Guardianship

The UN Guidelines for the Alternative Care of Children tell us that ‘No child should be without the support and protection of a legal guardian or other recognized responsible adult or competent public body at any time’.

The Global Compact for Safe, Orderly and Regular Migration requires States to provide someone who has a legal duty to swiftly appoint a ‘competent and impartial legal guardian’ for unaccompanied and separated children. This step is seen as an ‘essential means to address their particular vulnerabilities and discrimination, protect them from all forms of violence, and provide access to sustainable solutions that are in their best interests.’

However, there may be some current confusion as to the definition and role of a guardian. This is because across the world the process of giving individuals or organisations this responsibility takes many different official and unofficial forms. In some cases it is a court-appointed individual specifically selected to take on the role of guardian. You may also have noticed possible overlap between the responsibilities of legal guardians and those of case workers. Indeed, in some countries a case worker might also be given the status of ‘legal guardian’, and have to combine the two roles.

For some children, temporary legal responsibility in the form of guardianship may go to the organisation that provides their alternative care, or perhaps to the Director/Manager of a particular care setting. This role might also go to other carers such as a foster carer. In some countries, it could be a local mayor or lawyer who is given responsibility as guardian – sometimes for substantial numbers of children – meaning they may never even meet these children or have the time or capacity to support them individually.

To complicate matters further, in some places the term ‘guardian’ is used to refer to people who offer a child a place to stay but have not been checked or given legal authority to do so. This practice should be regulated and comply with international and national standards – as with any form of family-based care.

Standards for Guardianship

In some countries, guardians must be legally appointed through a government-sponsored guardianship service. This includes careful selection and training of guardians. In others, it might be NGOs that manage the service. Any NGO providing this service should be appointed and regulated by the State.

A set of core standards for guardianship has been developed for unaccompanied and separated children in Europe. These standards can be found in different languages here and the English version in the ‘See Also’ section below.

The ten core standards are:

1. The guardian advocates for all decisions to be taken in the best interests of the child, aimed at the protection and development of the child
2. The guardian ensures the child’s participation in every decision which affects the child
3. The guardian protects the safety of the child
4. The guardian acts as an advocate for the rights of the child
5. The guardian is a bridge between and focal point for the child and other actors involved
6. The guardian ensures the timely identification and implementation of a durable solution
7. The guardian treats the child with respect and dignity
8. The guardian forms a relationship with the child built on mutual trust, openness and confidentiality
9. The guardian is accessible
10. The guardian is equipped with relevant professional knowledge and competences

These standards show how the role of temporary and long-term legal guardians often include responsibility for ensuring all the rights, legal status, entitlements, and best interests of an unaccompanied or separated child are being met. Guardians should also make sure the child’s views are carefully listened to and fully taken into account in any actions and decisions that will affect them.

In the next course step we learn about a guardianship programme in Sicily. This case study was chosen as an illustration of the type of support a guardian might offer.