European legal and policy framework on immigration detention of children
detention procedure.276 A representative of the guardianship authority (the local branch of the Office of Social
and Legal Protection of Children, Orgán sociálně-právní
ochrany děti) will be present during the interview with
the child at the police station where they are initially
held.
Research shows that often the authorities do not assign
an individual guardian to the child before ordering
detention. When there is a guardian, the amount and
frequency of personal contact with the child differs in
individual Member States.277 Often, only a legal representative is assigned to the child and not a guardian.
The legal representative is tasked with representing
the child in the legal proceedings, for example lodging an appeal. In Sweden for example, if the child does
not have a guardian ad litem, a public counsel (offentligt biträde) is appointed to represent the child. Such
a public counsel must always be appointed for unaccompanied children in migration-related detention and
acts as a representative of the child in court.278
Conclusion
The right to be heard, which is a general principle of
EU law, and Article 24 of the Charter mean that children must have effective opportunities to express their
views. These are to be considered in accordance with
the child’s age and maturity.
To ensure that the best interests of the child are
a primary consideration in all procedures concerning
children, general procedural safeguards applicable to
immigration detention, such as judicial review, and
access to free legal aid and linguistic assistance, are
complemented by child-specific safeguards. These
include guardians for unaccompanied children, and
conducting procedures and providing information in
a child-friendly manner.
Although the current provisions of EU law do not
expressly define its functions, the role of a guardian
for unaccompanied children is indispensable in ensuring
the child’s overall well-being, safeguarding the child’s
best interests and exercising legal representation,
276 Czech Republic, Act on the Residence of Foreign Nationals
No. 326/1999 Coll. (Zákon o pobytu cizinců na území České
republiky a o změně některých zákonů), 30 November 1999,
Section 124 (5). Amended version available at: http://
www.zakonyprolidi.cz/cs/1999–326. See also Czech
Republic, Ministry of Labour and Social Affairs (Ministerstvo
práce a sociálních věcí), 2009, Nezletilý cizinec bez
doprovodu (manual).
277 FRA (2014), Guardianship for children deprived of parental
care – A handbook to reinforce guardianship systems to
cater for the specific needs of child victims of trafficking,
Luxembourg, Publications Office, pp. 54–55.
278 Sweden, Aliens Act (Utlänningslag (2005:716)), chapter 18,
sections 1 and 3, 29 September 2005.
68
complementing the limited legal capacity of the child.
The guardianship systems of individual Member States
vary in scope and capacity, and do not always ensure
that guardians are appointed soon enough after a child
is identified as unaccompanied. As a result, the children
may not benefit from the presence of a guardian when,
for example, a decision on detention is made.
Conducting immigration-related procedures involving
children in a child-friendly manner is a precondition for
involving them meaningfully in the procedures, as it
enables the authorities to take the views of the child
into account. Only some EU Member States have legislation specifically stipulating the child’s right to be
heard before the authorities decide on detention, as
required by the Convention on the Rights of the Child.
Similarly, the availability of child-specific information in
asylum and return-related procedures varies for both
unaccompanied and accompanied children; their parents are generally expected to provide them with information. Even where information targeted specifically at
children is available, it is not always delivered in a childappropriate manner or in a form that is adapted to the
specific situation and needs of children. This, together
with not enough child-specific training and expertise
among some staff conducting proceedings with children, may not only contribute to the feeling of insecurity
and intimidation, but also effectively prevent children
from fully exercising their rights.
FRA opinion 6
To ensure children’s right to be heard, which
is a general principle of EU law, EU Member
States should develop and use child-friendly
information and materials, and train officers
and other relevant staff to conduct procedures
in a child-appropriate manner and facilitate
children’s involvement.
In light of Article 24 of the Charter (rights of
the child), EU Member States should appoint
a guardian as soon as an unaccompanied child is
identified and before they decide on deprivation
of liberty.
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