The Role of the Guardian in Determining the Best Interest of the Separated Child Seeking Asylum in Europe: A Comparative Analysis of Systems of Guardianship in Belgium, Ireland and the Netherlands

In: European Journal of Migration and Law
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  • 1 Law School, Trinity College Dublin, College Green, Separated Children in Europe Programme, Dublin 2, Ireland
  • 2 Separated Children in Europe Programme, Leiden, The Netherlands
  • 3 Platform Minors in Exile, Separated Children in Europe Programme, Brussels, Belgium
  • 4 * Corresponding author, e-mail: samanthakarnold@gmail.com

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Separated children seeking asylum in Europe have the right to a representative, typically in the form of a guardian, and the right to have their best interests taken into account. These rights are articulated in the Council Directives and Regulations regulating the Common European Asylum System. The original language used around the time of developing the Common European Asylum System related to ‘harmonisation’. This article, therefore, looks at the level of harmonisation of the systems of guardianship, and the guardians’ responsibility to determine and promote the best interest, for separated children seeking asylum in Europe. The article begins by defining the guardian and the best interest principle and outlining the relevant law, which presently exists in Europe. Three case studies were chosen to provide current examples of the differences in practice in Europe, namely: Belgium, Ireland and the Netherlands. The question dealt with in this article is to what extent the three case study countries meet the minimum standards set out in European law in respect of guardianship and the best interests of separated children seeking asylum.

  • 3

    European Migration Network (2010), Policies on Reception, Return and Integration arrangements for and numbers of Unaccompanied Minors – aneu comparative study:emn Synthesis Report, Directorate General Justice, Freedom and Security, Brussels: European Commission, p. 12.

  • 4

    Eurostat (2014), Asylum applicants considered to be unaccompanied minors by citizenship, age and sex Annual data (rounded), available online at: http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_asyunaaandlang=en (last accessed 12 May 2014).

  • 7

    See, for example, C. Smyth (2013), The common European asylum system and the rights of the child: an exploration of meaning and compliance, PhD Thesis, Faculty of Law, Leiden: Leiden University; un Children’s Fund (unicef) (2012), Judicial Implementation of Article 3 of the Convention on the Rights of the Child in Europe: The case of migrant children including unaccompanied children, June 2012, available online at: http://www.refworld.org/docid/5135ae842.html (accessed 9 May 2014).

  • 10

    See, for example, J. Fortin (2009), Children’s Rights and the Developing Law, 3rd edn., Cambridge, Cambridge University Press.

  • 23

    H. Crawley and R. Kholi (2012), She Endures with Me: an evaluation of the Scottish Refugee Pilot, p. 3, available online at: file:///C:/Users/Manager/Downloads/Final%20Report%202108.pdf (last accessed 12 May 2014).

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  • 39

    Ibid., p. 17.

  • 98

    M. Ni Raghallaigh (2013), Foster Care and Supported Lodgings for Separated Asylum Seeking Young People in Ireland: The views of young people, carers and stakeholders, Dublin: Barnardos and University College Dublin, p. 9.

  • 99

    Separated Children in Europe Programme (2014), scep Newsletter No. 41 (Spring).

  • 103

    Eurostat (2014), Asylum applicants considered to be unaccompanied minors by citizenship, age and sex Annual data (rounded), available online at: http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_asyunaaandlang=en (last accessed: 12 May 2014).

  • 106

    Guardianship Act of 24 December 2002, Title xiii, Chapter vi, ‘Unaccompanied minor aliens’ of the Programme Law of 24 December 2002, further referred to as ‘Guardianship Act’.

  • 107

    European Migration Network (2009), Separated children in Belgium. Reception, return and integration arrangements, Brussels: European Migration Network, p. 19.

  • 111

    International Organisation for Migration (2008), Exchange of information and best practices on first reception, protection and treatment of unaccompanied minors. Manual of best practices and recommendations, The Hague: International Organisation for Migration, pp. 164–166.

  • 117

    K. Fournier (2013) Country report Belgium (2013). ‘Implementing the Core Standards for guardians of separated children in Europe in practice, policy and legislation’, pp. 22–23, available online at: www.corestandardsforguardians.com.

  • 118

    K. Fournier (2013), supra note 110, at pp. 22–23 and 42–43.

  • 119

    Refugee Act 1996, Article 8.5(a).

  • 120

    Child Care Act 1991, Section 4, Voluntary Care: (1) Where it appears to a health board that a child who resides or is found in its area requires care or protection that he is unlikely to receive unless he is taken into its care, it shall be the duty of the health board to take him into its care under this section. (2) Without prejudice to the provisions of Partsiii,iv and vi, nothing in this section shall authorise a health board to take a child into its care against the wishes of a parent having custody of him or of any person acting in loco parentis or to maintain him in its care under this section if that parent or any such person wishes to resume care of him. (3) Where a health board has taken a child into its care under this section, it shall be the duty of the board – (a) subject to the provisions of this section, to maintain the child in its care so long as his welfare appears to the board to require it and while he remains a child, and (b) to have regard to the wishes of a parent having custody of him or of any person acting in loco parentis in the provision of such care. (4) Without prejudice to the provisions of Partsiii,iv and vi, where a health board takes a child into its care because it appears that he is lost or that a parent having custody of him is missing or that he has been deserted or abandoned, the board shall endeavour to reunite him with that parent where this appears to the board to be in his best interests.

  • 121

    Child Care Act 1991, Section 5. Accommodation for homeless children: 5. Where it appears to a health board that a child in its area is homeless, the board shall enquire into the child’s circumstances, and if the board is satisfied that there is no accommodation available to him which he can reasonably occupy, then, unless the child is received into the care of the board under the provisions of this Act, the board shall take such steps as are reasonable to make available suitable accommodation for him.

  • 122

    Child Care (Amendment) Act 2011, Part iva.

  • 128

    Child Care Act 1991, Section 3.2(b)(ii).

  • 129

    Child Care Act 1991, Section 3.1.

  • 130

    S. Arnold (2011), Core Standards for Guardians of Separated Children in Europe, Country Assessment: Ireland, Dublin: Irish Refugee Council, p. 15.

  • 136

    M. Goeman and C. van Os (2013), supra note 131 and articles in the newspaper Trouw of 19 February 2014.

  • 137

    See, generally: M. Goeman et al. (2011), supra note 36.

  • 139

    M. Goeman et al. (2011), supra note 36.

  • 142

    M. Goeman et al. (2011), supra note 36.

  • 143

    See, for example: M. Kagan (2006) ‘The Beleaugered Gatekeeper: Protection Challenges Posed by unhcr Refugee Status Determination’, International Journal of Refugee Law 18(1), pp. 1–29.

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