Detention of third-country nationals in return procedures
in asylum procedures or administrative or judicial
proceedings, they should, in addition to the appointment
of a guardian, be provided with legal representation.367
Access to legal representation is crucial to allow children
to make effective use of existing legal procedures. Such
access may be difficult where children have access
to legal assistance in the same way as adults.368 While
separated children deprived of their liberty may often be
entitled to benefit from the same protection safeguards
as those not detained, in practice legal representation
for detained children can be challenging. Different
obstacles can exist. As an illustration, in Austria, the Youth
Welfare Agency is not always informed when separated
children are deprived of their liberty,369 whereas at
the Roissy-Charles de Gaulle (CDG) airport in Paris the
appointed representatives had only the capacity to take
responsibility of 75% of minors in 2007.370
367 Committee on the Rights of the Child, General comment No. 6 (2005),
Treatment of Unaccompanied and Separated Children outside their
country of origin, CRC/GC/2005/6 at paragraph 36.
368 Less then one out of four of the 28 children aged 10-17 interviewed by the
Jesuit Refugee Service reported having seen a lawyer. By comparison, for
other age groups the percentage of respondents who had been visited
by a lawyer ranged from 51-65. See Jesuit Refugee Service, Becoming
vulnerable in detention, pages 30 and 74.
369 Assessment of a Country Questionnaire, Improving Guardianship for
Separated Children in Europe: Regional survey on current legislation and
practices, survey conducted in context of a UNHCR project by the Children
and Youth Ombudsman of Styria in cooperation with Asylkoordination
Österreich, question 19, available in English online at: http://www.asyl.at/
umf/umf/guardianship_austria.pdf.
370 ANAFE, Statistiques relatives aux étrangers à la frontière, 2008, p. 10,
available online at : http://www.anafe.org/download/generalites/statsza-nov2008.pdf. See also Human Rights Watch, Lost in Transit Insufficient
Protection for Unaccompanied Migrant Children at Roissy Charles de
Gaulle Airport, October 2009, p. 25ff.
62
FRA Opinion
Where legislation exceptionally allows for the
deprivation of liberty of a separated child, domestic
law should require appointing immediately a legal
representative at no cost, unless the child already has
one, in addition to an independent guardian.
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