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International guidance concerning unaccompanied and separated children (Part 3)

Part 3 - video by Felipe Gonzales Morales
My name is Felipe González Morales. I am the UN Special Rapporteur on the Human Rights of Migrants. And why are we here today? Well, we are here for the adoption of the Global Compact for Migration in Marrakesh. This is a historic event that will take place for the enhancement of the human rights of the migrants around the world. So why are the Global Compacts really important? These are significant steps in advancing international human rights, community concerns about the situation of migrants and refugees. So although the Global Compact is not a treaty as such, it contains a number of commitments that states are taking in order to improve their policies regarding migrants.
This compact really has a very broad range of aspects. It includes dozens of public policies that could be followed by states to improve the situation of migrants around the world, meaning what kind of access to public services they may have, what kind of access to justice, how they should be treated at the border. How do you think the Global Compact on Migrants will specifically help unaccompanied and separated children on the move? Well, I should start by saying that the situation of children on the move, along with the situation of women, is the most grave situation that those who are in mobility have to endure.
I have seen the situation of children on the move in Africa, in the Americas, in Europe, in Asia, and I have heard many dramatic testimonies of the journeys that they have gone through. The Compact addresses the situation of children in different regulations, and there are some of a dual nature that are especially applicable to children. For instance, there is the special treatment that children need in this respect. It is very important that states are prepared to receive the children on the move with personnel who are especially prepared for this purpose and not with a security prism towards them. And in this respect, for instance, there is the issue of access to public services.
The Global Compact refers to this in a general matter. The access to public services for migrants, in the case of children, this is of course of major importance, especially when they are not accompanied or have been separated from their parents. It is important, also, to establish firewalls or separation between the migration agencies and the public service agencies so as to ensure that if a child goes to hospital or are in a school or have access to our public service, that is not going to mean that he or she might be detained and deported. And then there is the situation of the access to justice for children.
This is also in a general matter of the Global Compact on Migration, and specifically on children, I would say it is of a special importance that they have legal representation. And in connection with this is also the situation of the detention of children. A number of UN human rights mechanisms, such as the Office of the Special Rapporteur on Human Rights of Migrants, the Committee on Migrant Workers, and the Committee on the Rights of the Child have repeatedly stated that detention of children on the basis of their migratory status is against international law. The Global Compact on Migration doesn’t go that far.
It says that states will work toward the end of detention, to end the practise of detention of children based on their migratory status. There is a road to follow there. It’s very important that effective steps are taken in this regard. Many stories from different countries and from international organisations have proved that, they provide evidence that when detained, it has a very grave impact on the lives of children. So it should be avoided in any circumstances. And this is applicable, both if this is a child who is by himself or herself, or if he or she is accompanied by his or her family. So in all events, according to international law, these detentions should be banned.
What do you think is the role of national and international organisations to make sure that the content of international treaties and agreements are reflected in national child protection law? First of all, I think that in most countries, there isn’t wide knowledge of the Global Compact already. So a first step would be to disseminate information about the existence of the Compact among the population through campaigns. Also, to familiarise the state agents at different levels. In fact, these compacts have been negotiated by the executive branches of the government. They don’t have to go through Parliament, for instance.
I think it would be important for each country to identify what are the state agencies that should give special attention to each of these aspects. For instance, there might be some state institutions connected to the situation of the access to justice that are relevant to be considered. Also, those related to health services or to education, and so forth. I also think it is very important, in order to have the compacts implemented, to cover both the civil society and the states working alone.
As I said, the civil society had a very strong participation throughout the process of preparation of the Global Compact on Migration, and I think it would be very important that the civil society continues to have this role during the implementation at the local level. Also, I think there is a role for the international bodies in this regard. There is a UN network in place to follow up the Global Compact. I think it will be important for these mechanisms, including my own mandate, to make use of the Global Compact on Migration to observe the situation and developments in the different countries.
Finally, I would say there is also a role for the regional mechanisms, such as the African Union, the Asian countries, the European Union, the Organisation of American States, both the political bodies and their human rights mechanisms, to contribute to the enhancement and the enforcement of the Global Compact on Migration at the national level. The conference will now take a decision on draft resolution A/231/L1, entitled Outcome Document of the Intergovernmental Conference to Adopt the Global Compact for Safe, Orderly, and Regular Migration. May I take it that the conference wishes to adopt draft resolution A/231/L1.
I hear no objection. It is so decided. [CLAPPING]

On this course page we will consider some other international agreements that offer protection and support to children on the move including unaccompanied and separated children. These agreements can guide our work, as well as help us advocate for better services for unaccompanied and separated children.

In this video we hear from Felipe Gonzales Morales, the United Nations Special Rapporteur on the human rights of migrants. Mr Morales tells us about the importance of the Global Compact for Safe, Orderly and Regular Migration (GCSORM) and the Global Compact on Refugees adopted in 2018 by Member States of the UN General Assembly.

The Global Compact for Safe, Orderly and Regular Migration specifically calls on States to:

‘Protect unaccompanied and separated children at all stages of migration through the establishment of specialized procedures for their identification, referral, care and family reunification, and provide access to health care services, including mental health, education, legal assistance and the right to be heard in administrative and judicial proceedings, including by swiftly appointing a competent and impartial legal guardian, as 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’.
Another important agreement is the Joint General Comment on Children in the Context of International Migration issued in 2017. The General Comment reminds us that:
‘When children are unaccompanied, they are entitled to special protection and assistance by the State in the form of alternative care and accommodation in accordance with the Guidelines for the Alternative Care of Children’.
The Joint General Comment goes on to remind us that:
‘In the view of the Committees, child protection and welfare actors should take primary responsibility for children in the context of international migration. When a migrant child is first detected by immigration authorities, child protection or welfare officials should immediately be informed and be in charge of screening the child for protection, shelter and other needs. Unaccompanied and separated children should be placed in the national/local alternative care system, preferably in family-type care with their own family when available, or otherwise in community care when family is not available. These decisions have to be taken within a child-sensitive due process framework, including the child’s rights to be heard, to have access to justice, and to challenge before a judge any decision that could deprive him or her of liberty, and should take into account the vulnerabilities and needs of the child, including those based on their gender, disability, age, mental health, pregnancy or other conditions.’
The Joint General Comment also calls our attention to:
‘The Committee on the Rights of the Child, in relation to unaccompanied and separated children, stated in 2005 that children should not be deprived of their liberty and that detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status or lack thereof’.

The New York Declaration on refugees and migrants, adopted in September 2016, recognises that special attention should be given to unaccompanied or separated children. Commitments in the Declaration include the need to ‘give primary consideration at all times to the best interests of the child’ as well as ‘refer their care to the relevant national child protection authorities and other relevant authorities’.

Other UN Conventions with particular relevance to unaccompanied and separated children include the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) and the UN Convention relating to the Status of Refugees (1951) as modified by its 1967 Protocol.

International Social Service (ISS) has produced a document containing a list of other international laws, conventions and treaties relevant to the lives of unaccompanied and separated children on the move which you can access in the ‘Downloads’ section below.

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Caring for Children Moving Alone: Protecting Unaccompanied and Separated Children

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