The OSCE commitments recommend the appointment of “a legal guardian and/or legal
representative at all stages of the child’s assistance, (re)integration and/or return”.237
While not mentioned in the UN Trafficking Protocol, the Legislative Guide to the Protocol encourages states to consider appointing, as soon as the child victim is identified, a guardian to accompany the child throughout the entire process until a durable
solution in the best interests of the child has been identified and implemented. If possible, the same person should be assigned to the child victim throughout the entire
process.238
In addition to the above, the Council of Europe Trafficking Convention requires that,
as soon as an unaccompanied child is identified as a victim, a legal guardian, organization or authority be appointed to act in the best interests of the child.239 EU legislation
also requires that a guardian be appointed to an unaccompanied child “where appropriate”,240 as well as to other children in cases when the holders of parental responsibility are unable to ensure the child’s best interests or to represent the child.241
Return as a durable solution
The ultimate aim in assisting a child victim is to find a durable solution that addresses
all their protection needs, taking into account the child’s views.242 A durable solution
is a long-term arrangement for a child victim, and can include local integration, return
to the country (or place) of origin or resettlement in a third country.243
The first step in finding a durable solution is to look at the possibility of family reunification.244 To honour the non-separation standard stipulated in the UNCRC,245 all
efforts should be made to return the unaccompanied or separated child to her or his
parents, except in cases when continued separation would actually be in the child’s
best interests.246
To help states balance the child’s best interests with other factors, the UN Committee
on the Rights of the Child has clarified that, in exceptional cases, return to the home
country may be arranged also on the basis of rights-based considerations that override the best interests of the child, but only after carefully balancing the child’s best
237 2005 Addendum to the OSCE Action Plan, Rec. 6. See also ICMPD TRM Guidelines, p. 37.
238 For more additional guidance on the responsibilities of guardians, see UNODC Legislative Guides, op. cit., note
229, para. 4.2. See also General Comment No. 6, para. 231.
239 EU Trafficking Directive 2011/36/EU, preamble para. 24 and art. 10(4)(a).
240 EU Trafficking Directive 2011/36/EU, art. 16(3).
241 EU Trafficking Directive 2011/36/EU, art. 14(2).
242 CRC General Comment No. 6, para. 79.
243 UNICEF Trafficking Guidelines, pp. 3, 28. See also UN High Commissioner for Refugees (UNHCR), UNHCR
Guidelines on Determining the Best Interests of the Child, May 2008; and Field Handbook for the Implementation of the
UNHCR BID Guidelines, UNHCR, 2011, pp. 50-52;
244 CRC General Comment No. 6, para. 79.
245 Art. 9 of the UNCRC.
246 CRC General Comment No. 6, paras. 81, 82.
72
Part 2: Explanatory Report to the Principles
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents