Guardianship for children deprived of parental care

A handbook to reinforce guardianship systems to cater for the specific needs of child victims of

trafficking

Expert Meeting on:

Returns and Transfers: International and European standards, procedures and safeguards for children exposed to

exploitation, trafficking and children at risk

Riga , 13th - 14th of May 2014

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Anti-Trafficking Directive (2011/36/EU)

Article 14 «Members States shall appoint a guardian or a representative for a child victim of trafficking in human beings from the moment the child is identified by the authorities where, by national law, the holders of parental responsibility are, as a result of a conflict of interest between them and the childvictim, precluded from ensuring the child’s best interest and/or from representing the child

Article 16 «Member States shall take the necessary measures to ensure that, where appropriate, a guardian is appointed to unaccompanied child victims of trafficking in human beings».

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The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016

“In addition, with respect to child trafficking, there is at present no uniform definition of a guardian and/or representative across the Member States and their roles, qualifications and understanding of competences vary from one Member State to another . In 2014, together with the European Union Agency for Fundamental Rights, the Commission intends to develop a best practice model on the role of guardians and/or representatives of child victims of trafficking.”

PRIORITY A / Action 3: Protection of Child Victims of Trafficking

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The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016

“Comprehensive child-sensitive protection systems that ensure interagency and multidisciplinary coordination are key in catering to diverse needs of diverse groups of children, including victims of trafficking.(…)Member States should strengthen child protection systems for trafficking situations and ensure where return is deemed to be the child’s best interest, the safe and sustainable return of children to the country of origin, in and outside the EU, and prevent them from being re-trafficked.”PRIORITY A / Action 3: Protection of Child Victims of Trafficking

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• Migration e.g. unaccompanied children, children left behind

• Parental abuse and neglect e.g. Children in alternative care institutions

• Child Trafficking

Various reasons for deprivation

of family environment and parental

care

• Appointment of guardian is a key safeguard of child protection, when a child is temporarily or permanently deprived of parental environment

Article 20 of UNCRC on protection of children deprived of parental environment

• They have experience separation and loss of family; if not already victims of abuse and exploitation are in risk of becoming victims, might suffer from trauma ; are in need of support, protection and rehabilitation measures;, those already being victims are in risk of further abuse and victimization

Common needs and

equal rights

Protection of all children deprived of parental care

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Fundamental principles of guardianship

systems

Child participation

Sustainability

Accountability

Quality

Independence and impartiality

Non discrimination

Fundamental principles of guardianship systems

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What guardians should do?

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C

ore

ta

sks

of

the

gu

ard

ian

Safeguard the best interests of the child

Promoting the child’s safety and well-being

Facilitate child’s participation

Acting as a link between the child and others

Assisting in identifying a durable solution in the best interest of the child

Exercising legal representation , supporting the child in legal procedures and ensuring access to legal assistance and counselling

C o r e t a s k s o f t h e g u a r d i a n

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Th

e r

igh

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f th

e c

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o b

e

he

ard

Provide and facilitate access to information

Ensure access to legal counselling

Safeguard the right of the child to legal assistance

Exersise legal representation when necessary

Speak on behalf of the child when necessary

Child’s participation and the role of the guardian

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Information provided to children should at least cover:

The functions, rights and duties of the guardian; The role, rights and duties of legal representatives; The child’s rights, taking into consideration the particular

situation of each individual child, as regards residence status, international protection needs, need for victim support, etc.;

The assistance and protection measures in place , and the service providers, on the base of the particular situation of the child

The various criminal, administrative and civil proceedings the child might be involved in, including access to compensation.

The individual complaint mechanisms available to a child to report violation of his/her rights;

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In the context of trafficking, guardians, as well as other

professionals working with child victims, whilst the have to

fully respect the right of the child to be heard they should

keep in mind that the child might be under the influence of

the trafficker.

Child’s participation in the context of trafficking

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Exe

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Inform the child of his/her right to legal advice and representation;

Ensure that a legal representative be appointed and free legal advice is provided whenever the child is entitled to it;

Monitor the work of professionals providing legal assistance and representation

Facilitate the communication between the child and such professionals when necessary,

Accompany the child and actively participate in interviews and hearings with the child

Legal representation and access to legal assistance and legal counselling

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Exe

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Prepare the child emotionally and psychologically before interviews and hearings and make sure that the child has a proper understanding of the proceedings

Facilitate that throught out legal proceedings the child has access to appropriate translation and interpretation services for free

Support the child to understand communication received, including communication by his legal representative

Discuss with the child the outcome of the proceedings and court decisions and explain its relevance to the child’s particular situation and future options and steps available

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Main challenges Lack of training and specialization of guardians and of other

professionals involved

Deficiencies in human resources and lack of quality standards Independency and impartiality is not always guaranteed

Lack of support offered to guardians e.g. access to translation and interpretation services and legal counselling

The normative framework and the child protection system

within witch guardians operate sets the limits of their work

Need for a structured and systematic intra-EU as well as international cooperation mechanisms

Guardianship for children deprived of parental care

A handbook to reinforce guardianship systems to cater for the specific needs of child victims of trafficking

Forthcoming publication , June 2014