Presentation delivered by Barbara Kőhalmi from the Ministry of Interior in Hungary at MIEUX Regional Workshop on Assistance and Protection of Unaccompanied Migrant Children (Mexico City, 30 May - 1 June 2016)

1. This project is funded by
the European Union Implemented by
Protecting the interests of
unaccompanied migrant children in
Europe
Barbara Kőhalmi
Regional Workshop on Assistance and Protection of
Unaccompanied Child Migrants
31 May 2016, Mexico City

2. Content
• International Framework
• European Framework
• Hungarian guardianship system
2

3. International Framework
Convention on the Rights of the Child
Art. 18 2. For the purpose of guaranteeing and promoting the rights set forth in the
present Convention, States Parties shall render appropriate assistance to parents and
legal guardians in the performance of their child-rearing responsibilities and shall
ensure the development of institutions, facilities and services for the care of children.
Art. 20 1. A child temporarily or permanently deprived of his or her family
environment, or in whose own best interests cannot be allowed to remain in that
environment, shall be entitled to special protection and assistance provided by the
State.
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4. International Framework
CRC General Comment No. 6 (2005)
Appointment of a guardian or adviser and legal representative
(Art. 18 2. and Art. 20 1.)
States are required to create the underlying legal framework and take necessary
measures to secure proper representation of an unaccompanied or separated child’s
best interests.
States should
• appoint a guardian or adviser as soon as the unaccompanied or separated child is
identified
• maintain such guardianship arrangements until the child has either reached the
age of majority or has permanently left the territory and/or jurisdiction of the
State
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5. International Framework
The guardian
• should be consulted and informed regarding all actions taken in
relation to the child
• should have the authority to be present in all planning and
decision-making processes (including immigration and appeal
hearings, care arrangements and all efforts to search for a durable
solution)
• should have the necessary expertise in the field of child care, so as
to ensure that the interests of the child are safeguarded and that
the child’s legal, social, health, psychological, material and
educational needs are appropriately covered
• should be provided with legal representation if children are
involved in asylum procedures or administrative or judicial
proceedings, they
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6. International Framework
• Agencies or individuals whose interests could potentially be
in conflict with those of the child’s (e.g.non-related adults
whose primary relationship to the child is that of an
employer) should not be eligible for guardianship.
• Review mechanisms shall be introduced and implemented to
monitor the quality of the exercise of guardianship in order
to ensure the best interests of the child are being represented
throughout the decision-making process and, in particular, to
prevent abuse.
• Children should be informed of arrangements with respect to
guardianship and legal representation and their opinions
should be taken into consideration.
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7. International Framework
Instrument Terminology used Reference
United Nations and Council of Europe instruments
UN Committee on the
Rights of the Child,
General Comment No. 6
CRC/GC/2005/6
Guardian
Legal representative
Paragraph 33
UN Alternative care
guidelines A/HRC/11/L.13
Legal guardian
Recognized responsible
adult
Paragraph 100
2005 Council of Europe
Convention on Action
against Trafficking in
Human Beings
Legal guardian Article 10 (4) (a)
European Union instruments
Anti-Trafficking Directive
(2011/36/EU)
Guardian
Representative
Article 14 (2)
Article 16 (3)
Reception Conditions
Directive (2013/33/EU)
Representative Article 2 (j)
Asylum Procedures
Directive (2013/32/EU)
Representative Article 2 (n)
Qualification Directive
(2011/95/EU)
Legal guardian
Representative
Article 31 (1)
Article 31 (2)
Victims’ Directive
(2012/29/EU)
Guardian
Special/legal
representative
Article 24 (b)
Preamble (60)
Sexual exploitation of
children Directive
(2011/92/EU)
Special/legal
representative
Article 20
Dublin Regulation
(604/2013/EU)
Representative Article 2 (k)
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8. International Framework
The mandate of the guardian
• Safeguard the best interest of the child
• Ensure the childˊs overall well-being
• Exercise legal representation and complement
the childˊs legal capacity
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9. International Framework
The four core principles of the CRC to guide the
work of guardians
• The best interests of the child
• The right of the child to be heard
• The right to life and development
• Non-discrimination
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10. European Framework
Legal sources
• Treaty on European Union (Art. 3 (3))
• EU Charter of Fundamental Rights (Art. 24)
• Recast Reception Conditions Directive(2013/33/EU)
• Recast Asylum Procedures Directive (2013/32/EU)
• Recast Qualification Directive (2011/95/EU)
• Recast Dublin Regulation (EU Regulation 604/2013)
• Anti-Trafficking Directive (2011/36/EU)
• Directive on Residence permits for victims of human trafficking
(2004/81/EC)
• Return Directive (2008/115/EC)
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11. European Framework
Guardianship for children deprived of parental care - A
handbook to reinforce guardianship systems to cater
for the specific needs of child victims of trafficking
(FRA, 2014)
Guardians are a key element of a protection system for children who are
temporarily or permanently deprived of their family environment and cannot
have their interests represented by their parents.
This comparative report helps to understand better the strengths and
weaknesses of national guardianship systems and may also assist decision
makers to take measures to promote the effective protection of all children
including unaccompanied children.
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12. European Framework
Fundamental principles of guardianship
systems
1. Non-discrimination
2. Independence and impartiality
3. Quality
4. Accountability
5. Sustainability
6. Child’s participation
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13. European Framework
Who can act as a guardian?
• Professional qualifications
• Gender and cultural considerations
• Vetting
• Conflict of interests
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14. European Framework
When should a guardian be appointed?
Prompt appointment of a guardian is a key safeguard for
a child’s rights and overall well-being, protecting
unaccompanied children and preventing child trafficking
and other forms of child abuse and exploitation.
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15. European Framework
When does guardianship end?
• 18 years old
• Reintegration in the family
• Child leaves the country
• Child is missing
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16. European Framework
Main tasks of the guardian
• Safeguard the child’s best interests
• Promote the child’s safety and well-being
• Facilitate the child’s participation
• Act as a link between the child and others
• Assist in identifying a durable solution in the child’s
best interest
• Exercise legal representation, support the child in
legal procedures and ensure access to legal
assistance and counselling
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17. Hungarian Guardianship System for
Unaccompanied Children
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18. Legal Framework
• Act II of 2007 on the Admission and Right of Residence of Third-
country Nationals
• Gvt. Decree 114/2007. (V. 24.) on the implementation of the TCN
Act
• Act LXXX of 2007 on Asylum
• Gvt. Decree 301/2007 (XI.9.) on the implementation of the Act on
Asylum
• Act XXXI. of 1997 on Child Protection
• Gvt. Decree 149/1997. (IX. 10.) on child protection authorities and
guardianship and child protection procedures
• NM. Ministerial Decree 15/1998. (IV. 30.) on the professional tasks
and management of child welfare and child protection institutions
providing personal care
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19. Guardianship for UAMs in Hungary
• Since 1 January 2014, under Hungarian legislation
the legal representatives of children who are placed
in the child protection system – including
unaccompanied minors who are placed in children’s
homes – are child protection guardians.
• The main tasks of the child protection guardian is:
– to be the children’s legal representative,
– representing their rights and best interest.
• Child protection guardians are autonomous in their
jobs, they have no legal relationship with the child
protection institutions where the children are placed.
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20. Guardianship for UAMs in Hungary
• As from 1 August 2015, a child protection guardian has to be
assigned within 8 days from the request of the asylum/immigration
authority.
• As from 15 October 2015, the Child Protection Centre and
Territorial Child Protection Specialized Service is the designated
authority responsible for child protection guardianship cases of all
unaccompanied minor asylum applicants and who are placed
temporarily in children’s homes.
• Full board supply in the child care institutions and legal
representation by a child protection guardian are provided for all
unaccompanied minors irrespective of whether they applied for
asylum in Hungary or not.
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21. Guardianship for UAMs in Hungary
Who can act as a guardian?
• Requirements:
– clean criminal record
– qualification requirements: shall hold at least one of the
following (university) qualifications: lawyer, BA in public
administration, BA in social studies (including sociology, social
pedagogy, social policy and social work), teacher, psychologist,
mental health professional, child and youth care counsellor, or
having a postgraduate diploma in family protection,
nurse/health visitor, theologian, religious education teacher
– No reason for exclusion
• The most significant challenge in practice for child protection
guardians is the language knowledge that is vital for establishing
and maintaining personal contact with unaccompanied minors.
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22. Guardianship of UAMs in Hungary
When should a guardian be appointed?
• Child protection guardians have to be assigned for
unaccompanied minors within eight days following the
request of the asylum/immigration authority. (The
general time limit for children who are not
unaccompanied minors is 35 days. )
• Unaccompanied minors are also be informed on their
assigned child protection guardians.
• Child protection guardians get in touch with the
UAMs already during the assignment process (before
the formal decision).
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23. Guardianship for UAMs in Hungary
When does guardianship end?
• 18 years old
• Reintegration
• Child leaves the country
• Child is missing
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24. Guardianship for UAMs in Hungary
Main tasks of the guardian
• Promote the child’s safety and well-being
• Legal representationon
• Trustee
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25. Conclusion
• Hungarian legislation has very detailed rules
on guardianship
• Legislation and practice is in line with the
standards
• Child protection guardians – full
representation of the child
• Challanges: language barriers, tranzit country
feature
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26. Barbara Kőhalmi
barbara.kohalmi@bm.gov.hu
Thank you very much for your
kind attention!
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