Unaccompanied migrant children - an overview of the international legal framework containing norms relevant to the protection of migrant children.

Introduction

International standards with regard to unaccompanied migrant children “Unaccompanied children” (also called unaccompanied minors) are children, as defined in article 1 of the Convention on the Rights of the Child of 20 November 1989 (CRC), 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.”

“Separated children” are children, as defined in article 1 of the CRC, who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. These may, therefore, include children accompanied by other adult family members.” 

A “child as defined in article 1 of the Convention” means “every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier” which it is not the case in Libya. 

For the purpose of this document, all of the above groups are referred to as “unaccompanied children”. Furthermore, this document refers specifically to “unaccompanied children” who move within or outside the borders of their countries of origin, hence “unaccompanied migrant children”.

The work in relation to unaccompanied children is, first and foremost, set in the International Convention on the Rights of the Child. Apart from the Convention, unaccompanied children are entitled to international protection under international human rights law, international refugee law, international humanitarian law and various regional human rights instruments. It is important to note that these principles are interlinked and must be respected throughout the displacement or migration process of all migrant children. These international standards are complemented by a multitude of regional and national standards. 

These parameters are vital at all stages of the migratory process of unaccompanied children. It is critical to identify unaccompanied children at an early stage of the migration process in order to be able to respond to their specific protection needs; in addition, it shows the paramount role of the best interest determination for unaccompanied children in order to identify the best solution for them (return to the country of origin, local integration, resettlement or adoption). Finally, the reference to measures that aim to prevent a child’s separation from his family, family tracing and family unity confirm the primary goal of ensuring reunification of the unaccompanied child with his/her family, as long as this takes place in his/her best interests.

I – The international protective legal framework 

The detention of unaccompanied migrant children and of migrant families with children is a situation of extreme concern. In Libya, it seems that there are no special provisions and policies aimed specifically at granting protection to migrant children in this context, nor alternative measures to detention. The absence of a child and adolescent perspective within migration-related detention policies implies that children and adolescents are treated as adults, in violation of international human rights standards. 

The convention on the rights of the child, in addition to other well-established human rights principles, explicitly states that children should only be detained as a measure of last resort and, in particular, migrant children should not be detained based on their migration status or that of their parents. It should be clear that the detention of children will never be in their best interest, whether they are unaccompanied or with their family.[1]  Therefore, alternative measures should be provided to all children within migration control procedures.[2] 

Pursuant to Article 37 of the CRC and the principle of the child’s best interests, migrant children should not, as a general rule, be detained. Detention cannot be justified solely on the basis of children being unaccompanied or separated, or their migratory or residence status. In exceptional cases where detention is justified, it shall be conducted in accordance with Article 37(b) of the convention, which requires that detention be conform to the relevant country’s law and that it only be used as a last resort and for the shortest appropriate period of time. As a result, all efforts, including acceleration of relevant processes, should be made to allow the immediate release from detention of unaccompanied or separated children and for their placement in other forms of appropriate accommodation. In this regard, the U.N guidelines should be followed for the Alternative Care of Children (2009).[3] 

Even in the case of an alternative care, the following should apply 

Abstract: U.N guidelines should be followed for the alternative care of children (2009).

Legal responsibility for the child

al 100 - In situations where the child’s parents are absent or are incapable of making day-to-day decisions in the best interests of the child, and the child’s placement in alternative care has been ordered or authorized by a competent administrative body or judicial authority, a designated individual or competent entity should be vested with the legal right and responsibility to make such decisions in the place of parents, in full consultation with the child. States should ensure that a mechanism is in place for designating such an individual or entity.

Al 101 - Such legal responsibility should be attributed by the competent authorities and be supervised directly by them or through formally accredited entities, including non-governmental organizations. Accountability for the actions of the individual or entity concerned should lie with the designating body.

Al 102 - Persons exercising such legal responsibility should be reputable individuals with relevant knowledge of children’s issues, an ability to work directly with children, and an understanding of any special and cultural needs of the children to be entrusted to them. They should receive appropriate training and professional support in this regard. They should be in a position to make independent and impartial decisions that are in the best interests of the children concerned and that promote and safeguard each child’s welfare.

Al 103 - The role and specific responsibilities of the designated person or entity should include:

(a) Ensuring that the rights of the child are protected and that, in particular, the child has appropriate care, accommodation, health-care provision, developmental opportunities, psychosocial support, education and language support;

(b) Ensuring that the child has access to legal and other representation where necessary, consulting with the child so that the child’s views are taken into account by decision-making authorities, and advising and keeping the child informed of his/her rights;

(c) Contributing to the identification of a stable solution in the child’s best interests;

(d) Providing a link between the child and various organizations that may provide services to the child;

(e) Assisting the child in family tracing;

(f) Ensuring that, if repatriation or family reunification is carried out, it is done in the best interests of the child;

(g) Helping the child to keep in touch with his/her family, when appropriate.
 

II – The violation of migrant children’s rights:

Despite the fact that fundamental standards establish that the detention of migrant children and adolescents should be an exceptional measure, legislation and practices in many countries demonstrate that there is still a long way to go in order to ensure children’s and adolescents’ rights within migration control policies. The lack of distinction between adult and child migrants is therefore a major challenge that Libya still has to overcome like a number of other States in the world. Libyan national migration laws do not include a child rights perspective and lack specific provisions on children. Additionally, most Libyan public policies on children do not yet include the specific needs and protection to be afforded to the child in the context of migration. The treatment of migrant children as adults may lead to harmful practices, especially when irregular migration is criminalized, or when deportation and detention procedures do not comply with the protection that should be given to children in those circumstances.

The protection of the child during migration demands the consideration of issues related to irregular migration, since they may affect the child’s enjoyment of human rights. The criminalization of irregular migration has proven in other countries to be at the origin of ill-treatment and other human rights abuses. This is of particular concern in the case of children, especially those unaccompanied and undocumented, in countries of transit and destination where irregular migration is sanctioned with imprisonment, particularly when migration management policies are yet to mainstream a child rights approach.

The protection of children during migration necessarily implies a gender dimension, since women and girls account for almost 50 per cent of international migrant stock. The need to take into consideration the special vulnerability of the girl child to gender-based violence and discrimination is illustrated, inter alia, by the impact that additional restrictions on travel owing to male guardianships may have on the number of girls resorting to irregular channels to migrate. The gender dimension of migration also includes issues of trafficking in persons for purposes of sexual exploitation, forced labour and other forms of exploitation, as well as other abuses to which the girl child is more vulnerable during migration.  

In Libya, reports were received on the Qanfouda detention centre, falling under the Ministry of Interior, where 552 illegal migrants including 287 Somalis and 223 Bangladesh nationals were detained as of end of February 2012 (recently transferred to the centre). 

A total of 107 children were identified by UNSMIL Human Rights section detained in Qanfouda camp in Benghazi in January 2012 (92 boys and 15 girls; 103 Somali and 4 Eritrean; 6 unaccompanied girls, aged between 14 and 17, and 9 accompanied girls (one aged 2 and another 5 years old); 89 unaccompanied and 3 accompanied boys ranging from 12 to 17 years of age; 65 of the unaccompanied boys were 16 or 17 year old Somalis). UNHCR was following to cross-check the list provided with the authorities. There are unverified reports of other migrant children in detention along migratory pathways in Libya. Follow up was on-going with UNHCR and IOM to establish a durable solution for migrants, including children, and including those in Qanfouda. This requires provision of support by members of the Child Protection Working Group [CPWG] to authorities to ensure care and protection for unaccompanied children in child care facilities for unaccompanied minors.

However, UNICEF assumption was that these figures represented only the tip of the iceberg since there was no systematic screening at the border during the early weeks of the Libyan conflict when huge numbers of migrants were crossing the border on a daily basis. Additionally, some 22 retention facilities were located throughout Libya prior to the conflict and as a result, many children have not been adequately registered, documented or followed up on. 

Examples of arbitrary migration-related detention laws and practices include:

-  Legislation regarding migration-related detention that does not distinguish children from adults; 

-  A lack of alternative measures for adults and children; 

-  The general absence of basic guarantees of due process, either in law or practice, such as the rights to a guardian, a legal representative, an impartial judicial process and an interpreter; 

-  The absence of an established maximum length of detention; 

-  The absence of child-protection officials in detention centres, as well as a general lack of social service provisions, such as education and health care; 

-  The detention of unaccompanied adolescents below 18 years old and detention facilities that are unsuited for children and/or their families; detaining unaccompanied adolescents in the same blocks/cells with adults;

-  The use of prison-like facilities for administrative detention; and 

-  The criminalization of irregular migrants, including children and adolescents, i.e., irregular migration is considered a criminal offence. 

Additionally, there was a considerable lack of information regarding the experiences of migrant children (both unaccompanied and with their families) within migration control measures (e.g., information about their treatment at borders and in detention centres). Indicators on these issues are absent in most transit and destination countries, and both intra-government and civil society monitoring of these issues is quite poor, especially in Libya considering the legacy left by the former regime. 

Finally, it has also to be remembered that the detention of parents due to their migration status may affect their children (i.e., children born in destination countries), particularly their right to development, family life and mental health, among others. Therefore, adopting a child-rights approach, which considers the child’s best interests, will require alternative policies addressing the migration status of their parents, including measures facilitating their regularization, access to social rights and family unity, rather than detention and deportation.

III – Applicable principles, protection measures and alternative options

Libya obligations under the Convention apply to each child within its territory and to all children subject to its jurisdiction (art. 2). The State obligations cannot be arbitrarily and unilaterally curtailed. Therefore, the enjoyment of rights stipulated in the Convention is not limited to children who are citizens of a State party and must therefore also be available to all children - including asylum-seeking, refugee and migrant children - irrespective of their nationality, immigration status or statelessness. 

Based on the following principles: Non-discrimination – Best interests of the child – Life and full development – Family unity – Evolving capacities – Participation – Confidentiality, the principle of “best interests of the child” as laid down in the Convention should be of particular interest to all actors dealing with unaccompanied children. The best interests of the child must be a primary consideration in all actions concerning children. The best interest determination becomes, thus, a very important tool and a precondition for working and dealing with unaccompanied children. It is to be noted that international law provide a sufficient and clear international legal framework on how to protect unaccompanied children and provide sufficient guidance and tools to initial assessment and measures to prevent separation and reunification/integration of unaccompanied children.

-   Legal obligations of States parties to the convention

Obligations deriving from the Convention vis-à-vis unaccompanied and separated children apply to all branches of government (executive, legislative and judicial).  They include the obligation to establish national legislation; administrative structures; and the necessary research, information, data compilation and comprehensive training activities to support such measures. Such legal obligations are both negative and positive in nature, requiring States not only to refrain from measures infringing on such children’s rights, but also to take measures to ensure the enjoyment of these rights without discrimination.  Such responsibilities are not only limited to the provision of protection and assistance to children who are already unaccompanied or separated, but include measures to prevent separation (including the implementation of safeguards in case of evacuation).  The positive aspect of these protection obligations also extends to requiring States to take all necessary measures to identify children as being unaccompanied or separated at the earliest possible stage, including at the border, to carry out tracing activities and, where possible and if in the child’s best interest, to reunify separated and unaccompanied children with their families as soon as possible.

States parties to the Convention have to ensure that the provisions and principles of the treaty are fully reflected and given legal effect in relevant domestic legislation. In case of any conflict in legislation, predominance should always be given to the Convention, in light of article 27 of the Vienna Convention on the Law of Treaties.  

In view of the absolute nature of obligations deriving from the Convention and their lex specialis character, article 2, paragraph 3, of the International Covenant on Economic, Social and Cultural Rights would not apply with regard to unaccompanied and separated children. In application of article 4 of the Convention, the particular vulnerability of unaccompanied and separated children, explicitly recognized in article 20 of the Convention, must be taken into account and will result in making the assignment of available resources to such children a priority.  

States are expected to accept and facilitate assistance offered within their respective mandates by the United Nations Children’s Fund (UNICEF), UNHCR and other agencies (article 22 (2) of the Convention) in order to meet the needs of unaccompanied and separated children.

-   Protection measures

All children are entitled to emergency care and provision for their basic subsistence. Assistance for separated children must adequately meet their basic needs at a standard comparable to the surrounding community and should be provided in a way that preserves family unity, keeps children with their relatives or other care-givers and does not lead to separation.

In emergencies, interim care must be provided for children separated from their families until they are reunited, placed with foster parents or other long-term arrangements for care are made. This may include fostering, other forms of community-based care, or institutional care.

-   Child protection must be the overriding factor. All children need security and physical and emotional care in a setting that encourages their general development.

-   Where possible, this care should be provided in families within the child’s own community, with close monitoring.

-   Interventions should build on and strengthen the systems that currently function in the community, and involve community leaders and local authorities, unless their views are not in the best interests of the child.

-   Children must be kept informed of the plans being made for them, and their opinions taken into consideration.

-   Cooperation between all agencies providing interim care is essential, using agreed guidelines for family and community-based programmes or institutional care.

-   The provision of interim care should be based on the best interests of the child and should not be used to promote political, religious or other agenda. 

-   The focus must be on temporary care, with commitment to carrying out family tracing.

Community-based care

For separated children, community-based care is preferable to institutional care as it keeps the child within his or her community and provides continuity in socialization and development.

-   Where care arrangements are supported by organizations, this should take the form of broader projects to help the community become self-sufficient.

-   As with all care arrangements, community-based care must be monitored.

Fostering

Fostering refers to situations where children are cared for in a household outside their family. Fostering is usually understood to be a temporary arrangement and in most cases, the birth parents retain their parental rights and responsibilities. The term fostering is used to cover a variety of arrangements as follows:

-   traditional or informal fostering, where the child is taken into the care of a family or other household that may or may not be related to the child’s family – no third party is involved in these arrangements, though they may be endorsed or supported by the local community and may involve well-understood obligations and entitlements;

-   spontaneous fostering, where a family takes in a child without any prior arrangement – this is a frequent occurrence during emergencies and may involve families from a different community in the case of refugee children;

-   arranged fostering, where a child is taken into the care of a family as part of an arrangement made by a third party, usually an agency involved in social welfare such as a government department, a religious organization, or a national or international NGO – this arrangement may or may not be covered by formal legislation.

-   Programmes should seek to understand the impact of the emergency on the kind of fostering that is based on traditional custom and practice.

-   Local ability to manage foster care should be developed, using appropriate local structures. Follow-up should be linked to the development of community-welfare structures and should include a commitment to provide guidance and support for foster families.

The community should be involved in defining criteria for and selecting foster families. This should reduce the likelihood of the children being neglected or badly treated. Wherever possible, foster families should belong to the same community as the child.

-   Fostering of refugee children by families of the host country should be discouraged, as this puts these children at additional risk of abuse and exploitation, and their situation is difficult to monitor.

-   The status of all children in foster families must be monitored. Although children are generally better off growing up in a family setting than in an institution, there are still risks in living in a foster family where children may be neglected, abused, exploited or have other rights denied.

-   The situation of all children in fostering arrangements should be analysed with regard to their civil rights and legal status.

-   Regarding informal arrangements, as long as the foster family agrees to continue caring for the child and the child is happy to stay, the arrangement should be allowed to continue. However, there should be an understanding that if the child’s own family is traced, reunification is to go ahead.

-   In general, payment of individual foster families should be avoided. However, families should be helped to obtain basic means of support such as ration cards. Programmes should focus, in the context of wider community-based activities, on increasing the ability of families to support the children in their care.

-   In some cases, it may be necessary to remove children from foster families for their protection. Local laws or conventions should, to the extent possible, govern any actions regarding the removal of children from foster families. If there are problems enforcing such laws, the government should be informed, human rights bodies consulted and policies formulated in consultation with the agencies working directly with the children and communities concerned.

Institutional care

Many children in institutions are not orphans. They may be placed there for safety, education, or for economic or social reasons. Residential institutions can rarely offer the developmental care and support a child requires and often cannot even provide a reasonable standard of protection. Even during emergencies, institutions should be viewed as a last resort, to be used only when children genuinely have no one to take care of them.

Priority should be given to community-based solutions that build on existing social structures. There are times, however, when family-based care is not possible and temporary institutional care and protection is required. This should follow the principles outlined below.

-   Children in institutions should enjoy the same civil and political rights as the rest of the child population. Monitoring should take place to ensure that these rights are respected.

-   Every institution should have the reunification of children with their families as one of its key objectives. It must be made clear that care will be provided for a short period while reunification or alternative community-based care is being sought.

-   All admissions must be screened and documented. Each child should have a file containing all the information about him, which should be updated and remain with him if he moves.

-   Centres should be small, temporary and organized around the needs of the child. Where possible they should be organized in small family like units. Siblings must be kept together and, where appropriate, friends and those from the same geographical areas or community. Children, especially the younger ones, should be as close as possible to their locality of origin, in order to facilitate tracing.

-   The centre must be integrated into the local community as closely as possible and should liaise with the local authorities where relevant.

-   Institutions must provide adequate basic care and meet minimum standards with regard to water, sanitation, health and nutrition, as set out in documents such as the Sphere Project. The atmosphere should be stimulating, with a structured day including periods of education, recreation and rest, and household chores; the children should be taught appropriate life skills to enable them to survive in wider society.

-   Staff should consist of individuals experienced in caring for children, trained in all relevant aspects including documentation, communicating with children and caring for children with special needs. The staff should receive support when dealing with children who are distressed or who have been through particularly difficult experiences, for example child soldiers. Close collaboration with tracing teams is indispensable.

-   The primary responsibility for monitoring the standards of protection and care provided by the institutions lies with the government.

-   Donors need to look beyond the immediate and visible appeal of institutions and to consider supporting community-based care arrangements.

Guardianship

The precise definition, function and manner of appointment of a guardian varies from jurisdiction to jurisdiction. However, in essence the term guardianship refers to the designation of responsibility to an adult or organization for ensuring that a child’s best interests are fully represented.

One specific example of this function in many jurisdictions is that of guardian in administrative or judicial proceedings. The function of such a guardian is to ensure that the child is properly represented; that his/her views are expressed and that any decisions taken are in his or her best interests. This is in keeping with Articles 3 and 12 of the 1989 Convention on the Rights of the Child.

-   Guardianship should be used in administrative or judicial proceedings wherever the system exists to support it, as it provides an important safeguard for ensuring that children’s rights and best interests are upheld.

-   In large-scale crises, where it will be difficult to establish guardianship arrangements, the rights and best interests of separated children must be safeguarded and promoted by organizations working on behalf of these children.

Health care and nutrition

Separated children’s access to appropriate health care should be promoted and monitored.

-   Children in crowded environments are vulnerable to infectious disease and wherever possible they should be accommodated in small units. Immunization must be arranged for all separated children.

-   The food served to separated children should strike a balance between the need for a nutritious diet, cultural eating habits and the diet of the local community.

-   Babies and young children separated from their families are extremely vulnerable and need special food and care. Ideally, babies under six months should be fed on breast milk, i.e. wet-nursed by a woman who tests HIV negative. If necessary, adequate substitutes for breast milk and the conditions for their proper use should be provided. For detailed information on the feeding of separated babies and young children, reference should be made to the Infant Feeding in Emergencies Training Modules developed by the Inter-agency Working Group on Infant Feeding in Emergencies. This group consists of representatives from WHO, UNICEF, WFP, ANCHOR, Linkages, IBFAN and the Emergency Nutrition Network.

Conclusion

As clearly highlighted above, the international law states that all people are holders of rights, including ‘undocumented’ migrants. A number of civil, political, social and economic rights apply to individuals irrespective of their legal or administrative status, which are formally guaranteed under legal instruments such as the Universal Declaration of Human Rights or the International Covenant of Economic, Social and Cultural Rights. Children’s rights in particular are internationally enshrined in the Convention on the Rights of the Child (CRC 1989).

The International Convention on the Rights of the Child as an international instruments, offer considerable protection to migrant children regardless of their status.[4] However, the enforcement of such international instruments depends significantly on their incorporation into domestic law. In Libya, the CRC was ratified in 1993, but has yet to be incorporated into domestic law, making it not justiciable in domestic courts. 

However, when a State ratifies the CRC, it becomes obliged under international law to implement its provisions. This is enshrined in Article 4 of the CRC. 

In September 2003, the Committee on the Rights of the Child published its General Comment no.5 on general measures of implementation for the Convention on the Rights of the Child. 

This was important because it outlines broad ways in which the Convention can be implemented. 

It says: “Ensuring that all domestic legislation is fully compatible with the Convention and that the Convention’s principles and provisions can be directly applied and appropriately enforced is fundamental.” 

All organisations with responsibility for services to children must make arrangements to ensure that in discharging their functions they safeguard and promote the welfare of children. Safeguarding and promoting the welfare of children is primarily the responsibility of the local authority, working in partnership with other public agencies, the voluntary sector, children and young people, parents and carers, and the wider community.

It is obvious that Libya lacks a government’s strategy for children and needs to set out a Child Protection Act. Libyan authorities need urgently to develop a clear framework which will considerably transform child welfare policies, marking a change in the way local and national government, and other organisations, work with children and families. A Child Protection Act will introduce the duty of regard for the welfare of children to almost all state agencies. It will also set out a statutory framework for local co-operation to protect children. 

It is to remind that there is an intrinsic relationship between social rights and achieving social integration in the host society. In other words, social cohesion and equitable human development, as well as democracy and rule of law, are reinforced through the protection and realization of social rights for all individuals in society. This must occur without discrimination based on nationality or immigration status, and must take into account child and gender perspectives. Ensuring the enjoyment of economic, social and cultural rights (ESCR) for all children, including migrants, irrespective of immigration status, represents a sine qua non condition to assure sustainable human development in Libyan society. This has been reinforced by the CRC Committee, which has observed that the denial of the ESCR of migrant children, particularly undocumented children and asylum-seekers, hampers social integration, social progress, and justice.

[1]Economic, Social & Cultural Rights of Migrant Children and Children born to migrant parents: Challenges, Good Practices and Recommendations, UNICEF-UNLA, 2010
2 Committee on the Rights of the Child, Thirty-ninth session - 17 May-3 June 2005. See also Special Rapporteur on Human Rights of Migrants, 2009).
[3] http://www.unicef.org/aids/files/UN_Guidelines_for_alternative_care_of_children.pdf

[4] CRC General Comment No. 6: Cf. http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/532769d21fcd8302c1257020002b65d9/$FILE/G0543805.pdf