Guardianship Provision Systems for Unaccompanied and Separated Children

Seeking Asylum in Europe

Initial Mapping

Sajid Alikhan and Malika FloorBureau for Europe

GUARDIANSHIP PROVISION SYSTEMSFOR UNACCOMPANIED AND SEPARATED CHILDREN

SEEKING ASYLUM IN EUROPE

1. INTRODUCTION AND EXECUTIVE SUMMARY

The present overview of European countries documents the guardianship systems, legislation and practices for unaccompanied and separated children (UASC) seeking asylum in the 42 countries covered by UNHCR’s Bureau for Europe.1 This overview was initiated and undertaken jointly by the Separated Children in Europe Programme (SCEP) and the Bureau for Europe in recognition of the lack of information regarding guardianships in Europe and the crucial role that guardians are expected to play in ensuring appropriate and adequate protection and care of UASC. In a number of countries, including Belarus, Ireland, the Russian Federation and Ukraine, guardians play a key role in the asylum procedure. In these countries, it is the guardians who decide and initiate the asylum application on behalf of the minor since, without a guardian, the child cannot apply for asylum. In countries where the guardian is primarily the child’s legal representative and adviser, the lack of access to guardianship would leave the UASC unassisted and unrepresented in legal asylum proceedings.

The aim of the overview is to draw attention to the particularly vulnerable situation of the UASC and, through a protection gaps analysis, to flag areas of guardianship provision that may need further regularization and standardization, based on the relevant international and regional standards of protection and care for asylum-seeker and refugee children and adolescents. The review of the national legal frameworks and practices was undertaken as part of UNHCR’s protection monitoring and collection of data for evidence-based advocacy to ensure appropriate treatment and care of asylum-seeking and refugee children who have been separated from their parents and customary care givers. In addition to reviewing legal frameworks and their implementation practices, information was collected through a regional survey questionnaire on national standards and procedures for the selection and appointment of guardians, including their required competencies. Other issues mapped in this exercise comprise the guardians’ tasks and duties, monitoring the guardians, and the support and guidance provided to guardians.

The initial mapping of guardianships was done through a survey questionnaire, with replies mainly from UNHCR’s country offices in Europe as well as national non-governmental organization (NGO) partners of the SCEP network. In a number of countries, the respondents were government agencies, such as child ombudsmen or authorities in charge of guardianship issues and provision. The survey questionnaire is attached as Annex A to this report.

The main limitation of the survey is that its results do not provide any assessment of the quality of guardianship or how the different systems and standards impact on the well-being, protection and care of UASC. To bridge this gap, this initial mapping exercise will be complemented by interviews

1 These countries include Albania, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Montenegro, Netherlands, Norway, Poland, Romania, Russian Federation (including Chechnya and Ingushetia), Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom.

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with key stakeholders in selected European countries. The interviews and focus group discussions are meant to obtain feedback and collect the views of the children and their guardians, as well as of children who have not been provided with a guardian. Asylum and childcare authorities, and NGOs specialized in this field, will also be included in the qualitative assessments. The focus groups and interviews will be held in Belgium, Germany, Ireland, Malta and the United Kingdom (UK), where SCEP national partners have agreed to cooperate with this study. Although this small sample of countries may not be sufficient to draw far-reaching or general conclusions for all of Europe, the outcomes of the qualitative assessments will provide further insights and indications of the impact of different guardianship systems through the views and opinions of key stakeholders, and help identify areas in need of regularization and improvement.

The preliminary view among UNHCR and its SCEP partners of the significant variations in guardianship systems, both among and within countries, was confirmed by this survey. In all areas of the study, country policies and practices varied widely. Starting with the different understandings of the functions of guardians, the latter were—in about half of the countries—primarily legal representatives and counsellors of the children, whose main responsibility was to assist their wards in asylum applications and procedures during the process of refugee status determination. In some cases, these guardians were also expected to arrange for the child’s education, accommodation and health. Again, in about half of the countries, the guardians—as the main adults in the child’s life—were expected primarily to ensure the child’s physical and psychosocial well-being. This ambiguity in the role of the guardians exists among national actors too. In a number of countries, it was not uncommon for a legal representative to be expected to ensure appropriate schooling for the child, or for a social worker to assist the child legally in the asylum procedure. Interestingly, the participation of guardians in the best interests determination, identification of durable solutions and integration support were the areas in which they were least involved.

Another area of great difference is that of professionalized, as opposed to benevolent or voluntary, guardianship systems. In a few countries, such as Belgium or Germany, both types of systems exist in parallel. Professionalized guardians are employees of government agencies and NGOs who work in the social and legal sectors, while benevolent guardians are private persons who volunteer to become guardians. The question of which arrangement is best for the child could not be conclusively answered in this mapping exercise, and will depend greatly on the child’s specific needs, as well as the competencies and motivation of the guardians. It is noteworthy that professionalized guardians had much better access to guidance and training, and were more systematically monitored, than private guardians. However, the professionalized—as well as institutional—guardians had less personal contact with their wards, and usually more limited functions and time, than private persons.

The difference between professionalized and benevolent—or voluntary—guardianship systems, and the ambiguity of the guardians’ role, also influences the competency requirements of the guardians. For professionals, the educational requirements are well-defined, whereas for benevolent and private volunteer guardians, the requirements are linked more to personal attributes and character. Whether the competencies of volunteer guardians need to be further regulated and standardized is a controversial issue, in the sense that the strictly defined competencies and attributes of guardians may exclude from guardianship those persons who are not professionals but who, for other reasons, are suitable and have a genuine commitment, and perhaps an existing relationship, with the ward. On the basis of the responses from the European countries, the tendency is perceptibly in favour of professionalized, rather than personalized, guardianships. In only six countries of the region was any weight given explicitly to the quality of the relationship between the child and the guardian, and whether the guardian and the ward could

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get along with each other. In professionalized guardianships, the emphasis is on educational qualifications, either in the social or legal fields. In personalized guardianships, the competencies of the guardians are related mainly to their personal characteristics and “suitability”, and their competencies and suitability are often defined negatively, that is, who as a guardian would not be suitable (because of a conflict of interest, immorality, substance abuse, and so on).

In a number of countries, the guardianship provision systems for national and non-national children were different. In these countries, it was common either for managers of refugee reception centres and their staff to be delegated guardianship functions by the local child welfare agency, or for the guardians to be selected from among the refugee and asylum-seeker community. In Central and Eastern European countries, in particular, the role of the NGOs in providing guardianship to asylum-seeking and refugee minors was common, while national children were placed in the care of government institutions. Among the key constraints in providing guardianship for asylum-seeking and refugee children were the lack of guidance and training for guardians on asylum, as well as on cultural and psychosocial issues of displaced children. A shortage of guardians with relevant language skills was also identified as a constraint in the newer asylum countries of Eastern and Central Europe.

A lack of training for guardians was a major constraint and obstacle for ensuring appropriate standards of care and protection for children and adolescents, and the necessary guidance and support for guardians. In only five of the countries surveyed were guardians required to participate in compulsory training prior to taking up guardianship. Some respondents indicated that, in their view, training was inadequate and of poor quality. An even smaller number of countries (7 per cent) provided access to continuous training for the guardians, or organized regular workshops, seminars and discussions where guardians could meet and obtain support and advice for the proper execution of their duties.

An area with a clear need for improvement is the monitoring, reporting and supervision of guardians. There is an almost total absence of any involvement of children and adolescents under guardianship, and the children do not, in any country, have channels for their feedback and views. The most regular monitoring mechanism is the mainly financial reporting that is required of guardians annually. In only 20 countries were guardians required to monitor and report on the situation of the child, according to the answers to the questionnaire. Where the guardianship was provided by a professional institution or agency, the monitoring and reporting on—and by—the guardians was nearly always a part of the standard supervision of staff in the office, and had little to do, specifically, in regard to the well-being or the quality of guardianship of an individual child.

Finally, in response to whether the guardianship system was working well in the 42 European countries covered by this survey, 17 per cent of the respondents described the system as working well; 10 per cent replied that the system worked adequately; while a majority—26 per cent—indicated that it was inadequate. For further details, please see Annex B, Table I: Does the guardianship system work well? Please also note that the figures, percentages and other information in the five tables in the paper and nine tables in the annex (which are derived from the survey questionnaire in Annex A), are based on a 100 per cent response rate to the survey while, in fact, the overall average response rate to the questionnaire is only 79 per cent.

2. ASYLUM-SEEKING AND REFUGEE UASC IN EUROPE

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Addressing the separation of children from their care givers is one of UNHCR’s global priorities for refugee children. In situations of displacement, conflict and persecution, families often break-up, and children and adults become separated from each other. Family separation puts children at heightened risk of exploitation and abuse, usually entails disruption of education, and requires children to take up responsibilities for themselves, their siblings and other family members. Asylum-seeking and refugee children are in a more vulnerable position without a responsible adult, often unable to understand the language, culture and way of life of the new country. Without access to appropriate reception and legal assistance, they are at further risk of exploitation, marginalization and discrimination.

The overall number of asylum-seekers in all the European countries has dropped dramatically since the beginning of 2000. The reduction in the numbers of asylum applications is believed to intersect with the restrictive asylum and migration policies of Europe, and the growing global economic inequalities that contribute to conflict, lack of livelihood and displacement. The mixed and irregular movements of populations—for reasons of persecution, human rights violations, inadequate protection in the countries of origin and transit, environmental degradation and lack of livelihood—are composed of economic migrants and refugees. Not only are the populations sometimes mixed, but the “irregular movers” may have a mixed motivation for displacement that are linked to both economic and persecutory reasons. With the emphasis on border control and the containment of irregular migration, it is increasingly difficult to reach Europe without the assistance of smugglers and traffickers. The lack of access to territory and asylum impact disproportionately on children. The fees and bribes for assisted travel and entry into Europe are less costly for children than for adults. The chances of a child being allowed to stay in Europe are better than for an adult asylum applicant or irregular migrant. It is easier for children to engage undetected in street-based activities and petty crimes, and criminal prosecution and charges are less likely, and lower, than for adults. The lifetime capacity to earn a living and provide remittances to family members in the countries of origin is higher than for adult migrants. The exploitation of children for labour and subversive activities particularly affects young boys who are sent abroad by their families or other adults, and is based on gender-differentiated perceptions of income-earning capacity and vulnerability. Boys are perceived to be generally better earners, and less vulnerable, than girls. This has resulted in a situation where most asylum-seeking UASC arriving in Europe today are adolescent boys. The above factors are likely to explain why the number of asylum-seeking children has not dropped as dramatically as the number of adult applicants.

According to the available data, the number of asylum claims lodged by UASC in the 42 European countries between 2001 and 2003 was 12,8002. While the total number of asylum applications by adults was halved between 2002 and 2005, the number of applications by UASC in 2005 had only dropped by one-quarter, to a total of 9,800. Despite this seemingly large number, the proportion of asylum applications lodged by UASC remains small, averaging about 3-4 per cent of all asylum applications. There are considerable country differences, and the countries that receive a majority of the child applicants are Sweden and the UK. When countries are compared for the share of UASC applications as a proportion of all asylum claims, the largest share of UASC is in Bulgaria, where children seeking asylum alone make up ten per cent of all asylum-seekers.

The most common countries of origin for child applicants are Afghanistan, Angola, Iraq, Sierra Leone and Somalia, followed by China, Democratic Republic of the Congo, Guinea, Nigeria and

2 United Nations High Commissioner For Refugees. Trends in Unaccompanied and Separated Children Seeking Asylum in Industrialized Countries, 2001-2003. Population Data Unit, in consultation with the Bureau For Europe. Geneva. July 2004. http://www.unhcr.org/statistics/STATISTICS/40f646444.pdf

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Serbia and Montenegro. The countries of origin for UASC arriving in Europe have changed remarkably, with a shift in arrivals from other European—as well as Asian and Middle Eastern—countries to an increase in those arriving (increasingly) from Sub-Saharan Africa. In 2005, Sub-Saharan African children and adolescents comprised an estimated 45 per cent of all UASC in Europe, with most applications in Europe coming from adolescent boys aged 16–17 years.

One of the main constraints of UNHCR and other organizations in monitoring the protection of UASC is the pervasive lack of data. Most Western European countries do not produce age- and sex-segregated statistics on asylum applications and decisions. To the extent that it is possible to draw conclusions on the basis of scarce data, recognition rates for UASC are generally much lower than those for adult applicants. In the absence of guidance and clearly instated policies to assess asylum claims child-sensitively, most UASC are granted humanitarian or other complementary protection status. For example, in 2004, a total of 2,990 UASC sought asylum in the UK. While the majority of the children (72 per cent) were granted the right to remain in the UK, only two per cent were recognized as refugees and one per cent on humanitarian grounds. Since 2005, most child applicants are subject to age assessment, of which the results are not available to UNHCR. If the UASC are found to be over 18 years of age, they may not be admitted to the territory or the asylum procedure, or the refugee status determination decision may be linked to the results of the age assessment. In this way, the authorities do not need to pay attention to the international and regional standards of protection and care that would be applicable to minors.

3. STANDARDS ON GUARDIANSHIP PROVISION FOR UASC

3.1 INTERNATIONAL LEGISLATIVE FRAMEWORK

The relevant international legislative framework is based on the 1989 United Nations Convention on the Rights of the Child (CRC) that provides for children’s fundamental rights in the areas of civil, political, economic, social and cultural rights. The CRC is the most widely ratified Convention and, in Europe, all countries are states parties to it. However, some of the countries, including Germany and the UK, have entered specific reservations in relation to age, nationality, immigration status and application of the CRC domestically. The Committee on the Rights of the Child has provided further authoritative guidance for states parties on to how to apply the CRC’s standards to asylum-seeking and refugee children.

On the issue of legal guardians, enshrined in several articles of the CRC, states are required to create a legal framework and ensure proper representation of the UASC’s best interests. General Comment 6 of the Committee on the Rights of the Child requires that states appoint a guardian or adviser as soon as the UASC is identified. The Committee further stipulates that the guardian should be involved in all actions taken in regard to the child. It specifically mentions the importance of the participation of the guardian in asylum proceedings, the identification of durable solutions, and the education and care arrangements for the child, and also for the guardian to have the necessary expertise and authority for these functions. If in some areas the guardian does not have the necessary expertise, supplementary measures, including the appointment of an adviser or legal representative, should be secured. Moreover, the Committee requires that states parties have review mechanisms in place to monitor the quality of the guardians to ensure that the best interests of the child are being represented, and to prevent abuse.3

3 Committee on the Rights of the Child. General Comment No. 6 (2005): Treatment of unaccompanied and separated children outside their country of origin. Thirty-ninth session. Crc/Gc/2005/6. Geneva. 17 May-3 June 2005.

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While the 1951 Convention relating to the Status of Refugees is mostly silent on children, its standards apply to children in the same way as they do to adults. Article 22 of the Convention sets standards that are of special importance to children: refugees must receive the same treatment as nationals with respect to primary education, and treatment at least “as favourable as possible” as that given to non-refugee aliens in secondary education.4

3.2 EUROPEAN LEGISLATIVE FRAMEWORK

The Council of Europe has set several regional standards which are derived from the international instruments and standards related to children. Among them, the European Parliament Resolution of 1992 on a European Charter of Rights of the Child requests, among other things, that

“Every child has the right to life. If the parents or persons responsible for the child are not in a position to ensure his survival and development, the State must guarantee him the necessary protection and care and a decent minimum of resources and take steps to encourage and facilitate the provision of this care by individuals or families willing to do so, or if this is impossible, via direct intervention by the authorities”5.

The Resolution also states that a child in the territory of a Community state cannot be the subject of any discrimination based on the parents’ nationality, family background, sexual orientation, race, colour, sex, language, social origin, religion, belief, state of health or other circumstance6.

Particularly in regard to refugee children, the European Parliament states that

“Children from third countries who apply for refugee status in a Member State must be given due protection and assistance in that State whilst their application is being considered”.7

On the issues of best interests, children’s participation and parental role, the European Convention on the Exercise of Children’s Rights (1996)—building on the Parliamentary Assembly of the Council of Europe Recommendation 1121 (1990) on the rights of children—states as follows:

Convinced that the rights and best interests of children should be promoted and to that end children should have the opportunity to exercise their rights, in particular in family proceedings affecting them;

Recognizing that children should be provided with relevant information to enable such rights and best interests to be promoted and that due weight should be given to the views of children;

http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/532769d21fcd8302c1257020002b65d9?Opendocument4 United Nations. Convention relating to the Status of Refugees. Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950. Entered into force on 22 April 1954, in accordance with article 43. http://www.unhchr.ch/html/menu3/b/o_c_ref.htm5 European Parliament. Resolution on a European Charter of Rights of the Child. 8 July 1992. Article 8.8. 6 Idem, Article 8.5.7 Idem, Article 8.44.

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Recognizing the importance of the parental role in protecting and promoting the rights and best interests of the children and considering that, where necessary, States should also engage in such protection and promotion.

The Parliamentary Assembly of the Council of Europe issued in 2005 its Recommendation 1703 on asylum-seeking and separated children.8 Although not legally-binding, the standard in its Article 5 on guardianships is clearly defined, and advises that:

As they are without their parents or legal or customary primary care-givers, separated children seeking asylum should benefit from the prompt appointment of a legal guardian to defend their interests and ensure their well-being and they should also be placed in care and reception structures in keeping with their age and maturity. By contrast, the legislation of Council of Europe member states often does not provide for an appropriate system of guardianship on behalf of foreign children. Even when an adequate legal framework is in place, administrative delays pose a serious threat to the safety of children, leaving them more exposed to a risk of trafficking or other abuses. Furthermore, the detention of separated children in the asylum process is a widespread practice in the vast majority of Council of Europe member states, in open disregard of the obligation to provide care and reception in structures suitable for children and in violation of Article 37 of the United Nations Convention on the Rights of the Child, which states that detention shall only be used as a measure of last resort and for the shortest appropriate period of time.

The recommendation further instructs the Committee of Ministers of the Council of Europe and its member states to:

[A]mend their legislation and remove any administrative obstacle so as to ensure that separated children can have a legal guardian and a legal representative appointed as a matter of urgency and not later than two weeks of their presence coming to the knowledge of the authorities9.

3.2.1 The European Union Law

Two asylum-related European Union (EU) directives—addressing the reception of asylum-seekers and the processing of asylum claims—make specific reference to guardianships for UASC where the European Commission requires its member states to appoint, as soon as possible, a legal guardian to ensure the care and well-being of asylum-seeking children, and the appropriate legal representation and assistance for children to articulate their asylum claim.

In practice, as verified by the regional survey questionnaire, there are considerable delays and gaps in the appointment of guardians and legal representatives. In some countries, asylum-seeking children are denied both guardians and legal representatives. It is not uncommon for a legal representative to be expected to provide for the care and well-being of the child, or for a social worker to be the main representative of the child in the asylum procedure. For example, in Poland, it is the NGOs and law students who—with UNHCR’s financial support—represent and assist the 8 Parliamentary Assembly of the Council of Europe. Recommendation 1703 (2005) on the protection and assistance for separated children seeking asylum. Strasbourg. 28 April 2005. http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta05/EREC1703.htm

9 Idem.

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child asylum-seekers in legal proceedings. The social institutions in charge of accommodation and care of the child and social workers are uninformed about asylum procedures, although they are expected to assist the child in the asylum application.10

On unaccompanied minors, Article 19 of the EU Reception Directive11 legislates that

“Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation. Regular assessments shall be made by the appropriate authorities.”

And, in accordance with Article 17 (a) of the EU Procedures Directive12, Member States shall:

“as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor with respect to the examination of the application. This representative can also be the representative referred to in Article 19 of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers”.

3.2.2 The SCEP-UNHCR Statement of Good Practice

The SCEP-UNHCR Statement of Good Practice13 provides a comprehensive policy framework and good practice standard for the protection and care of UASC in Europe. The good practices are directly informed by the work of SCEP partners and UNHCR country offices in Europe, and its third edition was updated in 2004 to reflect the current protection issues of UASC in the rapidly developing area of European asylum and migration policies. The Statement of Good Practice is also informed by, and based on, the international and European instruments and standards on the rights of the child and on the rights of refugees and asylum-seekers, and draws especially on the Convention on the Rights of the Child, EU directives on reception and asylum procedures, and UNHCR guidelines related to refugee children. Section C6 of the Statement on the appointment of a guardian or adviser recommends that:

As soon as a separated child is identified, an independent guardian or adviser should be appointed—in a long-term perspective—to advise and protect separated children. Regardless of the legal status of this person (e.g. legal guardian, NGO worker) their responsibilities should be as follows: to ensure that all decisions taken are in the child’s best interests to ensure that a separated child has suitable care, accommodation, education,

language support and health care provision

10 Menon, Rekha and Floor, Malika. Profiling of Unaccompanied and Separated Children. United Nations High Commissioner for Refugees, Bureau for Europe. Unpublished research paper. Geneva. 2007. 11 Council of the European Union. Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. (Reception Directive).http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003L0009:EN:NOT12 Council of the European Union. Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status.http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32005L0085:EN:NOT13 Separated Children In Europe Programme. Statement Of Good Practice. Third Edition, 2004. http://www.separated-children-europe-programme.org/separated_children/good_practice/index.html

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to ensure that the child has suitable legal representation to deal with her or his immigration status or asylum claim

to consult with and advise the child to contribute to a durable solution in the child’s best interests to provide a link between the child and various organizations who may provide

services to the child to advocate on the child’s behalf where necessary to explore the possibility of family tracing and reunification with the child to help the child keep in touch with his / her family.

In order to ensure necessary protection for separated children, appointments of guardians / advisers should be made within one month of a child being notified to the relevant authorities.

The individuals carrying out these responsibilities may be drawn from a range of specialist backgrounds. However, in order to carry out their role effectively, advisers or guardians should have relevant childcare expertise and an understanding of the special and cultural needs of separated children. They should receive training and professional support, and undergo police reference checks.

4. TYPES OF GUARDIANSHIP, APPOINTMENT PROCEDURES AND REMUNERATION

The types of guardianship and appointment procedures vary widely from one country to another. Usually, it is either the government institutions in charge of child welfare and social services, or specialized NGOs, that serve as guardians for UASC seeking asylum in Europe. The actual care can be further delegated to a specialized organization or to a private person whose activities are monitored by governmental or non-governmental agencies.

In the survey questionnaire, respondents were asked to describe the guardianship system as either professionalized, benevolent (or voluntary), or remunerated but reliant on individuals who are not professionals. If the guardians were remunerated, the questionnaire asked that the amount of remuneration be specified.

The results show that in one half of the countries, guardianship systems were described by the respondents as professionalized, and in the other half as voluntary. In a number of countries, the system was a combination of both professional and voluntary guardianships, as the nominal guardian was usually a governmental institution, which then delegated the practical care of the child to a specialized NGO or private individual.

Some remuneration for the guardians is provided in about a quarter of the European countries. However, it is not possible to draw far-reaching conclusions about remuneration on the basis of the data collected. When institutions or childcare authorities serve as guardians, there is no additional remuneration, although their guardianship work is part of their usual duties. Remuneration is more common among the specialized NGOs or private individuals. Often, the remuneration is a nominal compensation for the guardian, and the guardian can, in addition, request for further compensation for tasks that entail costs or that are particularly demanding in terms of time or expertise.

Guardians are remunerated in 24 per cent of the countries, with their remuneration or nominal fee being paid by the state. This is usually the case where guardians are remunerated as employees of

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administrative or professional service providers. In a number of countries, especially where the guardians are primarily the legal representatives of the child in the asylum procedure, the remuneration, salary or fee is paid by the courts. For example, in Germany, the courts may pay the professional guardians (who are lawyers or social workers), an hourly wage. In Belgium, Finland, the Former Yugoslav Republic of Macedonia, Sweden, Switzerland and Turkey, the guardianship system is remunerated, but reliant on individuals who are not professionals. In Finland, guardians work independently and receive a fee, not a salary. In Croatia, in accordance with the Croatian Family Law, guardians have a right to monthly compensation for their duties, which is paid on request.

The system of guardianship is professionalized in 31 per cent of the countries in this review. In Germany, the system of guardianship is partly professionalized and partly voluntary, with four types of guardians. The system is professionalized in Austria as well, but only in cases where youth welfare agencies are appointed as guardians. In Croatia, the legal framework provides for a professionalized guardianship system, although there are gaps in current practice. Bosnia and Herzegovina, as well as Switzerland, have all three categories of guardianship, depending on the municipality or canton. In the Swiss cantons of Geneva or Zurich, however, the system is professionalized and remunerated. The professionalization of guardianship in Spain does not extend to foreign UASC seeking asylum, since guardians are not trained on specific rights of non-national UASC and, in addition, rarely speak foreign languages. And in Greece, legal provisions—especially for UASC not seeking asylum—are inadequate, as is the implementation of the already existing legal framework.

Guardianship systems are voluntary or benevolent in 31 per cent of the countries, and guardians or custodians take on their responsibility free of charge, as in Belarus, for example. In Luxembourg, guardians are professionals working for the refugee service, Caritas, and do not receive any special allowance for their work. For further details, please see Annex B, Table II: Types of guardianship.

4.1 TYPES OF GUARDIANSHIP SYSTEMS

4.1.1 Institutional guardianship

Most countries included in this survey have systems of guardianship. The guardians are either individual persons or institutions. Although the names of institutions may vary, guardians are appointed by local courts or tribunals in 29 per cent of the countries under review and by centres for social or child welfare in 12 per cent of the countries, mainly in Southeastern Europe (including Bosnia and Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, Serbia and Slovenia). In Spain, the Protection of Minors Department of the corresponding autonomous community or city is responsible for the appointment of a legal guardian, while in the UK no real system of guardianship exists. In Greece, because of a lack of appropriate reception facilities, UASC asylum-seekers are lodged in private institutions and, in Romania, guardians can be appointed from the staff of authorized private institutions when cleared by the Directorate for Child Protection. Meanwhile, in Slovenia, a new family law is being prepared that will empower courts to appoint guardians. In a number of countries where institutions serve as guardians, the practical care of the children is delegated to NGOs (for example, in Spain).

4.1.2 Private guardianship

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Private, independent persons act as guardians in Belgium, Finland, Germany and Luxembourg. Private families can also accept UASC—as in Finland—at the behest of local social authorities. In the UK, despite the absence of a formal guardianship system, private fostering arrangements exist for UASC, in accordance with the Children Act of 1989. However, to ensure local authority oversight of such arrangements, it has been suggested that “a mandatory registration scheme for privately fostered children should be introduced”14.

4.1.3 Non-governmental organizations

Individual guardians work for NGOs in Belgium, Luxembourg (Caritas/le Service pour Réfugiés); Slovenia (Slovene Philanthropy, which is also an implementing partner of UNHCR); and Switzerland outside of the canton of Geneva. An independent and competent guardianship of NGOs exists in Germany. Legal and social counsellors from NGOs in the Czech Republic, such as the Organization for Aid to Refugees, assume guardianship for UASC for the duration of the asylum procedure. In Norway, the Norwegian People’s Aid is developing a pilot project to improve the recruitment and training of guardians which is to be implemented nationwide.

4.2 APPOINTMENT PROCEDURES AND AFFILIATION OF GUARDIANS

As in the other attributes of guardianship systems, the appointment and affiliation of guardians varies in the European countries. In the case of asylum-seeking children and adolescents, the guardians, legal representatives and legal counsellors in a number of countries are sometimes the same institution or individual. It is assumed that where guardians are affiliated, or under the supervision of childcare or social welfare authorities, their tasks are more closely linked with the care and overall well-being of the child. Where the guardians are affiliated with asylum authorities, they are better equipped to provide legal support for the asylum application of the minor and less concerned with the day-to-day care and coordination of different stakeholders and actors. In some countries, there is a multi-sectoral guardianship system in place—for example, in Germany—with the appointment of both legal representatives and advisers, as well as guardians concerned with the child’s care arrangements, coordination and ensuring that the child’s best interests are met.

The information on types of guardianship and their affiliation were not available for Denmark, France, Iceland, Latvia and Montenegro. Information on the affiliation of guardians was not available for Albania, Azerbaijan, Belarus, Bulgaria, Cyprus, Estonia, Russian Federation, Ukraine and the UK. For further details, please see Annex B, Table III: Appointment of guardians and their institutional affiliation.

5. DUTIES OF GUARDIANS

5.1 DUTIES

While a guardian is expected to fulfil a key role in the overall well-being of the child, there is considerable variation in practice in the areas of care and the extent of the guardian’s involvement. The most common duties of guardians are summarized in the synopsis in Table 1, below. In a majority of the countries, the most common duties relate to care arrangements, accommodation, education and health. The least common duties of guardians are the identification of durable

14 Bhabha, Jacqueline and Finch, Nadine. Seeking Asylum Alone: Unaccompanied and Separated Children and Refugee Protection in the U.K. 2006. http://www.humanrights.harvard.edu/conference/SAA_UK.pdf

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solutions and participation in decisions concerning the Dublin II Regulation transfers. Interestingly, only in 20 of the 42 countries surveyed were guardians expected to assist the minor to integrate into the new country and environment. As discussed earlier—and depending on how guardianship is contextualized—guardians in a number of countries serve mainly as legal representatives or counsellors to the children. In 57 per cent of the European countries, guardians are legal representatives whose role is to advise, support and represent the child in the asylum procedure. In these cases, guardianship is usually limited to the duration of the asylum procedure.

The duties of guardians may also vary for other reasons, according to the duration of the guardianship. Where there is a system of temporary guardianships, the temporary guardian is usually the person or institution in charge of the initial reception and care of the child. For example, in countries where newly arrived asylum-seeking UASC are accommodated in a temporary facility or detained, they may be assigned a temporary guardian. Upon identification of a municipality where the child will be living during the asylum procedure, the municipal childcare or asylum authorities, such as the reception centre management, takes over the guardianship of the child. In some countries, if the child is granted asylum or a permit to stay in the country, the guardianship may change again, especially in cases where the guardian is a legal representative, or an authority linked to asylum. For further details, please see Annex B, Table IV: Duties of guardians; and also Annex C, Chart I: Duties of guardians.

Table 1: Guardians’ duties, a synopsisGUARDIANS’ DUTIES IMPLEMENTED IN

NO. OF COUNTRIESAS

PERCENTAGE1. Accommodation 24 572. Care arrangements 28 673. Education 28 674. Integration support 20 485. Health services 27 646. Monitoring / reporting on the situation of the child 20 487. Best Interests of the Child (Best Interests Determination) 24 578. Family tracing and reunification 21 509. Dublin II Regulation transfers 18 4310. Refugee Status Determination (RSD) procedures 24 5711. Access to legal counselling 22 5212. Legal representation 24 5713. Identification of durable solutions: voluntary repatriation / local integration / resettlement

18 43

The duties of guardians are often defined in law in a general manner. It may not be feasible to determine at the legislative level the precise functions to allow for sufficient flexibility to meet the needs of the child and the requirements of the situation. However, in only a few countries are the duties of guardians defined at all.

In Finland and Slovenia, there are no clear or precise guidelines that define a guardian’s duties. Swedish legislation, too, does not exhaustively define the duties of a guardian (or “custodian”), although these are sometimes developed in more detail in general principles concerning parental responsibility. As a result, the role of a guardian varies considerably with each individual guardian.

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In Austria, certain duties, such as care and education, are legally defined in the Civil Code (or, Allgemeines Bürgerliches Gesetzbuch / ABGB). In practice, the agency dealing with guardianship—the youth welfare agency, or Organization des Jugendamtes—determines in more detail the duties it needs to perform in its general role of guardianship. In Ireland, duties such as monitoring or reporting on the situation of the child are carried out by a guardian, but only to the extent that resources are available. Moreover, as the guardian is a governmental body (Executive Health Service) and has, at the same time, the role of applying for asylum on behalf of the child, it needs to undertake duties related to both care and asylum. Croatia’s Family Law does not specify the expected duties of a guardian. These are generally determined by the Centre for Social Welfare (CSW), which is a locally-based state-run social care institution. The duties include, but are not limited to, all the 13 duties listed in the survey questionnaire. In Greece, the refugee law specifies that a guardian’s duties are to assist UASC only for the duration of the asylum process. In reality, very few UASC asylum-seekers have a guardian appointed. According to the replies to the questionnaire, the Public Prosecutor for Minors plays a cursory role and does not work toward the protection and care of UASC. The legislative framework governing the protection of UASC, including guardianship issues, is in need of substantial overhaul in Greece.

5.1.1 Best interest of the child

Despite the fundamental principle of the Convention on the Rights of the Child, the best interest of the child is an explicit duty of a guardian in 24 European countries (57per cent of those surveyed). The best interest principle extends to all areas of a guardian’s duties and competencies, and provides a guide to all important decisions that affect the child. Best interest assessment and / or determination is ideally a multi-sectorally based conclusion that entails the joint assessment and decision-making by all actors who are in some way linked to the issue at stake. The decision should be informed by the child’s best interests, and not by the interests, incapacity or lack of resources of the actors. The best interest determination should, therefore, be made independently of other considerations. To the extent that the children’s maturity allows, they should be heard and their views taken into account in decisions that affect them.

The questionnaire’s respondents put forward a view that many guardians lack appropriate expertise in ensuring the child’s best interests. There is, in general, insufficient research and training for professionals and, in many countries of Europe, the best interest principle is enshrined usually in child welfare legislation, but practical procedures for its implementation may not be in place. For example, in the Czech Republic, the principle of the interest and welfare of minors is outlined in the Family Act and the Law on Social and Legal Protection of Children. In reality, however, this principle is neither adequately defined nor reflected in legislation, court decisions or specific policies related to children in the country. In Romania, a child’s interests are not formally safeguarded in practice, due to a narrow interpretation of Article 73 of the Law on the Protection and Promotion of the Rights of the Child. In Ukraine, in cases where a guardian is assigned to asylum-seeking UASC, the duties do not include protection of a child’s best interests. In the Former Yugoslav Republic of Macedonia, the best interest principle, although mandatory and enshrined in law, is not applied in the case of refugee children.

A practical example of the impact of limiting duties of guardians, or not resourcing guardians to professionally carry out their required duties, comes from the Czech Republic. Because of the conflicting positions of local departments in the Czech Republic for the social and legal protection of children and the role of guardians, the involvement of guardians in asylum proceedings and

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refugee status determination remains limited. The guardians refuse to exercise their role of guardianship for the entire administrative proceedings of the asylum procedure, and only participate in asylum interviews. Hence, NGO legal counsellors continue to assume a de facto legal representation of the child in the asylum procedure by working closely with the resident guardians assigned to each asylum-seeking UASC.

Finally, as a good practice example, the Refugee Council Children’s Panel (RCCP)—a SCEP partner—has played a key role in the UK in assisting some UASC to access legal and social services. However, it is widely acknowledged that the RCCP does not have sufficient resources or powers to be considered “a guardian”. Unlike in asylum proceedings, the role of a guardian does exist in family court proceedings. However, the guardianship role of the Children and Family Court Advisory and Support Service (CAFCASS) is limited only to family court proceedings and does not deal with non-national UASC, except in the context of family law matters.

5.1.2 Durable solutions for voluntary repatriation, local integration or resettlement

Durable solutions for refugees can take three basic forms, entailing the re-establishment of the refugee and providing a normal way of life, either in the country of origin or asylum, or in a third country through resettlement. Resettlement is a durable solutions option when, for reasons of protection or individual needs, it is not feasible for the refugee to return home or to stay on in the country of asylum. When the need for international protection ceases, the refugee returns voluntarily to the country of origin or usual habitation. By local integration is meant that the refugee stays in the country of asylum and integrates locally into the host society. The identification of a suitable durable solution is thus essential for the regularization of the status of a refugee, and as a long-term solution to involuntary displacement.

The responses to the survey questionnaire point to difficulties in defining the duties and tasks of guardians that are similar to the difficulties in defining legal representation. The children whose guardianships were surveyed are both minors and refugees. Depending on the country, there seems to a mixed approach to the children and a lack of clarity as to whether they should, for the most part, be considered and treated as minors, or whether they should be seen primarily as asylum-seekers with limited rights. This incoherent approach—and the delinking of asylum-seeking children from their rights that would otherwise be applicable to all children in a particular country—is reproduced in national legislation. In asylum-related legislation, there is a lack of child-sensitivity, and few provisions for the specific needs of child asylum-seekers. Consequently, the service providers are not sufficiently guided by their obligations under the Convention on the Rights of the Child and the 1951 Convention relating to the Status of Refugees, including whether—in the case of asylum-seeking children—to apply the national asylum law or child welfare law.

For example, there are no specific procedures identified in the national laws of Cyprus for asylum-seeking children. In Cyprus, the draft law on asylum and refugees provides for integration support to refugees and beneficiaries of subsidiary protection status, regardless of their age. However, no specific provisions for the integration support of other groups of minors are provided for in the national laws. In Bulgaria, no special arrangements exist in the country’s legislation in respect of asylum-seeking and non-national UASC. In Italy, guardians have no obligation to assist in seeking durable solutions.

The German model—where a guardian is part of the planning process for durable solutions and required to approve measures taken by the Youth Welfare Office (Jugendamt)—represents one of

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the good practices in the involvement of the guardian, thus, making it a more independent and multi-sectoral decision-making process, with a check on the government’s actions and motivations.

5.1.3 Family tracing and reunification

Only in one half of the 42 European countries are guardians expected to play any role in family tracing and reunification, and there is no unified system or procedure on how it should be pursued. This situation has to be seen against the background of the family reunification rights for refugees that are being curtailed in Europe, where those with even a complimentary protection status are usually not entitled to apply for family reunification at all. Even refugees, recognized under the 1951 Convention, are increasingly required to produce proof of family links through documentation and DNA testing, and the process of family reunification can take several months, if not years. In some countries, the right to family reunification is restricted to nuclear family members (parents, under-age siblings) while, in others, children over a certain age (15-16 years) are not entitled to family reunification. Among the EU member states that are part of the Dublin II Regulation, family reunification would be allowed less restrictively.

Although according to international standards, family tracing and reunification for UASC is to be initiated as soon as possible, without the involvement of guardians, it continues to face delays and problems due to inadequate mechanisms for best interest determination, lack of clarity about who has the duty to trace the family, and an absence of rights awareness among the children. In practice, family tracing is primarily undertaken when children are being returned to their countries of origin.

6. COMPETENCIES OF GUARDIANS

Following from the differences in the duties of the guardians, and especially from the differences in the conceptualization of their role in the case of asylum-seeking and refugee children, the competency requirements vary widely across Europe. Should the guardians have a comprehensive role to ensure the well-being of the child, or should the role of the guardian be primarily to assist the child in the asylum procedure?

The required competencies also differ between professionalized and benevolent—or voluntary—guardianship systems. For professionals, the educational requirements are well-defined. But for benevolent and private volunteer guardians, the requirements are linked more to personal attributes and character, with the characteristics of suitable guardians being usually negatively defined, that is, in terms of those who cannot qualify as guardians because of a lack of morals, substance abuse, and so on. Whether the competencies of volunteer guardians should be further regulated and standardized is an issue that needs to be balanced. The competency requirements should not exclude from guardianships persons who are not professional but who, for other reasons, are suitable and can support and take care of the child adequately. Among such persons could be, for example, extended family members of the child, or members of community groups to which the child belongs. In approximately half of the countries surveyed, the competency requirements refer to the suitability of the person, giving flexibility in determining the one most suitable, regardless of professional or personal qualifications. Only five countries of Southeastern Europe or 12 per cent of all countries surveyed, specifically refer to the relationship between the child and the guardian as a criterion of suitability. Only in one country, Armenia, was the attitude of the guardian toward the child considered an important factor, worth specifying.

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Perhaps the most apparent gap in the selection of guardians, and the definition of their competencies, is the lack of children’s participation in the guardians’ appointment, monitoring and evaluation. In most countries, the views of children and their relationship with the guardian are—noticeably—not generally taken into account, nor given much weight when appointing guardians. None of the countries studied had any formal channel or mechanism for hearing the child’s opinions on either the appointment of a guardian, or the periodic reporting and evaluation of the guardian. The less regulation there is of the competencies and role of guardians, the better the monitoring and evaluation systems will be, and the better they will be implemented. The results of the survey are summarized in Table 2, below. For further details, please see Annex B, Table V: Competencies of guardians; Annex B, Table VI: Required competencies of guardians; and Annex C, Chart II: Competencies or attributes of guardians.

Table 2: Competencies or attributes of guardiansCOMPETENCIES / ATTRIBUTES NUMBER OF COUNTRIES AS PERCENTAGE

1. Capability or suitability 18 432. Level of conduct 14 333. Education (social work) 10 244. No specific competencies 9 215. Avoiding conflicts of interest 8 196. Education (law) 6 147. Family relationship 6 148. Guardian-ward relation 5 129. Child’s opinion of potential guardian 4 1010. Education not a consideration 4 1011. Consent 3 712. Specific training 3 713. Heads of institutions 2 514. Attitude toward child 1 215. Independence 1 216. Proximity 1 2

6.1 FORMAL AND EDUCATIONAL COMPETENCY REQUIREMENTS

As regards the competencies of guardians there is, again, much variation. In 21 per cent of the countries surveyed—Armenia, Bosnia and Herzegovina, Bulgaria, Czech Republic, Finland, Greece, Norway, Spain and Ukraine—there were either no standard criteria on competencies, or they were not clearly defined or available (as in the Czech Republic).

6.1.1 Social workers or lawyers?

In 24 per cent of the countries, including Austria, Germany, Ireland, Luxembourg, Netherlands, Poland, Romania, Spain, Switzerland (in the cantons of Geneva and Zurich only) and the UK, a formal qualification or background in social work was among the key competencies for guardians. In 14 per cent of the countries, a legal background, or a legal understanding of asylum procedures was required. In Ireland, formal training in social work—with a degree recognized by the National Social Work Qualifications Board—was an essential requirement for guardians or social workers. In the UK, advisers of the Refugee Council Children’s Panel had competencies in social, legal and youth work, and advocacy, and were expected to have the qualifications set out by the Office of the Immigration Services Commissioner.

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In Belgium, it was not necessary to have had any specific education to be appointed as a guardian. However, guardians were required to participate in special training, organized by the Belgian Service des Tutelles, prior to appointment, to cope with the particular issues of asylum-seeking and refugee UASC and to establish a relationship of trust with the minor.

6.1.2 Independence and conflict of interest

A key criterion in selecting guardians is the absence of any conflict of interest between the potential guardian and ward. Belgium, for example, emphasizes a guardian’s “independence” from the asylum authorities, since such a link could pose a possible conflict of interest. Similarly, persons who have financial interests in regard to the minor are usually excluded from guardianship.

Also in Belgium, individuals who decide on the residence of the minor (that is, the staff of the Aliens’ Office), or individuals engaged in judicial procedures against the minor, are not eligible to be guardians. As a result, there has been concern regarding the handling of guardianships of non-national UASC by those without appropriate competencies in law or social work and who, therefore, may not be familiar with the issues with which they are required to deal. Some NGOs have, therefore, suggested the idea of a professional guardianship.

6.1.3 Suitability and personal attributes of guardians

Meanwhile, a majority of the countries (43 per cent) emphasized “suitability” and “capability” as key competencies required for the performance of guardianship duties although, in most countries, including Norway, there is no definition or guideline as to what “suitable” means.

Regarding codes of conduct, the Former Yugoslav Republic of Macedonia, in concert with 13 other countries, highlighted competencies such as “personal characteristics” or standards of ethics, propriety, and integrity, as well as the need for a certificate of good conduct. The absence of these qualities is enough grounds to deny or revoke guardianship, as is the presence of a criminal record, or the addiction to drugs or alcohol. Persons who have previously lost custody of a child will also equally not qualify to assume guardianship. Table 3 summarizes the main reasons for the denial or withdrawal of guardianship. For further details, please also see Annex B, Table VII: Reasons for denying or revoking guardianship; and Annex C, Chart III: Reasons for denyng or revoking guardianship.

Table 3: Reasons for guardianship denialREASONS FOR GUARDIANSHIP DENIAL NUMBER OF COUNTRIES AS PERCENTAGE

1. Previous guardianship revoked 9 212. Chronic substance abuse 5 123. Minor (below 18) 5 124. ll-health 4 105. Criminal record 3 76. No legal capacity 3 77. No income-generating capacity 1 28. Impropriety 1 2

7. TRAINING OF GUARDIANS

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Again, the training of guardians, in practice, varies widely among the 42 countries, as Table 4 shows. Training, whether prior to assuming guardianship or during guardianship, is not provided in one-third, or 31 percent, of the countries, nor is there any special training, as in Austria and Croatia, on issues concerning the specific needs of non-national UASC.

In Germany, training is voluntary for private guardians, and “not very effective”, according to the respondents. In Austria, guardians who are not affiliated with the “authority”, or are not part of the youth welfare agency, do not at any time receive formalized training. While the importance of appropriate training in children’s protection, cultural, religious and linguistic needs, and in childcare in general, has become increasingly apparent in Spain, no specific training is provided, including on the rights and situation of non-national UASC who are seeking asylum. In 14 per cent of the countries, specific training is compulsory, prior to taking up guardianship as in Belgium, where the training is organized by the Service des Tutelles. In a further seven per cent of the countries, continued training is compulsory during guardianship as well. In Belgium, ongoing training is a key condition for the approval of guardians. Training includes aliens’ law, youth law, teaching skills, psychology and multicultural reception. In this context, guardians are also invited by the Commissariat Général aux Réfugiés et aux Apatrides to familiarize themselves with asylum procedures. In addition, guardians are encouraged to attend conferences and seminars on UASC-related issues.

As a way of sharing of good practice, the Belgian Service droit des jeunes (an NGO) has created an Internet forum on UASC to encourage networking among guardians, specialized lawyers, and NGOs. The forum is administered by NGOs as well as guardians.

In many countries, training is provided by competent NGOs. In Slovenia, both theoretical and practical training is obligatory prior to guardianship, and is organized by Slovene Philanthropy. This NGO also recruits guardians and trains them in cooperation with other NGOs involved in the assistance and protection of migrants, asylum-seekers and refugees. Potential guardians acquire knowledge of issues regarding asylum, refugee and separated children, childcare, and on the duties and responsibilities of guardians. During guardianship, Slovene Philanthropy regularly informs guardians about new documents, laws and recommendations. In Finland, training is voluntary, and provided mainly by NGOs, such as the Central Union for Child Welfare and the Refugee Advice Centre.

Often, NGOs and international organizations, such as UNHCR, work in concert with government ministries and offices to train guardians. In Bulgaria, the State Agency for Refugees collaborates with the Bulgarian Helsinki Committee, the Bulgarian Red Cross and UNHCR to provide training aimed at the special needs of UASC. In Croatia, training for guardians of non-national UASC was provided in 2005 by the Centre for Social Policy Initiatives (an NGO), together with UNHCR and the Ministry of Health and Social Welfare and, in 2006, with the Office for Human Rights of the Government of Croatia. For further details, please see Annex B, Table VIIII: Training of guardians; and Annex C: Charts IV, V and VI on the training of guardians, including by country and percentage.

Table 4: TRAINING OF GUARDIANS TRAINING PROVIDED PRIOR TO GUARDIANSHIP

(by country and percentage)DURING GUARDIANSHIP

(by country and percentage)None 13 countries / 31 per cent

Albania, Armenia, Austria (except for 13 countries / 31 per centAlbania, Armenia, Austria (except for

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youth welfare agency workers), Azerbaijan, Bosnia and Herzegovina, Croatia, Former Yugoslav Republic of Macedonia, Georgia (not for guardians or custodians), Greece, Italy, Spain, Turkey, Ukraine (except for foster families)

youth welfare agency workers), Azerbaijan, Belarus, Bosnia and Herzegovina, Former Yugoslav Republic of Macedonia, Georgia (only for foster families), Greece, Italy, Spain, Turkey, Ukraine (except for foster families)

Not uniformly implemented 3 countries / 7 per centNorway, Sweden, Switzerland (except in Geneva and Zurich)

5 countries / 12 per centHungary, Lithuania, Norway, Sweden, Switzerland (except in Geneva and Zurich)

Voluntary 1 country / 2 per centFinland

4 countries / 10 per centFinland, Germany (only for private guardians), Luxembourg, Slovenia

Compulsory 6 countries / 14 per centBelgium (Service des Tutelle), Former Yugoslav Republic of Macedonia (only for foster families), Hungary, Ireland (education in social work), Netherlands (education in social or legal services), Slovenia (implemented by an NGO)

3 countries / 7 per centBelgium, Netherlands, United Kingdom

Implemented by government ministries; human rights offices, municipalities)

5 countries / 12 per centBelarus (SGD), Georgia (for foster families), Lithuania (not for close relatives), Poland, Serbia

7 countries / 17 per centBulgaria, Croatia, Cyprus, Czech Republic, Finland, Poland, Serbia

Implemented by NGOs 1 country / 2 per centRomania

5 countries / 12 per centBulgaria, Croatia, Finland, Germany, Romania

Implemented by international organizations

1 country / 2 per centSlovak Republic (UNHCR)

1 country / 2 per centSlovak Republic (UNHCR)

8. SUPERVISION AND MONITORING

The supervision and monitoring of guardians, too, varies widely across European countries. One of the most striking gaps in the monitoring and oversight is the nearly complete absence of the views of children under guardianship. While one method of monitoring and supervision in a number of countries is the visit to the home, there seems to be a clear lack of systematic and confidential communication with the ward.

In a very few countries only are monitoring and supervision explicitly included in legislation and organized as part of the usual monitoring and reporting by an agency. For example, NGOs which implement guardianship activities on behalf of a government agency, report to the donor, or a government social worker in charge of a minor, with supervision and monitoring by the appropriate municipal department for social services and child welfare. The monitoring and supervision in most countries lack an independent oversight. In about six of the 42 countries surveyed, the courts are responsible for the supervision and monitoring but, as in the case of Albania, there is no established procedure on how the courts are expected to monitor the guardians or how guardians (and wards) are supposed to report to the courts. The most common method of supervision and monitoring are the annual or biennial reports by the guardian where emphasis is on financial reporting. In none of the countries studied were the respondents able to provide information on the written report formats and contents, so it is assumed that there is no standardized reporting in place.

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Many countries also reported on the lack of sufficient staff and financial resources to establish and ensure adequate monitoring and reporting on guardianships.

Regular written reports from guardians are relied on by 29 per cent of the countries, while seven countries declared that supervision was conducted through home visits. Only in the Former Yugoslav Republic of Macedonia was there a combination of methods in use, including conversations and interviews—whether separate or joint is unclear, however—with the guardian and ward, and visits to schools, medical institutions, neighbours and the community at large.

Some type of reporting obligations exist in Albania, Bosnia and Herzegovina, Croatia, Cyprus, Norway, Serbia, Slovak Republic and the UK, but details of the monitoring and supervisory bodies, methods of monitoring, and frequency were not provided by the survey respondents. No information was provided by respondents on France, Italy, Moldova, Montenegro, Russian Federation and Spain.

In 19 percent of the countries (Azerbaijan, Bulgaria, Czech Republic, Finland and Georgia), there is no monitoring and reporting procedure in place for guardians. While guardians are not monitored in Finland, social workers in the reception centres meet with guardians to maintain or re-establish contact, and exchange information. In Azerbaijan, monitoring is not established by law, while in Bosnia and Herzegovina, where monitoring is the responsibility of the Centre for Social Welfare, it was reportedly poor and not standardized among the regional offices of the Centre. In the case of Mostar in Bosnia and Herzegovina, there is no special system of supervision, other than the general monitoring by the reception centre management, the Bosnia and Herzegovina Women’s Initiative (an NGO), government social workers, and UNHCR. The CSW has neither sufficient staff, nor funds, nor an established system, to monitor guardians in Mostar.

In Ukraine, guardianship agencies do not have the staff to adequately monitor the activities of the guardians or trustees under their supervision on a regular basis. Consequently, in some districts, this is done through home visits and other methods by social services that are established in all the Ukrainian districts which work under the supervision of local authorities. The dealings of the social services with guardianship agencies is not regulated, and is based more on an individual approach in each given district.

In Austria, where the monitoring of guardians comes under the purview of the district courts, regional variations also exist in both reporting requirements and monitoring. In Norway, guardians are monitored and supervised by the public trustee’s office although, in practice, the quality of this supervision also varies.

In common with Austria (and 17 per cent of the countries), guardians in Germany and Switzerland are monitored by the courts. The functions are entrusted to the civil courts in the case of the Swiss cantons of Geneva and Zurich, and local guardianship courts in the case of Germany. However, guardians are also monitored by (among others) NGO managers, guardianship committees and departments, government ministries (such as the Ministry of Justice in the Netherlands), public trustees, the Service des Tutelles and juges de paix (in Belgium), and independent inspection bodies, such as the Inspection on Youth Care (Inspectie Jeugdzorg), also in the Netherlands.

Often, it is the NGOs that carry out the tasks of supervision and monitoring. For example, in Slovenia, the Centre for Social Welfare—which is part of the Slovenian Ministry of Labour, Family and Social Affairs, and which appoints guardians—is required to monitor the work of guardians. In

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practice, however, there is no real supervision by the (CSW) and, although guardians are bound by law to write reports, this remains a mere formality. As a result, the supervision of the work of the guardians in Slovenia is conducted by the NGO Slovene Philanthropy. In Azerbaijan as well, guardians are monitored by UNHCR’s implementing partner NGOs, such as the United Methodist Committee on Relief, and Hayat (the national humanitarian organization), as well as the national network of lawyers of Azerbaijan. The questionnaire did not address the issue of non-reporting and its possible consequences, but some respondents stated that the established reporting and monitoring procedures are not strictly adhered to, as the examples from Slovenia and Azerbaijan indicate. According to the responses summarized in Table 5, such a lack of commitment could also exist in Georgia and the Slovak Republic.

As for the monitoring and oversight systems and methods, the differences in frequency of reporting were significant between the countries. Annual reporting is required in Bosnia and Herzegovina, Germany, Lithuania, Poland and Serbia. Biannual reporting is required in Belarus, Croatia, Germany and Switzerland. According to the questionnaire’s respondents, more frequent reporting and monitoring, usually monthly or bi-monthly, is required in Armenia, Belgium, Former Yugoslav Republic of Macedonia, Hungary, Ireland, the Netherlands, Slovenia and the UK. In the case that the guardianship was provided through a governmental or non-governmental agency, more regular reporting and supervision was ensured through the immediate supervisor of the social worker or legal representative. While this did not necessarily entail specific reporting or monitoring on the well-being of the child in care, it did involve a more general supervision of the staff member of the agency. In some countries, where the guardianship functions are primarily exercised by municipal authorities, the frequency of reporting and monitoring varies from one regional department to another. This is the case, in particular, in Austria, Luxembourg, Netherlands, Sweden and Turkey. No information on the frequency of reporting was available for Albania, Czech Republic, Finland, Greece, Norway, Romania, Slovak Republic and Ukraine. For further details, please also see Annex B, Table IX: Supervision and monitoring of guardians.

Table 5: Supervision and monitoring of guardiansCOUNTRY SUPERVISION AND

MONITORINGBY WHOM ? FREQUENCY METHODS

1 Albania The court No established procedures

No established procedures

2 Armenia District guardianship committee

Monthly Home visits

3 Austria District courts Regional variations Legal procedure4 Azerbaijan No monitoring

procedureNGOs; national network of lawyers

Monthly Home visits

5 Belarus State Guardianship Department (SGD); school teachers

Biannually (SGD); daily (school teachers)

Home visits; reports, including accounting for child’s state allowance

6 Belgium Service des Tutelles; juge de paix

Daily (service des Tutelles); biannually (juge de paix)

Reports

7 Bosnia and Herzegovina

Poor monitoring CSW Annually (guardians); occasionally (CSW)

Reports

8 Bulgaria No system in place9 Croatia CSW Biannually Reports10 Cyprus Supervisor11 Czech Republic No information NGO legal counsellors

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and social workers12 Denmark13 Estonia14 Finland No monitoring Social workers (contact;

information exchange)15 Former Yugoslav

Republic of Macedonia

CSW Monthly; often weekly Home visits; school; medical institutions; neighbours; community at large

16 France17 Georgia No monitoring Resource Centres of

Ministry of Education and Science (theoretically, but not in practice)

18 Germany Local guardianship courts

Annually (at least) Written reports

19 Greece Guardianship committee; court

20 Hungary Guardianship court Periodical (six months); ad hoc; special checks

Written reports

21 Iceland22 Ireland Principal social workers Monthly; daily informal

supervisionClinical supervision; audits of files

23 Italy No information 24 Latvia25 Lithuania Municipal Children’s

Rights Protection Agency

Annually (permanent guardianships); biannually (temporary guardianships)

Home visits

26 Luxembourg Supervisor “regularly, and as often as necessary”

Meetings; discussions

27 Moldova28 Montenegro29 Netherlands Guardians (regional

managers); Nidos (Inspection on Youth Care)

Monthly (regional managers); ad hoc (Inspection of Youth Care); annually (Ministry of Justice)

Meetings; detailed reports

30 Norway Public trustee’s office (in principle)

31 Poland Office for Repatriation and Aliens

Annually

32 Romania Directorate for Child Protection and National Refugee Office

Not available Not available

33 Russian Federation(including Chechnya and Ingushetia)

34 Serbia CSW Annually Written reports; home visits; interviews

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35 Slovak Republic Supervisor / director (in principle); Ministry of Labour, Social Affairs and Family

No feedback (in practice)

36 Slovenia CSW (in principle);Slovene Philanthropy (in practice)

CSW (at end of guardianship); Slovene Philanthropy (monthly)

CSW (reports); Slovene Philanthropy (monthly reports, meetings)

37 Spain Not available38 Sweden Chief guardian Varies with municipality Custodian to submit

information, on request; financial reports

39 Switzerland Civil Court (Geneva and Zurich)

Biennial

40 Turkey Guardian Authority / Civil Court of Peace

Regular intervals Reports

41 Ukraine Guardianship agencies Home visits; individual approach

42 United Kingdom Monthly

9. RECOMMENDATIONS

UNHCR and the Croatian Centre for Social Policy Initiatives (CSPI) recommends that the appointment of guardians from among adult members of a group accompanying the UASC be made only on an exceptional basis, after careful assessment of the relationship between the child and the adult, and when it is determined that this would be in the best interests of the child. UNHCR and CSPI are concerned that such guardians would likely be underqualified.

The Orphans’ Court works with the municipal social services and migration institutions in Latvia to ensure the implementation of family tracing. However, the capacity of the Orphans’ Court to facilitate family tracing is a cause for concern, and UNHCR recommends that the Latvian Red Cross be responsible for the tracing. If family tracing is unsuccessful, then refugee children would at least be ensured protection and assistance under Latvian law.

Considering the vulnerability of the group within the charge of foster carers in the United Kingdom, a mandatory registration scheme for privately fostered children should be introduced to ensure local authority oversight of private foster placements. In cooperation and coordination with various specialised agencies and bodies, and their adopted recommendations and guidelines, such as SCEP’s Statement of Good Practice, every UASC—irrespective of status—should benefit from the prompt appointment of a statutory guardian of proven reliability, who is effective and able to provide (a) support during the asylum procedure and (b) advice in the child’s best interests.

Finally, in accordance with Article 3 of the United Nations Convention on the Rights of the Child, states should consider giving primacy and binding character to the principle of the best interests of the child, making this explicit in all laws, regulations or administrative guidelines concerning UASC. Since a legal base is not in itself a panacea, effective implementation at national and local levels of the relevant legislation remains essential. 10. FURTHER READING

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Action for the Rights of Children. Separated Children. Briefing notes for facilitators. 2004. http://www.unhcr.org/protect/PROTECTION/3f82dadf4.pdf

An Agenda for the Future. Belgrade, Child Rights Centre. 2001. (Serbian and English.) http://www.cpd.org.yu/dokumenti/agenda_engleski.pdf

Bhabha, Jacqueline and Finch, Nadine. Seeking Asylum Alone: Unaccompanied and Separated Children and Refugee Protection in the U.K. 2006. http://www.humanrights.harvard.edu/conference/SAA_UK.pdf

Brkic, M., Cucic, V., Dejanovic, V., et al. Child Rights in Serbia 1996-2002. Belgrade, Child Rights Centre. 2003. (Serbian and English.) http://www.cpd.org.yu/english/e_index.htm

Child Trafficking in Serbia - Threats and Reality. Framework for the Promotion of Professional practice in the Protection of Children from Human Trafficking. Belgrade, Child Rights Centre. 2005. (Serbian, English.) http://www.cpd.org.yu/dokumenti/trafficking_compilation_english.pdf

Crawley, Heaven. Child first, migrant second: Ensuring that every child matters.Immigration Law Practitioners’ Association policy paper. February 2006. (The paper includes a chapter on separated asylum seeking children and on guardianship.) http://www.ilpa.org.uk/publications/ilpa_child_first.pdf

European Council on Refugees and Exiles. Position on Refugee Children. Brussels. 1996. http://www.ecre.org/files/children.pdf

European Union legislation: Communication from the Commission: Towards an EU Strategy on the Rights of the Child. Brussels. 2006.

http://eur-lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0367en01.pdf

Council Resolution of 26 June 1997 on unaccompanied minors who are nationals of third countries. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997Y0719(02):EN:NOT

Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0055:EN:NOT

Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. (Reception Directive). http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003L0009:EN:NOT (In reference to this Directive, please also see: UK Refugee Council response to the Home Office consultation: Implementation of Council Directive 2003/9/EC of 27 January 2003 “Laying Down Minimum Standards for the Reception of Asylum Seekers”. December 2004. (The paper contains a section on Articles 18 and 19—on minors and unaccompanied minors—of the Reception Directive and reference to the Refugee Council Children’s Panel and its shortcoming.) http://www.refugeecouncil.org.uk/OneStopCMS/Core/CrawlerResourceServer.aspx?resource=126373C5-B649-4674-BEFF-444A6C8B614A&mode=link&guid=76ce3c9f686b494aaf432af3d06ad699

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:EN:NOT

Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52000PC0578:EN:NOT

Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32005L0085:EN:NOT

25

General Comments of the Committee on the Rights of the Child. http://www.ohchr.org/english/bodies/crc/comments.htm

The Hague Conference on Private International Law. Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. 19 October 1996. Entry into force 1 January 2002. http://www.hcch.net/index_en.php?act=conventions.text&cid=70

The Hague Conference on Private International Law. Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption. The Hague. 29 May 1993. Entry into force 1 May 1995. http://www.hcch.net/index_en.php?act=conventions.text&cid=69

Hume, Frances and Morran, Richard. Future Scots: Pre-five services for Asylum Seekers and Refugees in Glasgow. Save the Children. February 2006.

International Committee of the Red Cross, International Rescue Committee, Save the Children UK, United Nations Children’s Fund, United Nations High Commissioner for Refugees, World Vision International. Inter-Agency Guiding Principles on Unaccompanied and Separated Children. 2004. http://www.unhcr.org/cgi-bin/texis/vtx/protect/opendoc.pdf?tbl=PROTECTION&id=4098b3172

International Save the Children Alliance. So you want to consult with children? A toolkit of good practice. November 2003. http://www.womenchildrenhiv.org/pdf/p09-of/of-04-00.pdf

Inter-Parliamentary Union and United Nations Children’s Fund. Child protection: A handbook for parliamentarians. 2004. http://www.unicef.org/publications/files/Guide_Enfants_OK.pdf

Kunder, James. The Needs of Internally Displaced Women and Children: Guiding Principles and Considerations. Office of Emergency Programmes, United Nations Children’s Fund. NICEF. New York. September 1998. http://www.reliefweb.int/rw/lib.nsf/db900SID/VONN-5G8JWG/$FILE/UNICEF.pdf?OpenElement

Legal Framework Relating to Refugee Children and Other Children of Concern to UNHCR in Countries of Eastern Europe and Turkey. 2000. [No URL]

Lorey, Mark. Child Soldiers. Care & Protection of Children in Emergencies: A Field Guide. Save the Children Federation. 2001. http://www.savethechildren.org/publications/technical-resources/emergencies-protection/YouthFieldGuide.pdf

Mooten, N. Making Separated Children Visible: The Need for a Child-Centred Approach. Irish Refugee Council. 2006. http://www.irishrefugeecouncil.ie/pub06/children.pdf

National Albanian Center for Social Studies. Assessment of the Child Care Services and the Institutions for Children Without Parental Care. Research Report sponsored by UNICEF, Albania. October 2005. http://www.unicef.org/albania/Residential_Care_Assessment.pdf

Parliamentary Assembly of the Council of Europe. Recommendation 1596 (2003) on the situation of young migrants in Europe. Strasbourg. 31 January 2003. http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta03/EREC1596.htm

Pesic, M., Brankovic, B., Tomanovic-Mihajlovic, S., et al. Children’s participation in focus. Belgrade, Child Rights Centre. 1999, (Serbian; summary in English.) http://www.cpd.org.yu/dokumenti/childrens_participation_con.doc

Petrovic, M., Vuckovic Sahovic, N., Stevanovic, I. Child Rights in Serbia 2005. Belgrade, Child Rights Centre. 2006. (Serbian; summary in English.) http://www.cpd.org.yu/dokumenti/Child_Rights_in_Serbia_summary_2005.pdf

Separated Children In Europe Programme. Statement Of Good Practice. Third Edition, 2004. http://www.separated-children-europe-programme.org/separated_children/good_practice/index.html

The Situation Of Children In Institutions Of Social Care In Serbia. Belgrade, Child Rights Centre. 2001. (Serbian and English.) [No URL]

26

Tolfree, David K. Community Based Care for Separated Children. Save the Children Sweden. 2003. http://www.rb.se/NR/rdonlyres/A9FFDB70-57BD-474F-B14E-60783D17881D/0/Communitybasedcareforseparatedchildren.pdf

UK Refugee Council response to the Home Office consultation: Implementation of Council Directive 2003/9/EC of 27 January 2003 “Laying Down Minimum Standards for the Reception of Asylum Seekers”. December 2004. (The paper contains a section on Articles 18 and 19—on minors and unaccompanied minors—of the Reception Directive and reference to the Refugee Council Children’s Panel and its shortcoming.) http://www.refugeecouncil.org.uk/OneStopCMS/Core/CrawlerResourceServer.aspx?resource=126373C5-B649-4674-BEFF-444A6C8B614A&mode=link&guid=76ce3c9f686b494aaf432af3d06ad699

Uncertain futures: children seeking asylum in Wales. 2005. (Part Three: Implications for Policy and Practice, written by Save the Children.) Pp. 75-77, http://www.savethechildren.org.uk/scuk_cache/scuk/cache/cmsattach/3854_Uncertain_futures.Eng..pdf

United Nations. Convention on the Rights of the Child. Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989. Entry into force 2 September 1990, in accordance with article 49. http://www.unhchr.ch/html/menu3/b/k2crc.htm

United Nations Children’s Fund. Creating A Protective Environment For Children. Child Protection Seminar, Almaty, Kazakhstan. 29-30 September 2003. http://www.unicef.org/ceecis/RMT_REPORT_FINAL_1_March_04.pdf

United Nations High Commissioner for Refugees publications of relevance: Agenda for Protection. UN document (EC/52/SC/CRP.9/Rev.1). 26 June 2002.

http://www.unhcr.org/excom/EXCOM/3d12f1982.pdf

Global Consultations On International Protection. Report Of The Meetings Within The Framework Of The Standing Committee (Third Track), including the 4th Meeting (22-24 May 2002) on the Search For Protection-Based Solutions; Protection Of Refugee Women; Protection Of Refugee Children. UN document (A/AC.96/961), 27 June 2002. http://www.unhcr.org/excom/EXCOM/3d3fb35a4.pdf

Guidelines on Formal Determination of the Best Interests of the Child. Provisional Release, May 2006. http://www.crin.org/docs/UNHCR%20best%20interests%20determination.pdf

Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum. Geneva. February 1997. http://www.unhcr.org/publ/PUBL/3d4f91cf4.pdf

Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. UN document (HCR/IP/4/Eng/REV.1). Geneva. January 1992. http://www.unhcr.org/home/PUBL/3d58e13b4.pdf

Refugee Children: Guidelines on Protection and Care. 1994. http://www.asylumsupport.info/publications/unhcr/refugeechildren.pdf

Strategy Concerning Refugee Children. Five Priorities for Girls and Boys of Concern to UNHCR. Geneva. October 2005. http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RSDLEGAL&id=439841784

Vitté, Sylvain. Unaccompanied Minors in Switzerland. Regional Conference on Migration of Unaccompanied Minors: Acting in the Best Interests of the Child. Torremolinos, Málaga (Spain). 27-28 October 2005. http://www.coe.int/t/f/coh%E9sion_sociale/migrations/Source/MG-RCONF_2005_4_Report_Switzerland_en.pdf

Website resource for custodians at http://www.scholar.se/godman, set up by the Swedish Refugee Aid.

Wojciech, Trojan. Legal situation of unaccompanied minors independently applying for a refugee status in Poland. (Work paper.) World Jurist Association. 2001. [No URL]

ANNEX A REGIONAL SURVEY QUESTIONNAIRE

27

Improving Guardianship for Separated Children in Europe: Regional survey on current legislation and practices

1. Please provide the latest available statistics on UAMs/ SCs, (indicating the period) and where possible breakdowns by sex, age and legal status (refugee, asylum-seeker, IDP, rejected asylum-seekers, subsidiary protection).

2. Are guardians provided to all UAMs/ SCs?

3. Who or what institution/s appoints guardians?

4. On whom or which institution/s do guardians depend/are affiliated with?

5. Who or what institution/s are guardians responsible to?

6. Are guardians appointed both to minors seeking asylum and foreign minors who do not apply for asylum? Are there differences in procedures

7. Are the guardianship provision procedures different between nationals and non-nationals?

8. In addition to guardians, are legal representatives provided for UAMs/SCs? If not, do UAMs/SCs have access to professional legal counselling?

9. Does the appointment of a guardian have legal implications on the residence/stay of the minor in the country? If yes, please explain how?

10. What are the methods used to identify guardians?

11. What are the required competencies to become a guardian?

12. What are the expected duties or roles of the guardian? Accommodation Care arrangements Education Integration support Health services Monitoring/reporting on the situation of the child: Best Interests of the Child (BID) Family tracing, family reunification, Dublin II Regulation transfers Refugee Status Determination (RSD) procedures Access to legal counselling/legal representation Identification of durable solutions/return/repatriation/integration

13. Would you describe the guardianship system as Professionalized Benevolent or voluntary Remunerated but reliant on individuals who are not professionals

14. If guardians are remunerated for their duties, what is the remuneration?

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15. Are guardians monitored?If yes:

By whom? Frequency? Methods of monitoring?

16. How many minors does a guardian care for: Standard in law (where applicable)? Standard in practice?

17. What training is provided to guardians? Before taking up guardianship? During guardianship?

18. Is the guardian involved during the WHOLE asylum procedure of the minor?

19. Does the guardian have an obligation of confidentiality regarding the minor’s asylum case? If yes, what are the limitations/guidelines?

20. In the event that the minor is detained, is he or she entitled to have a guardian?

21. Are there any children denied guardianship on the basis of legal status, age, accommodation/ geographical location, nationality or any other factor (please specify)?

22. How is the guardian involved in the identification and implementation of a durable solution for the minor?

23. In your view, does the guardianship system in your country work well? Please describe 3 advantages and 3 disadvantages of the current system. 24. Please list any country studies or reports on guardianship.

25. Please list the main stakeholders for asylum-seekers, refugees and IDP childcare and asylum procedures at the:

Local level Central government NGOs involved

ANNEX B TABLES

Table I: Does the guardianship system work well?COUNTRY WELL ADEQUATELY INADEQUATELY

1 Albania No (UNHCR)2 Armenia3 Austria4 Azerbaijan No

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5 Belarus Too early to conclude whether system works smoothly, despite successfully solving the few cases in the past

6 Belgium Guardianship system for foreign UASC ran more smoothly in 2005 and 2006 than in 2004, despite problems (SCEP partner)

7 Bosnia and Herzegovina

Guardianship system suffers from a lack of uniformity, lack of staff and funds needed to function well in respect of all children, both nationals and non-nationals (UNHCR)

8 Bulgaria Very little practice. Not currently possible to asses the functioning of the system (UNHCR / SCEP)

9 Croatia10 Cyprus11 Czech Republic Guardianship system in the

Czech Republic cannot be described as fully functional and effective (UNHCR)

12 Denmark13 Estonia14 Finland15 Former

Yugoslav Republic of Macedonia

Functioning of guardianship system is average (UNHCR)

16 France17 Georgia No, the system is not

effective18 Germany19 Greece No (UNHCR, Athens)20 Hungary Yes (Menedék, the

Hungarian Association for Migrants)

“So-so” (UNHCR)

21 Iceland22 Ireland In Dublin, generally the

system works quite well (Irish Refugee Council and UNHCR)

23 Italy24 Latvia25 Lithuania

26 Luxembourg Yes, for asylum seekers (Caritas)

27 Moldova28 Montenegro

30

29 Netherlands Professional and advanced system, but no reliable picture on implementation (UNHCR)

30 Norway Guardianship system does not work properly in Norway for UASC (European Network of Ombudspersons for Children / ENOC)

31 Poland32 Romania33 Russian

Federation(including Chechnya and Ingushetia)

34 Serbia Yes (UNHCR)35 Slovak

Republic36 Slovenia No sustainable system of

providing guardianship to UASC in Slovenia (SCEP)

37 Spain38 Sweden Yes, “more or less”. New

legislation has been introduced in this field. The changes, however, have not yet been fully implemented (Save the Children, Sweden)

39 Switzerland Very well in Geneva. “Quite” well in Zurich and other big cantons (INTERNATIONAL SOCIAL SERVICE Swiss Foundation)

“Not at all” in several cantons (INTERNATIONAL SOCIAL SERVICE Swiss Foundation)

40 Turkey41 Ukraine42 United Kingdom UNHCR is of the opinion that

the present system of support does not adequately safeguard the best interests of all separated asylum seeking children.

Total responses 7 4 11As percentage 17 10 26

Table II:Types of guardianshipCOUNTRY GUARDIANS: PROFESSIONAL, VOLUNTARY OR REMUNERATED?

1 Albania Benevolent or voluntary2 Armenia Benevolent or voluntary3 Austria Professionalized, in cases where youth welfare agencies are appointed. Only a few

UASC have guardians4 Azerbaijan Benevolent or voluntary. Guardian receives nominal payment by State for support of

31

minor, according to Article 141.6 of the Family Code5 Belarus Benevolent or voluntary. Guardians take on their responsibility free of charge6 Belgium Professionalized, and either independent or employed by an NGO. For many, it is

remunerated, but reliant on individuals who are not professionals7 Bosnia and

HerzegovinaAll three categories, depending on the canton / municipality

8 Bulgaria Not remunerated9 Croatia While the legal framework provides for a professionalized guardianship system, the

current practice is lacking. According to the Family Law, guardians have the right to monthly compensation for their duties, which is paid upon their request

10 Cyprus Professionalized11 Czech Republic None of these. Workers from local department for social and legal protection of children

who are appointed resident guardians are paid staff of the Ministry of Labour and Social Affairs

12 Denmark13 Estonia14 Finland Remunerated, but reliant on individuals who are not professionals. Guardians work

independently and are paid a fee, not a salary15 Former Yugoslav

Republic of Macedonia

Benevolent or voluntary. Remunerated, but reliant on individuals who are not professionals, although Centres for Social Welfare staff would prefer it if they were professionalized

16 France17 Georgia Benevolent or voluntary. Guardians/custodians are not paid for their work18 Germany Partly professionalized, partly voluntary. Remuneration does not exceed 350 € a year.

Four types of guardians: (1) private guardians remunerated at a “symbolic” rate; (2) professional guardian (lawyer / social worker) paid by the court on hourly base; (3) guardianship associations (specialised NGOs), whose payment varies from nothing to 70% of actual costs

19 Greece None of the above. Inadequacy of legal provisions, especially for UASC not seeking asylum, and inadequate implementation of the already existing legal framework

20 Hungary Professionalized. Guardians are contracted by the municipality. Their remuneration is calculated on the basis of the salary scale applicable to civil servants or lawyers fees (per hour)

21 Iceland22 Ireland Professionalized23 Italy Not remunerated, unless the minor has considerable property to administer. In this case

the remuneration is calculated on the basis of the amount of work required.24 Latvia25 Lithuania Benevolent or voluntary26 Luxembourg Professionalized; and benevolent or voluntary. Guardians are professionals working for

Caritas, and do not receive a special allowance for the job27 Moldova28 Montenegro29 Netherlands Professionalized30 Norway Professionalized. Some guardians are compensated, but this varies with the municipality31 Poland Benevolent or voluntary. Custodians and legal guardians are not remunerated 32 Romania Professionalized. Guardians are remunerated as employees of the Directorate for Child

Protection. Their work does not include UASC seeking asylum, or duties related to child protection in general

33 Russian Federation(including Chechnya and Ingushetia)

In Ingushetia, guardians/trustees work free of charge (in principle), although in practice they receive a monthly allowance

34 Serbia35 Slovak Republic Professionalized, with a regular salary from the District Office, as their employees36 Slovenia Voluntary. Guardianship system based on volunteers who get small refunds for costs

32

connected with providing guardianship37 Spain Professionalized, but not for non-national UASC, since guardians are not trained on

specific rights and situation of foreign UASC seeking asylum. They very rarely speak foreign languages. Autonomous Communities staffed with civil officers whose payments follow civil servants’ scales. Custodians remunerated by private organizations with their own standards

38 Sweden Remunerated, but reliant on individuals who are not professionals. Remuneration is low, although legally it is required to be “reasonable”

39 Switzerland Professionalized in Geneva and Zurich; voluntary or benevolent in many other cantons; remunerated, but reliant on individuals who are not professionals in some cantons

40 Turkey Remunerated, but reliant on individuals who are not professionals. If the child cannot provide the compensation, the treasury will cover the costs. The amount for each term is determined by the Guardian Authority / Civil Court of Peace.

41 Ukraine Voluntary. Guardians are not remunerated for their work42 United Kingdom

Table III: Appointment of guardians and their institutional affiliationCOUNTRY GUARDIANS APPOINTED BY GUARDIANS AFFILIATED WITH

Albania Court n/aArmenia Guardianship committees Ministry of Labour and Social AffairsAustria District court (Bezirksgericht) Federal state (Bundesländer) and youth welfare

agency (Organization des Jugendamtes)Azerbaijan Local executive Committee bodies n/aBelarus Local executive and administrative authorities n/aBelgium Service des Tutelles, the official guardianship

service of the Ministry of JusticeMinistry of Justice (for independent guardians, who are also supervised by the Service des Tutelles and justice of peace); NGOs (for guardians recruited by NGOs, and also supervised by the Service des Tutelles and justice of peace)

Bosnia-Herzegovina

Centres for Social Welfare (CSW) in Federation of Bosnia and Herzegovina and Republika Srpska. In cantons without a CSW, there is a municipal service (FBH), or municipal administrative body (RS)

Centres for Social Welfare

Bulgaria A municipality mayor or an official designated by the mayor, is the guardianship/tutor

n/a

Croatia Centre for Social Welfare in the region of residence

Centres for Social Welfare

Cyprus Director of the Social Welfare Services acts as guardian. When a foreign UASC applies for asylum, authorities notify head of Asylum Service, who notify the Director

n/a

Czech Republic

Courts, according to place of residence of child, appoint guardian for asylum proceedings and for stay of UASC seeking asylum

Local department of social and legal protection whose workers are affiliated with the Ministry of Labour and Social Affairs; or NGOs, such as the Organization for Aid to Refugees, whose legal and social councillors assume guardianship for UASC for the duration of the asylum proceedings

Estonia UASC represented by Head of reception centre or social welfare institution (run by the Ministry

n/a

33

of Social Affairs) during asylum proceedingsFinland Local court, based on proposal by reception

centre where child is registered. Guardian is independent; does not work for any organization

Ministry of Labour and reception centres where children are registered

Former Yugoslav Republic of Macedonia

Centres for Social Work appoint guardians / foster families

Centres for Social Welfare

Georgia Government guardianship bodies appoint guardian / custodian

Ministry of Education and Science (MES)

Germany Local Guardianship Court. Four types of guardians: (1) private, responsible to the court; (2) professional (lawyer / social worker), paid on hourly basis by the court, and supervised by the court; (3) guardians’ associations (specialized NGOs, requiring a licence), reporting to the court, and supervised by their director; (4) government guardians (in charge of majority of all cases) and controlled by their administration

Guardianship Court

Greece Courts. For non-national UASC asylum-seekers, a provisional guardian represents them during refugee status determination. Different procedures for nationals and non-nationals

Court and guardianship committee

Hungary Local Guardianship Court Guardianship office, which is part of the local municipality

Ireland Health Service hires qualified social workers who also have the duty to represent the UASC’s in asylum procedure by deciding on application for asylum. Differences in appointment for nationals and non-nationals.

Health Service Executive and the courts

Italy Tribunal for Minors which nominates guardian for UASC

Tutelary judge

Lithuania Director of Municipal Administration for temporary guardians; the court for permanent guardians

Luxembourg Caritas (le Service pour Réfugiés) for UASC, or other guardian acceptable to Ministry of Family

Youth judge

Moldova Director of the Refugee Directorate Child protection authority under the local public administration

Netherlands Cantonal court, or in the case of UASC, by the court at the request of the child protection agency NIDOS (funded by the Ministry of Justice). All minors (national and non-national) are required to have a guardian

NIDOS, funded by the Ministry of Justice:

Norway The “upper” (or chief) guardian (or “overformynderiet”, similar to office of public trustee) in all 431 municipalities

Appropriate child welfare authority or non-governmental organisation. A nationwide institution or organisation does not exist. The Norwegian People’s Aid is developing a pilot project to focus on improving recruitment and training of guardians, to be implemented nationwide

Poland Regional family court where UASC resides; or Office for Repatriation and Aliens

Office for Repatriation and Aliens (custodians); institutions/ NGOs in charge of UASC (legal guardians)

34

Romania Local Directorate for Child Protection Local Directorate for Child Protection, of which guardians are members (graduates of faculties of law or social assistance).

Russian Federation

State body or education department in charge of guardianship issues in the regional administration

n/a

Serbia Centre for Social Welfare, and its branches in each municipality in Serbia, under the direct control of the Ministry of Labour, Employment and Social Policy

Centres for Social Welfare

Slovak Republic

Court District Office of Labour, Social Affairs and Family

Slovenia Centres for social work (governmental institutions within the Ministry of Labour, Family and Social Affairs), on the proposal of the centre where a child is accommodated (Centre for foreigners or Asylum Home). Slovene Philanthropy, an NGO and UNHCR implementing partner, has an informal agreement with the centres for social work to provide guardians to UASC. A new family law being prepared stipulates that courts will be responsible for appointing guardians

Slovene Philanthropy

Spain Protection of Minors Department of the corresponding Autonomous Community or City. Non-national UASC are under the competency of each Autonomous Community, which is the legal guardian

NGOs or religious institutions

Sweden Chief guardianship authorities, the “Överförmyndarnämnden”, in all of Sweden’s 290 municipalities

Chief Guardian, and also the Migration Board and municipal social services

Switzerland Civil Court in Geneva; Social Welfare Service or NGOs in other cantons

Department of Justice and Department of Education (Geneva / Zurich)

Turkey Guardian Authority/Civil Court of Peace Civil Court of PeaceUkraine Specialized departments (services for minors) in

the local state administration at district level and in executive committees of local districts’ and cities’ councils. In the villages, the executive committees of the village councils deal directly with guardianship issues. c) Special Guardianship committees are established to support the work of the Services for Minors. New reforms plan to assign these issues to the Ministry of Family, Youth and Sports, specifically under its specialized division of State Department for Adoption and Child Rights

n/a

United Kingdom

No guardianship system; UASC seeking asylum are not appointed guardians

n/a

Table IV: DUTIES OF GUARDIANSCOUNTRY DUTIES / ROLE OF GUARDIANS

35

1 Albania All the listed duties, except accommodation: care arrangements; education; integration support; health services; monitoring/reporting on the situation of the child; Best Interests of the Child (BID); family tracing, family reunification, Dublin II Regulation transfers; Refugee Status Determination (RSD) procedures; access to legal counselling/legal representation; identification of durable solutions / return / repatriation / integration

2 Armenia Only the following duties: accommodation; care arrangements; education; integration support; health services; monitoring/reporting on the situation of the child

3 Austria A guardian’s duties are care and education, and are legally defined in the Civil Code of Austria (Allgemeines Bürgerliches Gesetzbuch / ABGB). Duties also include health, direct supervision, all-round development and accommodation arrangements. Duties regularly performed by guardians include Best Interests of the Child (BID) and monitoring/reporting on the situation of the child; responsibilities delegated third parties include all the duties listed: accommodation, care arrangements; education; integration support; health services; family tracing, family reunification, Dublin II Regulation transfers; Refugee Status Determination (RSD) procedures; access to legal counselling/legal representation; and identification of durable solutions / return / repatriation / integration. In practice, the youth welfare agency (Organisation des Jugendamtes) fails—or performs inefficiently—its duties as a guardian.

4 Azerbaijan Accommodation; care arrangements; education; and health services5 Belarus Accommodation; care arrangements; education; integration support; health services; Best

Interests of the Child (BID); Refugee Status Determination (RSD) procedures; access to legal counselling / legal representation; identification of durable solutions/return /repatriation/integration

6 Belgium The duties of a guardian are clearly stated in the sixth chapter of the Programme-Law (Loi-programme) of 24 December 2002 on guardianship of UASC: “The guardian is responsible for representing the separated child in all legal acts and procedures related to entry into the territory and residence, as well as any other administrative or judicial procedure. The guardian is to ask, without delay, the assistance of a solicitor, take care of the separated child in person, ensure that s/he is given adequate accommodation, ensure his/her social, mental, medical and developmental well-being, as well as respect for his/her fundamental rights such as access to education. The guardian must administer the minor’s assets, take responsibility for the tracing of family members and for identifying a durable solution”. Guardians make sure that the following are ensured for every UASC in their best interest: accommodation; care arrangements; education; integration support; health services; monitoring/reporting on the situation of the child; family tracing, family reunification, Dublin II Regulation transfers; Refugee Status Determination (RSD) procedures: DII and RSD conducted by Aliens’ Office (l'Office des Étrangers), but guardian must be present in decision-making / interviews; access to legal counselling / legal representation; identification of durable solutions / return / repatriation / integration.

7 Bosnia and Herzegovina

All the listed duties, in accordance with the best interest of the child. Guardians report to the Center for Social Welfare and, in many cases, a member of the CSW staff performs guardianship duties: accommodation; care arrangements; education; integration support; health services; monitoring/reporting on the situation of the child; Best Interests of the Child (BID); family tracing, family reunification, Dublin II Regulation transfers; Refugee Status Determination (RSD) procedures; access to legal counselling/legal representation; identification of durable solutions / return / repatriation / integration

8 Bulgaria Accommodation: minor lives with guardian, or state institution; care arrangements; education; integration support: no; health services; monitoring/reporting on the situation of the child: no; Best Interests of the Child (BID): no; family tracing, family reunification, Dublin II Regulation transfers: n/a; Refugee Status Determination (RSD) procedures; access to legal counselling/legal representation; identification of durable solutions / return / repatriation / integration: n/a. No special arrangement concerning guardianship in respect to asylum seeking and non-national children

9 Croatia Croatian Family Law does not specify the expected duties of a guardian. The Center for Social Welfare (CSW)—a locally-based state-run social care institution—determines the duties of the guardian (taking into account the particular needs of the child) which include, but are not limited to: accommodation and care arrangements (a process in which the

36

guardian, appointed by the CSW, participates); education and integration support: these are among the duties of the guardian although, in practice, this is “not evident”; health services: non-national UASC only entitled to emergency health services; monitoring / reporting on the situation of the child: guardian expected to report on UASC’s situation every six months (or more frequently, if requested by CSW); and taking into consideration the best interests of the child, the guardian should assist in the other listed duties, although no evidence is provided that it occurs in practice

10 Cyprus According to the Children Law where a child, regardless of nationality or legal status, is in the care of the guardian, who is the Director of Social Welfare Services (SWS), it shall be the duty of the director to exercise any powers with respect to the child so as to further the child’s best interests. Accommodation: UASC—both those who have and those who have not filed for asylum—may be accommodated with a foster family; relatives; or a foster home, at the discretion of the director of SWS; care arrangements, including provision of welfare allowance to minors in need; education: UASC asylum-seekers have access to public educational institutions (primary and high school education is free and compulsory) under the same conditions as nationals. Additionally, the SWS, in cooperation with the Ministry of Education and Culture, has overall responsibility for education of UASC asylum seekers; integration support: while the draft law on asylum and refugees provides for integration support to refugees and beneficiaries of subsidiary protection status, regardless of their age, no specific provisions for the integration support of other groups of minors are provided in the national laws; health services: free for UASC under 16 who are not asylum seekers or refugees, and are in the care of the SWS; monitoring / reporting on the situation of the child; best interests of the child; family tracing, family reunification, Dublin II Regulation transfers; refugee status determination procedures; access to legal counselling/legal representation arranged by director of SWS for UASC; identification of durable solutions / return / repatriation/integration: No specific procedures are identified in the national laws

11 Czech Republic According to Department of Asylum and Migration Policy (OAMP) of the Interior Ministry, guardians’ duties include monitoring social and medical care provided to UASC; living requirements; access to education; and ensuring that minors’ interests are met in all 11 areas. However, the prevailing practice remains short of the expected duties and roles by the resident guardians, and their focus remains mainly on areas related to institutional care and treatment. Care arrangements; education; health services; monitoring/reporting on the situation of the child; Best Interests of the Child (BID): the principle of the “interest and welfare” of the minor is outlined in the Act on the Family and in the Law on Social and Legal Protection of Children. But, in practice, the principle of primary consideration for the best interests of the child is still not adequately defined and reflected in all legislation, court decisions and policies affecting children. There is also insufficient research and training for professionals in this respect Many guardians lack appropriate expertise in dealing with stay of UASC, particularly upholding the best interests of the child. Family tracing, family reunification, Dublin II Regulation transfers: Office for International Legal Protection of Children under Ministry of Labour and Social Affairs undertakes tracing of family members of UASC, pursuant to Art. 35(2)j of the Act on the Social and Legal Protection of Children. However, tracing mechanisms in the Czech Republic are not functioning. The few reported cases of family reunification involving UASC are usually dealt with by NGOs and the Ministry of Education, which manages special facilities where UASCs are accommodated. Refugee Status Determination (RSD) procedures: Because of conflicting positions of local departments for social and legal protection of children regarding appointment of guardians, the involvement of resident guardian for UASC asylum proceedings remains limited. Consequently, resident guardians refuse to exercise role of guardianship for the entire administrative proceedings, and only participate in asylum interviews. Hence, NGO legal counsellors continue to assume a de facto guardian role for the asylum procedure by working closely with the resident guardians assigned to each asylum seeking UASC

12 Denmark13 Estonia A guardian is the legal representative of a minor, and is required to attend to the raising

and maintenance of a child14 Finland In Finland, a guardian’s duties are not precisely defined and, usually, it is up to the

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guardians themselves to define their own duties. According to Law on Integration of Immigrants and Reception of Asylum Seekers (No. 493) of 9 April 1999 (Integration Act), a representative may be appointed for UASC who has been given temporary shelter or who has applied for asylum, and with no guardian. Representative’s duty is to supervise the interests of the child, having regard to the child’s national, linguistic, religious and educational background. Other functions include the right to speak on matters concerning the child and to decide (in practice, with other social workers) on matters pertaining to the child’s accommodation. The representative is not responsible for the daily upbringing and care of the child. That duty is left to group homes established in association with reception centres. Principal practical duties of representative are to supervise the interests of the child before public authorities and courts of law. Accommodation: in accordance with the Integration Act, the representative decides where the child will be placed; care arrangements; education: no instructions or guidelines on this. However, state reception centres take care of arrangements concerning education of UASC during asylum process, as well as integration support and health services for UASC. Best Interests of the Child (BID): Although the Integration Act refers to protecting the “child’s interests”, there is no formal best interests determination; family tracing, family reunification, Dublin II Regulation transfers: family tracing is undertaken by Red Cross. With the new Aliens Act (301/2004), the Directorate of Immigration will be responsible for family tracing (finding parents, etc) to “further the interest” of UASC, and also have access to confidential information about UASC from staff of reception centres, as stipulated by Sections 42 and 43 of the Integration Act (493/1999). NGOs are critical of this change, since it would jeopardize the quality of care of UASC by making staff report private matters against the will of UASC. This change would make role of guardians more sensitive (ie, would they be able to betray obligations of trust and confidentiality?). As regards family reunification, the duty of the guardian is to complete the application. If reunification occurs, the guardian’s duty is over, and the guardian is no longer paid. Refugee Status Determination (RSD) procedures: in practice, a guardian is to be present at asylum interview, and ensure that a minor gets the necessary legal help as well as access to legal counselling/legal representation, including from lawyers at the Refugee Advice Centre, or from other lawyers. Identification of durable solutions / return / repatriation / integration: duties include negotiating with social workers and possible relatives, and listening to the child’s views about the best DS for the child.

15 Former Yugoslav Republic of Macedonia

The social protection system for children in Macedonia includes both institutional and non-institutional aspects. Institutional protection activities are carried out by the Centers for Social Welfare (CSW, under the Department for Social Protection, within the Ministry of Labour and Social Policy) in each municipality, while non-institutional social protection may take the form of placement of UASC with foster families. Guardianship duties are performed by the CSW, either directly or through a guardian. Furthermore, Article 209 of the Law on Family provides that while appointing a guardian, the CSW shall determine the scope of the duties and rights of the guardian, depending on the circumstances of each individual case. Accommodation, care arrangements, and education are provided by both guardians (including the CSW, if it is a direct guardian) and foster families; integration support; health services; monitoring/reporting on the situation of the child: guardian obliged to report annually to CSW. For foster families, this is not a legal obligation; Best Interests of the Child (BID): although mandatory, it is not carried out regularly for refugee children; family tracing, family reunification, Dublin II Regulation transfers: undertaken by CSWs, in coordination with UNHCR. No Dublin II Regulation transfers, since this Regulation is not yet binding for Macedonia; Refugee Status Determination (RSD) procedures: both guardians and foster parents actively protect the interests of the child, together with legal representatives throughout RSD; access to legal counselling / legal representation: guardians and foster parents in constant touch with legal representatives who are lawyers of UNHCR-supported legal NGO network. No legal counselling/legal representation provided by the state; identification of durable solutions/return/repatriation/integration: CSWs undertake DS, in consultation with the guardian (to a much lesser extent with a foster parents), and coordinates these activities with UNHCR

16 France UASC have no single guardian or adviser to ensure access to accommodation, care arrangements, education, health services, etc. Guardians are UASC’s legal

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representatives, and have a general role. A narrower role is assigned by law to ad hoc administrators (l’administrateur ad hoc / AAH). The AAH assist UASC who do not have legal representation during their stay in the “waiting zone” and also ensure representation in all administrative and judicial procedures, including RSD and asylum registration. UASC can also request competent NGOs for legal assistance. NGOs—such as the Service social d’aide aux émigrants (SSAE) or France Terre d’Asile—can also help UASC with access to social care, legal representation and RSD

17 Georgia According to Article 1289 on “Duties of Guardian and Curator” of the Georgia Civil Code, a guardian / curator is obliged to support a child under guardianship (curatorship), “create essential living conditions, provide him/her with care and medical treatment, safeguard his/her rights and interests”. The duties of a guardian and a curator are performed free of charge (Article 1288).

18 Germany A guardian’s duties include clarifying a minor’s identity, checking opportunities for family reunification, clarifying reasons for leaving, etc., in cooperation with responsible authorities, such as the Federal Office for Migration and Refugees (BAMF), the Aliens Authority (Ausländerbehörde) and the Youth Welfare Office (Jugendamt). Guardian’s views taken into account regarding decisions on accommodation: in the case of a UASC under 16 entering Germany, the guardian has to find an appropriate youth welfare center for accommodation of the minor. In the case of a UASC over 16, the placement is in an initial accommodation centre with adult asylum seekers; care arrangements provided by (special) accommodation centres, children’s homes or refugee children’s hostels according to welfare needs of UASC; education: selection of local school and registration of minor at the school; integration support: includes mainly provision of accommodation and education (prior to granting of permanent residence permit); health services: monitoring/reporting on the situation of the child: guardian to report annually to guardianship court. Care institutions report to guardian on situation of minor, esp in emergency-situations (health, crime, school problems, etc); Best Interests of the Child (Best Interests Determination/BID): guiding principle in all decisions taken by the guardian on behalf of the minor; family tracing, family reunification, Dublin II Regulation transfers; Refugee Status Determination (RSD) procedures: guardian applies for asylum or subsidiary protection for minors under 16. Without guardian, application cannot be registered. Guardian may also engage a lawyer to support asylum case. Access to legal counselling / legal representation: usually organizes legal representation for child. In the Federal State of Hesse the guardianship court names a lawyer to represent the minor, who is financed by the Hesse Ministry of justice; identification of durable solutions/return/repatriation/integration: a guardian is part of the planning process for DS, and has to approve measures taken by the Youth Welfare Office. Major obstacle to DS is lack of legal perspective: only a toleration permit (Duldung) is given, rather than a residence permit

19 Greece Greek refugee law specifies that the guardians’ duties are only to assist UASC for the duration of the asylum process. In reality, very few UASC asylum-seekers have a guardian appointed. The Public Prosecutor for Minors play only a cursory role and does not work toward the best protection and care of UASC. The legislative framework governing the protection of UASC, including guardianship issues, needs substantial improvement in Greece.

20 Hungary Accommodation: Not the expected duty of a guardian, but of the RSD officer (asylum-seekers) and Guardianship Office (recognized refugees). Care arrangements: for asylum seekers and recognized refugees; Education: only for refugees; Health services: for refugees; Monitoring/reporting on the situation of the child: only for refugees; Best Interests of the Child (BID): for asylum seekers and refugees; family tracing, family reunification, Dublin II Regulation transfers; Refugee Status Determination (RSD) procedures; access to legal counselling/legal representation; identification of durable solutions / return / repatriation / integration

21 Iceland22 Ireland Guardian/social worker expected to fulfil a role in relation to all of the listed duties.

However, in practice the role and involvement may vary. Accommodation: Typically, majority of children stay in privately managed hostel accommodation (rather than childcare centres), without sufficient adult supervision or necessary contact with social

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worker/guardian; care arrangements; education; integration support; health services; monitoring/reporting on the situation of the child: carried out to the extent there are resources available; Best Interests of the Child (BID); family tracing, family reunification, Dublin II Regulation transfers: little is done in the area of family tracing abroad. Family reunification is mainly in relation to family in Ireland; Refugee Status Determination (RSD) procedures: The role of the Health Executive Service/social worker in RSD procedures includes taking decision to lodge an application in the first place. Social worker present during interviews at both first instance and appeal, but are not involved in judicial review procedures before courts. Social worker may sometimes takes over duties of guardian, including supporting UASC during RSD; access to legal counselling/legal representation; identification of durable solutions / return / repatriation / integration

23 Italy Guardians can request legal counselling / representation. They represent UASC in legal and administrative procedures. Must be informed of, and involved in, every step of asylum procedure. Be present during all interviews with UASC for RSD. Manage minor’s properties, if any, and ensure all decisions are taken in the best interests of the child. Accommodation and care are under the family / person or social services whom the minor is granted into custody. Guardian must be informed and involved in all stages of the RSD. No obligation for durable solutions.

24 Latvia25 Lithuania Duties of the guardian/curator include ensuring the child’s care, education, best interests

determination, family tracing and family reunification26 Luxembourg In addition to assisting in the asylum procedure, and in the daily life of the minor, a

guardian’s duty includes assistance with accommodation; care arrangements; education; integration support; health services; monitoring/reporting on the situation of the child; Best Interests of the Child (BID); family tracing, family reunification, Dublin II Regulation transfers; Refugee Status Determination (RSD) procedures; access to legal counselling / legal representation; identification of durable solutions / return / repatriation / integration

27 Moldova The guardian’s duty is to represent the minor. Legal counselling available to all UASC asylum seekers.

28 Montenegro29 Netherlands Accommodation: a guardian’s duty is to ensure UASC receive appropriate

accommodation. However, the reception of asylum-seeking UASC is the duty of the Central Agency for the Reception of Asylum Seekers (COA), an independent administrative body funded by the Ministry of Justice. COA reception centres accommodate UASC during the asylum procedure. UASC under 15 are generally lodged with foster families by the Nidos Foundation (a guardianship institution subsidized by the Ministry of Justice). The role of the guardian also includes ensuring appropriate care arrangements; education; integration support; health services; and monitoring/reporting on the situation of the child; the Best Interests of the Child (BID); family tracing, family reunification, Dublin II Regulation transfers; Refugee Status Determination (RSD) procedures; access to legal counselling/legal representation; and identification of durable solutions / return / repatriation / integration.

30 Norway A guardian’s duty includes ensuring that the child’s rights are met when it comes to accommodation, care arrangements, education, integration support, health services, monitoring/reporting on the situation of the child, Best Interests of the Child (BID), family tracing, family reunification, Dublin II Regulation transfers, Refugee Status Determination (RSD) procedures, access to legal counselling / legal representation, and identification of durable solutions (DS) / return / repatriation / integration. The guardian is not responsible for daily care, as this the responsibility of the immigration authority. Considerable variation, in practice, in the quality of guardianship. The guardian can have an important role in helping UASC to provide more background information to immigration authorities, which again can have impact on the outcome of the child’s application

31 Poland Accommodation: obligation of Office for Repatriation and Aliens (ORA) and custodian; care arrangements: custodian; education: custodian; integration support: orphanages; health services: ORA, custodian; monitoring/reporting on the situation of the child: legal guardian, custodian; best interests of the child (BID): legal guardian and custodian; family tracing, family reunification, Dublin II Regulation transfers: ORA, custodian; refugee

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Status Determination (RSD) procedure: legal guardian; access to legal counselling/legal representation: legal guardian; identification of durable solutions / return / repatriation / integration: orphanages

32 Romania Accommodation: for UASC over 16, accommodation in National Refugee Office (NRO) reception / accommodation centres; for UASC under 16, accommodation in shelters of local Directorates for Child Protection (manager of shelter is usually the legal guardian); care arrangements: staff (case manager, psychologist, doctor) of local shelter of Directorate for Child Protection) or staff (social worker, doctor) of NRO Reception Centres; education: NRO and/or NGO Save the Children Romania; integration support; health services; monitoring/reporting on the situation of the child: in practice, by UNHCR-funded NGO staff who assist UASC and report to UNHCR; Best Interests of the Child (BID): not formally safeguarded in practice due to a narrow interpretation of article 73 of the “Law on the Protection and Promotion of the Rights of the Child (272/2004)”; family tracing, family reunification, Dublin II Regulation transfers: initiated by NRO, with involvement of the Authority for Aliens, according to Law on Asylum. Refugee Status Determination (RSD) procedures: duties of legal guardians (appointed within/for duration of RSD procedures) is strictly limited, in practice, to these procedures. Guardian submits asylum application (if child is under 14) and (if over 14) assists with asylum application, accompanying child through RSD. The role of this legal guardian ceases when the RSD is finalized. Access to legal counselling / legal representation: acc. to protocols concluded between NGOs and NRO, NGO lawyer with UNHCR-funded project has access to NRO Reception Centres to identify UASC for legal counselling and representation; identification of durable solutions / return / repatriation / integration: Authority for Aliens deals with return and repatriation while NRO deals with integration.

33 Russian Federation(including Chechnya and Ingushetia)

Chechnya: The role of the state body in charge of guardianship issues includes accommodation, education, health services and access to legal counselling / legal representation arrangements

34 Serbia A guardian has the right and the duty to act as legal representative, and have a say in all proceedings beyond the child’s business and procedural ability. The protection system for children revolves around the guardianship body known as Centre for Social Welfare (CSW) which has branches in each municipality in Serbia and is under the direct control of the Ministry of Labour, Employment and Social Policy. If it is in the best interest of a child, the CSW can decide not to appoint a guardian for the child, but to perform the role directly. Guardians have a duty to report to the CSW annually and, when their guardianship is over, prepare a final report, which may also be requested at any time by the CSW

35 Slovak Republic36 Slovenia Accommodation; care arrangements; education; integration support; health services;

family tracing, family reunification, Dublin II Regulation; and Refugee Status Determination (RSD) procedures are not the expected duties of guardians, although they may assist authorities, in the best interests of the UASC. Asylum-seeking and non-national UASC are not entitled to secondary education or vocational training, and may only receive emergency health care. Duties of guardians include: monitoring/reporting on the situation of the child; the best interests of the child (BID); access to legal counselling/legal representation; and identification of durable solutions / return / repatriation / integration. No guidelines exist where a guardian’s role is defined more clearly

37 Spain The Child Protection Service takes responsibility in promoting the child’s best interests, ensuring proper care; education; legal assistance when necessary; and family tracing, which is one of the first tasks of the Child Protection Services

38 Sweden The role and involvement of a guardian varies with each individual. In Sweden, a custodian basically fulfils the duties that a parent/primary caregiver would in terms of decision-making about personal, financial and judicial matters. The duties and roles of the custodian and legal counsel are not exhaustively defined in legislation, but sometimes elaborated on in preparatory works and in general principles concerning parental responsibility. Accommodation: duty of municipality to ensure that minor has

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accommodation and support, but it is the custodian who decides whether minor should remain in a particular accommodation; custodian assists in care arrangements; education; integration support (although this duty is not clearly defined); health services; monitoring / reporting on the situation of the child: it is implicit in role of custodian that the well-being of a child is monitored, as are the Best Interests of the Child (BID); family tracing, family reunification, Dublin II Regulation transfers; Refugee Status Determination (RSD) procedures; access to legal counselling/legal representation: in custodian’s absence, a legal counsel submits application for asylum on behalf of child; identification of durable solutions / return / repatriation / integration

39 Switzerland The Swiss Federal Asylum Act, 1998, stipulates that each canton has to appoint a “person of confidence/trust” whose duty it is to represent the child’s best interests throughout asylum proceedings. Accommodation; care arrangements; education: with a special effort to integrate UASC in normal school classes; integration support; health services; monitoring/reporting on the situation of the child to a competent court; best interests of the child; family tracing, family reunification, Dublin II Regulation transfers; refugee status determination by mandating a legal representative for the asylum procedure ; and identification of durable solutions / return / repatriation / integration

40 Turkey Accommodation, care, education, integration, health, best interests of the child, family tracing/family reunification, RSD, access to legal representation, DS, financial management. Duties also include submission of reports on execution of their duties to the Guardian Authority / Civil Court of Peace

41 Ukraine Accommodation: guardian / trustee shares accommodation with minor. For minors under State care, only temporary hostel accommodation provided by State. Care arrangements: guardian’s duties relate to protection of property / financial assets of minor. Education: children in State care have equal access to pre-school, basic, secondary and extracurricular education, and are free to engage in community-service or other socially beneficial work. Integration support: only in cases where an asylum-seeking UASC is assigned a guardian for RSD and recognized as a refugee. However, no UASC has been granted refugee status as yet by the authorities (therefore, no integration). Health services: provided for children under State care (who are accommodated with foster families or shelters for children) by medical institutions under local authorities and councils. In those “rare cases” when a guardian is assigned to asylum-seeking UASC, the guardian’s duties do not include the Best Interests of the Child (BID); family tracing, family reunification, Dublin II Regulation (the latter regulation is not applicable to the Ukraine); Refugee Status Determination (RSD) procedures (RSD is limited to representing UASC asylum-seekers during process of submission of asylum application); access to legal counselling/legal representation (this is available to UASCs through NGOs working as UNHCR implementing partners who provide legal services for asylum-seekers and refugees in different regions of Ukraine); identification of durable solutions / return / repatriation / integration.

42 United Kingdom The Refugee Council Children’s Panel (RCCP), a SCEP partner, works directly with UASC, giving advice to those involved in their support. RCCP—the only national service of its kind—employs fully supported advisers, many of whom speak the languages of the UASC they are working with. The RCCP advisers assist UASC through RSD, and work with them to ensure that they access services to which they are entitled. This may mean ensuring that the UASC has the child has access to legal representation, as well as to social services departments or with health services professionals. It is often the case that the only adult who plays a consistent role in the UASC’s asylum process is the legal representative, who may be potentially in a conflict of interest as neither social services nor the foster parent (when there is one) acquire parental responsibility or the right to act and give instruction on the child’s behalf in legal proceedings. The solicitor therefore has only the child to obtain instruction from even though the child is often not mature enough and does not always have the capacity, either mentally, legally or intellectually, to give full instructions. While the RCCP has played an important role in assisting some UASC to access services, it is widely acknowledged that the RCCP does not have sufficient resources or powers to be considered a “guardian”. Unlike in asylum proceedings, the function of a guardian does exist in family court proceedings. However, the guardianship role of the Children and Family Court Advisory and Support Service (CAFCASS)—formed

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as a statutory body in 2001 to act as a guardian for children going through the family court system—is limited to family court proceedings, and does not deal with non-national UASC, except in the context of family law matters.

Table V: Competencies of guardiansCOMPETENCIES / ATTRIBUTES COUNTRIES NUMBER OF COUNTRIES /

PERCENTAGENo specific competenciesNo standard criteria on competencies; no clear provision of required competencies; competencies not defined, or not available

Armenia, BiH, Bulgaria, Czech Republic, Finland, Greece, Norway, Spain, Ukraine,

9 countries / 21 per cent

Level of conductPersonal qualities, standards or codes of ethics, propriety, integrity; certificate of good character

Armenia, Azerbaijan, Belarus, Belgium, Former Yugolsav Republic of Macedonia, Georgia, Greece, Italy, Lithuania, Moldova, Serbia, Slovenia, Sweden, Turkey

14 countries / 33 per cent

RelationshipGuardian is a family member; close relative; family friend; neighbour; foster parent

Albania, Former Yugolsav Republic of Macedonia, Greece, Italy, Serbia, Ukraine

6 countries / 14 per cent

Heads of institutionsGuardians chosen from among heads of orphanages or child-care institutions

Albania, Ukraine 2 countries / 5 per cent

Capability or suitabilitySuitability, capability, competence; capacity to perform guardianship duties, including expertise in child care and safeguarding child’s rights and best interests

Armenia, Austria, Belarus, Croatia, Czech Republic, Finland, Former Yugolsav Republic of Macedonia, France, Georgia, Greece, Italy, Lithuania, Moldova, Netherlands, Norway, Slovenia, Sweden, Turkey

18 countries / 43 per cent

Guardian-ward relationAppropriate relationship between potential guardian and minor

Armenia, Belarus, Former Yugolsav Republic of Macedonia, Georgia, Lithuania

5 countries / 12 per cent

Child’s opinion of potential guardian Armenia, Belarus, Georgia, Ingushetia (Russian Federation),

4 countries / 10 per cent

IndependenceGuardian not employed by government or working in a reception capacity for UASC, as this is presumed to be in conflict of interest with minor

Belgium 1 country / 2 per cent

Attitude toward childAttitude of guardian’s family toward child

Armenia 1 country / 2 per cent

Education (social work)Background, education or formal training in social work; social competency

Austria, Germany, Ireland, Luxembourg, Netherlands, Poland, Romania, Spain, Switzerland (Geneva/Zurich), United Kingdom

10 countries / 24 per cent

Education (in law)Background, education or formal training in law; legal understanding of asylum

Austria, Germany, Russian Federation, Switzerland (Geneva/Zurich), Ukraine,

6 countries / 14 per cent

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procedures; legal welfare officers United Kingdom Avoiding conflicts of interestNo conflict of interest between potential guardian and minor; interests not contrary to those of the child; not engaged in judicial procedure against the child

Belgium, Bulgaria, Croatia, Lithuania, Serbia, Slovenia, Turkey, Ukraine

8 countries / 19 per cent

Education not a considerationNo special education, formal qualifications or training

Belgium, Finland, Italy, Spain 4 countries / 10 per cent

Specific trainingTrained guardians; specific training (for foster parents) to cope with particular problems of asylum-seeking UASC

Austria, Belgium, Ukraine 3 countries / 7 per cent

ConsentConsenting to be a guardian and carrying out guardianship duties

Croatia, Ingushetia (Russian Federation), Slovenia

3 countries / 7 per cent

ProximityLiving near minor

France 1 country / 2 per cent

Table VI: Required competencies of guardiansCOUNTRY REQUIRED COMPETENCIES

1 Albania The only requirement is blood affiliation, which is an advantage. Guardianship is also automatically given to persons who are heads of institutions where minors stay, such as orphanages

2 Armenia No specific competencies provided for by law. Emphasis on standards of morality. Article 135 of the Family Code of the Republic of Armenia provides that only “capable” persons can be appointed guardians of children, with their consent. Key considerations include ethical and other personal features; ability to fulfil obligations; relations between the child and guardian; attitude of the guardian’s family members toward the child; as well as the child’s will, if possible. Those not acceptable as guardians include persons with alcohol or drug addictions; criminals; those excluded from guardianship duties or parental rights; and those who cannot fulfil their duties due to weak health

3 Austria Federal states are obliged to provide suitable and trained staff for purposes of guardianship, including a legal welfare officer (rechtsfürsorger), as guaranteed in the Asylum Law for legal and financial matters; and a social worker to secure adequate care and education. If private persons are appointed to guardianship by the court, factors such as family and personal relationship, integrity, and life experience are taken into account.

4 Azerbaijan According to Article 137 of the Family Code, adults with appropriate moral values; and without alcoholic or drug addictions.

5 Belarus According to Article 152 of the Family Code, personal qualities and the ability to fulfil guardianship duties are to be taken into account, as well as relations between the potential guardian and child, and the UASC’s opinion in regard of the former

6 Belgium Anyone may apply to become a guardian, providing they can show a certificate of good character and demonstrate that no conflict of interest exists between applicant and minor. To be appointed as guardian, it is not necessary to have had any special education. However, prior to appointment as guardian, specific training—organized by the “Service des Tutelles”—is required to cope with the particular problems of UASC and to establish a relationship of trust with the minor. A guardian should also be independent and not employed by the Federal Public Service of the Ministry of the Interior; the Aliens’ Office; the General Commissioner for Refugees and Stateless Persons / Commissariat Général aux Réfugiés et aux Apatrides (CGRA); or the Permanent Appeals Commission for Refugees / Commission permanente de recours des réfugiés (CPRR), as these offices

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are presumed to be in a conflict of interest with the minor. Also, individuals who help decide on the residence of the minor (that is, the staff of the Aliens’ Office or CGRA), or individuals engaged in judicial procedures against the minor, are not eligible to become guardians. As a result, there has been concern regarding the handling of guardianships of non-national UASC by those without appropriate backgrounds and competencies in law or social work and who, therefore, may not be familiar with the issues with which they are required to deal. NGOs have therefore suggested the idea of professional guardianship, which has received the support of UNHCR. Guardians also cannot be designated to a particular minor if they work in any reception capacity in respect of the UASC concerned

7 Bosnia and Herzegovina

Those (usually relatives) who meet local conditions to become guardians. However, no standard criteria on competencies. According to BiH Family Law, the opinions of UASC or relatives shall be taken into consideration. Also according to this law, guardians are not chosen among those deprived of parental rights or income-generating capacity; or whose interests are contrary to the child’s; or who show inappropriate personal attributes

8 Bulgaria No clear provision of required competencies. The Bulgarian Family Code sets down conditions under which a person cannot be a member of the Guardians’ Council, or a tutor. These are: alcoholism, sickness, immorality, and interests contrary to those of the child

9 Croatia Croatian Family Law provides for a guardian with qualities and capacities for carrying out guardianship duties, and who accepts those duties. A guardian is obliged to look after the child, as well as the child’s rights and interests. In the Family Law, a guardian cannot be someone who is deprived of parenting duties or earning capacity; whose interests are contrary to those of the child; or whose behaviour suggests that guardianship duties would not be suitably carried out. Also, UNHCR and Centre for Social Policy Initiatives consider that guardians should have necessary expertise in child care to ensure that the child’s interests are safeguarded; that the child’s needs are appropriately covered during the stay in a foreign country; and until the best durable solution for the child has been identified and implemented.

10 Cyprus UNHCR: Not relevant11 Czech Republic Concrete information as to the required competencies to become a guardian is not

available. However, these competencies are necessary to carry out the duties of a residence guardian in protecting the rights of asylum seekers under 18 years, as well as their “legally protected interests”, in accordance with Article 89 of the Asylum Act. The Department of Asylum and Migration Policy (OAMP) of the Interior states that “the guardian must be able to create or arrange for the child optimum living conditions, fulfil his/her needs and protect/enforce the implementation of the child’s best interests”.

12 Denmark13 Estonia14 Finland The law sets the requirements at a very general level. No formal qualifications, except

that the guardian has to be suitable, and able to carry out the duties in the child’s best interests. Some guardians have a good deal of experience in working with young people and/or children with immigrant backgrounds; others have a long career in child welfare. There are also guardians with limited experience, and varied educational backgrounds. No formal qualifications are required, nor is any training.

15 Former Yugoslav Republic of Macedonia

The Law on Family regulates guardianship competencies. It stipulates that a guardian should primarily be a close relative of the ward, but does not exclude neighbours or family friends from being appointed as guardians. Other required competencies include having appropriate personal traits and skills to perform guardianship duties; consenting to being a guardian; not being deprived of parental rights or the capacity to act; not having interests contrary to those of the ward; being morally eligible for the job; and having a suitable relationship with the ward, and the ward’s parents. In regard to foster families, care is taken to observe criteria in relation to age, education, health status, moral eligibility, material conditions, and housing conditions.

16 France The ad hoc administrator (l’administrateur ad hoc / AAH) requires a competent person between 35-70 years, who has consistently shown an interest in child issues, lives near the minor and has no criminal record.

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17 Georgia In selecting a guardian or curator—according to Article 1282 of the country’s Civil Code—the following shall be taken into consideration: personal qualities, ability to perform the task assigned, relations with the subject of curatorship (guardianship) and, where applicable, the wish of the subject of curatorship (guardianship). According to Article 1283, persons not eligible to be guardian or curator include the following persons: minors (under 18); without active legal capacity, or with restricted legal capacity; deprived of parental rights; those for whom adoption has been invalidated because of inadequate performance of duties; those who have been relieved of the performance of duties of a guardian or curator due to inadequate performance of the duties thereof.

18 Germany While private guardians do not need special competencies in law, they must prove to have social competencies in the exercise of their duties. In practice, however, they also need a legal understanding of the asylum procedure. Guardianship associations may help them to fulfil their duties. These associations have also to pass a licensing process. The central youth welfare administration requires associations to employ social workers as guardians, and the guardianship associations are responsible for the adequate training of their staff.

19 Greece No specific competencies. Guardian should be a moral person, and even a close relative of the minor, who is suitable to perform a guardian’s duties, specifically, the refugee status determination (RSD)

20 Hungary While different forms of guardianship are stipulated by law (eg., parental guardianship, guardianship by relatives, guardianship by other appropriate persons, etc.), a guardian must be over 18, a citizen of Hungary, and not excluded by law (that is, not be under guardianship, punished by court, excluded by testament, or by the Guardianship Office, according to the Act on Family and Guardianship)

21 Iceland22 Ireland Formal training required for guardian / social worker, recognized by the National Social

Work Qualifications Board (NSWQB), which usually means a degree in social work.23 Italy The guardian should be “suitable” and of certified good behaviour, and give guarantee of

sufficient educational capacity. Judge may appoint person possibly indicated by parents or, in lack of such indication, preference is given to close relative of minor

24 Latvia25 Lithuania In theory, a child’s guardian (or curator) is selected on the basis of personal qualities,

state of health, abilities to function as a guardian / curator, relations with the UASC, and the interests of the child.

26 Luxembourg Guardian needs to be a social worker27 Moldova According to the Moldovan Family Code, a guardian should be personally and morally

eligible, and be capable of carrying out a guardian’s duties28 Montenegro29 Netherlands Guardians are trained professional social workers with certificates (Hoger Beroeps

Onderwijs / HBO) from an institute of higher education in social work, and social and legal services. More specifically, they have been trained as “youth protectors” (Jeugdbeschermer). Special pedagogical training is not required. Assistance from specialized organizations is requested when necessary.

30 Norway While a guardian has to be “suitable” for the task, according to the Guardianship Act, the term “suitable” is not defined. Except for “suitability”, there appear to be no other formal requirements. Asking to see a certificate of good conduct is not permitted. An act specifically on guardianship for UASC is reportedly under consideration by group appointed by the Minister of Justice

31 Poland Custodian required to fulfil the criteria for social workers, according to Article 116 of the Social Assistance Act, and obtain appropriate academic qualifications (in pedagogy, psychology, social politics, sociology or family studies). The legal guardian is required to be over 18, and exercise full civil rights

32 Romania By law, a guardian’s competencies should include a university degree in law or social assistance

33 Russian Ingushetia: According to Russian legislation (Articles 35 and 36 of the Civil Code of the

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Federation(including Chechnya and Ingushetia)

Russian Federation and Article 146 of the Family Code of the Russian Federation), only legally capable persons can become guardians. They are appointed on the basis of their consent, and of their specific characteristics; capacity to perform their duties; the relationship between the potential guardian and the minor, and—if possible—also the consent of the minor. The law also specifically mentions possible causes of exclusion, such as chronic alcoholism, drug addiction, other health-related impediments or previous dismissal from guardianship duties

34 Serbia Serbian Family Law stipulates that a guardian requires personal qualities and abilities needed for that function. In taking up guardianship, priority is given to family members, relatives and foster parents. This Law also stipulates that a guardian should not be someone who is fully or partially deprived of civil capacity or parental rights; whose interests are in collision with those of the child; whose personal relations with the child, the child’s parents, or other relatives, is such as to prevent the guardian’s duties being carried out in an acceptable manner.

35 Slovak Republic Competencies stipulated in Act No. 195/1998 on Social Assistance. Appointed guardian is the Ministry of Labour, Social Affairs and Family (as an institution), responsible for professional care for minors through its employees, according to Act No. 305/2005 on Social-Legal Protection of Children and Social Custody

36 Slovenia Guardian should have personal characteristics and abilities to carry out guardianship duties, and should consent to becoming a guardian. Excluded from guardianship are those who are deprived of parental rights or active legal capacity; and whose interests differ from those of the ward

37 Spain No competencies required. Many child care professionals have studied social work. Beyond that, it is difficult to offer a general description of the background and competencies of individuals working with UASC in Spain. No specific training is provided

38 Sweden Legally, a custodian is required to be honest / upright, experienced and suitable. When determining whether or not a custodian is suitable, particular consideration should be given to the vulnerable position of the child.

39 Switzerland In Geneva or Zurich, competencies are required in law, social education and knowledge of children in migration

40 Turkey Guardian should be over 18, capable of carrying out guardianship duties, and not in custody, or deprived of civil or political rights; should have a good character, with interests similar to those of the minor; and should not be a judge in the guardianship department

41 Ukraine Guardian usually appointed from among child’s relatives, therefore no specific competencies / qualifications are involved. Not appointed guardian if under 18; or if disabled, addicted to drugs or alcohol, deprived of guardianship duties or parental rights; if interests contradict those of minor; or if sentenced for a grave crime. Foster parents expected to undergo special training prior to accepting children into their families. State-run child care institutions—the heads of which could, under certain circumstances, act as a guardian—are staffed by pedagogical, medical, administrative and technical personnel, as well as lawyers, psychologists, and librarians in child care shelters

42 United Kingdom Fully supported advisers of the Refugee Council Children’s Panel represent backgrounds that include social, legal and youth work, and advocacy. Advisers are expected to have qualifications laid down by the Office of the Immigration Services Commissioner

Table VII: Reasons for denying or revoking guardianshipREASONS FOR DENYING GUARDIANSHIP COUNTRIES NUMBER OF COUNTRIES /

PERCENTAGESubstance abuseChronic alcohol or drug addiction

Armenia, Azerbaijan, Bulgaria, Ingushetia (Russian Federation), Ukraine

5 countries / 12 per cent

Previous guardianship revoked Armenia, Croatia, Former 9 countries / 21 per cent

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Full or partial exclusion from guardianship or parenting rights

Yugolsav Republic of Macedonia, Georgia, Hungary, Ingushetia (Russian Federation), Serbia, Slovenia, Ukraine

Ill healthIll health or other disability

Armenia, Bulgaria, Ingushetia (Russian Federation), Ukraine

4 countries / 10 per cent

No income-generating capacity Former Yugolsav Republic of Macedonia

1 country / 2 per cent

ImproprietyDisqualified by prior conduct

Bulgaria 1 country / 2 per cent

Criminal record Armenia, France, Ukraine 3 countries / 7 per centMinorGuardian cannot be under 18 years of age

Georgia, Hungary, Poland, Turkey, Ukraine

5 countries / 12 per cent

No legal capacityWithout active legal capacity, or with restricted legal capacity

Georgia, Slovenia, Turkey 3 countries / 7 per cent

Table VIII: Training of guardiansCOUNTRY TRAINING

1 Albania No training2 Armenia No training3 Austria Guardians who are not provided by the “authority”, or are not part of the youth welfare

agency, do not at any time receive formalized training, whether basic or advanced. There is no special training on UASC issues.

4 Azerbaijan No training is available5 Belarus Before taking up guardianship: the State Guardianship Department (SGD) and special

pedagogical centres provide training for future guardians. During guardianship: there is no regular training for guardians. However, the SGD organises periodic seminars and workshops on guardianship issues and invites guardians to take part

6 Belgium Before taking up guardianship: formal education is not required of a guardian. However, prior to taking up guardianship duties, it is mandatory to obtain specific training organized by the Service des Tutelles. During guardianship On-going training is one of the conditions for the approval of guardians The training of newly-appointed guardians should, at least, comprise aliens’ law, youth law, teaching skills, psychology, and multicultural reception. In this context, guardians are also invited by the Commissariat Général aux Réfugiés et aux Apatrides (CGRA) to familiarize themselves with the asylum procedures. Guardians are also encouraged to attend conferences and seminars in regard to the issue of UASC. The Service droit des jeunes (an NGO) has created an Internet forum on UASC to enable guardians, specialized lawyers and NGOs to exchange information daily. The forum is administered by NGOs as well as guardians.

7 Bosnia and Herzegovina

There are no uniform standards. These vary with each Centre for Social Welfare (CSW). Article 184 of the Republika Srpska Family Law and Article 168 of the Federation of Bosnia and Herzegovina (FBiH) Family Law regulate only that CSWs familiarize guardians with their rights and obligations, as well as their role. At the entity level, there is no uniform training developed to use at lower levels. In FBiH, there are no brochures or information leaflets

8 Bulgaria In the case of asylum seeking and refugee children, the State Agency for Refugees, the Bulgarian Helsinki Committee, the Bulgarian Red Cross, and UNHCR provided training aimed at the special needs of UASC. In 2004, the training was intended for guardians in the village of Banya—following the introduction in the village of a system of guardianship

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—where a registration and reception centre was set up to operate only for asylum seeking UASC.

9 Croatia Before taking up guardianship: None. During guardianship: The only training for guardians of non-national UASC in Croatia was provided by the Centre for Social Policy Initiatives (an NGO), together with UNHCR and the Ministry of Health and Social Welfare in 2005, and with the Office for Human Rights of the Government of Croatia in 2006. The training consisted of information-sharing and carrying out practical exercises on children’s rights, applicable laws, (inter)national documents, issues related to trafficking of children and conditions of accommodation in the institutions where UASC live. Social workers appointed as guardians do not receive regular training on issues related to guardianship, including the specific needs of non-national UASC

10 Cyprus Welfare officers are already qualified because the Social Welfare Services (SWS) in Nicosia recruits university graduates in a field relevant to its work, which is mostly social work. SWS officers, however, receive general, practical training. Special training will soon be provided to officers on issues related to minors.

11 Czech Republic With a background in family law and social work, resident guardians receive regular training on issues related to asylum procedure, residence permit issuance, the situation of minors, and the solving of individual cases, according to the Ministry of the Interior (OAMP)

12 Denmark13 Estonia14 Finland Before taking up guardianship: No formal qualifications or training is required (the offered

training is voluntary). During guardianship: Training is on a voluntary basis, provided by the Ministry of Labour, or by NGOs in Finland, such as the Central Union for Child Welfare and the Refugee Advice Centre. The Ministry of Labour is planning to provide training more regularly each year

15 Former Yugoslav Republic of Macedonia

Before taking up guardianship: guardians are not trained, but informed of their rights and duties. The successful completion of training—implemented by an expert team from the Center for Social Welfare—is obligatory by law for a foster family as a criterion for selection. During guardianship: Not provided by law, either for guardians or for foster families

16 France17 Georgia Before taking up guardianship: no training for guardians or custodians. Foster families

receive training within the framework of the programme conducted by the Ministry of Education. During guardianship: foster family members are provided with training

18 Germany Training is on a voluntary basis for private guardians, and not very effective. The youth welfare offices and guardianship NGOs have a duty to counsel individual guardians. In some regions, there are NGOs that focus on recruiting suitable guardians, and on counselling and training them. Individuals also receive a leaflet and instruction from the guardianship court. Professional guardians from both NGOs and youth welfare offices are being qualified and trained by their organizations

19 Greece Practically none.20 Hungary Before guardianship: Legal and pedagogical training is provided prior to taking up

guardianship. During guardianship: provision of training varies with each office21 Iceland22 Ireland An education in social work is necessary 23 Italy No specific training foreseen by law.24 Latvia25 Lithuania Before taking up guardianship: the Municipal Child Rights Protection Agency organizes

training courses for guardians (except close family relatives). During guardianship, guardians are assisted by specialists with the Municipal Child Rights Protection Agency. There is no uniform system of training for guardians

26 Luxembourg During guardianship: training on issues related to UASC27 Moldova

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28 Montenegro29 Netherlands Before taking up guardianship: guardians are trained professional social workers with

certificates (Hoger Beroeps Onderwijs / HBO) from an institute of higher education in social work, and social and legal services. More specifically, they have been trained as “youth protectors” (Jeugdbeschermer). Special pedagogical training is not required. Assistance from specialized organizations is requested when necessary. During guardianship: courses on specific themes

30 Norway Before taking up guardianship: although the public trustee’s office is required to provide the necessary training, this does not always occur in practice. During guardianship: while guardians are to have guidance during their work, this again depends again on the trustee’s office. Their training varies from municipality to municipality. One organisation, the Norwegian People’s Aid, has a pilot project focusing on improving the training of guardians which they would like to see implemented nationwide

31 Poland The Office for Repatriation and Aliens provides prior training for UASC custodians on a regular basis. Follow-up training is organized for social workers and custodians whenever required.

32 Romania Under a UNHCR-funded project, Save the Children Romania organizes training for guardians before and during guardianship, with trainers from UNHCR, the National Refugee Office and NGOs, all of whom work with refugees and are experienced in dealing with UASC

33 Russian Federation(including Chechnya and Ingushetia)

34 Serbia Before taking up guardianship: guardians are provided with preparation and training at a center for social welfare (CSW). During guardianship: guardians can approach CSW for professional assistance and support in matters related to fostering / guardianship

35 Slovak Republic UNHCR had initiated and supported development of a training for UASC guardians. The training is a continuous education process that compasses legal and socio-psychological aspects of care of UASC

36 Slovenia Prior to guardianship, training—obligatory for all guardians—is both theoretical and practical, and is organized by the NGO Slovene Philanthropy (which recruits and trains guardians), in cooperation with other NGOs involved in the assistance and protection of migrants, asylum-seekers and refugees. Potential guardians acquire knowledge of issues regarding asylum, refugee and separated children, child care, the SCEP Statement of Good Practice, and duties and responsibilities of guardians. During guardianship, Slovene Philanthropy regularly informs guardians on new documents, laws and recommendations

37 Spain No specific training is provided, including on the rights and situation of non-national asylum-seeking UASC. The importance of proper training—in children’s cultural, religious and linguistic needs, and in child care in general—has become increasingly apparent. Legal training in the current application of laws concerning children is also lacking. Child Protection Services have no expertise on asylum

38 Sweden Before taking up guardianship: varies with each municipality; During guardianship: also varies with each municipality. There is a large reliance on the work of NGOs, such the Swedish Refugee Aid, which trains custodians

39 Switzerland Before guardianship: while guardians should have the most important skills in order to fulfil their role, this is not the case in many cantons.During guardianship, permanent training is provided in Geneva and Zurich

40 Turkey No systematic training41 Ukraine Foster families are expected to undergo special training prior to accepting children into

their families. They are also expected to receive regular specialized training, at least once in two years, with the support of the State Institute for Family and Youth Problems. This is aimed at building the educational capacity of the foster parents. However, there are no state curriculums for such courses. NGOs, such as the Christian Children’s Fund, EveryChild, and the European Union’s Technical Aid to the Commonwealth of

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Independent States (TACIS) Project are currently developing these programmes. State child care institutions, whose heads could act as guardians, have qualified professional staff. All professional staff undergo certification.

42 United Kingdom The Refugee Council Children’s Panel (RCCP) advisers are provided training in asylum law, child protection, child care legislation and care requirements. They are also provided extra support in management training

Table IX: Supervision and monitoring of guardiansCOUNTRY SUPERVISION AND MONITORING OF GUARDIANS

1 Albania By whom: by the court. Guardians are responsible before the court.Frequency and Methods of monitoring: no established procedures or methods of reporting and monitoring

2 Armenia Are guardians monitored: yes.By whom: guardianship committee at the district level.Frequency: monthly.Methods of monitoring: home visits by the committee

3 Austria By whom: district courts (Bezirksgerichte).Frequency: there are regional variations in reporting requirements and monitoring. Also, there is no automatic monitoring, but minors are entitled to complain to a legal authority, according to paragraph 217 of the civil code (Allgemeine Bürgerliche Gesetzbuch / ABGB). In case the non-observance of obligations becomes a criminal liability on the part of the youth welfare institution, the appropriate paragraphs on the neglect of minors, or on the neglect of care, education and supervision—paragraph 92, absätze 2; or paragraph 199, of the Austrian penal code (Strafgesetzbuch / StGB)—may be invoked.Methods of monitoring: through legal procedure

4 Azerbaijan Are guardians monitored: there is no monitoring or reporting procedure for guardians established by law in the Azerbaijani Republic.By whom: UASC are monitored by project staff and the staff of UNHCR. Guardians are monitored by UNHCR’s implementing partners, especially NGOs such as the United Methodist Committee on Relief (UMCOR), Hayat (the national humanitarian organization), and the national network of lawyers. Frequency: on a monthly basis. Methods of monitoring: home visits

5 Belarus Are guardians monitored: yes.By whom: by the State Guardianship Department (SGD), on a regular basis, and by teachers at school.Frequency: SGD staff members visit families no less then twice a year. School teachers observe the situation on a daily basis and, in case of problems, contact and inform the SGD.Methods of monitoring: SGD visits the families; checks housing conditions; meets child and guardian; and submits a report at the end. The guardian also reports on how the child’s state benefits have been spent

6 Belgium Are guardians monitored: Yes.By whom: by the Service des Tutelles and the juge de paixFrequency: according to the Programme-Law (Loi-programme) of 24 December 2002 on guardianship, the Service des Tutelles exercises daily supervision over the guardian’s substantial work. Twice a year, the juge de paix receives the guardian’s report on the minor’s assets and personal situation and, especially, on the minor’s residency status, the tracing of family members, or the reception infrastructure in the country of origin of the minor, and the minor’s education. The report also refers to work accomplished, and to problems encountered by the minor. A copy of the report is sent to the Service des Tutelles. Within two weeks of ceasing duty, the guardian sends the juge de paix a final report on guardianship. A copy is transmitted to the Service des Tutelles, as well as to the

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minor. The juge de paix makes a report recording that the guardianship has been accounted for and approved, and discharging the guardian from further duties. Also, the juge de paix settles conflicts between the guardian and the minor in matters related to the minor’s person or assets. In the same way, the juge de paix may bring a guardian’s assignment to an end when the guardian fails to accomplish the duties with diligence, or in the event of serious differences of opinion with the minor. At any time, the juge de paix may ask the public prosecutor (procureur du roi) to hold an investigation into the minor’s social situation. Methods of monitoring: through reports

7 Bosnia and Herzegovina

Monitoring—primarily the responsibility of the Centre for Social Welfare (CSW)—is poor, and varies greatly with each CSW. In Mostar, for example, there is no special system of supervision, other than general monitoring by the reception centre management; the Bosnia and Herzegovina Women’s Initiative (BHWI, an NGO); social workers; and UNHCR. The CSW has neither sufficient staff nor funds, nor an established system, to monitor guardians in Mostar. One social worker is responsible for appointing guardians in the entire city.Methods of monitoring: Guardians report to the CSW annually, or when requested. The CSW is obliged occasionally to monitor the work of the guardian, according to Article 180 of the Federation of Bosnia and Herzegovina Family Law and Article 195 of the Republika Srpska Family Law

8 Bulgaria They are responsible to the body that appoints them. No system to monitor guardians is in place

9 Croatia By whom: guardians are monitored by the Centers for Social Welfare (CSW). Frequency: guardians are obliged to report every six months to the CSW, and the CSW can request more frequent reports on a specific case.Methods of monitoring: CSW analyses the report by guardians and, if needed, undertakes necessary measures to protect the interests of the child.

10 Cyprus The Social Welfare Office (SWO) employs qualified welfare offices who are monitored by their supervisor. The monitoring takes place in accordance with the internal regulations of the SWO

11 Czech Republic No information on monitoring of guardians. However, NGO legal counsellors as well as social workers—because they work closely with resident guardians in UASC asylum proceedings—observe the guardians’ performance on a regular basis

12 Denmark13 Estonia14 Finland Guardians are not monitored. Social workers in reception centres meet with a guardian to

maintain contact and exchange information about the ward, rather than to monitor15 Former Yugoslav

Republic of Macedonia

By whom: Centres for Social Work.Frequency: at least once a month but, very often, even once a week.Methods of monitoring: CSW visits the guardian, or foster family, and the child. It also speaks with the school, medical institutions, neighbours or community at large. Foster families are more closely monitored than guardians

16 France17 Georgia Theoretically, guardians should be monitored by the Resource Centres of the Ministry of

Education and Science (MES) but, in practice, there is no monitoring of their performance18 Germany By whom: local guardianship courts control and supervise private and professional

guardians. Associations for guardians (which are specialised NGOs) report to the courts but are supervised by their directors. Government guardians, who are part of the youth welfare office or Jugendamt (and are in charge of the majority of all cases) are not supervised by the courts, but by their administration. Frequency: at least once a year.Methods of monitoring: written reports

19 Greece By whom: Committee of Guardianship and the Court20 Hungary Yes, guardians are monitored.

By whom: the Guardianship Court.Frequency: Periodical (6 months); ad hoc; and special checks, also before any decisions

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which affect the financial situation of the minor. Methods of monitoring: Regular written reports are required

21 Iceland22 Ireland By whom: social work team leaders and principal social workers. Frequency: monthly

one-on-one supervision, in addition to daily informal supervision.Methods of monitoring: clinical supervision and audits of files

23 Italy No information available on monitoring24 Latvia25 Lithuania By whom: The Municipal Children’s Rights Protection Agency, or its authorized social

partners, evaluate the quality of guardianships.Methods of monitoring: they also visit the foster child to determine if the child’s rights and interests are being adequately addressed.Frequency: once a year for permanent guardianships; twice a year for temporary guardianships

26 Luxembourg By whom: by their supervisor.Frequency: “regularly, and as often as necessary”.Methods of monitoring: through meetings and discussions

27 Moldova No answer28 Montenegro29 Netherlands By whom: guardians are monitored by their regional managers. Nidos (the organization

responsible for guardianship of UASC in the Netherlands) is monitored by an independent inspection body—the Inspection on Youth Care (Inspectie Jeugdzorg)—and the Ministry of Justice.Frequency: monitoring by regional managers through monthly meetings and reports; by Inspection of Youth Care through ad hoc inspections, investigations and reports; by Ministry of Justice at least once a year.Methods of monitoring: meetings, and detailed reports on all aspects of guardianship activities

30 Norway By whom: in principle, they are monitored and supervised by the public trustee’s office, but the quality of supervision may vary.Methods of monitoring: some offices provide training and guidance

31 Poland By whom: custodians are monitored by the Office for Repatriation and Aliens. Methods of monitoring: legal guardians are obliged to report to the regional court which appointed them at least once a year. The court may establish different period of reporting

32 Romania By whom: guardians are monitored by the Directorate for Child Protection and by the National Refugee Office. If guardianship duties are not fulfilled, the Directorate for Child Protection can request that the guardian be replaced, in accordance with the Law on Child Protection.Frequency: not available.Methods of monitoring: not available

33 Russian Federation(including Chechnya and Ingushetia)

34 Serbia Are guardians monitored: yes.By whom: guardians are monitored and constantly supervised by the Centers for Social Work (CSWs) that appoint the guardians.Frequency: guardians are obliged to provide CSW with annual report on progress, as well as other issues, and also with mid-term reports, as requested.Methods of monitoring: CSW monitors guardians through the guardians’ written reports, as well as visits and interviews with the guardian and child

35 Slovak Republic In principle, they are monitored by the supervisor / director. Overall supervision is conducted by Ministry of Labour, Social Affairs and Family. In practice, there is no feedback on how guardians are monitored in their duties in respect to UASC

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36 Slovenia By whom: in principle, the centres for social work (CSWs)—which are part of the Ministry of Labour, Family and Social Affairs, and which appoint guardians—should monitor the work of the guardians. In practice, there is no real supervision by the CSWs, and although guardians are bound by law to write reports, this remains a formality. However, it is an NGO (Slovene Philanthropy) that supervises the work of guardians.Frequency: most CSWs require a report at the end of the guardianship. Slovene Philanthropy requires regular monthly reports on each case, and meets often with guardians.Methods of monitoring: CSWs, through reports; Slovene Philanthropy, through monthly reports, regular conversations and meetings

37 Spain Not available38 Sweden By whom: chief guardian.

Frequency: differs with each municipality.Methods of monitoring: custodian is required to submit any information the chief guardian requires. Financial reports are to be filed regularly

39 Switzerland By whom: Geneva and Zurich: they are monitored by the Civil Court.Frequency: guardians have to report at least once in two years in case they are no relevant problems

40 Turkey By whom: Guardians are under the control of the Guardian Authority / Civil Court of Peace.Frequency: at regular intervals.Methods of monitoring: guardians are required to submit reports on execution of duties and accounts to the Guardian Authority / Civil Court of Peace. The latter also approves all important decisions. If the Guardian Authority / Civil Court of Peace suspects maladministration with regard to the guardianship, an ex officio inspection is initiated

41 Ukraine By whom: guardianship agencies analyse annual reports of guardian or trustee concerning the fulfilment of duties and, based on these reports, formulate their decisions, conclusions and proposals.Frequency: in a specific situation, the guardianship agency can request guardians or trustees to report more frequentlyMethods of monitoring: guardianship agencies do not have the staff to monitor the activities of guardians or trustees under their supervision on a regular basis. In some districts, this is done through home visits and other methods by social services that are established in all districts of Ukraine and work under the supervision of local authorities. Their dealings with guardianship agencies is not regulated, and is based more on an individual approach in each given district

42 United Kingdom Frequency: Information from the Refugee Council suggests that the Refugee Council Children’s Panel (RCCP) advisers are supervised on a monthly basis. The workloads are monitored regularly

ANNEX C CHARTS

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