Child-specific procedural safeguards
Tools and guidance: Guardianship for children deprived of parental care –
a FRA handbook
The guardian, being the independent person who safeguards the best interests and
general well-being of the child, should be involved and consulted in issues related
to the detention and detention conditions of unaccompanied children. FRA published
a handbook in 2014 to promote a shared understanding of the main features of
guardianship and to help standardise guardianship practice in the Member States.
The handbook provides guidance and recommendations to EU Member States on
strengthening guardianship systems, setting forth the core principles, and the
fundamental design and management of such systems. It aims to improve conditions
for children under guardianship and promotes respect for their fundamental rights.
The handbook has a specific focus on child victims of trafficking, but it generally
covers guardianship systems for all children who are deprived of parental care,
including unaccompanied migrant or asylum-seeking children.
The guardian differs from a qualified lawyer, who
provides legal aid to a child deprived of liberty. Article 37 (d) of the CRC enshrines that right, stating that
“[e]very child deprived of his or her liberty shall have
the right to prompt access to legal […] assistance” to
challenge the detention decision.
EU law recognises the importance of legal guardianship,
but does not define its functions. Proposed legislative changes clarify that the guardian is “a person or
organisation appointed to assist and represent an unaccompanied child with a view to safeguarding the best
interests of the child and his or her general well-being
in [asylum] procedures and exercising legal capacity for
the minor where necessary.”272 The current versions of
the Reception Conditions Directive and Asylum Procedures Directive both provide for the right of unaccompanied children to be provided a legal representative
only.273
The majority of EU Member States have entrusted
guardianship functions to municipal or local social services, and only a few Member States have a central
guardianship authority at the national level, as FRA
reported in a comparative study on guardianship. When
a Member State implements guardianship at regional or
local level, it sometimes applies different approaches in
different parts of the country. Most of the EU Member
States assign guardianship duties to natural or legal
persons. A few Member States have set up a separate
guardianship system for unaccompanied children who
have only a temporary right to stay in the Member
State or no right to stay at all. However, in practice,
272 European Commission, Proposal for a Regulation
establishing a common procedure for international
protection in the Union and repealing Directive 2013/32/
EU, Article 4 (f) and European Commission, Proposal for
a Directive laying down standards for the reception of
applicants for international protection (recast), Article 2 (12).
273 Reception Conditions Directive, Articles 2(n) 24 and Asylum
Procedures Directive, Articles 2 (j) and 25.
differentiated arrangements are in place in many more
Member States depending on the specific status of the
child.274
Guardians have a key role in safeguarding the best
interests of unaccompanied children in the various
proceedings. They could support the child during age
assessment procedure and ensure that special procedural safeguards are in place, such as access to information and free legal aid. In cooperation with other
competent authorities, guardians could contribute to
effective monitoring of the facilities used to hold children and facilitate access to complaint mechanisms.
Finally, they could contribute significantly to the individual assessment required to order or review a detention
decision for an unaccompanied child. However, often
guardians are assigned late or not at all.
According to CPT standards, unaccompanied or
separated children deprived of their liberty should
be provided with prompt and free access to legal and
other appropriate assistance, including the assignment
of a legal representative or guardian who keeps them
informed of their legal situation and effectively protects their interests. Review mechanisms should also
be introduced to monitor the ongoing quality of the
guardianship.275
In the majority of the Member States, national law
contains a duty to notify the guardianship authority
whenever an unaccompanied child is identified and/or
detained. For example, in the Czech Republic, the police
will appoint a guardian when initiating an administrative
274 FRA (2015), Guardianship systems for children deprived
of parental care: With a particular focus on their role in
responding to child trafficking, Luxembourg, Publications
Office, pp. 7–8.
275 CPT, Factsheet on Immigration detention, CPT/Inf(2017)3,
March 2017.
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