Samantha ArnoldTerry Smith, Muireann Ní Raghallaigh, Katja Fournier, Barbara Noske, Lucy Gregg, Natalie Williams, Rafaela Camassa, Jantine Walst, Martine Goeman, Jean-Pierre Gauci, Christine Cassar, Katarína Fajnorová, Miroslava Mittelmannová, Alekos Anastasiou, Morgane Conaty, Eilís O’Keeffe, Nancy Roe

Origins of the Project

• Funding through the European Commission’s Pilot Project on Unaccompanied Minors

• Objectives:• Define the term ‘Durable Solutions’ for

Separated Children (prior to publication of Safe & Sound)

• Identify best practice in determining and implementing durable solutions for separated children in Europe

The Project Methodology

• 9 Countries: • Greek Council for Refugees• The Children’s Society• Hope for Children UNCRC Policy Centre• Defence for Children- ECPAT, NL• People for Change Foundation• Service Droit des Jeunes• Human Rights League• Bundesfachverband Unbegleitete Minderjährige

Flüchtlinge

• Child and Family Agency and the School of Social Policy, Social Work and Social Justice of University College Dublin

• Separated Children in Europe Programme

The Project Methodology

• Interview 10 Service providers (legal, care and other professionals) per country• Questionnaire around:

• understanding of durable solutions • experiences ‘planning’ for and with

separated children and taking into account their best interests

The Project Methodology

• Consult with 10 separated children and young people per country:• interactive learning session

around the CRC and Comment No 6 (with a focus on the section on durable solutions)

• activities around children’s rights

• Group work or open questions:• What does durable

solution mean?• Why is determining a

durable solution important?

• How would you determine a durable solution with a child?

Guidance

• CRC and General Comments 6 (SC), 12 (to be heard) & 14 (BI) in particular

• EC legislation (recast asylum directives, Dublin III Regulation & Trafficking Directive)

• UNHCR & UNICEF Safe & Sound

• Council of Europe, Life Projects

• FRA Handbook on Guardianship for Children Deprived of Parental Care

• ICRC Inter-Agency Guiding Principles

• European Commission Child Protection Principles

• UNICEF Child Notices

• CONNECT Project

• Core Standards for Guardians of Separated Children

• UNHCR Guidelines on Child Asylum Claims

A working definition

A durable solution is: ‘a sustainable solution that ensures that an unaccompanied or separated child’ and any child on the move ‘is able to develop into adulthood, in a safe and secure environment which will meet his or her needs and fulfil his or her rights as defined by the CRC and will not put the child at risk of persecution or serious harm’ in accordance with the 1951 Refugee Convention and 1967 Protocol. ‘Because the durable solution will have fundamental long-term consequences for the unaccompanied’ child ‘or separated child, it will be subject to a BID. A durable solution also ultimately allows the child to acquire, or to re-acquire, the full protection of a state’.

UNHCR & UNICEF, Safe & Sound 2014 with amendments based on consultation with stakeholders & partners in italics.

Due to the fundamental impact arriving at a durable solution decision has on the life of the child, determining a durable solution should be seen as a process that involves many actors and one that may require periodic review and revision to make any decisions continue to be in the best interests of the child.

Barriers & Building Blocks: identified in literature

• Barriers:• Identification as a child and as separated • Identification as particularly vulnerable and/or in

need of protection• Risk of going missing

• Building Blocks:• Child-Centred legal framework (Life Projects)• Relevant training and competencies of service

providers (Life Projects & Core Standards)• Trusting relationship with service providers (Core

Standards)• Safe and positive environment during assessment

Placement in Alternative Care (in host country, country of origin or third country)

-An immediate and suitable placement is provided based on an initial assessment-As soon as possible, a more long-term placement is arranged following a thorough assessment of his/her individual needs

-It serves as a supportive environment ensuring his/her safety, well-being and development-It aims to promote: attachment and permanency, where it is in the best interests of the child

-It is reviewed regularly

Consensus: National Reports

• A need for a holistic, multi-disciplinary approach considering all rights and needs including protection — a merging of the traditionally siloed care and immigration procedures

Immigration

Care

–Participant, Slovakia

“a process, which cannot be limited to a short term period, and where the best

interests of the child must be considered, it is subject to updating, and children’s rights under the [CRC] must be taken into consideration. A

substantial part of this process is to find an optimal solution in the interest of the

child, either in Slovakia, or in another country. It also requires that the

responsible persons (guardians, social workers, educators and psychologists)

are being adequately prepared, in order to be able to correctly apply any durable

solutions. Process and cooperation between the relevant stakeholders is

essential….”

–Participant, Ireland

“a solution that can withstand challenge and stress, but its constantly evolving

and changing.”

Towards a Multidisciplinary Framework

1. Components of a Durable Solution

• Protection/Immigration needs/rights:

• Immigration and Protection decisions - stakeholders emphasised the need for decisions to be reached in order to progress with other aspects of the durable solution, including for those young people not seeking protection.

Separated Children Seeking Asylum and those not Seeking Asylum

• Lower numbers of children seeking asylum than those referred to social services, yet very few statistics available on anything other than applications submitted for asylum

• Relative abundance of law, guidance and literature relating to international protection, less on those not seeking international protection

• Partners concluded that non-asylum seeking children were relatively invisible or less visible than their asylum seeking counterparts

• Regardless, partners also identified a number of ways separated children seeking asylum faced difficulties in realising their rights in the context of international protection. In fact all reports identified immigration and asylum determination procedures as the number 1 barrier to providing a durable solution due to:• delays,• low recognition rates,• failure to assist or provide access to the asylum or immigration procedures

in the State and• absence of, or limited options to, durable alternative procedures for

regularisation outside of international protection, etc

2. Components of a Durable Solution, cont.

• Safe, nurturing and positive environment — within that assessment of family and exploration of reunification

• Health, education, religion and culture

• May be overlap between these rights and immigration and protection needs/rights

Non-Exhaustive List of Elements to Consider when Making a Durable Solutions Assessment

-*Respecting the right to confidentiality

The child *ensuring the voice of the child is at the fore-Basic information relating to the child’s identity -Aspects of culture that s/he considers important -Values that are of importance to him/her-His/her views, wishes and expectations-His/her individual/special needs -Physical and mental health needs and any experiences of trauma-His/her migration plans-Journey and background of the child-His/her goals, ambitions and plans-His/her level of education and future plans for education & skills, including immediate needs (such as language classes) [as part of a Life Project]

-Resilience -Coping strategies such as religion or spiritual -Sources of support-Resources-Strengths

Family/Community:-Family situation pre-arrival and post-arrival-Relationship between child and family-Assessment of non-familial supportive relationships*Family assessment should only occur if safe and in the best interests of the child-Views and wishes of immediate family-Views and wishes of extended family*Family should only be contacted when it is safe to do so and in the best interests of the child*

Risk analysis (immediate and looking to the future):-Risk of physical harm, abuse and neglect-Risk of psychological harm, abuse and neglect-Social or economic deprivation -Sexual or labour exploitation, including trafficking indicators -Risk of going missing (ie to try to join family members in another jurisdiction, risk of trafficking or irregular labour)

Environment (host, origin or third countries)-Security and stability of country-Access to child-specific rights in the country- Developmental opportunities: inter alia education and skills, leisure activities, religious and spiritual activities or communities and future work prospects- Risks, including child specific forms or manifestations of persecution & other forms of persecution which are not child specific, but have a disproportionate impact on childrenhttp://hitfoundation.eu/wp-content/uploads/2013/05/BIC-model-English.pdf

Multidisciplinary assessment and collaboration

Comment Number 14 As far as possible, a multidisciplinary team of professionals should be involved in assessing the child's best interests

Comment Number 12

Qualified professionals With expertise in, inter alia, ‘child psychology, child development and other relevant human and social development fields, who have experience working with children and who will consider the information received in an objective manner’.

Key actors

• The child• Guardians and Social workers• Foster carers and other care providers• Legal professionals • Teachers and educators• Health professionals• Authorities • Judges • IOM, ISS and other social service organisations • Red Cross• Community and Local Organisations

Provide time & resources to build trust between the relevant actors and child

A Multi-disciplinary approach

• Requires:

• Coordination of many actors

• Taking into consideration all of the child’s needs and rights and their own views and wishes including their immigration and protection needs.

The Process

Gather information

Make a proposal for the durable solutions hearing following Establishment of Facts and following General Comment No.12 within 6 months or as soon as practicable in line with his/her best interests

Any assessment of the best interests should follow strictly Guidance in Comment No 14, V.B.

Interagency/Multi-disciplinary case conference or hearing

Analysis of different solutions

Best Practice: Decision by qualified majority

Best practice: Binding decision before 18, but as soon as possible, where possible and where it is in the best interest of the child

The Process: Who is involved?

An independent coordinator has overall responsibility for information gathering.

At least 3 experts(identified on case-by-case basis):-Relevant governmental departments or agencies -Representatives of child welfare agencies, such as social workers (in particular those under whose care the child has been placed) -Expert representative and/or information from country of origin and/or third country &Qualified professionals With expertise in, inter alia, ‘child psychology, child development and other relevant human and social development fields, who have experience working with children and who will consider the information received in an objective manner’.

His/her guardian should be able to attend.

The child should also be able to attend and give his/her view.

Decision makers must not have a conflict of interest. Decision must be based on the best interests of the child and not influenced by the interests of the State in respect of border control.

Access to Justice

Due to their young age, dependency and relative immaturity, children should enjoy specific procedural and evidentiary safeguards to ensure that fair refugee status determination

decisions are reached with respect to their claims.

The Durable Solutions Process relates to both rights relating to care and development and migration as they are inextricably linked. Any decisions relating to the durable solution must:

Be written down

Be open to independent appeal

Carry the option of suspensive appeal

Provide an effective remedy

Require that the burden of proof is shared

Apply the benefit of the doubt principle

Procedural SafeguardsAppointment of a legal and independent guardian who:-is accessible-has relevant competencies (training) -is free of potential conflicts of interest

Appointment of an independent legal representative at no cost*Guardian should also be present in meetings between the child and the legal representative

Interpreters should be made available. They should be:-accessible-trained in child specific interpretation -free

Case conference or hearing should be adapted to the age and maturity of the child, allowing for meaningful participation

Decisions should be in a reasonable time to decrease uncertainty acknowledging Time Perception ‘Delays in or prolonged decision-making have particularly adverse effects on children as they evolve’. The process should begin as soon as possible after the child is identified and should conclude within 6 months to 1 year depending on the best interests of the child.

Analysis: must be multidisciplinary

Decision: must be reasoned and presented in a child friendly way

There must be an option of appeal

Due process applied in the same way as to adults, including mechanisms to revise or review

Access to independent and and effective complaints mechanisms in respect of care and migration needs (including guardianship, carers, legal representatives etc)

Monitoring of all institutions, representatives and procedures

Child Protection Systems have transnational and cross-border mechanisms in place EC Child Protection Principle 7

Review, Revision & Monitoring of Durable Solutions Decisions

Revision is possible if it is in line with the best interests, wishes and views of the child and where there is a change in:

The situation in the country of origin or third country, eg:-Issues arise sur place (risk of persecution arises after the child leaves the country of origin or residence).-The situation becomes safe and stable and the child would have access to their CRC rights

*A decision for the child to remain in the host country cannot be overturned or revisited solely based on a change in environment in the country of origin.

Family circumstances (eg where family have been traced after a decision has been made)

Number 1 Recommendation

• ‘Status’ decisions need to be made as soon as possible before turning eighteen to promote positive development and access to rights through:• ensuring access to education and reducing the likelihood

that it will be interrupted• ensuring access to immediate and on-going medical and

mental health services• ensuring continuity of care • facilitating family reunification where possible and in the

best interests of the child & reducing the time spent separated

• ensuring that young people can plan for their futures and be supported to do so and

• re-establishing normality• Not having a status decision puts all other aspects of the

durable solution in flux

–Young person, England

“‘Take action as soon as you can - because waiting affects young people a lot and we miss more than 6-7 years.”

Next Steps

• November - December: Present draft tool to EASO and European Commission

• Mid-January: Publish and Disseminate final International Report with Toolkit

• More to come…