Exercising legal representation

Information

Unaccompanied children are deprived of parental care; this is the reason they are assigned a guardian. As a guardian, you are responsible and accountable for the child. Given the fact that children do not have full legal capacity themselves, it should be the guardian who acts as their legal representative. However, this is not the current practice in many EU member states. National legislation should explicitly arrange this, which is the case in, for example, the Netherlands.

Training and tools

Training: Introductory course on guardianship for unaccompanied children in both the asylum and integration phase

This tool is intended to give volunteer guardians in both the asylum and the integration phase a thorough introduction to their work. The course (in Danish) touches upon issues as the legal aspect of the child’s case, how to develop a professional relationship with the child, and how to cooperate with other actors relevant to the child. It also gives a general introduction to the Red Cross. Find information on how to access the course here.

Good practices

The Netherlands: guardianship objectives as part of its statutory task

In the Dutch legal context, all unaccompanied children are assigned a Nidos guardian. Nidos is the Dutch guardianship institution for unaccompanied children. The Dutch civil code stipulates that every child should be the responsibility of an adult. This adult is the child’s parent or, in the absence of a parent, a guardian. Nidos is appointed by a court during legal proceedings. Guardianship is therefore always a result of a judicial decision.

Guardianship means that Nidos has a statutory task to supervise these children and young people on their way to adulthood and to promote their interests. Their role as guardian starts when an unaccompanied child registers at a reception centre, where Nidos is present. Nidos provides continuous long-term care and has the responsibility for the mental and physical well-being of the child and for their personal development. Guardianship counselling aims to achieve independence at the age of majority (18) as the law states that this is the moment that guardianship ends.

Guardianship objectives are twofold: judicial and pedagogic. Children up to the age of 18 are legally considered to be dependent and without the legal capacity to act. Consequently, they are not allowed by the legislator to live without supervision. The guardian’s pedagogic task is to teach children and young people to participate actively and productively in their social relationships within the society of which they are currently a part. Based on these two objectives, the domains in which the guardian must be active are:

• Promotion of interests;
• Education and care;
• Identification and prevention of abuse, disappearances and an illegal existence.

 

Nidos has a special guardianship method that looks at the problems related to return and various forms of reception. Nidos has always aimed at dialogue-oriented action, with client contact at the heart of the procedure. The guardianship method supports this. Nidos works with their clients and with the plan on the table using the method’s four steps. Based on this, they draw up an action plan. The plan is written within six weeks of the start of the guardianship. During the year after the action plan was drawn up, Nidos works on the objectives and progress is continuously evaluated. During each contact, Nidos works consciously on an operational objective. At the end of the year, there is an evaluation of the development of the child or young person.

Croatia: guardianship and the tasks of the guardian

According to Croatian family law, the competent social welfare authority is obliged to appoint a special guardian to stateless children, or children within the territory of the Republic of Croatia who do not have a legal representative. Immediately after identification, the social welfare authority appoints a special guardian for the unaccompanied child. The responsibilities and duties of the special guardian are described in detail in the Protocol on the Treatment of Unaccompanied Children. The special guardian is obliged to:

• protect the personal and property rights of unaccompanied children;
• represent the rights and interests of the child in all proceedings in front of the competent authorities;
• provide an interpreter to communicate with the child;
• make a needs assessment and individual plan, with the child’s participation;
• provide adequate accommodation;
• contact the local police station with a statement of intent to apply for international protection on behalf of the unaccompanied child;
• represent the rights and interests of the unaccompanied child during the request for international protection in the Republic of Croatia;
• participate in the return of unaccompanied children and transfer to the parents or the competent social welfare services in the country of origin;
• take part in the transfer and return to the family;
• inform the child of all facts and circumstances in a manner appropriate to the child’s age, maturity and understanding ;
• be available for the child and consult them before undertaking measures for their protection;
• make sure that all decisions are made in the best interests of the child.

Information

As a guardian, you have a role to play in different legal procedures the child may be involved in, regardless of whether the child has been assigned a separate legal representative. In general terms, you must:

• inform the child of his or her right to legal advice and representation;
• ensure that a legal representative is appointed and free legal advice provided, whenever the child is entitled to it;
• monitor the work of professionals providing legal assistance and representation;
• facilitate communication between the child and these professionals, when necessary, and arrange a qualified interpreter;
• if necessary, accompany the child and actively participate in interviews and hearings.

 

In addition to these general tasks, you may also have a more specific role, depending on the type of procedure and the individual child’s situation. This could involve administrative, civil or criminal procedures¹.

Civil law proceedings

If a child is deprived of the parental environment, when return or family reunification is not an option or has been found not to be in the child’s best interests, relevant child protection authorities might initiate civil law procedures to place the child in residential institutions or with foster families, to support integration or to prevent risks. The guardian should participate fully and represent the child’s best interests in these proceedings, ensuring that decisions are made in the best interests of the child and that the child’s views are taken into consideration and given due weight in line with the child’s age and maturity².

Criminal law proceedings

The Victims’ Directive (2012/29/EU) contains a number of provisions for the protection of victims of crimes (see in particular Article 24). Protection safeguards for children involved in criminal proceedings are also provided for in the Directive on combating the sexual abuse and sexual exploitation of children and child pornography (2011/93/EU).

Both directives reflect standards set out in the Council of Europe Guidelines on child-friendly justice (2010).

Trafficking in human beings is a serious criminal offence. Accordingly, the Anti-Trafficking Directive (2011/36/EU) sets out a series of beneficial provisions for the protection of victims before, during and after criminal proceedings. Child victims of trafficking might be involved in criminal proceedings. The guardian must be prepared to support the child in this regard. The directive contains specific safeguards for victims of trafficking in criminal investigation and proceedings in general (Article 12) and for child victims in particular (Article 15). Furthermore, Article 8 of the Anti-Trafficking Directive (2011/36/EU) sets out the principle of non-punishment of victims.

Normally, the criminal justice system assigns the child victim a lawyer to provide him or her with legal advice and assistance. It is the guardian’s task to ensure that the child has access to legal assistance, in accordance with national legal provisions. If no lawyer is appointed, the guardian should ask the competent authorities to appoint one. The guardian should, in close cooperation with the lawyer assigned to the child, argue for the child benefiting fully from the provisions set out in the Anti-Trafficking Directive (2011/36/EU), and/or in domestic law. They should also insist that the rights of the child as a victim, and as a witness in criminal proceedings against the trafficker, are protected. In criminal proceedings, the role of the guardian is mainly to support the child, as the lawyer will provide the core legal assistance³.

Training and tools

Checklist: possible action by the guardian and/or the legal representative in the context of civil law procedures

• Inform the child about the procedures and the decision-making process;
• Inform the child about available options and explain to the child the possible outcomes of the proceedings;
• Ensure that the child has access to legal assistance;
• Ensure that the child is given the opportunity to exercise his or her rights to be heard and that due weight is given to his or her views;
• Prepare the child for the hearings and interviews with the relevant authorities and support him or her throughout the proceedings;
• Promote the child’s best interests in the decision-making process;
• In all cases, ensure that the child’s best interests are the paramount consideration, that all procedural safeguards were respected and that the child’s consent was sought;
• Be present at periodic reviews of placement processes⁴.

 

Checklist: possible action by the guardian in relation to criminal proceedings (some of these are specifically related to child victims of trafficking)

• Ensure that the child has access to appropriate legal assistance: that a qualified lawyer is appointed without undue delay to provide legal advice and represent the child as required by national law;
• Help the child take an informed decision regarding participation and cooperation in criminal proceedings: make sure that the child victim is informed of security and safety issues and the risks involved, and has a clear understanding of them, before deciding whether or not to participate and testify in criminal proceedings against the suspected traffickers;
• Make sure that the child is fully aware of which entitlements to assistance and protection are conditional on his or her willingness to participate in criminal proceedings and which are not, and that he or she has the right to review cooperation with the justice system in the future;
• Encourage the child victim to make full use of the reflection period before deciding on the matter, if this is in the best interests of the child;
• Help the child to understand any communications received, including communications from the legal representative;
• Accompany the child and attend all interviews and hearings with him or her;
• Prepare the child emotionally and psychologically before interviews and hearings and make sure that he or she has a proper understanding of the proceedings and the outcome;
• Discuss with the child the outcome of the proceedings and court decisions and explain its relevance to the child’s particular situation and the future options and steps available;
• Ensure, in cooperation with the person providing legal assistance to the child, that the child is not prosecuted and/or penalties are not applied for criminal activities related to the exploitation of the child, as stipulated in Article 8 of the Anti-Trafficking Directive (2011/36/EU)⁵.

 

Tool to assist actors in legal and judicial proceedings

The CONNECT-project (2014) developed the tool ‘Standards to ensure that unaccompanied migrant children are able to fully participate’ to assist actors in legal and judicial proceedings. The tool is available here.

Guidelines on child friendly justice

The Committee of Ministers of the Council of Europe adopted guidelines on child friendly justice on 17 November 2010. The guidelines are intended to enhance children’s access to and treatment in the justice system. The issues covered include information, representation and participation rights, protection of privacy, safety, a multidisciplinary approach and training, safeguards at all stages of proceedings and deprivation of liberty. The guidelines are available here.

Online course on child-friendly justice and children’s rights

The European Programme for Human Rights Education for Legal Professionals (HELP) supports the Council of Europe member states in implementing the European Convention on Human Rights (the Convention) at the national level. One of the tools developed is the ‘HELP online course on child-friendly justice and children’s rights’, that offers human rights education for legal professionals. The tool is available here.

You will find a flyer with practical information here.

Good practices

The Netherlands: legal department

Nidos has a legal department with legal advisors who are specialised in both child protection and immigration law. They advise the guardians and also cooperate with the lawyers who provide legal assistance to the children.

The Netherlands: transfer of guardianship if a child leaves for another country

If a child under Nidos guardianship leaves the Netherlands, Nidos has an obligation to investigate whether the child has arrived at a suitable location and is staying with an adult who is able and willing to have guardianship of the child. To investigate the suitability of the location, the Nidos guardian can contact the Red Cross, ISS or any other relevant national or non-governmental organisation. If the information provided proves that the circumstances are satisfactory, the guardian submits a request to the juvenile court for discharge of guardianship, stating the new address of the child and the names of their carers. If the circumstances are not satisfactory, guardianship should be transferred to a guardianship institution.

All of this can only be done if the destination of the child is known to Nidos. If a child has left for an unknown destination, the guardian must report the child as missing to the police, and take all possible steps to discover the whereabouts of the child. If the guardian does not succeed in this, but it has become clear that the child is no longer in the Netherlands, Nidos will not ask the juvenile court judge for discharge of guardianship of the child. This is because the juvenile court judge can only agree to the request for discharge of the guardianship if Nidos includes the child’s current address in the request. Guardianship will then continue until it legally comes to an end when the child turns 18.

Croatia: social welfare centres

There are 80 social welfare centres in Croatia. Each centre has a department for children and family protection, and a lawyer who deals with child protection and the international protection of children. According to various regulations, social welfare centres are obliged to provide support, consultation and further legal assistance to an unaccompanied child’s guardian if they are supporting the child in judicial procedures. (Family Law, Social Welfare Law, Protocol on the Treatment of Unaccompanied Children).