The legal framework is there, the solutions are there and now the question is if the political will is there?
While EU and member states’ response to a global crisis of 70.8 million forcibly displaced people remains a resounding “keep them out, push them sideways, send them back” - there is a political consensus that children should be exempt from restrictive measures. Yet, the political will to act has not caught up with the rhetoric and hundreds of thousands of children migrating to and within Europe are suffering in dire circumstances as a result of Europe’s policies and actions.
The picture revealed through research from ECRE and others is one of widespread denial of the rights of the child. In practice, this abstract expression means that many children on the move can’t access their rights to housing (they are living on the streets or in inadequate reception facilities), their right to freedom (they are detained), to education (they are not at school), to safety and life (they are exploited and abused), or their right to asylum (they are deterred or prevented from claiming asylum). And so on.
It is and will remain important to raise the issue with public and decision makers at EU and member state level. However, it is equally vital to provide tangible and implementable solutions to be adopted. From 2016 a coalition of NGOs with particular expertise including the Hungarian Helsinki Committee, Immigration Law Practitioners' Association, Italian Refugee Council (CIR), Flemish Refugee Action, Forum réfugiés-Cosi and the European Council on refugees and Exiles (ECRE) have conducted a project co- funded by the Rights, Equality and Citizenship (REC) Programme of the European Union to that end. The Upholding Legal Rights For Unaccompanied Children: Fostering Quality Legal Assistance in the Asylum Procedure (Uprights) project concluded in 2019. It focused on training the service providers working directly with children, including lawyers, social workers, and other professionals. The project produced high quality training material and exercises, with hundreds of persons benefiting from training. Drawing on this training work, partners developed a set of practical recommendations:
Do not detain asylum-seeking children: Remove the possibility to detain children within the scope of the EU asylum acquis that is currently under reform. Detaining children is in breach of the EU Charter of Fundamental Rights (EU CFR), the European Convention on Human Rights (ECHR) and the UN Convention on the Rights of the Child (UN CRC).
Provide for a formalised best interest determination procedure: The best interest of the child is not just an interpretive legal principle, but a material and procedural right as well. States are under an obligation to give priority to the best interest of the child at all stages of the migration and asylum process.
Provide clear legal provisions and safeguards for the age assessment: Age determination should be conducted only in cases when there are substantial grounds to doubt a child’s age. National authorities must adopt an interdisciplinary approach and not focus solely on a medical examination. Age assessment must be carried out with full respect to the child’s inherent human rights, using the least intrusive methods and with the presence of the child’s legal guardian.
Ensure quick and effective access to guardians, child protection professionals and lawyers: Asylum procedures can only be fair and humane when children can effectively exercise their rights. Children need to be given quick access to professionals – both state and civil society actors – who are able to guide them through their legal procedures and start the preparatory work for social inclusion.
The legal framework is there, the solutions are there and now the question is if the political will is there? For the sake of hundreds of thousands of children in Europe – we should all hope so!