dignified conditions. Within this judicial decision it was also required that the state of Roraima would have a deadline of 10 days to show a plan for the reception of unaccompanied Venezuelan adolescents. This new plan is elaborate and includes improvements in shelters and the opening of the two temporary United Nations International Children’s Emergency Fund (UNICEF) homes that have already taken place (Human Rights Watch 2019). At first, the minors started to be sheltered in the Humanitarian Shelter, in a shelter of Operation Acolhida. But, as seen in this study, that place does not have adequate conditions to receive this particular representation of migrants; children and adolescents were not even able to attend school because they didn’t have an adult to take responsibility for them. Of all this, it must be said that the issue of reception demonstrates that care and protection of unaccompanied Venezuelan children and adolescents must go beyond the reception and simply placing them in any shelter available. It is necessary that minors are properly supported, protected, and effectively accompanied to ensure the accomplishment of full protection for this group.

Hope for Refugees: Challenges in Reception and Integration of. . .

279

5 Clinical Sociological Approach: An Ally in the Integration and Monitoring of the Venezuelan Unaccompanied Minors in Brazil In the perspective of a necessary intervention to improve the protection and provision of unaccompanied minors, it is essential that a multi-organizational network of trained professionals with different skills be used to achieve this objective. And in this line, it makes sense to think about the importance of the clinical sociologist in the process of planning a social change to help the current system function in an integrated way from a sociologic perspective, placing theoretical aspects as allies in the practice of social intervention (Fritz 1989a, b). The challenges this population of young people face are the result of complex social issues. It is a wise strategy to take advantage of the clinical sociological approach to evaluate, design, and implement some interventions intended to achieve results and improve the well-being, quality of life, and comprehensive protection needed by this vulnerable group. This will be achieved through understanding how to identify social problems and seek practical solutions for the benefit of this population, executing the best research methods to create and implement procedures and practices that are effectively aimed at addressing the problem at hand (Fritz 1989b). In this way, sociology offers a scientific way to understand and do something about the problem posed (Straus 1985). This is how dealing with challenges of Venezuelan unaccompanied minors in the admission and subsequently monitoring their local integration will always be more effective if clinical sociology approaches are also involved in this process. From an intensive analysis, the way the social systems and institutions can be coordinated to reduce or overcome the challenges could result in an active intervention process aimed at protecting minors and fulfilling all their sociological, psychological, health, educational, legal and wellbeing needs (Fritz 2001).

6 The Role of the Committee on the Rights of the Child in Guaranteeing Rights to Minors in Special Migratory Situation in Brazilian Territory The International Convention on the Rights of the Child imposes the need for special protection to children and teenagers for their status as a developing person. It requires signatory states to take actions aimed at child protection, including those seeking asylum, refugees or residence visa applicants, whether they are alone or accompanied by any other person who does not have family power (United Nations 1989). In addition, the Committee on the Rights of the Child has created mechanisms to monitor the implementation of the Convention in member states, so that everyone

280

M. M. S. de Moura

is required to submit regular reports every 5 years. This control allows the Review Committee to analyze each report and propose recommendations for the State to improve its practices in some problematic points. In 2015, the last year of the report, the Committee identified a challenging issue related to the need for special measures to protect children in a special migratory situation. The problem of the lack of priority in migratory regularization procedures for these children was reported due to the vulnerability they carry which resulted in unaccompanied children facing bureaucratic waits for documents. The Committee recommends that the State party adopt special procedures to register unaccompanied children and ensure that the refugee status determination procedures comply with international protection standards for unaccompanied children. In this regard, the Committee recommends that the State party provide unaccompanied children with legal representation and assistance through all stages of this process (United Nations 2015, p. 18). At the point from 2017, with the issue of the Joint Resolution, the Immigration Law and subsequently, the Ordinance 197/2019, Brazil created legislative mechanisms to circumvent the bureaucratic problem of migratory regularization for unaccompanied children. Currently, thanks to the execution of the recommendation, documentation is now a quick process, legally assisted by the Public Defender’s Office. It guarantees, in principle, greater possibilities of access to basic services that unaccompanied minors need from education, health and social assistance policies. This undoubtedly has represented a legal and institutional advance, facilitating, in recent years, the protection of Venezuelan children and adolescents with regard to regulatory documentation procedures in Brazilian territory. However, it should be noted that the report presented by Brazil and the respected CRC observations were delivered just before the Venezuelan migratory crisis when the reality of the Venezuelan unaccompanied minors had not yet been established. The absence of adequate procedures by the Brazilian State in the phases of reception, accommodation, and local integration of these children and teenagers must also be detected in order to make up the current shortcomings regarding the fulfillment of the integral protection duty of the child during this process.

7 Conclusion: Insufficient Protection and Unsolved Problem of Unaccompanied Minors in Brazil—Some Recommendations It is clear that Brazil has serious failures in the conduct of political and protective measures for unaccompanied children and adolescents in particular migratory situations, so there is an urgent need to improve this process. Initially, the Public Defender of Union interviewed each child and adolescent in special migratory situation who passed through the entry point to assess their personal needs and vulnerable situation. Despite support of the rest of the protection network and the

Hope for Refugees: Challenges in Reception and Integration of. . .

281

institutional and legal advances on the matter of protection of unaccompanied children in Brazil it has not been possible for them to extend their assistance to other phases that need monitoring, such as the welcoming and integration processes. Whether place in suitable shelters or not, children end up being left to their own fate after entering the territory. In general, the obstacles and challenges presented make it essential to improve and intensify the protection and support system for child and adolescents beyond the reception and placement in shelters. This can be done by consolidating a multidisciplinary support network with trained professionals who know how to conduct procedures to guarantee compliance of the reserved rights for children and adolescents and strengthen the instruments of protection and the assistance according to the principle of best interest and the full protection in every moment of the process. There is a duty of cooperation for the central government and caregiving network to work together with local government to designate instruments and guarantee resources for monitoring and supporting unaccompanied Venezuelan children and adolescents. This would facilitate coordination of services, improve communication and create more targeted actions among public entities, international agencies, and non-governmental organizations. Another solution that could be considered is the possibility of interning children in other states within the Brazilian territory in order to establish better access to shelters, the labour market (after reaching adulthood), and basic services such as health and education. Especially in relation to the latter, it is necessary that wherever they are, children and adolescents be guaranteed access to education immediately according to their particular needs. Besides that, the State must guarantee the preparation and the guidance of educators and schools for the reception of students in special migratory difficulties, including guaranteeing their entry without bureaucracy and requirements to carry documents. Finally, the local integration of minors must always be ruled by the guiding principles of integral protection and the best interest of the child, guaranteeing among others, their social rights and the right to participate in all procedures that affect them; the policies of attention and reception should provide the right of children to be heard. The situation facing unaccompanied minors in Brazil is discouraging because their constitutionally guaranteed rights in the Brazilian legal system lack resources and the compliance of the Public Power’s duty to guarantee the dignity of these children and adolescents. The path outlined here is to reflect on the current policy of reception, integration and the absence of accompaniment; it is necessary to move forward and overcome these challenges and, most of all, create hope for these children.

References Agência Brasil. (2019, July 30). ONU elogia Brasil por reconhecer venezuelanos como refugiados. Agência Brasil. Retrieved from https://agenciabrasil.ebc.com.br/es/internacional/noticia/201907/onu-elogia-brasil-por-conceder-estatuto-de-refugiado-venezolanos

282

M. M. S. de Moura

Brazil. (1988). Constituição da República Federativa Brasileira. Retrieved from http://www. planalto.gov.br/ccivil_03/constituicao/constituicao.htm Brazil. (1990). Lei 8.069 de 13 de julho de 1990. Estatuto da Criança e do Adolescente. Retrieved from http://www.planalto.gov.br/ccivil_03/leis/l8069.htm Brazil. (2004). Política Nacional de Assistência Social PNAS/2004 – Norma Operacional Básica NOBSUAS. Retrieved from http://www.mds.gov.br/webarquivos/publicacao/assistencia_social/ Normativas/PNAS2004.pdf Brazil. (2017a). Resolução Conjunta n
1, de 09 de agosto de 2017. Retrieved from http://www.in. gov.br/materia//asset_publisher/Kujrw0TZC2Mb/content/id/19245715/do1-2017-08-18resolucao-conjunta-n-1-de-9-de-agosto-de-2017-19245542 Brazil. (2017b). Lei 13.445, de 24 de maio de 2017. Institui a Lei de Migração. Brasília. Retrieved from http://www.planalto.gov.br/ccivil_03/_ato20152018/2017/lei/L13445.htm Brazil. (2018). Lei 13.684 de 21 de junho de 2018. Retrieved from http://www.planalto.gov.br/ ccivil_03/_ato2015-2018/2018/Lei/L13684.htm Brazil. (2019a). Portaria n.
197, de 6 de março de 2019. Brasília: Ministério da Justiça e Segurança Pública. Retrieved from https://www.in.gov.br/materia/-/asset_publisher/ Kujrw0TZC2Mb/content/id/65980921. Brazil. (2019b). Portaria Interministerial n.
2, de 15 de maio de 2019. Brasília: Ministério da Justiça e Segurança Pública. Retrieved from https://www.in.gov.br/web/dou/-/portariainterministerial-n-2-de-15-de-maio-de-2019-145560854. Brazil. (2020). Operação Acolhida - Governo do Brasil.. Governo Federal. Retrieved from https:// www.gov.br/acolhida/ Defensoria Pública Da União. (2020). 3
Informativo de atuação de Defensores e Defensoras Públicas Federais na “Missão Pacaraima. Retrieved from https://www.dpu.def.br/images/ stories/pdf_noticias/2020/missao_pacaraima_3_WEB.pdf Fritz, J. M. (1989a). The development of clinical and applied sociology, a special issue of sociological practice. East Lansing, MI: Michigan State University Press. Fritz, J. M. (1989b). The history of clinical sociology in the United States. International Clinical Sociology, 21–35. https://doi.org/10.1007/978-0-387-73827-7_3. Fritz, J. M. (2001). The clinical sociology resource book (5th ed.). Washington, DC: American Sociological Association Teaching Resources Center. Fundação Getúlio Vargas. (2020). A economia de Roraima e o fluxo venezuelano: evidências e subsídios para políticas públicas Diretoria de Análise de Políticas Públicas. Rio de Janeiro: FGV DAPP. Retrieved from https://www.acnur.org/portugues/wp-content/uploads/2020/01/ Economia-de-Roraima-e-o-Fluxo-Venezuelano-_-30-01-2020-v2.pdf. Human Rights Watch. (2019, December 5). Brazil: Venezuelan Children Fleeing Alone - Inadequate Protection by Brazilian Authorities. Human Rights Watch. Retrieved from https://www. hrw.org/news/2019/12/05/brazil-venezuelan-children-fleeing-alone Oliveira, A. T. R. (2019). Los impactos de la migración venezolana en Brasil: crisis humanitaria, desinformación y los aspectos normativos. In Blouin et al (Ed.), Después de la llegada: realidades de la migración venezolana. essay, Lima: Ed. Themis. Porto, H. J. (2019). O Direito à Educação das Crianças Refugiadas. [Master’s thesis, Faculty of Law, University of Lisbon]. Repositório da Universidade de Lisboa. Rocha, Lígia Prado da. (2020). Acolhimento Institucional e Acolhimento Humanitário na legislação brasileira. In Defensoria Pública da União. 3
Informativo de atuação de Defensores e Defensoras Públicas Federais na “Missão Pacaraima. Retrieved from https://www.dpu.def. br/images/stories/pdf_noticias/2020/missao_pacaraima_3_WEB.pdf Severo, F. G. (2015). O procedimento de solicitação de refúgio no Brasil à luz da proteção internacional dos Direitos Humanos. Revista Da Defensoria Pública Da União, 8, 33–56. Straus, R. A. (1985). Using sociology: An introduction from the clinical perspective. New York: General Hall.

Hope for Refugees: Challenges in Reception and Integration of. . .

283

Thomé, R. G. (2018, Mai-Ago). A integração local de crianças e adolescentes refugiados desacompanhados e separados no Brasil: reflexões para o debate. O Social em Questão. (41), 177–198. UNHCR. (1997). Guidelines on policies and procedures in dealing with unaccompanied children seeking Asylum, Geneva. Retrieved from https://www.unhcr.org/3d4f91cf4.pdf United Nations. (1984). Cartagena declaration on refugees, adopted by the colloquium on the international protection of refugees in Central America, Mexico and Panama, Cartagena de Indias, Colombia, 22 November 1984. UNHCR. Retrieved from https://www.unhcr.org/aboutus/background/45dc19084/cartagena-declaration-refugees-adopted-colloquium-internationalprotection.html United Nations. (1989). Convention on the Rights of the Child. Retrieved from https://www.ohchr. org/en/professionalinterest/pages/crc.aspx United Nations. (2015). Concluding observations - Brazil. Retrieved from https://tbinternet.ohchr. org/_layouts/15/treatybodyexternal/Download.aspx?symbolno¼CRC%2FC%2FBRA%2FCO %2F2-4 United Nations High Commissioner for Refugees. (2018, May). Operational portal: Refugees situation. Venezuela Situation. Retrieved from https://data2.unhcr.org/en/documents/details/ 62291 United Nations High Commissioner for Refugees. (2019, June). Refugees and migrants from Venezuela top 4 million: UNHCR and IOM. Retrieved from https://www.unhcr.org/news/ press/2019/6/5cfa2a4a4/refugees-migrants-venezuela-top-4-million-unhcr-iom.html? query¼NUMBERS%20VENEZUELAN

Maria Mariana Soares de Moura, Ph.D. candidate at the School of Law of the New University of Lisbon, Researcher at Centro de Investigação e Desenvolvimento sobre Direito e Sociedade (CEDIS) and scholarship financed by Fundação para a Ciência e Tecnologia (FCT). Mariana’s research focuses on Fundamental Rights and Migration Law. She believes that the right to happiness is built during childhood. Publications include Ponderar ou não ponderar? A análise da proporcionalidade da dignidade humana nas lições de Robert Alexy and A teoria da derrotabilidade das normas jurídicas e os conflitos normativos.

Ageing Out of Care Towards Living a Self-determined Life: A Multidisciplinary Mentoring Model for Unaccompanied Care Leavers Anca Clivet

1 Introduction I feel a lot of missing in my life—A. 18 years old

Increasing rates of minors seeking asylum in recent years, lead the EU to update and put in place special directives to ensure the protection of unaccompanied children escaping the traumatic events in the country of origin and seeking asylum. When foster care or other family care setting is not possible (i.e. incipient stage for foster care system) for all unaccompanied children entering an European country, their protection is frequently offered within residential care settings: a “non-familybased group setting, places of safety for emergency care, transit centres in emergencies, and short- and long-term residential care facilities” (UN Guidelines for the Alternative Care of Children 2009). Nonetheless, while the legislation provides a level of legal protection for unaccompanied minors, these children still encounter various social and cultural challenges in their social, cultural and professional inclusion, keeping them in a state of extreme, long-term vulnerability and even life-threatening when it is time to age-out of state care. Although rarely a destination country for unaccompanied children, Cyprus received “more asylum applicants in 2019 than during the migration crisis of 2015” (EASO 2020). Most unaccompanied migrant children arriving in Cyprus are between 16 and 17 years old, thus remarkably close to becoming an adult which limits their prospects to learn or develop before they rapidly “age-out” and are no longer eligible for certain benefits, with little or no support from the stateparent. Currently, the support system for ageing out of care is only partially in place, and rather fragmented, unable to ensure a smooth transition into emancipation. If the system does not help the children prepare for autonomous living while in residential A. Clivet (*) “Hope For Children” CRC Policy Center, Nicosia, Cyprus © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_12

285

286

A. Clivet

care by constantly familiarising them with real-life out-of-care experiences through special programs, then the system fails tremendously to contribute to their psychological maturity and social inclusion. This failure will only bring them back later in the circle of dependency on state support. The absence of a mentor as a point of reference, to initiate and supervise a gradual, participatory, and individualised process of mentorship is “critical to healthy development throughout adolescence and into young adulthood” (Murray and Rosanbalm 2017, p. 2). Therefore, unaccompanied children and their future integration deeply depend on the support of trained professionals acting as mentors and guides that will nourish the right self-determination skills and abilities, that will point towards tangible and positive change and results. The chapter argues that without this essential element of mentoring the present residential care and ageing out system is more likely to fail its goal of supporting the children towards autonomous adulthood. The proposed mentoring model is based on the results of national ethnographic research, which was drafted across 5 European countries, and the Mentoring Integration Programme (MIP) developed around the 9 Pillars for a Self-determined Life. The MIP mentoring model is challenging the view of emancipation as a linear process strictly defined by time rules. Instead, it proposes that the process should be perceived as gradual and given an appropriate amount of time to reach the desired social status. By promoting and supporting children in care towards living a self-determined life as early as 16 years old, the MIP acknowledges that in the best-case scenario 2 years should be set aside by mentor and mentee to arrive at positive and thorough preparation for emancipation. Within the residential care only a multidisciplinary mentoring approach with strong participatory elements and an inter-agency collaboration, which connects the agents that are active within state care with the ones active post-care, would be appropriate for such a fruitful transition. The INTEGRA vision and approach is in line with the principles of clinical sociology. Although the transition to adulthood is a natural phenomenon, it necessitates a planned social and behavioural intervention that will empower and equip the child. This intervention is building on the strengths of each child, on the opportunities and support system offered by the local community, and on the sensitised post-care stakeholders implementing their responsibilities. By focusing on the child through the mentoring paradigm, the INTEGRA mission and values are built around the best interest of the child.

2 Unaccompanied Children and Emerging Adulthood We are nothing in the ocean of nothing—G., 18 years old

As a vulnerable group, children living in conflict zones often face drastic and swift changes, traumatic experiences of war, abuse, persecution, maltreatment, and separation from close family and friends. To escape such distressing contexts, they

Ageing Out of Care Towards Living a Self-determined Life: A. . .

287

are forced to embark or are sent by their families on a hazardous journey to find a sanctuary and recovering some sort of peace, purpose, and opportunity for development. The complexity of supporting unaccompanied children derives from the challenges they face from the moment they flee their country of origin. As they travel alone, they stand out because of an absence: there is no safe and trustworthy adult to accompany them, which translates in vulnerable, isolated, exposed, at risk. They are “living in the uncertainty of not knowing” as to what their status will be (Guerra and Brindle 2017), in an unfamiliar country and surrounded by people that are most of the time not speaking their mother tongue. Due to their vulnerability of traveling alone they are very often exposed to malnutrition, maltreatment, violence, child trafficking, sexual and work exploitation, which make the journey a traumatic event that marks them for life. In their journey, the unaccompanied children lose the essence of what is familiar for them: the notion of home, family, friends, and stability and became “potent symbols of the dramatic impact of humanitarian crises on individual lives” (International Committee of the Red Cross 2004). When arriving in a new environment, i.e., their destination or a point of entry to Europe, their capacity to adapt and remain compliant is “tested” while at the same time they have to process all the emotional luggage they brought with them. They receive a new identity: “unaccompanied children”: children 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 (CRC, Article 1). They will have to carry this identity until adulthood, and also discover what rights are they entitled to. While in residential care, the unaccompanied children need to also accommodate and adapt to their new social status: children in [residential] care. This status comes with a lot of uncertainty due to language and cultural barriers and within the unknown socio-cultural setting of reception centres. Simultaneously, besides adopting this role, they feel also uprooted from everything familiar (Wade 2017), experiencing the impact of ambiguous loss (related to their family and situation in the country of origin) (Hausmann-Stabile and Guarnaccia 2016) and accompanying grief (Jim Casey Youth Opportunities Initiative 2011) of family, friends, security, identity, and a defined understanding of the sociocultural world. Disrupted relationships are usually their daily experience, from the moment they become “unaccompanied.” Continuing their lives in the residential centres, care often proves to be unreliable due to lack of standards, best practices, evidence-based methodology, trained staff, or a combination thereof. Most often, unaccompanied children are unsure or unaware of what their rights are, where they can find support, and whom they can trust making them vulnerable to become victims of traffickers, who stand by to take advantage and who will carry on their mistreatment and decrease their autonomy level. Past traumas bring developmental regress and cause trust issues with any caring adult that comes to help: “their brains have been wired to expect a non-supportive environment or sudden, arbitrary moves” (Jim Casey Youth Opportunities Initiative 2011). Confronting with these overlapping challenges is taking a toll on their self-esteem and positive thinking which are usually severely hampered culminating in the

288

A. Clivet

transition towards a self-determined life when ageing out. Everyday actions become meaningless since language and cultural barriers require time, determination, and goal projection abilities to be able to envision a successful integration in the new culture they just entered. Aware of this rapid change, the prognosis of turning 18 is not something that a child in care is excited for: “When I turned 16 I was happy. When I turned 17 I was happy. When I turned 18 I was not happy at all, I was afraid” (INTEGRA, National Report 2019). As their time in care is in most cases limited (6 months or under 6 months) until they reach the legal age of 18, “the unaccompanied children do not seem to grasp the notion of a transition to adulthood” (INTEGRA National Report 2019), let alone engage actively in one: “a no name for the period they are in-because the society they live in has no name for it--so they regard themselves as being neither adolescents nor adults, in between the two but not one or the other” (Arnett 2000). Regardless of the age at which it happens, the lack of a previously trained mindset and developed life skills plenty of obstacles when transitioning to adulthood, including an inability to follow through on the educational path, or simply a lack of knowledge of available resources. A myriad of obstacles coming from different levels and actors, from the care system, community, or even from children in care are threatening the goal of a balanced self-determined life. In some cases, the children are not interested or afraid of entering adulthood and thus refuse to engage in any empowerment or rehabilitation activities. In such cases, the caregivers need to adapt and step back and offer psychological support services to nourish the intrinsic motivation. On the other hand, “an unaccompanied child is a child that is a fighter, he survived things that maybe none of us will ever face in our life, so he has the skill of adaptation, he has the skill of finding the way”; and this skill will potentially help him survive and thrive against the challenges. His behaviour and attitude will always try to find his way around because this is what he learnt. The potential is there, but it needs to be nourished the right way. This is their biggest strength but also their deepest potential vulnerability” (INTEGRA, National Report 2019).

3 The Status of Unaccompanied Children in Cyprus In Cyprus, Cochiliou and Spaneas (2019) analysing the procedures of guardianship of unaccompanied children noted that the vital legislation on this matter lacks coordination and a unified perspective as it is “fragmented in several laws, government decrees, ministerial directives, and circulars”. The national legal framework for unaccompanied children that arrive on the island seeking asylum is regulated by the laws on Refugees rights and needs from 2000 to 2004 (Law No. 6(I) 2000), the UN Convention of the Rights of the Child, and the European Convention on the Exercise of Children’s Rights (ratified and incorporated as Law N. 23(III) in 2005). Under the national Refugee Law L. 6(I)/2000, the Director of the Social Welfare Services is the legal guardian of all unaccompanied children found in the territory of the Republic of Cyprus (article 10). From that point on the child is placed under the guardianship and

Ageing Out of Care Towards Living a Self-determined Life: A. . .

289

care of the Director of the Social Welfare Services automatically and there is no formal procedure required to transfer the parental rights of the unaccompanied children upon the Director of the Social Welfare Services. This responsibility translates into an obligation to care and safeguard the rights of unaccompanied children— that is those under 18 who enter the Republic without a parent or guardian. Therefore, children who are under the legal care of the Director of the Social Welfare Services, between 0 and 18 years of age, are placed generally in the private or state institutions or alternative care through the foster care institution. The present functional shelters have been running over their official capacity, with the “the same number of staff available and services become fragmented” (INTEGRA, National Report, Cyprus 2019) and to each case is devoted less and less time. The reception standards differ significantly between the NGO and the state-run shelters, including the accommodation standards and additional rehabilitation, recreational, and educational services. In private shelters, the children are supported in their resilience process and, when possible, enrolled in public schools and provided with psychological, social, and legal support. Their after-care life depends not only on their ability to thrive as a successful adult but also on the results of their asylum application. Following the initial placement of the child in residential care, the child is guided by professionals on duty through the asylum process. The first step of the asylum process is to submit their application for international protection (asylum). At the private shelters, a specialised team of lawyers is available to inform the child of the process of asylum, their rights as asylum seekers and assist with all necessary legal and administrative steps in coordination and cooperation with the appointed Social Welfare Service (SWS) officer. At the state-run shelters, this function falls on the shoulders of the SWS officer responsible, who may or may not have the appropriate knowledge and has a significant workload. Following the submission of the asylum application, the children undergo a series of medical exams required for all asylum seekers. It should be noted here that following a period of arbitrary decision regarding the declared age of the children, the directions were given to members of any public service, that might come into contact with a person claiming to be an unaccompanied child, are that the declared age is taken at face value and the SWS is called on the spot. The authority to request an age assessment is born solely by the Asylum Service. The Asylum Service is examining the validity of the claims may request information for the SWS Officer responsible for each child. In practice that means that from the day that a person claiming to be an unaccompanied child is identified, they will be placed under care and the claim of minority will be examined at a later stage. It may up to 3 months from the arrival and identification of the child until a final decision has been reached regarding the claim of minority meanwhile, they are hosted in reception centres with other unaccompanied children. The law in theory states that when unaccompanied children become aware of theirs benefits, which depends on their legal status (Asylum Seeker, Subsidiary Protection Beneficiary, Recognised refugee), they are entitled to receive useful information about Public services that can help them when becoming migrant adults.

290

A. Clivet

What happens, in reality, is that these children receive fragmented support or shortterm support, even though they might receive some practical tools during residential care. Moreover, delays are systematically encountered at different levels of assistance (approving applications, issuing permit documents, receiving benefits, etc.) and the sensitivity of foreign unaccompanied children’s cases indicates the inconsistency between the legal framework and the practical actions, and, thus, the need to improve the way care system addresses the needs of unaccompanied children.

4 The Transitioning to Adulthood No path towards adulthood is ever the same. A young person’s emancipation requires tremendous personal development, mature decisions, and entails a radical change in their social role. Above all, this path is a unique transformational experience. Challenging the definition of reaching adulthood when turning 18, the process of “becoming an adult” must be understood as a gradual process that takes time and requires tailored preparations for its various stages. Naturally, early adulthood entails identity exploration seasons, “trying out various life possibilities,” shifting in the direction of certain preferences, and “gradually moving towards making enduring decisions” (Arnett 2000). In other words, the desired independence is not bound to completion at a predetermined age. Latest studies on brain development state that the “transition from adolescence to adulthood takes place through the interim phase of emerging adulthood:(. . .) a developmental period during which a young person moves gradually from adolescence towards independence” (Jim Casey Youth Opportunities Initiative 2011). Reaching a state of self-determination is perceived as a phase where “you are in the centre of everything dealing with everything, when nothing makes sense” (INTEGRA, National Report, Cyprus 2019) so there is a clear need for guided support. For children growing up within their native society and a family setting, being a teenager is the optimal time to expand their sense of identity, cultivate a personal value system, learn from experience and mistakes with adult backing and encouragement, and achieve better self-regulation, coping and resilience skills. In contrast, young children under residential care might be faced with an impersonalized care system that scarcely incorporates child-friendly settings and structures to support their growth as adults. The legal guardian, although appointed by the state authorities to protect and guide the children in care, is difficult to reach due to official protocols, does not have always a presence, and is not capable or prepared to gradually mediate for the successful transition of young care leavers into adulthood. Many unaccompanied children come to Europe at an age close to adulthood and as emerging adults, they “do not see themselves as adolescents, but many of them also do not see themselves entirely as adults” (Arnett 2000). The wide range of challenges the unaccompanied children are confronted with before, during, and after their unaccompanied journey make the design, testing, and implementation of evidence-based practices an extremely complex task. In general, for all children in

Ageing Out of Care Towards Living a Self-determined Life: A. . .

291

care when coming close to reaching the age of 18, they are faced with a double transition: one from child to adult and one from state care to little or no external care. Added to the limited preparation for the transition, and the fact that they do not benefit from the same opportunities and tools for professional success as other children, work availability is limited for asylum seekers as national law establishes the right of asylum seekers to work in specified industries after submitting their asylum application. When their legal status is uncertain alternative pathways need to be envisioned to keep the transitioning supported in all possible versions and exploring the best options.

5 From Care to Where? The Lack of a Supportive Ageing-Out Mechanism In the 2016 report “Turning the tide for children on the move”, Eurochild, the situation of unaccompanied children in various EU member states was examined and the main challenges that would affect a healthy transition to adulthood were emphasised: unstructured reception centres, un-personalised access to education, lack of institutional and coordinated support for their transition to adulthood or integration, and perception of their prospects in their host country. Moreover, if pursuing a vocation, i.e., finding a job, going to school, or identifying a project of interest, are not supported ahead of ageing out, it will additionally weaken their autonomous status, endangering their opportunities in the legal job market and therefore possibly compromising a potential successful inclusion in the host community. The lack of an effective Alternative care mechanism when ageing out is likely undermining all efforts and investments made during the period in care, inhibiting or delaying (depending on the case) access to any existing state support aftercare. The care system offers an experience of relative stability up to the point of ageing out, after that they usually find themselves in a vacuum as a result of “an abrupt discontinuity in caregiving” (Keller et al. 2010, p. 2; Keller 2007). In such conditions, the emancipation of unaccompanied children appears like a herculean task. The most impactful shortcomings of the ageing out mechanism in residential care are the following: Limited or absence of support for the upcoming emancipation; General standards and a one-size-fits-all approach; Lack of training for care professionals and the legal guardian as an abstract figure; Inefficient state support outside of residential care; The paradox of overprotection; Not mirroring a family setting.

292

5.1

A. Clivet

Limited or Absence of Support for the Upcoming Emancipation

When ageing out of care, the children are burdened with the sudden and very rushed task of emancipation, of instant personal development, of taking important adult decisions without being prepared, experiencing a substantial transformation of social roles and responsibilities. This pressured transitioning to adulthood translates into poor or even uncertain social adaptation and inclusion with tremendous mental effects. If these conditions are left unaddressed, and psychological and social support is lacking, then their consequences fuel extreme vulnerability and exclusion: homelessness, early parenthood, dropping out of school, unemployment, addictive and/or criminal behaviour, etc. The need for a gradual mechanism and framework was noticed and highlighted in the interviews with the emergent adults; “yesterday I was a child, today I am an adult! It does not work like this, you need time to grow, but I still have the same problems and on top, as an adult, I lost part of my well-being I had in the reception centre.” (INTGERA, National Report 2019).

5.2

General Standards and a One-Size-Fits-All Approach

The general procedures and guidelines offer insufficient safeguarding measures that come in the form of rules for staffing, financing, protection, and access to education and health services (Cantwell et al. 2012). Yet, on their way to change social roles, the transitioning youth express diverse combination and interconnected needs: education, health, financial independence, a safe house, friends, communal support, knowledge on legislation, and bureaucratic mechanisms. In trying to address all of these needs the “young people tend to make a series of overlapping transitions on the journey to adulthood and, for many, these are compressed into the first few months of leaving care” (Dixon et al. 2006). Even as preparing for this radical adjustment, the teenagers “are navigating a pathway from childhood to early adulthood in circumstances that appear neither certain nor promising” (Wade 2017), learning what is expected from them while needing assistance in finding accommodation outside the shelters, cultural orientation classes, and help with daily life skills such as using local transportation, sort their legal documentation, opening bank accounts, and looking and interviewing for a job. The diversity of the needs reveals the complexity of the ageing out system whose efficiency does not depend only on one single actor or agency: “the issue is complicated by the fact that so many stakeholders are involved, and the situation of each child is different. There are difficulties in mapping needs, designing responses and in collecting data sources” (INTEGRA, National Report 2019). Each child has a different background and the time they spend at the shelter is different, consequently, their preparation for adulthood must be unique. In Cyprus, when transitioning youth are turning 18, some unaccompanied young people

Ageing Out of Care Towards Living a Self-determined Life: A. . .

293

expressed a feeling of fear (National Report on Ageing out, Cyprus 2019). This emotional state inevitably is affecting from manifesting their potential and ability to a positive future.

5.3

Lack of Training for Care Professionals and the Legal Guardian as an Abstract Figure

The professionals in residential experience challenges in offering optimal care to the vulnerable group of unaccompanied children. More so, when the process of emancipation is approaching many times, their care focus is top-down, basic, and fragmented. Thus, the caregivers need to be trained to understand the needs of unaccompanied children (being able to identify the problem), and then they need to be trained on how to meet those needs (solve the problem). The caregivers need specific training on basic counseling skills, teenage behavioural development, post traumatic syndrome, intercultural communication, increase their knowledge on legislation and legal guidelines (INTEGRA, National Report 2019). Overall, their training should be focused on understanding the process while transitioning out of care, to be able to anticipate the children’s needs and knowing what as caregivers cannot do and knowing who can provide it from the big pool of stakeholders engaged in post-care.

5.4

Inefficient State Support Outside of Residential Care

In Cyprus, the social rehabilitation of the children ageing out is severely hindered by the inefficiencies of state support outside care. There are substantial delays (months) and/or difficulties in receiving benefits (coupons for basic needs, rent allowances), which leave the applicants without any means to sustain themselves immediately after ageing out of state care. The rent allowance does not correspond with the existing market values for housing, thus, making it difficult to find appropriate accommodation. Even if they achieve to find accommodation, the applicants are often faced with the risk of evictions due to delayed payments. Added to the limited preparation for the transition, and the fact that they do not benefit from the same opportunities and tools for professional success as other children, work availability is limited for asylum seekers as national law establishes the right of asylum seekers to work only in specific industries after submitting their asylum application. In the context of child protection, some private shelters try to offer a smoother transition from childhood to adulthood introducing a few rehabilitation programs focused on life skills and social inclusion activities. Despite these programs, the way the official ageing out system has been designed and implemented until now cuts abruptly all the assistance the day the children come of age. That sudden change from total support

294

A. Clivet

to the absence of support is difficult to manage for any young adult, let alone for a vulnerable young person.

5.5

The Paradox of Overprotection

While the caregivers assist and aid the unaccompanied children accessing medical care, education, asylum (according to the legal framework they need to be accompanied all the time) and provide for their daily basic needs like food and accommodation the paradox of overprotection is taking place. As a side effect of the care system “over protecting” them while they are in care, determines a state of passive infantilization, and does not prepare them enough for the life after state care. On the contrary, brain development studies uphold that the adolescent brain is wired for risk (Jim Casey Youth Opportunities Initiative 2011). Aiming to protect them, the residential care institutions are designed as “service-led” micro-social systems, a sort of “safe harbours” designed to abolish all risk and do not focus on preparing the future care-leavers for the outside challenges and independent living. This type of care, that manages their life and needs without enhancing their participation and empowerment develops co-dependence for simple tasks, like taking a bus or preparing their food, thus reducing the participation of the child to the status of a passive receiver. From one extreme of being exposed to an imminent crisis in their country of origin, unaccompanied children arriving in residential care enter an environment where safe risk-taking and learning is not always an option, which is detrimental for their development as emergent adults. The vulnerability of the children in care is that they “remain somewhat segregated from life in Cyprus and face immense difficulties in transitioning to independent living upon reaching the age of maturity” (UNHCR 2018) and they often report feeling “isolated, frightened and unable to cope once they turn 18 and have to leave the shelters” (Chrysostomou 2018).

5.6

Not Mirroring a Family Setting

Additionally, the care system is not aligned with conventional wisdom and scientific research. Common knowledge on which entire societies are built on says that entering adulthood is not a-press-of-a-button automatic transformation into a fully independent active citizen (Jim Casey Youth Opportunities Initiative 2011) that is fully socially and culturally engaged. Within families such an adult is only recognised around the age of 30, being supported by immediate and extended family until then. On the other side, children in care are “forced from the child welfare system at age 18 (. . .) and must negotiate the transition to adulthood suddenly without guarantees of continuing support (Keller 2007). It is worth wondering why the ageing out system is expecting from vulnerable groups like unaccompanied

Ageing Out of Care Towards Living a Self-determined Life: A. . .

295

children to reach such standards overnight. This is one of the most fundamental shortcomings of the care system and current ageing-out mechanism.

6 Positive Efforts Towards the Right Direction The achievement of an autonomous personality is difficult and very slow—Pierre Daco

The private shelters “Homes for Hope” (in Nicosia and Larnaca) that are operated by “Hope For Children” CRC Policy Center accommodated on average over 550 unaccompanied children between 2014 and 2020. The shelters are providing multidisciplinary services (legal, social, psychological and educational) based on expressed or identified needs of the children and/or needs arising on the spot. The services are complementary to each other with the best interest of each child being the guiding principle: legal counselling concerning the asylum process, family reunification, rights and obligation in the host country; psychological support and interventions when needed; educational support, and addressing recreational needs and social inclusion. Critical programs and workshops implemented at the “Homes for Hope” shelters have been developed from 2016 to support the rehabilitation of the children in care and future transitioning youth. Transition programs are aimed at increasing independent living and self-sufficiency skills and/or developing formal or informal social connections that can provide guidance and support to youth beyond their time in care. These programs are described below. The Rehabilitation program, designed a series of group workshops aiming to capacitate and empower the boys with the knowledge, skills required to overcome some practical challenges associated with the ageing out of care process: bureaucracy and documentation, awareness of the public services procedures and location, finding a house, managing a small budget, the steps to find a job. The group workshops had the following topics: (1) Documents and services in the city, (2) Looking for a job, (3) Becoming an adult, independent living, (4) Getting to know Nicosia are to be implemented twice per month. Since October 2017 and until December 2019, over 50 boys participated to the group meetings, divided in several groups. The target group are the boys turning 18 years old in the following period of 2–4 months. A Rehabilitation Checklist and Nicosia Maps of Services were designed to provide a holistic overview of the children’ main concerns during the process of ageing out of care and thus allowing the caregivers to design and provide a tailormade and structured approach and intervention. Rehabilitation leaflets are available in English, French, and Arabic. The Gradual Rehabilitation Program: aiming to motivate the children in care to assume responsibilities even for simple things like cooking or buying necessary items by themselves. Within this program certain groups have been developed that focused on different life skills and implement activities every week: (1) Product purchasing Group, (2) Cooking & kitchen cleaning Group, (3) Serving food & Snack

296

A. Clivet

preparation Group (lunch & dinner), (4) Gathering & distributing Donations Group, (5) Gardening Group, (6) Building Monitoring Group. By rotation, most of the unaccompanied children that are 17–17.5 years old receive tasks and responsibilities in all these groups for a week. The program’s activities started in November 2018. The semi-Independent Living structure as an alternative care program offers the option for semi-independent living from 17 years old but still be under the protection of the Social Welfare System until they turn 18. This decision to live in a semiindependent structure that needs to the supported by a positive evaluation of the legal guardian and the personal caregiver of their ability to survive on their own. Between 2016 and 2020, 34 young people have been included and supported through these care structures. Foster Care for Unaccompanied Children asylum seekers or beneficiaries of international protection, where willing families were trained to be foster parents for unaccompanied children, has been relatively recent success in Cyprus. Up to middle of 2020, the number of children placed in foster care families exceeded 150. Despite these alternative care mechanisms and rehabilitation programs, between 2014 and 2019 there were many aged out former residents of the shelter that were coming back to the shelter for support, expressing that they do not trust or know any other agency to go to for help. Many young adults return to the shelter to eat when the state support from social welfare fails to provide the support they need outside. This behaviour is reflecting the lack of necessary training, support, and chances. In this case, the young adults rely on the goodwill and the spare time of the officers to receive advice on specific procedures. As one of the most recent initiative, in 2020, the International Organisation of Migration (in partnership with the Social Welfare Services at the Ministry of Labour, Welfare and Social Insurance of the Republic of Cyprus) announced the implementation of a program called “Creating Semi-Independent Housing Structures for Hosting Unaccompanied Children Over 16 Years” aiming to offer secure semiindependent living opportunities and adequate protection for unaccompanied children. Despite these initiatives not addressing the problem holistically, all contribute to a change of perspective, testing new standards, pushing the conventional protection mechanism to be challenged, and expose its gaps in supporting unaccompanied children to reconstruct their lives. Longitudinal studies that would analyse the correlations between best practices related to working with transitioning youth out of care and their success stories as adults are still scarce and there is no outstanding way of what works best in transitioning out of care, there are 4 fundamental principles (National Report, Cyprus (2019) that focus on the strengths, potential of the unaccompanied children and the host. These principles stand also as a foundation and justification of the INTEGRA mentoring model: Building a relationship with a professional/mentor before any planning for transitioning out of care; The holistic preparation during care needs to relate to a life project and to have in mind the life of care leavers after ageing out; Engaged a sensitized local community and create a network of post-care

Ageing Out of Care Towards Living a Self-determined Life: A. . .

297

stakeholders; Understand the process of ageing and transitioning out of care by using complementary terminology to bring a more complete perspective. Building a relationship with a professional/mentor before any planning for transitioning out of care. Training caregivers from residential care as mentors would increase the chance of children developing a meaningful relationship with an adult figure. Evidence shows that “a one-on-one, caring relationship can significantly improve a young person’s well-being and prospects in life, especially when she or he is alone, without a parent or caregiver, and trying to navigate a new country and new way of life,” (Riatti, A. UNICEF Country Coordinator for the Migration Programme, Italy). A study (in the UK) on youth in care close to ageing out showed that 93% of them reported having positive outcomes as a result of mentoring. Threequarters reported achieving goals they had set out together with their mentors. Children whose mentorship lasted longer than 1 year were more likely to achieve their goals and make plans (Joseph Rowntree Foundation 2005). Mentoring helped them by providing important practical advice relating to their accommodation, education, employment, and training, and aiding with relationship problems, building confidence, and improving emotional health while acknowledging that connections to “parent figures” (Keller et al. 2007) contribute to positive adjustments to new social roles and higher coping decisions on the path of self-reliance. The holistic preparation during care needs to be connected with a life project and to have in mind the life of care leavers after ageing out: different studies show the association between “good preparation for leaving care and positive post-care experiences” (Mendes et al. 2011). The experience “during care” must above all provide support and prepare the children for the outside life so that they do not experience the immigrant paradox (that explains why some immigrants are healthier when they start their journey, and why their mental health deteriorates as they live longer in the host societies, Hausmann-Stabile and Guarnaccia 2016). Another possible alternative is reverting to the same cycle of exclusion that they experienced before entering under state care: “It is neither logical, nor ‘profitable’ to welcome these young people, to train them and to then take away any future perspective the day of their majority. The transition plan should always involve the development a life project that is connected to their strongest passion. The notion of “life project” implies supporting the children, including after they reached the age of majority, until the achievement of their project. Besides, a young adult who returns to his country of origin with a qualification or training will be more able to participate in its development” (Debré 2010). UN guidelines from 2009 take it even further and highlights the significance of focusing not only on emergent adults before they age out but also after they leave care. Sensitized local community and post-care stakeholders: Whatever plans done by the transitioning care leavers when ageing out are more likely to be implemented and be “more successful” when they live in supported accommodation, when there is consistent contact with past workers and when “young people’s progress has been regularly reviewed in a manner consistent with the aspirations young people have for themselves (Wade 2017). Complementary to the above-mentioned approach sensitising and preparing the local community to accept and support young adults

298

A. Clivet

is foremost an element that should not be neglected if sustainable and durable solutions are envisioned for the ageing-out young people. The responsibilities need to be assumed according to a timely implementation in order to assure a stable support mechanism and not to hinder or ruin the progress achieved by any of the agencies and organisations involved in the support care-chain. Complementary terminology to bring a more complete perspective: The terminology and the expressions used to describe the process from being in care and aftercare imply subtly an ending point of a specific state. Expressions like “ageing out of care” itself indicate that the child exits a status, an identity, with no notion or uncertain of post-care support. The tag name of a “care leaver” again points to a status that is left behind without a clue for the future. While these expressions are not incorrect are also incomplete. The unaccompanied children entering adulthood should be defined more in terms connected to their identity that is entering into a new phase of life: i.e. transitioning out of care youth and less in their beneficiary status as state care beneficiaries. The adoption of a complementary terminology like “ageing out of care towards autonomous living” or “ageing out of care into adulthood” and “ageing out and transitioning youth” could contribute to a new mindset of caregivers and legal guardians that would imply a continuity after officially the state care ends. Simple adjustments like using the right words at the right time and expressions to express the graduality of emancipation and the necessity of continued support even after 18, can contribute and become a constant reminder to all professionals that the final goal of this inclusive process is a confident, autonomous and integrated adult and not just ending a state through “ageing-out”. Similarly, this would also contribute to how children in care perceive this cycle of life, not an ending phase, but the transition to a new, natural period of life, which is ok to be full of explorations, new types of decisions, confusion and learning from mistakes.

7 The Mentoring Integration Programme Contrary to the common perception, mentoring means mainly listening and positive reflection

Law proclaims a person to be an adult the day they turn 18. In contrast, the natural process of reaching adulthood is only gradual and should ideally benefit from individualised support. That support is synergistically inclined to incorporate past cultural embedded experiences, present abilities, opportunities, and strengths of the support system, future goal-oriented dreams, forward-projection strategies, and local socio-cultural expectations of what adulthood should look like. The necessity for a gradual mechanism and framework was noticed and highlighted in the interviews with the care leavers during the ethnographic research (2018); “yesterday I was a child, today I am an adult! It does not work like this, you need time to grow, but I still have the same problems and on top as an adult, I lost some of the wellbeing I had in the reception centre”. Another care leaver expressed

Ageing Out of Care Towards Living a Self-determined Life: A. . .

299

his perception of this sudden change: “when you are OUT, there is no one you can ask for a job, for a school (...) there are only obstacles, everywhere on the road, we are nothing in the ocean of nothing” (INTEGRA, National Report 2019). This state of mind reflects that the transition and “leaving care is laced with uncertainty and anxiety” (Wade 2017) affecting tremendously their ability to thrive and can later lead to homelessness, depressive feelings and finally social exclusion. Lacking the protection and long-term support that a family naturally offers, the children in state-care are in a weaker position and may experience an accelerated and compressed transitioning to adulthood. The report “Best Practices in Transitioning Youth Out of Care” is a meta-analysis that identifies that the lack of supportive relationships is among the major barriers for transitioning youth out of care (Dewar and Goodman 2014, p. 3). The report highlights that it is not the quantity of relationship with adults that matters but the quality of it. This significant factor translates in developing and maintaining a permanent connection with at least one committed adult that offers a “safe, stable and secure relationship.” (Barth et al. 2011). For unaccompanied children in care their guardian, although designed as a support figure by the legal system, is an abstract figure (an institution and not a person) that is usually difficult to “reach” and communicate with, due to bureaucratic procedures. The “absence of a primary caregiver with whom to bond, a lack of stimulation and constructive activity” (Cantwell et al. 2012) is noticeable and painful. The longing for “a kind of mentor who can help us, be a reference to us” (INTEGRA, National Report 2019) was expressed by many interviewed unaccompanied children. In tackling the problem of an absent adult reference figure, this chapter highlights the importance of residential care professionals playing the role of an accessible and trained Mentor Figure, who through a gradual, participatory, and individualised process of mentoring is tasked with understanding, assisting, and supporting the multi-layered, profound, and intricate transitioning journey of an unaccompanied child into adulthood. Consequently, the INTEGRA1 the team aimed to design an integrative and participatory child-friendly framework to support ageing out youth entering into autonomous living, and proposed a multi-layered solution involving actors and stakeholders at different care level: to train professionals working with children as Leaving Care Mentors (LCM) to better assess children’s needs through special designed tools and to create a network of trusted carers, who can help the unaccompanied refugee children during care and after ageing out. As mentors, caregivers can offer helpful advice and guidance “in navigating important decisions during the transition to adulthood” (Csikszentmihalyi and Schneider 2000). Between June 2018 and May 2020, “Hope For Children” CRC Policy Center Cyprus, coordinator, with partners, CESIE (IT), CEPS (ES), Smile of the Child (GR), Mediterranean Management Center (CY), and ADCdP, Division M (PT) aimed to design an integrative and participatory child-friendly framework to support young care leavers entering into autonomous living. The project INTEGRA was co-funded by the Rights, Equality, and Citizenship Programme of the European Commission.

1

300

A. Clivet

The ethnographic research in Cyprus (between September and December 2019) gathered qualitative data and examples to support the optimal implementation of INTEGRA’s goal: to build the capacity of professionals from the residential care system as Leaving Care Mentors that will support the child in care with the ultimate goal of social and cultural inclusion. The data was compiled from multileveled participants and through diverse processes: observation, semi-structured interviews with different key-actors, and consultancy groups with unaccompanied children and care leavers for almost 4 months. The main participants were caregivers, care leavers and children in care, educators, and post-care stakeholders In total, 92 people participated in this ethnographic research, 75 in the observation research procedure (19 Professionals, 9 volunteers, 47 children), and the remaining participated in the inquiry process (2 caregivers, 3 educators, 4 post-care stakeholders). According to the interviewed educators and the caregivers, the definition of the autonomy status of a young adult includes knowing your rights, being able to make informed decisions, and having a support network. It is in this relationship of interdependence, the ability to connect with and depend on others (Jim Casey Youth Opportunities Initiative 2011) is perceived as vital for entering adulthood. This confirms that, naturally, the status of full autonomy recognizes the need for community, relationship, and companionship, and every person is a unit with needs and characteristics that belongs to a community and cannot be expected to succeed on its own (INTEGRA National Report on Ageing Out 2019). Another important element mentioned by caregivers, educators, care leavers, and children in care was that the transition plan should always involve the development of a life project that is connected to their strongest passion. Tailored-made educational opportunities for unaccompanied children transitioning from state care is one of the most efficient way of engaging the children in care in life projects, in supporting and offering the opportunity for forward projection. These educational opportunities should address (1) the need to be engaged in educational and vocational activities where different communities come together and the audience is mixed and (2) language lessons: the most urgent need is to learn the language that will support their connection to the local community (3) the need for fast track educational opportunities for children in care that enter the system after 17 years old. The ethnographic research also concluded that there is the need for a system that provides integrated models of supports, envisions the growth of significant, longterm relationships between mentors and mentees and social networks at its heart: “there are different pieces of advice and different paths of guidance and it’s very challenging and many times you just have to be able also to sit down and listen” (INTEGRA, National Report 2019). The findings and conclusions of the national research across the 5 countries were emphasized in the White Paper Ageing out of Care into Autonomous Living (2019), which proposes a core of essential pillars for Autonomous Living, echoed from the expressed needs of children in care and care professionals. The White Paper is reflecting the voice of the children in care as each ethnographic research in the 5 countries has organised 1 Child Consultancy Group according to the complete Lundy model of participation. At the same time, the White Paper is encouraging a

Ageing Out of Care Towards Living a Self-determined Life: A. . .

301

complimentary tailored approach in finding solutions or adapting trends when addressing needs that challenge a prosperous transition into adulthood. The ethnographic research and the Wite paper findings fuelled the creation of the INTEGRA methodology tailored to address the practical and interpersonal needs of transitioning youth. More exactly, a personalised ageing out of care plan is prepared by the mentor together with the child, enabling an enhanced post-care inclusion into society. In this matrix (Fig. 1), the role of the mentor is designed as a resilient tutor working on past trauma and independent life skills; focusing on cultural empowerment by supporting the goal projection abilities using tools to enhance young people’s entrepreneurship while timely setting up a network of post-care stakeholders towards smooth integration. Ideally, the support care should start as soon as a child enters the residential care and be provided through a stable, continuous relationship with the child and rearrange the transition plan according to the time in the shelter. The methodology matrix below presents the actors, their role, the recommended timeline of 2 years, the gradual process with a strongly participatory approach underlined at every step of the transition. Under the category of supporters and contributors there are three main types of actors: The Leaving Care Mentors (LCM) have the role to assess, mentor, coach, and advise. Their responsibilities are intense at the beginning of the mentoring process, changing gradually from full collaboration when mentor and mentee are fully engaged and committed to just offering advice and tips to mentees towards the end of the mentoring process. On the independence scale, it minimises social exclusion by gradually transitioning from a full mentee state to enhanced independence. The Legal Guardian: the role of the guardian is to observe and to supervise. Frequent meetings and updates between mentors and guardians are recommended for a process of reciprocal accountability and monitor progress. The Post Care Stakeholders: mentoring in care would mean nothing if the unaccompanied child is not assisted in expanding their knowledge and relationships with post-care stakeholders. Their role should not be neglected if the aim is longterm success. Being aware and engaged, the post-care stakeholders signify an essential puzzle piece on determining the optimal alternative for each child. The beginning of the mentoring relationship is marked with a first assessment of the needs of the child from two perspectives, of the mentor and the mentee. This principle encourages self-awareness, honesty, and transparency on the part of the mentee and listening skills, openness, and willingness to support on the side of the mentor. The main skills that the mentor is trained to focus on are the resilience abilities (coming to terms with the past events and being present), the entrepreneurial drive (the aspiration mixed with motivation becomes the strength and the engine that drives the mentees to the next phase of life) the forward projection abilities (the ability to see yourself in a certain version of desired future with support life project implementation, leading to the creation of positive visions of a future self), goal setting skills and acknowledgment that there is a path to cross ahead before the

Fig. 1 Matrix of Mentoring Integration Programme. M month; LCM leaving care mentor; P4C platform for cooperation (post care stakeholders)

302 A. Clivet

Ageing Out of Care Towards Living a Self-determined Life: A. . .

303

visible outcomes are visible. As they transition towards adulthood, their wellbeing, safety, and control is “wrapped up in this sense of a secure projected self” when “young people are committed to taking the steps necessary to achieve their aspirations” (Chase 2013). The second assessment is not aimed at comparing with the initial results but to emphasize the raised level of awareness of the changes that have been implemented in the areas of resilience, entrepreneurial drive, and forward projections abilities and thus most likely a boost of self-confidence and trust. One fundamental principle of this model is that “a child’s opinion should be listened to and given due weight in relation to the child’s age and maturity” (International Committee of the Red Cross 2004). When their opinion of themselves is optimistic and embody “a positive sense of self (. . .) being able to visualise a place and role in the world into the future” (Chase 2013) this becomes vital to their notion of wellbeing while trying to reconstruct their life. Therefore, according to this model of mentoring based on the Lundy model of participation, children are given safe space, a voice to express themselves, an audience willing to listen and influence over their own decisions and communication. Besides the participatory elements, one of the most visible strengths of this model, is its open structure according to the needs and the feedback of the beneficiaries: one professional will have an overview of all diverse needs of an unaccompanied child offering first safe space (the residential centre and the relationship between mentor and mentee), will support the child in care to voice and express their dreams, plans, concerns, doubts, or fears and then gradually an audience and an influence stage through sensitising the post-care stakeholders and through the networking process. When one mentor is aware of all interconnected needs of a child, there is a higher chance of understanding challenges ahead on the path of emancipation. The quality of this relationship as mentor and mentee will be also reflected in the progress and advancement of entering a new life period. The Mentoring Integration Programme (MIP) is one of the significant practical results of INTEGRA project which consists of a wide range of tools for care professionals working at residential centres, day centres, homes or shelters. Using these tools, the mentors can work together with the youth to truly be prepared for the transition process in key areas of their lives: relationships, education, housing, life skills, identity, youth engagement, emotional healing, and adequate financial support. The overarching perspective of understanding the needs of the children in care is that everything is interconnected. A healthy level of self-confidence and a nourished ability to envision a future affects the presence and the performance of a child or teenager in the educational system. This connects the minor to a potential life-plan and practical skills and extends the formal and informal networks. These in turn offer opportunities and empowerment to seek psychological support and physical health care, find a job, participate in different extracurricular educational activities or establish long lasting and healthy relationships. From this perspective, no need should be left unaddressed, unsupervised or discarded as being too small or insignificant. Nonetheless, the level of interconnectivity is hard to assess without

304

A. Clivet

looking at the pillars that construct the structure of a healthy age transitioning unaccompanied child. Thus, the Mentoring Integration Programme highlighted the main needs and grouped them in Nine pillars for Self-Determined Living or Pillars for Development (short know as Pillars for Development) that are to be included for assessment and development with every mentoring relationship: Education: connecting the child with a life project, the educational setting should offer practical skills, promote knowledge and/or skills about learning to learn within a learning-by-doing approach. Community participation and interpersonal relationships: connecting the children with local people, local and same background teenagers and post care stakeholders, leading to strong and positive informal and formal networks that prove to be sustainable. Health: promoting and implementing a holistic approach for healthy physical, mental, emotional and social development, with consistent and supported psychological mechanisms that allow care leavers to know their rights and developing their life skill of getting the proper care when needed. Communication and cultural awareness: creating an honest space of communication with children and includes training for children and professionals on oral expression, specifically on positive/assertive oral communication with vulnerable groups and intercultural communication. Career and Employment: should include vocational guidance on job searching, internship opportunities, development of transversal elements and entrepreneurship, preparing for job interviews, and connecting with employers both in real life and on online platforms. Financial and money management skills: developing money managing skills for the daily life, learning about the importance of savings and long-term value of certain things, and the regulations for paying rent, bills and taxes. Self-determination, autonomy skills and teenagers’ development: simulation of real-life experiences as a common practice, where the child receives personalized support, exercise his/her responsibilities thus developing a sense of healthy selfawareness and ownership; accepting nonregular development paths due to health issues (e.g. cognitive issues, PST syndrome). Bureaucracy, legislation and networking: practical activities, ongoing interpretation services and frequent informative meetings related to the social and legal status. Housing: development of house seeking, house maintenance skills and communication with the landlord. Semi-independent living opportunities with a strong connected with a trusted adult are highly recommended. When analysing and discussing in detail each of these pillars through a toolkit that enables to assess the knowledge and the skills of transitioning youth, the mentors can get a holistic overview on what are the most urgent needs of the unaccompanied child soon to transition out of care. Some mentees might struggle with financial and money management skills and not knowing how to manage a small budget while others might have communication challenges and feel inadequate culturally.

Ageing Out of Care Towards Living a Self-determined Life: A. . .

305

The MIP consists of two main steps: the first step is focusing on Assessment and the second one on Mentoring and Guidance. The first step is Assessment and identifies the answer to the question: “What is the problem?” by assessing the knowledge and skills of unaccompanied children on the full span of the 9 pillars. The second step is Mentoring and Guidance answers to the question: “How can I support the transitioning out of care?” The trained Leaving Care Mentors through the MIP platform has access to a set of workshops and mentoring activities specially designed for each pillar. The first step is comprised of two assessments: Online Assessment and Offline Assessment. The Online Assessment (focused on knowledge) offers an opportunity to the mentee for self-assessment on the whole range of the pillars. The main goal is not examining his performance and analysing quality of knowledge but getting an overall perspective on the mentee’s needs and discovering ways to prioritize them with the mentor. For this reason, the mentor will not use the results to reveal gaps but to design strategy for development, where clarified and simplified knowledge becomes of great use in ageing out. The Offline Assessment (focused on skills), according to the results of the Online Assessment, the mentors and mentees can choose to prioritise specific needs that scored low. Therefore, although the Offline Assessment might require relatively more time and longer commitment from both mentor and mentees, they have the opportunity to work deeper on certain reflected needs. The tools are designed according to same nine pillars and through scenario and case studies analyse the skills level of the mentee for each category. The Mentoring & Guidance step: The mentoring program aims to achieve hard outcomes, such as internship, educational enrolment or training, getting a safe house, or increase knowledge on bureaucratic and legislation of local settings, but also soft results, such as increased resilience, self-esteem, forward projection abilities and personal development. The 2nd step of MIP is also consisting of two different types of activities: Mentoring Activities: The Mentoring activities are the implementation of the above-mentioned principle: build a relationship before starting planning for transitioning out of care. While building this relationship, the mentor is not a teacher/trainer/facilitator, but a caring, more experienced individual(s) that will establish a relationship with a less experienced person resulting in the provision of support, and constructive role modelling steadily over some time. Each mentoring session is organized in two main goals in mind: (a) Building trust (essential to all mentoring initiatives being a transversal component of the activity) and (b) to support the mentee identify opportunities, interests, willingness to pursue a personal constructive path regarding a specific development pillar. (INTEGRA, MIP Manual 2019). The second part through creative questions and discussion (also using the Socratic Method to help develop the critical thinking skills in their mentees), it aims to develop the knowledge and skills of the mentee on a specific pillar. The suggested creative exercises at the end of the mentoring session are shaped to increase reciprocal trust, openness and honesty and offer opportunity to talk about fears and challenges in an innovative way.

306

A. Clivet

Workshop activities: These types of activities can be done one to one or in a group (group mentoring). Their focus is not on the relationship between mentor and mentee but mainly on the knowledge and skills of the mentee related to the pillar under review. The activities are practical, with clear learning goals. The mentor acts more like a facilitator and guide and support the learning process of the unaccompanied children. The exercises challenge the mentee by giving clear instructions and scenarios and safe environment to practice important life skills for an upcoming autonomous life. The proposed mentoring and the workshops activities follow a similar structure in presentation mentioning details like (1) pillar relevance, (2) what competences will work on, (3) how much time each activity will require, and (4) what materials are needed for implementation. Each session of mentoring has also clear proposed objectives that represent measurable standards to be able to track easier any visible progress while anticipated challenges are clarified as well as the way to address the challenge. Created in alignment with the White Paper findings and the Assessment questions and activities, the mentors can choose, according to the results at step 1, either one to one Mentoring activities or Workshop activities which will assist in educating and guiding the child to improve and be better prepared for the ageing-out process. Although a series of implementation steps exists in all mentoring activities, these are very flexible and can be adapted by the LCM according to the needs and specificity of each case. The tools have been made available online (https://integra. uncrcpc.org/resources/) for all caregivers and professionals in residential care under the coordination of “Hope for Children” CRC Policy Center Cyprus and the INTEGRA framework (their exact address can be found at the end of this chapter). Piloting the Mentoring Integration Programme: the training of professionals as Leaving Care Mentors. After training 20 participants (professionals related to children’s care including social workers, psychologists, educators, sociologists who work in Foster care, the Social Welfare Services, and residential care) on the INTEGRA mentoring model, the Pilot implementation of the Mentoring Integration Programme toolkit was done in Cyprus from December 2019 to end of February 2020. Following the training, for Leaving Care Mentors, 11 professionals have engaged in a mentoring relationship with 31 care leavers (29 boys and 2 girls) residing in residential centres in Nicosia and Larnaca (Cyprus). The participants succeeded to use at different extent the Online and Offline assessment. Among the care leavers who took the Assessment, 4 of them lived in foster families, and the rest were unaccompanied minors between 16–18 years old from Congo, Guinea, Syria and Somalia. They all were students, enrolled in public school at a different educational level. Some of mentees arrived in Cyprus a few months ago before the pilot implementation while others have been in residential care for more than a year. Most LCMs who implemented the Online Assessment considered the pillars efficiently assessed and the results’ analysis provided helpful to decide which pillars should be assess through the Offline Assessment (identify the problems, gaps, difficulties). Overall, the professionals stated that after applying the Online and

Ageing Out of Care Towards Living a Self-determined Life: A. . .

307

Offline Assessment and the Mentoring tools, they realised that they have a clearer picture of the diverse needs of each unaccompanied child and how these needs influence each other (identified the how through clear instructions on how to build the mentor-mentee relationship). The Pilot duration was 2 months, yet notable alterations and improvements can become more visible after minimum 6 months of building a trust relationship and through regular meetings can work on their learning goals in terms of knowledge and life skills. On the other hand, while working with different unaccompanied countries originating from different countries the mentors encountered cultural and language barriers. Not all the transitioning unaccompanied children who took part in the pilot displayed a good level of English, so the LCMs were supported by mediators and translators in this process. The language obstacles interrupted this way, a one to one relationship. To avoid difficulties in following the whole assessment, some of the LCMs suggested to translate the Online Assessment in a language that is mostly used in the children s country of origin to avoid tiredness or monotony (i.e. French and Arabic). Additionally, for similar reasons, some mentees found the Online Assessment too lengthy and some concepts too difficult to grasp and understand its whole meaning. The workshops with post care stakeholders aimed to engaged them to become active members of the Platform for Cooperation. Through thorough negotiation along the lifespan of the project and the culmination of the workshop in February 2020, the INTEGRA platform in Cyprus welcomed 15 stakeholders’ organisations: 7 NGOs, 3 companies for profit and 5 governmental or semi-government institutions. The stakeholders were introduced to the platform (P4C) and explained how it works informing them how they can register and create an account with their offers. The first training on financial and money management skills was offered by an NGO in February 2020 to unaccompanied children residing in private shelters “Home for Hope”. After the pilot implementation, some mentors continue to use some of the INTEGRA tools in creating a personalised care plan for the children they serve and support, adapting to each circumstance. The greatest challenge is adapting them to each case and its specific needs and overcoming the cultural barriers which are bigger and stronger when working with unaccompanied children. Nonetheless, unless a trust relationship is built, and a sense of reciprocal respect is visible overshadowing the cultural differences no mentoring pathways bound to success.

8 Mentoring as a Framework for Redesigning State Care: A Clinical Sociology Perspective Emphasizing the radical importance of the period in care, the INTEGRA initiative is also confronting the perception that adulthood is decided only by age imperatives. In this respect, INTEGRA is aligned with the first Recommendation of the Committee

308

A. Clivet

of Ministers to member States on supporting young refugees in transition to adulthood (issued on 24 April 2019) that asks for member countries to ensure that young refugees receive additional support even after the age of 18 and to enable them to access their rights. When filtered through clinical sociology perspective and principles, several features make INTEGRA programme stand out: Entering adulthood is at the same time for each child a natural and a planned process and requires an unique intervention: alongside the clinical sociology perspective that believes that each intervention situation is unique, from the process of collaboration, analysis, design implementation and evaluation, the same way INTEGRA emphasizes the need for a personalised approach through one-to-one mentoring and tools that allow the specialist staff to design unique care plans and keep track of their progress. Within the INTEGRA framework, the process of entering adulthood is portrayed as gradual transformation of social role but also a planned social and behavioural change (Fritz 1989) that empowers and builds on the strengths of each child, on the opportunities and support system of the sensitised local community and post-care stakeholders. Residential care professionals in their role as mentors become agents of change by being mediators in one of the most acute moment of tension in the life of an unaccompanied child. Clinical sociology stands for understanding the societal factors that create tension, challenges and restrict the individual from growth and being effective (Bruhn 2001). In the case of unaccompanied children there are different factors associated with their status that affect their capacity, willingness and confidence in the new socio-cultural environment when arriving to Cyprus. When equipped to offer tailored mentoring programs and engaging actively with post care stakeholders, the mentors utilize their knowledge and expertise to facilitate the necessary transition. INTEGRA methodology and MIP toolkit as resources to improve the wellbeing of unaccompanied children transitioning out of care. Designed with a multidisciplinary approach as foundation, when applied the MIP toolkit offers the opportunity for identifying the problem, design a practical intervention meant to respond positively to challenges and improve outcomes (Cole 2020). The Mentoring programme is actively engaging the mentees in the design of their future “stimulating their participation in the development of a plan which will fit their needs and which they can regard as their own.” (Fritz 1989). INTEGRA’s vision was built on multiple focus groups and detailed feedback from experienced residential staff. Its tools and the framework of 9 Pillars for Self-determination were created as a result of a detailed ethnographic research before and during the implementation of the methodology and mentoring program. The mentoring relationship, the heart of the model, cannot live if the mentees are absent and their commitment is not visible. All these efforts were directed to make sure that the voice of the children is included and that their participation is shaped according to Lundy Model of Participation.

Ageing Out of Care Towards Living a Self-determined Life: A. . .

309

9 Awareness and Empowerment Through Rights and Responsibilities: Relevance to the Convention of the Rights of the Child The Convention on the Rights of the Child (CRC) stipulates standards that states must adhere to regarding the treatment of children in their respective jurisdiction and authority. The CRC states, in Article 2, that all the rights it contains apply to all children without discrimination of any kind. Therefore, once ratifying and implementing it in the domestic law, every state is responsible for the protection and safeguard of any unaccompanied and separated child on its territory. According to Art. 10 of the Refugees Law (N. 6(I)/2000], as it was amended, the Commissioner of the Rights of the Child, provides legal representation to unaccompanied minors, as part of the procedures for examining their asylum applications. This change is an implementation of the Cypriot commitments in line with the Convention on the Rights of the Child on protection of unaccompanied children who are a particularly vulnerable group concerning the violations of their rights as for Article 22 (Refugee children): Children have the right to special protection and help if they are refugees (if they have been forced to leave their home and live in another country), as well as all the rights in this Convention”. The specific legislation regulates all matters relating to unaccompanied children as applicants for international protection and refugees, including their rights in reception centre conditions. The Refugee Law copies and reproduces the provisions of the Directive 2013/33/EU of the European Parliament and the Council, defines reception conditions, “to ensure them a dignified standard of living and comparable living conditions in all Member States”, as well as the right to education which is an important aspect of becoming autonomous. For unaccompanied children, knowing the identity and the responsibilities of your legal guardian is imperative for adjustment to the new legal, cultural and social country and for the process of transitioning out of state care. Yet, when the official guardian is not “accessible”, appointing a mentor transfers that protective responsibility in such a way that the support becomes tangible for the child. Awareness and empowerment mentoring practices for unaccompanied children through a mentor make their rights and responsibilities visible and comprehensible. The INTEGRA Mentoring program was aligned with the 10 Principles for integrated child protection envisioning Leaving Care Mentors as “a person of reference responsible for the child (...) to assure liaison among the different sectors and to guarantee a coherent and comprehensive response for the anticipated reintegration”. By nourishing and enhancing their voice through resilience skills, entrepreneurial drive and forward projection, the INTEGRA is mapping a mentoring framework that is total alignment with the 3 P’s of the CRC—provision (provide safe environment, sense of connectedness and accommodation), protection (network of supporters, knowing their rights and access to resources minimizes their risk of exploitation) and participation (the mentees participation is vital to this process and methodology, without them it risk the failure to address their deepest needs).

310

A. Clivet

In all mentoring activities it is encouraged a balanced approach having in mind the best interest of the children (article 3) and enhancing their voice (article 12) by encouraging and guaranteeing their participation by knowing their rights, introduce the mentor figure as a special care (article 20, 21, 22), working tireless and committed on the pillars for self-determination (Articles 23–27) and acknowledging their status and knowing their rights (article 42). By emphasizing all these articles, INTEGRA methodology is seeking to create a “joint vision for the child across the many actors, in all actions concerning children whether undertaken by public or private social welfare institutions, courts of law administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration” (...) enabling “the child to develop into adulthood in an environment which will meet his or her needs as well as fulfil his or her rights” (UNHCR 2018). Although under international law, they have all the rights to develop the exact Nine Pillars for Self-determination, in real life these rights become void of meaning because of their “unenforceability”. As Hannah Arendt skilfully mentioned: “inalienable rights are unenforceable for individuals who lack (. . .) their own government” (cited in Bhabha 2009). Being in this compromised stateless state, many unaccompanied children do not know that they have the right to have rights. No matter their status and the reason why they embarked in a risky unaccompanied journey, they are always children. Stateless but entitled to protection, support and all the rights enshrined in the CRC. Therefore, matters faced by unaccompanied children should first and foremost be addressed from a child protection perspective having in mind their best interest and only after from a migration or asylum-seeking perspective. Unfortunately, this is not always the case and when it applies it changes radically the day their social and legal status dictates the way unaccompanied children are treated. Even more the transition to adulthood “represents the phase in which the tensions between child welfare and the immigration systems are at their most acute” (Wade 2017). There in that moment benefits delays or cease to support, human support is fragmented and harder to reach, housing and food become the highest goals, safety is compromised, past investment is diluted by fears and anxieties. The attempts to surmount these challenges are even so at the hesitant starting point.

10

Lesson Learned and Taking Action

Unaccompanied migrant children, as children on the move exposed to risks of becoming victims of trafficking and exploitation, can be considered some of the most defenceless groups in Cyprus. Their vulnerability is also found in their uncertainty or unawareness of their rights and what assistance is available and they could trust. Personal management and self-determination skills are ordinary challenges. They experience trauma in their country of origin, trauma on their journey to a new country, depression and shock of acclimatization at the new country, while continuing being alone and isolated without family support. Their

Ageing Out of Care Towards Living a Self-determined Life: A. . .

311

unaddressed complementary and interconnected needs hinder their motivation, steal the “vital impetus” for everyday life and minimise any investment in a “future self”. As early as possible, children in care must prepare for their autonomy, an ability that needs to be nourished and encouraged according to personal goals and needs, to be trained and supported by caregivers and social environment. Mentors should be introduced to unaccompanied children the latest when they are around 16 years old, so that together they will create a developmental opportunity for a 2-year transitional period until reaching adulthood using the available Mentoring Integration Toolkit. The Toolkit can be used for all types of transitioning children out of state care, taking in consideration the possible language barriers and its required longevity if radical changes are desired by mentor and mentee. Nonetheless, addressing all the nine Pillars for a Self-Determined Life the mentee will have a higher chance to reconstruct his/her life feel normal, safe and protected. Additionally, the mentors are to recognise their role and their importance and presence in diverse interdependent network that could allow them to connect the mentees with the post cate professionals. Depending on the country, district or city different stakeholders will want to aid and support the INTEGRA effort, but it is a good principle to try to engage from different level: non-profit sector, for profit and governmental institutions. Literature suggests that one of the most effective alternative care mechanisms for unaccompanied children is foster care or small group homes (Wade 2017), organized as interdependent living services that connect children with caring adults (Jim Casey Youth Opportunities Initiative 2011), and, thus nourishing the sense of rootedness and connectedness. In Cyprus, such a mechanism is only at early stage of development and cannot cope with the increasing number of unaccompanied children arriving on the island. The ethnographic research in Cyprus has undoubtedly shown the need of extra support and understanding, and how a Mentor Figure can act as a bridge, as a connector, as a motivator. The Mentor2 will be equipped to offer tailored mentoring programs while being actively engaged with multiple post-care stakeholders. At its core, the INTEGRA methodology underlines that the care and transitioning out of care system should include a support mechanism that assist the unaccompanied children while in care that assistance is visibly transferred into skills, social connections, eligibility for employment, legal residence and access to education and safe housing. By developing adaptable and available tools and platforms the aim was to support the collaboration between target groups, mentors and mentees, and national stakeholders continuously. Recognising that all the needs of the unaccompanied children are interconnected (education, health, community participation, bureaucratic and administrative support, self-determination abilities) is supporting the principle to avoid one-size-fits-all approaches to child-care and is asking for a long-term vision. This vision can be included in every single act of everyday life of offering care. A simple activity, like

2 The mentor figure can be a professional from the existing residential staff trained according to the INTEGRA methodology, not burdening the extra staff cost.

312

A. Clivet

learning a new language, can then be seen in connection to increasing the level of the child’s confidence and independence, thus contributing to their ability to succeed and prosper on their own. Redesigning the ageing-out mechanism to protect the transitioning to adulthood for unaccompanied children should involve the following: a phase for adjustment, revision and reclaiming to residential care when the mentor is working together with the child on his/her spirit of resilience abilities. a phase of preparation, groundwork and planning when the mentor is developing together with the child on the entrepreneurial drive skills and forward projection skills on the nine pillars for a Self-Determined Life, a phase for post care support, when the mentor, legal guardian and post care stakeholders are connected in vision and accountability and support youth transitioning out of care for a mutually agreed period. Moreover, in constructing a holistic approach of Transitioning out of Care towards a Self-determined Life these are the specific segments, this holistic approach should include: a balance between a safe environment where the child receives a complete support on resilience but also exercising rights and responsibilities and developing their sense of self-awareness, establishing a relationship with a trustworthy reference figure/mentor strategy to address the fear and uncertainty of living independently and nourish responsible and forward projection attitudes and behaviours through a balanced support offering plenty of opportunities to talk about their strengths, passions, challenges and fears related to education, accommodation, health, legal status. Ideally this process should start at 16 years old. Regular procedures to immerse the child in real life experiences or semiindependent living while in care that could cultivate a sense of their life, an entrepreneurial drive and motivation, forward projection abilities, through community activities, supporting and connecting the child to strong, healthy informal and formal networks while in care to develop a naturally occurring multi-layered support system for the transitioning out of care process, establishing trust relationships between children in care and post-care stakeholders to achieve a positive impact after the transitioning out of care, a durable and continuum collaboration among caregivers and mentors with the other post-care stakeholders as essential to shape a welcoming community to ease this transition, adopting a long-term vision to implement high-quality evidence-based front-line practice among caregivers, legal guardians and Leaving Care Mentors. The emphasis of new care & transitioning and ageing out system will not be only on “what we can do to protect the children while in care”, but how professionals can help them “now” so that, when they become ageing out adults, they can help themselves living successfully and socially connected outside the residential centres. Finally, to be able to apply practice-focused accountability across the whole care and

Ageing Out of Care Towards Living a Self-determined Life: A. . .

313

post-care network, creative and systematic campaigns are needed to sensitise actors that have an impact on the transitioning into adulthood period and the communities at large as “our most vulnerable children and young people in care deserve nothing less” (HM Government 2016). Redesigning innovative transitioning ageing out framework that will build towards an informed and mutually beneficial transition to adulthood between mentee and the rest of the society shifts the focus from their immigration status to their identity as children and emergent adults. The change will be gradual but definitory. Then when the shift is complete, the residential care settings will seem obsolete and family-based care settings will be the only option for assisting and investing in unaccompanied children and confident young adults.

11

Reflections on the Perceptions, Fears, and Hopes of an Unaccompanied Child

“I have a lot of missing in my life” he quietly said these words while his eyes were reflecting upon his future path and his hands...well, his hands seemed to be kneading the very dough of time to try to make it stop. It was hard to believe and comprehend the complexity of labyrinthian alternatives that his life might have once he would get out that gate. He wanted to make the time stand still so he can still be called a child. But time is reckless and oblivious to his pleas. Today a child, tomorrow an adult. His dream was simple: to find a house, a workplace, and some friends to make him feel a bit safe. To find something or someone to remind him of home. His struggle is real, and he learned that everyday decisions matter. His trauma is not counted in the number of tears but in his shredded identity with every loved person that he lost. If he lets the nightmare win him over, he will be called resistant to treatment. If he fights the nightmares, he will be called resilient. And yet, accepting the past is just a small step. Now he needs to learn from it and deal with its consequences. Unthinkable experiences, the forced decision to travel alone, unsure of who to trust, the loss of his family, the safety of his community, the confusion of his identity, the maltreatment during the journey, the inadequacy in the new continent, marked him for life, shaped him in a survivor. He needs to leave, time told him so. Leaving care for what? He needs time to find his future, but time ran out. So, he is trying to adapt. . .he fails. . .he gets up and tries again but his heart shrinks with every rejection. . .He feels powerless sometimes and in need of guidance and someone to look up to. Without a safe guiding figure that can aid in steering his dreams and connect his lost reference points, his innermost vulnerability is exposed. The question that remains is who will be there to make him and the world around him see his real potential?

314

A. Clivet

References Arnett, J. J. (2000), Emerging adulthood a theory of development from the late teens through the twenties. American Psychologist, 55, 469–480. Retrieved from https://pdfs.semanticscholar. org/e7a8/c894f7f33a765ab357073aded3530c1029d8.pdf?_ga¼2.177015847.340651591. 1604307106-1527364914.1597847196 Barth, R., Greeson, J., Zlotnik, S., & Chintapalli, L. (2011). Evidence-based practice for youth in supervised out-of-care: A framework for development, definition, and evaluation. Journal of Evidence-Based Social Work, 8, 501–528. Retrieved from https://www.researchgate.net/ publication/51754910_Evidence-Based_Practice_for_Youth_in_Supervised_Out-of-Home_ Care_A_Framework_for_Development_Definition_and_Evaluation Bhabha, J. (2009). Arendt’s Children: Do today’s migrant children have a right to have rights? Bruhn, J. G. (2001). On Becoming a Clinical Sociologist. In Handbook of Clinical Sociology (pp. 395-409). Springer, Boston, MA. Cantwell, N., Davidson, J., Elsley, S., Milligan, I., & Quinn, N. (2012). Moving forward: Implementing the ‘guidelines for the alternative Care of children’. London, UK: Centre for Excellence for Looked After Children in Scotland. Retrieved from https://www. alternativecareguidelines.org/Portals/46/Moving-forward/Moving-forward-implementing-theguidelines-ENG.pdf Chase, E. (2013). Security and subjective wellbeing: The experiences of unaccompanied young people seeking Asylum in the UK. Sociology of Health and Illness, 35(6), 858–872. https://doi. org/10.1111/j.1467-9566.2012.01541.x. Chrysostomou, A. (2018). Acute need for young refugee shelters. Retrieved from https:// cyprusmail.com/2018/11/25/acute-need-for-young-refugee-shelters/ Clayden, J., & Stein, M. (2005). Mentoring young people leaving care ‘someone for me’. Joseph Rowntree Foundation. Retrieved from https://www.jrf.org.uk/sites/default/files/jrf/migrated/ files/1859354025.pdf Cochiliou, D., & Spaneas, S. (2019). Guardianship experiences of unaccompanied children in Cyprus, Guardianship experiences of unaccompanied children in Cyprus. Retrieved from https://www.researchgate.net/publication/334824553_Guardianship_Experiences_of_Unac companied_Children_in_Cyprus Cole, N. L. (2020, August 27). Applied and clinical sociology. ThoughtCo. Retrieved from https:// www.thoughtco.com/applied-and-clinical-sociology-3026291 Csikszentmihalyi, M., & Schneider, B. (2000). Becoming adult: How teenagers prepare for the world of work. New York: Basic Books. https://doi.org/10.1353/sof.2003.0101. Debré I. (2010). Les Mineurs isolés en France. Retrieved at: http://www.justice.gouv.fr/_ telechargement/rapport_mineur_20100510.pdf Dewar, L., Goodman, D. (2014). Best Practices in Transitioning Youth Out of Care Successful Transitions, Success as Adults. Child Welfare Institute, Children’sAid Society of Toronto. Retrieved at https://untilthelastchild.com/wp-content/uploads/2014/06/CWI-Best-PracticesTransition-Youth-Lit-Review-Mar-30-2014-FINAL.pdf Dixon, J., Wade, J., Byford, S., Weatherly, H., & Lee, J. (2006). Young people leaving care: A study of costs and outcomes, Report to the Department for Education & skills. Retrieved from https:// docplayer.net/8381802-Young-people-leaving-care-a-study-of-costs-and-outcomes.html EASO Asylum Report. (2020). Annual report on the situation of Asylum in the European Union, 2020. Retrieved from https://www.easo.europa.eu/sites/default/files/EASO-Asylum-Report2020.pdf/ Eurochild. (2016). Turning the tide for children on the move. Retrieved from https://www. eurochild.org/fileadmin/public/05_Library/Turning_the_tide_children_on_the_move.pdf Fritz, J. M. (1989). The history of clinical sociology. Sociological Practice, 7(1), 11. Retrieved from http://digitalcommons.wayne.edu/socprac/vol7/iss1/11

Ageing Out of Care Towards Living a Self-determined Life: A. . .

315

Guerra, V., & Brindle, D. (2017). Promoting the social inclusion of migrant children and young people. The duty of social services. Retrieved from https://www.esn-eu.org/sites/default/files/ publications/25.01.2018_VGReview_Migration_Report_Final.pdf Hausmann-Stabile, C., & Guarnaccia, P. J. (2016). Clinical encounters with immigrants: What matters for U.S. psychiatrists, focus (Am Psychiatry Publication), pp. 409–418. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4911188/ HM Government, Keep on caring supporting young people from care to Independence, 2016. Retrieved from https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/535899/Care-Leaver-Strategy.pdf INTEGRA, Ageing out of Care into Adulthood, White Paper. (2019). Retrieved from https:// integra.uncrcpc.org/wp-content/uploads/2019/06/WS2_White-paper_FINAL-version_-com pressed.pdf INTEGRA, Mentoring Integration Programme, 2019. Retrieved from http://integra.projectsgallery. eu/mip/ International Committee of the Red Cross. (2004). Central Tracing Agency and Protection Division, Inter-agency Guiding Principles on UNACCOMPANIED and SEPARATED CHILDREN. Retrieved from https://www.unhcr.org/4098b3172.pdf INTGERA, National Report on ageing out, Cyprus. (2019). Retrieved from https://integra.uncrcpc. org/wp-content/uploads/2019/06/WP2_D2.2_INTEGRA_National_Report_Cyprus_Dec2018_ ENGLISH_compressed.pdf Jim Casey Youth Opportunities Initiative. (2011). The adolescent brain: New research and its implications for young people transitioning from Foster Care. Retrieved from https://www. aecf.org/resources/the-adolescent-brain-foster-care/ Keller, C. (2007). Approaching the transition to adulthood: Distinctive profiles of adolescents aging out of the child welfare system. Keller, T. E., Cusick, G. R., & Courtney, M. E. (2007). Approaching the transition to adulthood: Distinctive profiles of adolescents aging out of the child welfare system. Social Service Review, 81(3), 453–484. Keller, T., Blakeslee, J., Lemon, S., & Courtney, M. (2010). Subpopulations of older Foster youths with differential risk of diagnosis for alcohol abuse or dependence. Journal of Studies on Alcohol and Drugs, 71(6), 819–830. Mendes, P., Johnson, G., & Moslehuddin, B. (2011). Effectively preparing young people to transition from out-of-home care, pp. 61–670. Retrieved from https://aifs.gov.au/publications/ family-matters/issue-89/effectively-preparing-young-people-transition-out-home-care Murray, D. W. & Rosanbalm, K. (2017). Promoting self-regulation in adolescents and young adults: A practice brief. OPRE Report #2015-82. Washington, DC: Office of Planning, research, and evaluation, Administration for Children and Families, U.S. Department of Health and Human Services. Retrieved from https://www.acf.hhs.gov/sites/default/files/opre/sr_ado_ brief_revised_2_15_2017_508.pdf Refugee Law L. 6(I)/2000. Retrieved from https://www.ilo.org/dyn/natlex/natlex4.detail?p_ lang¼en&p_isn¼83805 UNHCR. (2018). Towards a Comprehensive Refugee Integration Strategy for Cyprus. Retrieved at https://www.unhcr.org/cy/wpcontent/uploads/sites/41/2018/07/Integration_Report_2018.pdf United Nations. (2009). Guidelines for the alternative care of children. Retrieved from https:// www.unicef.org/protection/alternative_care_Guidelines-English.pdf Wade, J. (2017). Pathways through care and after: Unaccompanied minors in England. Retrieved from https://www.socwork.net/sws/article/view/524/1025

316

A. Clivet

Anca Clivet, MA, is a Social Worker with an academic background in NGO Management, and has been Coordinator of the Education, Awareness & Capacity Building Unit at the Research & Development Division of “Hope For Children” CRC Policy Center. Anca has a strong commitment to humanitarian work and has actively contributed to the protection and promotion of children’s rights in different contexts and locations. She was a social worker and youth worker in Serbia, Romania, Cyprus, China, Kenya and India. Anca supports children overcome their vulnerabilities and discover their full potential, an experience she considers both gratifying and humbling. Publications include White Paper on Ageing Out of Care into Autonomous Living and Defining the services and selecting the methods of intervention for children in difficulty abandoned in medical units, Challenges and limits.

Conclusion Yvonne Vissing and Sofia Leitão

1 Overview of the Chapters Chapters from child rights scholars from around the world have pointed out in this volume how the issue of unaccompanied children and youth is a global problem. It is not a concern just for one country or in one continent. This book has examined the challenges unaccompanied youth face in the European Union, North, Central and South America, Australia/Oceania sub-regions, Bangladesh/Myanmar, the ASEAN Charter states, Republic of Côte, the Ivory Coast of Africa and in other places around the world. Reasons why youth to travel to other areas unaccompanied are varied and diverse. They may include war or violence, climate change, natural disasters, community or domestic violence, disease, economic exploitation, trafficking, forced marriage, child labor, and a host of other factors. Irrespective of the etiology for the travel, these children are forced to flee their homelands and families in pursuit of obtaining their most basic human rights, including survival at its most basic level. Some of the children who are traveling unaccompanied may be very young in age while others approach the age of majority (typically defined as age 18). No matter the cause of their migration, unaccompanied children and youth share common experiences. These include physical and mental health challenges, exposure to violence, abuse, exploitation and torture, separation from family, friends and culture, unwelcoming attitudes and actions of the countries that they have sought refuge from, not counting lack of access to education, housing, social services, and the fulfilment of basic fundamental needs.

Y. Vissing (*) Salem State University, Salem, MA, USA e-mail: [email protected] S. Leitão “Hope For Children” CRC Policy Center, Nicosia, Cyprus © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2_13

317

318

Y. Vissing and S. Leitão

To synthesize some of the overarching themes authors have shared in their work, the following seem noteworthy. The first third of the book sought to contextualize the problem from a clinical sociological and legal intersection. Vissing, Leito and Fritz conceptualized how a clinical sociological approach can be utilized at both a macro and micro level to address the challenges that unaccompanied youth face. The chapters by Herring, Rodrigues and Gran provide an overarching review of the laws and treaties that have been put into place to support unaccompanied youth—and where they have failed. Dr. Tanya Herring’s chapter demonstrated the strength of merging legal and clinical sociological perspectives to advance protections for unaccompanied young people around the world. The CRC, 1951 Refugee Convention and other legal treaties exist to protect children from a host of severe sufferings that come along when children are alone and trying to enter a new country. José Noronha Rodrigues’s chapter points out that there are good legal instruments and good migration policies in many countries that seek to protect refugee children, migrants, and unaccompanied minors. But those administrating them have not always made good decisions or applied the law well and uniformly to protect them. Compassion and equality have often been absent in the application of protections to unaccompanied young people. He alleges that UNICEF and the CRC have put into place guidelines that nations must follow if they are truly committed to the best interests of the child. Herring agrees that in order to close gaps in child protection, states have an international obligation to comply with these child rights standards. She urges the application of the codified International Law Commission’s (ILC) State Responsibility Articles as a means to identify a breach of treaty obligations to protect all children through all forms of migrations. The chapter by Gran utilizes a World Society Approach and concludes that an international framework of children’s rights may lead to useful interventions, resources, and services to unaccompanied children. He points out that many states endorse human rights principles but do not implement those principles in tangible ways that could benefit unaccompanied youth. He finds that merging the World Society Approach with a Clinical Sociology framework can help advance CRC treaties to greater support the youth’s well-being. Authors throughout the book consistently noted that while legal and official standards exist to protect unaccompanied youth in most countries, often these are on paper and not in put into practice. It also appears that while some children are treated in accordance with a nation’s higher protective standards, many other children within the same country fail to have their needs addressed. In some cases, unaccompanied children and youth are put into harm’s way, receiving not just inadequate care but abuse and degradation. Some have died. Others have experienced physical or emotional traumas from which they may never heal. Lack of resources, staff and funding are commonly cited obstacles. Unaccompanied youth’s basic human rights are not always regarded as a high priority. Because the children are alone with no money and advocates, they cease to have the visibility and ability to obtain the kind of supportive treatment that supposedly exists on paper. The situation for unaccompanied youth in Italy is explored in depth in chapters by Isolde Quadranti and Alessandra Cordiano. Cordiano notes that a double-track

Conclusion

319

system exists that shuffle unaccompanied youth into different tracks, with different outcomes. Their systems may have that are cumbersome and difficult to manage, such as a youth with no papers having to prove their age and identifications. Her chapter describes how complicated processes may be overwhelming for unaccompanied youth who try to enter a new nation and obtain services. Quadranti focuses the challenges unaccompanied youth face when entering that country. She notes that some youth entering age 16 or 17 quickly grow to the age of majority when their legal status changes. When they become recognized as legal adults, they often lose specific protections and guarantees and may be subject to deportation or placed in adult facilities that may be ill-equipped to deal with the needs of teenagers. This makes it hard for them to capitalize on the potential services. She also analyzes how the educational systems in Italy can be used to assist unaccompanied youth and provide them a life-line. Maria Mariana Soares de Moura’s chapter on unaccompanied Venezuelan children and youth in Brazil explains that despite institutional and legislative advances in the Brazilian legal system involving unaccompanied children and adolescents, the system often is inadequate to assure that their basic rights are protected. The political pressures between the two nations complicates what happens to young people seeking refuge. Ana Rita Gil’s study of unaccompanied youth in Portugal notes that while European Union standards prohibit the detention of migrant children in general and unaccompanied minors in particular, unaccompanied children entering Portugal are sometimes detained and their rights violated. The conditions where unaccompanied children are detained are sometimes degrading and not in their best interests, as defined in the CRC. Inhospitable and even dangerous conditions for unaccompanied children were found for unaccompanied and children separated from their families at the United States-Mexico border, as shown in Yvonne Vissing’s chapter. The horrific conditions that separated and unaccompanied children have faced under the Trump administration’s policies violate articles in many human rights treaties, but that nation’s failure to ratify the CRC has made it harder to help the children. It is important to realize that degrading conditions for caring for unaccompanied youth were also found to exist in Portugal, Brazil, and other countries. It seems that turning a blind eye or providing inadequate resources to address the challenges unaccompanied youth face is global in nature. Caroline Adolphsen’s provocative chapter on unaccompanied youth seeking asylum in Demark suggests that an entirely new legal framework based on the best interest of the child is recommended. As she points out, children’s needs are often equated with the needs and characteristics of their parents—children are not viewed as individuals in their own right. Only by focusing on the child instead of immigration, finances or even social welfare rules can we be sure that we are really taking into account the best interest of the child. Joelle Long’s work reinforces the need to create a new framework, and she reviews Italy’s voluntary guardianship program as a creative alternative. The voluntary guardianship model is a tangible example of how the clinical sociological framework can be integrated into legalistic and policy decisions about how to better meet the needs of unaccompanied youth. While she points out areas where the

320

Y. Vissing and S. Leitão

voluntary guardianship model could be improved, she is clear that “a new modus operandi must be built. All players involved in the protection and promotion of unaccompanied foreign children’s rights need to work together.” But it should not be one of a double track, as Cordaino points out. People who are under age 18 who are refugees, immigrants, or asylum seekers are often not treated as children. Rather, they are often clumped into categories of individuals who are adult. The CRC emphasis to always act in the best interests of the child seems to disappear as unaccompanied young people are stereotyped into these other categories. Gil’s work notes that it would be important to create a single legal status for unaccompanied migrant children. As long as the law does not expressly adopt this perspective, practices treating unaccompanied children differently may continue. The book concludes with Anca Clivet’s chapter that explores how unaccompanied children who have been put into residential care situations require mentoring and extensive transitional support services if they are to be successful in their journey into adulthood. Having a positive, ongoing relationship with a mentor or mentoring organization is necessary. Her research has found the INTEGRA Mentoring Integration Programme to be an effective model in assisting unaccompanied youth as they transition into the community to make it on their own. All of the authors noted the potential benefits of a clinical sociological approach. Gil, Clivet, and the other authors remind us that the life and the “person” that the migrant child will become can be deeply shaped by the macro and micro decisions taken during the time when they are migrating into a new country. Reducing the ACEs, or adverse child experiences, that subject unaccompanied children and youth to unnecessary trauma is important not just for their wellbeing, but for the wellbeing of the global citizenry. The Convention on the Rights of the Child may function as a paramount instrument to provide guidance for clinical sociologists in their intervention activity. A Clinical Sociological approach can be merged with traditional approaches and treaties to advance the possibilities for successful integration of unaccompanied youth into the community. The macro, meso and micro levels of intervention that a Clinical Sociological approach can provide holds significant opportunities for practitioners and policy makers to transform the lives of these vulnerable children from tragedy to opportunity. Yvonne Vissing, Ph.D., Professor of Sociology and Founding Director of the Centre for Childhood and Youth Studies at Salem State University in Salem, Massachusetts. Yvonne has worked in the area of child and youth advocacy for her entire career collaborating with different child rights groups in the USA. Her work is driven by the pursuit of human rights, community-building, resiliency, peace and justice. Yvonne has worked as a teacher, researcher, consultant, therapist, award-winning filmmaker, mediator, guardian-ad-litem, and helps organizations to decrease child abuse and improve child well-being. She is a former fellow at the National Institute of Mental Health, University of Connecticut Center for Democracy, and Whiting Foundation. Author/co-author of 12 books and hundreds of chapters, professional journal articles and other publications, including Children’s Human Rights as a Buffer to Extremism (Springer); Changing the Paradigm of Homelessness (Routledge) and Out of Sight, Out of Mind: Homeless Children in Small Town America (Lexington).

Conclusion

321

Sofia Leitão, Ph.D., is a Sociologist and is currently the Director of the Research & Development Division at “Hope For Children” CRC Policy Center. Sofia’s work reflects her interest in children’s agency in matters related to their spheres of action. She is particularly interested in raising awareness on the Rights of the Child; in developing learning programmes promoting child-friendly practices and children’s social inclusion and participation; and on children’s non-formal education with an emphasis on storytelling and the use of media and arts as means to enhance self-expression and learning. As an experienced Project Manager Sofia has directed the implementation of numerous programmes in the field of the Rights of the Child, including the transnational programme INTEGRA: Multidisciplinary Mentorship program to support the entrepreneurship of children in care and young care-leavers addressing the social integration of migrant children leaving residential care (funded by the Rights, equality & Citizenship programme of the European commission). She is the author of a book on media discourses and childhood constructions Desenhos Animados – Discursos sobre ser criança (Edições 70).

Index

A Abuse, 5, 9, 13, 28, 41, 43, 45, 58, 62, 63, 67, 76, 77, 88, 103, 106, 107, 109, 116, 117, 123, 124, 196, 215, 229, 233, 237, 245, 249–252, 256, 275, 286, 317, 318 Accommodations, 12, 28, 125, 133, 140, 164, 167, 169, 171, 172, 174, 203, 206, 208, 210–212, 218, 222, 239, 243, 274–277, 280, 289, 292–294, 297, 309, 312 Adoption, 11, 52, 76, 91, 104, 106, 107, 113, 121, 218, 246–248, 255, 277, 298 Adulthood, 90, 167, 178–180, 188, 275, 281, 286–288, 290–294, 298–301, 303, 307, 308, 310–313, 320 Adverse child experiences (ACES), 5, 320 Ageing-out, 291–295, 298, 306, 312 Agenda 2030, 89, 103, 112–115 Airports, 205, 206, 209–214, 216, 221 Alternative care, 291 Anxiety, 7, 193, 236, 255, 299 ASEAN, 50–54, 56, 58, 69, 80, 317 Association for Applied and Clinical Sociology (AACS), 5 Asylum, ix, 1–4, 6, 10, 15, 26, 27, 32, 39–41, 43–45, 47–53, 55, 56, 58–63, 65–67, 69, 70, 72–76, 78, 80, 118–121, 132, 133, 138, 141, 142, 163, 167–169, 171–173, 175, 178, 179, 196, 201–203, 205–207, 209–212, 214, 215, 219–223, 225, 231–233, 237, 238, 241, 242, 245, 251, 272, 279, 285, 288, 289, 291, 293–296, 309, 310, 319, 320 Asylum Information Database (AIDA), 201, 206, 209

Australia Oceania, 54, 55, 61–62, 65, 80, 317 Autonomy, 112, 178–180, 191, 198, 273, 287, 300, 304, 311

B Bangladesh Myanmar, 3, 50–54, 57–59, 80, 317 Beijing Rules, 97, 104 Border crossings, 72 Brazil, 269–281, 319 Brazilian borders, 275

C Care leavers, 285–314 Charter of Fundamental Rights of the European Union, 105 Charter of the United Nations, 45, 79, 88, 89, 109, 110 Child Participation, 222–223 Child’s best interest, 66, 163, 221 Citizenship, 105, 273, 299 Climate change environment, 3, 10, 116, 317 Clinical sociology, xiii, 1–15, 20, 21, 24, 29–31, 33–35, 217–219, 256–257, 318 Comissões de Protecção de Crianças e Jovens (CPCJ), 102 Commission for the Accreditation of Programs Applied and Clinical Sociology (CAPACS), 5

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 Y. Vissing, S. Leitão (eds.), The Rights of Unaccompanied Minors, Clinical Sociology: Research and Practice, https://doi.org/10.1007/978-3-030-75594-2

323

324 The Commission of the Azores for Children, 107 Comprehensive Health Services, 243, 249, 250 Conflict Theory, 40–42, 49, 53, 56, 61, 65, 69–73 Convention on the Elimination of All Forms of Discrimination against Women, 22, 51, 66 Convention on the Rights of the Child (UNCRC), xiii, 1, 11–13, 22, 25, 40, 57, 64, 66, 67, 74, 75, 78, 89, 92, 97–101, 104–112, 117, 163, 165, 166, 202, 204, 214, 219, 225, 230, 255, 279, 309, 320 Convention Relating to the Status of Refugees, 40 Coronavirus, 103, 251–253 Corruption, 61, 249 Council of Europe Strategy for the Rights of the Child 2016-2020, 170 Covenant on Economic, Social and Cultural Rights, 22, 104 COVID, 32, 179, 211, 225, 226, 251–254 Cyprus, ix, x, xv, 32, 40, 58, 79, 285, 288–290, 292–294, 296, 299, 300, 306–308, 310, 311

D Declaration on the Protection of Women and Children in Emergency or Armed Conflict, 104 Deferred Action for Childhood Arrivals (DACA), 231, 242 Denmark, 74 Department of Homeland Security, 231, 239, 245, 250 Deportation, 74, 133, 136, 168, 172, 178, 219, 248, 251, 255, 319 Depression, 255, 310 Detainment, 2, 49, 229, 239, 241–245, 247–253, 256 Discrimination, xiv, 11, 26, 28, 43, 68, 71, 73–75, 92–94, 96, 97, 99, 101, 102, 105, 107, 108, 115, 121–123, 125, 164–166, 173, 271, 309 Domestic Legal Standards, 204–208 Drugs, 98, 254

E Education, 4, 5, 7, 9, 14, 24–26, 32, 33, 35, 44, 59, 60, 62, 64, 75, 90–94, 97, 99, 101, 103, 105, 106, 109, 111–114, 117, 123,

Index 134, 140–142, 164–176, 179, 180, 190, 208, 211, 240, 244, 256, 257, 270, 276–278, 280, 281, 291, 292, 294, 297, 303, 309, 311, 312, 317 El Salvador, 231, 236 Emotions, 244 Europe, ix, xiii, 2–4, 10, 15, 31, 53, 55, 60, 69, 72, 87, 90, 101, 125, 164, 166–170, 187, 190, 195, 219, 222, 287, 290 European Convention on Human Rights, 165, 203 European Convention on the Legal Status of Migrant Workers, 165 European Social Charter, 165 European Union (EU), 2, 31, 89, 104, 113, 116–117, 124, 163, 164, 167, 189, 202, 317, 319

F Family separation, xiii Fear, x, 23, 43, 121, 231, 240, 242, 249, 293, 312 Flores, 62, 231, 232, 244, 245 Food, xiii, 4, 6, 9, 12, 14, 26, 60, 63, 93, 95, 114, 213, 237–240, 245, 248–250, 252, 254, 255, 257, 294, 295, 310 For-profit profit-making, 5, 245, 249, 251 Foster Care, 245–248, 296

G Gabčikovo/Nagymaros, 46, 47 Gangs, 236, 237, 242, 245, 275 Global Pact on Migration, 124 Greece, 31, 90, 168, 202 Guardianship, 30, 31, 133, 139, 164, 187–199, 220, 222, 288, 319 Guatemala, 65, 76, 231, 236 Guidelines for the Alternative Care of Children, 29 Guterres, 121

H Hague Convention on the Protection of Children, 104 Haiti, 72, 269 Healthcare, 4, 12, 14, 164, 167, 211, 239, 244, 256, 257 Heartland, 243, 250 Homes for Hope, xv, 32, 295

Index Homestead shelter, 249, 250 Honduras, 231, 236 Hope For Children CRC Policy Center, xiii, xv, 295, 299 Housing, 4, 9, 12, 14, 75, 93, 95, 105, 211, 216, 243, 252, 255, 257, 293, 303, 310, 311, 317 Humanitarian, xiii, 25, 45, 54, 56, 59, 61, 101, 102, 107, 111, 124, 132, 141, 142, 219, 229, 237, 269, 277, 287 Human Rights Watch, 23, 58

I ICCPR, 24, 25 ICESCR, 24, 25, 165 Illegal Reform and Immigration Responsibility Act (IIRIRA), 231 Immigration and Customs Enforcement (ICE), 231, 238, 242, 252, 253 Instituto de Apoio a Criança (IAC), 102 Integration, xv, 7, 32, 44, 70, 107, 123, 136, 137, 140, 164, 166, 167, 169–172, 178–180, 191, 217, 270, 274, 275, 278–281, 286, 288, 291, 301, 320 Inter-agency Working Group on Unaccompanied and Separated Children, 1 Internal Displacement Monitoring Centre, 3, 10 International Convention for the Protection of All Persons from Enforced Disappearance, 22 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 28 International Law Commission’s (ILC), 318 International Organization for Migration (IOM), 3, 42, 209, 273 International Pact on Economic, Social, and Cultural Rights, 94, 95 International standards, 105, 206, 223, 233 Italian Law, 131–142, 173 Italy, 31, 33, 50, 59, 60, 134, 137, 138, 141, 168, 169, 172–179, 188, 190, 191, 193–199, 202, 297, 318, 319

J Juvenile, 133, 135, 136, 138, 140, 179, 188, 189, 192, 244

325 L Leaving Care Mentors (LCM), 299–301, 305, 306, 309, 312 Legal representation, 12, 189, 206, 220, 222, 233, 240–241, 272, 280, 309

M Maslow’s hierarchy of needs, 6 Mass migration, 3, 9 Mentoring, 173, 285–313, 320 Mexico, xiii, 3, 10, 19, 39–80, 103, 218, 229–257, 319 Migration-based Child Detention, 223–224 Minimum Age Convention, 95, 96 Multidisciplinary, 4, 21, 124, 125, 135, 164, 177, 211, 223, 273, 274, 276, 281, 285–313 Multi-Level Assistance Response, 13 Myanmar, 50–58, 62, 70, 71, 80, 102, 121, 317

N National Committee for refugees (CONARE), 272 National Council for the rights of the Children and Adolescents (CONANDA), 272 National Immigration Council (CNIg), 272 National Preventive Mechanism against Torture, 201

O Obama, 231, 250 OECD, 2, 7, 113 Office of Refugee Resettlement (ORR), 231, 238 Optional Protocol on the Involvement of Children in Armed Conflict, 27 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC), 27, 64, 77

P Pandemic, 23, 32, 103, 179, 211, 223, 225, 251 Penal Code, 107 Pillars for a Self-determined Life, 286 Police, 8, 54, 132, 133, 138–140, 142, 271–273, 276

326 Population displacement, 3, 9 Portugal, 87, 89, 107, 112, 201–226, 319 Post Care Stakeholders, 301 Profit, 5, 248, 251, 307, 311 Protection of Children and Young People in Danger Act, 106 Protection of minors, 272

R Racism, 4, 99, 100 Refugee, x, 12, 25, 26, 42–44, 54, 58, 60, 63, 67–69, 75, 87, 104, 117–121, 124, 125, 166, 170, 173, 179, 188, 194, 201, 202, 210, 219, 220, 224, 233, 270, 274, 280, 289, 299, 318 Regularization, 270, 272, 274, 277, 280 Repatriation, 44, 134, 136–138, 205, 221, 238 Republic of Côte d'Ivoire, 59–60, 80 Resilience, 7, 256, 289, 290, 301, 303, 305, 309, 312 Return Hand-book, 168 Rohingya, 3, 43, 50, 52, 53, 56, 58, 59, 69, 72 Roraima, 270, 272, 276–278 Royal College of Pediatrics and Child Health, 48

S Save the Children, 31–33, 66, 92, 102 School, xiii, 4, 7, 9, 25, 53, 60, 66, 88, 91, 105, 109, 114, 124, 165–167, 169–177, 188, 190, 198, 236, 242, 276, 278, 291, 292, 299, 306 Semi-Independent Living, 296 Shelter, ix–xi, xiii, 6, 26, 164, 201, 210, 211, 220, 249–251, 255, 270, 277, 278, 292, 296, 301 Southwest Key, 243, 249 Sustainable Development Goals (SDGs), 99, 103, 113

T Torture, 10, 48, 72, 116, 203, 208, 215, 233, 236, 237, 256, 317 Trafficking, 10, 26, 28, 31, 41, 42, 44, 48, 49, 52–55, 58, 59, 63, 65, 68, 72, 75, 76, 98, 111, 115, 116, 122, 123, 135, 164, 196, 201, 216, 217, 219, 234, 248, 255, 275, 276, 287, 310, 317 Training, 197, 297 Transition, 32, 167, 178–180, 188, 285–288, 290, 291, 293, 294, 297–301, 303, 304, 308, 310, 312, 313, 320

Index Transportation, 4, 249, 252, 253, 292 Trauma, 1, 3, 5, 6, 12, 14, 33, 48, 177, 196, 229, 237, 246, 252, 254, 255, 301, 310, 313, 320 Trump, 229, 230, 232–235, 241, 243, 247, 250–253, 319

U Unaccompanied children, xiii, xv, 1–6, 10–13, 15, 19–21, 23, 25, 28–35, 40, 43, 55, 59, 60, 67, 75, 114, 125, 168, 187–199, 201–206, 208–212, 215, 217, 218, 220–223, 225, 226, 230, 235, 238–240, 242, 243, 245, 248, 251, 252, 255, 257, 271, 272, 274, 275, 277–278, 280, 285–291, 293–296, 298–300, 305–313, 317–320 Unaccompanied Foreign Minor (UFM), 132 Unaccompanied minors, 1, 19, 20, 23–26, 29–31, 43, 102, 105, 123–125, 131, 133, 140, 163, 171, 172, 175, 177, 179, 189, 201, 203, 208–217, 221–223, 231, 235, 269–270, 275, 277–281, 285, 306, 309, 318, 319 UNESCO, 165, 166 UNHCR Global Trends, 118–121 United Nations International Children`s Emergency Fund (UNICEF), 101–104 United Nations Standard Minimum Rules for the Administration of Justice for Minors, 104 Universal Declaration of Human Rights (UDHR), 4, 24, 43, 63, 89, 93, 99, 104, 107, 109, 165

V Venezuela, 269, 270, 274, 276 Violence, xiii, 3, 4, 8–13, 41, 43, 45, 49, 53, 58, 60, 63, 65, 68, 70–75, 89, 91, 100, 102, 103, 107, 115–120, 123, 164, 208, 224, 229, 231, 233, 236, 254, 287, 317 Voluntary, 32, 44, 72, 101, 133, 137, 138, 168, 188–198, 319

W World Migration Report, 3 World Society Analysis, 19–35

Z Zampa law, 30, 31 Zero-tolerance, 232, 242, 253