Sistema nacional de protección de la infancia

Los Estados deben establecer sistemas nacionales de protección que sean inclusivos, o consolidar los existentes, con el fin de aplicar la Convención sobre los Derechos del Niño. El marco de protección de la infancia debe primar sobre las leyes y políticas de inmigración, y ha de aplicarse con independencia de la condición de migrante o solicitante de asilo del menor.

Policy Approaches
Child protection framework
  • Develop specific protection policies for unaccompanied or separated children.
  • Develop a national database on children’s needs and circumstances, including the needs and circumstances of migrant children.
  • Create a national child protection system that also protects migrant children; this could include a child-coordinating body, or a department or services at the national and local level.
  • Mandate that the social service workforce care for migrant and displaced children as well as children who are nationals, and train them to do so. Integrate care for migrant children into their training as a standing item of the curriculum.
  • Draft and disseminate – in consultation with relevant departments or ministries – standard operating procedures for all those encountering vulnerable migrant children as part of their day-to-day employment, or as volunteers.
  • Address public misperception and stigmatization of migrant children through raising awareness and advocacy.
  • Establish a best interests process that can be activated as needed (see details in The best interests processes, in this chapter).
Fuente

IOM, 2019.

Procesos de consideración del interés superior

Los Estados deben estudiar la posibilidad de establecer un proceso de consideración del interés superior con respecto a cada menor que se encuentre en situación de riesgo con el fin de brindar el mejor apoyo posible al principio del interés superior del niño. “El proceso de consideración del interés superior se ocupa de las acciones sustantivas y de procedimiento en relación con todo niño que se encuentre en el territorio del Estado y, según las circunstancias de cada caso, puede conducir a la determinación de una solución sostenible que redunde en el interés superior del niño y no le cause nuevos daños” (OIM, 2019).

Policy Approaches
The best interests process
  • Develop a best interests process consisting of the following key components:
    • Best interests assessment (BIA)
    • Best interests process planning meeting
    • Best interests determination (BID).
  • Create procedural safeguards for each stage of the process.
  • As part of the process, ensure that migrant children have access to:
    • A trained interpreter.
    • An independent qualified guardian or representative.
    • Immediate referral to child protection services.
    • Professional child protection staff as part of the BID panel.
    • Child-friendly procedures.
    • Complaint and appeal mechanisms.
    • A temporary residence permit to be renewed for the duration of the process.
Fuente

IOM,2019

Best Interests Assessment (BIA):

A best interests assessment (BIA) is an assessment tool for the protection of individual children. It results in an assessment of the child’s situation and recommendations for protection and care. It can take place at various points throughout the best interests process, whenever an action is planned or taken that may have a direct impact on the best interests of an unaccompanied or separated child. An initial BIA is a fundamental first step in engaging the best interests process and may, depending on whether the child needs a sustainable solution, lead to a best interests determination (BID).

BIAs may be needed for, among other things, decisions to:

  • Place a child in accommodation and decide on immediate care arrangements that are appropriate to meet their individual needs;
  • Determine whether tracing the child’s family would be in the best interests of the child, and would not put the child or family at risk, in the case of unaccompanied or separated children;
  • Provide a child with health, educational or recreational services;
  • Apply or not apply for international or other forms of protection;
  • Decide whether a formal BID is needed;
  • Collect the information needed for a BID.

Process planning meeting:

Process planning meetings are meant to increase the efficiency of the procedures that make up the child best interests process. They can be used to:

  • Share the contents of the best interests dossier (on the child’s circumstances, needs and wishes), while respecting data protection laws.
  • Take note of any request for international protection that a child may have expressed.
  • Where no such request has been made, ascertain whether an application for international protection should be made on behalf of the child and, if so, whether the child can give informed consent or whether the guardian will have to decide on behalf of the child.
  • Discuss whether it is necessary to obtain any further medical, expert or evidence for the status determination process.

Best Interests Determination (BID):

Unaccompanied or separated children at risk may need a decision on a sustainable solution that will have long term and severe consequences on their welfare or safety. In such exceptional situations, States should establish a formal best interests determination (BID) procedure, with procedural safeguards and documentation requirements. The best interests assessment (BIA) is an initial assessment that informs the BID procedure; it often assesses the need for a BID when solutions need wider consultation and expertise.

The BID can address key questions such as:

  • Where it is in the best interests of the child to live;
  • With whom it is in the best interests of the child to live;
  • Who is best placed to have parental or legal responsibility for the child in the future;
  • What is the child’s view on the options identified and proposed;
  • What resources will have to be deployed and what services provided to sustain the solution recommended in the BID.
Policy Approaches
Features of a best interests determination

Ensure that the best interests determination (BID) procedure:

  • Is in line with the Convention on the Rights of the Child (CRC).
  • Is embedded into existing systems. This may include outsourcing elements of the BID process to civil society or intergovernmental organizations.
  • Is a formal process with specific procedural safeguards, involving participants with expertise in the protection of migrant children.
  • Includes the meaningful participation of the migrant child in question, and gives due consideration to their views.
  • Considers criteria such as the child’s individual characteristics and identity; the child’s (international) protection needs; the ability and willingness of family members to care for the child; and the current political, social and economic situation in the child’s country of origin.
  • Includes a review or appeal mechanism for the child to access in cases where the unaccompanied or separated child or the child’s guardian or legal representative disagree with the BID outcome.
Fuente

IOM,2019

The outcome of the best interests determination is the BID report which sets out one or more possible solutions and the risks attached to them.

Soluciones sostenibles
Glossary
sustainable solutions

Sustainable solutions are those that ensure that unaccompanied or separated children are able to develop into adulthood in their country of origin or habitual residence, in the receiving country or in a third country, in an environment that meets their needs and fulfils their rights, as defined by the Convention on the Rights of the Child, and does not put the children at risk of persecution or serious harm. (IOM, 2019:265)

The precondition for the return of any child – whether the child is unaccompanied, separated or within a family – is that return has been found to be in their best interests through an individual and participative process aimed at identifying a sustainable solution with the central involvement of child protection authorities.” If the BID recommends against sending children back to their country of origin, on the basis that it is not in their best interests, then integration to the host country can be one of the sustainable solutions for the children. Finally, if both of these options are not available, and if children have caregivers living in a third country, relocation of the children there might be in the best interests of the children. The BID procedures look at all the options and make recommendations, with the best interests of the child as their primary consideration.

Policy Approaches
Sustainable solutions for children

Integration in the receiving country

  • Provide a legal status to children in the receiving country; if applicable, refugee status; in all cases, a residency status that grants them equal rights.
  • Implement measures to support migrant children and their families’ economic, social, cultural and political participation and inclusion in the receiving country.
  • Facilitate the family reunification of unaccompanied or separated children (unless the BID recommended against it, on the basis of the best interests of the children).

Return to the origin country

  • Only pursue this solution if a caregiver (parent, other adult relative or childcare agency) is willing to, and has the ability to, take responsibility for the child’s protection and care.
  • Ensure that children are informed of the availability of assisted return and reintegration programmes that they could benefit from.
  • Ensure that children are heard; if they are reluctant to return to their identified caregivers, their fears should be carefully addressed.
  • Analyse all the factors that led to the children’s separation, as they could be factors against the child’s return to the country of origin (for example, patterns of local violence, lack of security, recruitment to armed forces, and lack of access to basic services).
  • Recognise that if the migrant children have already been exploited by caregivers (for instance, being sold to human traffickers), return is not in the best interests of the child; such an assessment should be part of the BID procedure.
  • If the unaccompanied child has a physical or other disability, or a particular vulnerability, ensure that the child is not returned to a childcare agency but only to an appointed legal guardian who can take care of the specific needs of the child.

Solution in a third country

  • Only pursue the relocation of children to a third country if it has been assessed that their caregiver is living there and willing to provide protection for the children.

Family reunification is part of the sustainable solution for an unaccompanied and separated child, whenever this is in the best interests of the child (Convention on the Rights of the Child [CRC], articles 3 and 9). Family reunification could take place in the country of origin, transit or destination. Wherever family reunification is not possible or not in the best interests of the child, service providers shall assess whether it is in the best interests of the child to maintain family relations and active contact; they shall support the child in this regard. The decision as to whether a child should be reunited with his or her family in the country of origin, transit or destination should be based on a robust assessment in which the best interests of the child are upheld as a primary consideration. A child’s opinion and participation in the family reunification procedures are essential. Family reunification in the country of origin should not be pursued where there is a “reasonable risk” that such return would lead to the violation of the human rights of the child (CRC). Such risks must be assessed and are integral of the best interests procedure for the child.

Policy Approaches
Family tracing and reunification

Before commencing family tracing, ensure that these assessments have been made

  • Whether and when it would be safe to trace the child’s family.
  • Whether and when it would be in the best interests of the child for family members to be traced.
  • Which, if any, organizations may be able to facilitate family tracing in the child’s country of origin or in a third country.
  • Whether the information being provided by the child is accurate or whether it is designed to protect the child’s family or any agents/smugglers who helped the child come to the receiving country.
  • Whether there are any conflicts of interest between the child and the parents or any other family members.
  • Whether the child is still too afraid of or influenced by any agents/smugglers or traffickers to provide a true account of the child’s origins.
  • Whether the child is fully informed and understands his or her rights and the possible implications of tracing.
  • Whether the child is giving informed consent to the tracing of the family.
  • Whether the child’s guardian has consented to family tracing, having assessed that it would be in the best interests of the child.

Where necessary, it may be useful to work with United Nations organizations, the International Committee of the Red Cross, the National Red Cross or Red Crescent Society in the country, IOM, the United Nations Children’s Fund (UNICEF) or the ISS network of national branches, affiliated bureaux and correspondents. At the same time, the child should be regularly informed about any progress made and provided with any support needed to re-establish sustainable contact with the family (IOM,2019).

Alternative care

Children should be provided care and protection in a seamless continuum that spans the home and the community and includes health, psychosocial, community-based and familial support (WHO, definition of continuum of care in a health context). Alternative care arrangements can take the form of temporary or interim care, or there might be long-term options for migrant children who live away from their biological parents and primary caregivers. Experts in the field of child protection define positive family- and community-based care options for migrant children:

Figure 1: Alternative care arrangements

Kinship care, which is the full-time care of a child by a relative or another member of the extended family.

 Foster care, which is a care arrangement that covers formal, temporary placements, initiated by the State, with families that are trained, monitored and compensated at some level. In many developing countries, fostering largely refers to kinship care or other placement with a close family member

Community-based care arrangements describe a range of supports that enable children to remain in their own community and receive adequate care.

 Adoption is the formal, permanent transfer of parental rights to a family other than a child’s own and the formal assumption by that family of all parenting duties for the child. In some Islamic countries, the term “Kafala” is used to describe a situation similar to adoption, but not necessarily with the severing of family ties, the transference of inheritance rights, or the change of the child’s family name.

 

Fuente

The Better Care Network.

All forms of care should be developed within the context of a care plan that addresses the best interests of the child and works towards family reunification, where this is in the best interests of the child. Placements should be closely monitored to ensure that they adhere to stringent standards of good practice, accountability and transparency. The preferred care will usually be family based, with temporary caretakers from the community, rather than based in institutions. Indeed, family-based care is more adequate to satisfy a child’s different needs (such as attachment, stimulation, care) throughout the child’s development phases and provides stability and greater protection. Children associated with armed forces may also require adapted interim care if immediate family reunification is not possible immediately and in their best interests. Alternative care, such as kinship, foster care, and child-headed households should be assessed to ensure they are appropriate, monitored and supported to ensure children are protected and their basic needs and rights are being met.

Some adolescents may not be able to integrate into a new family; for those children, supervised and supported independent living may be a better option.

Adoption should never be considered as an option in a humanitarian setting. Recommendations aim at ensuring two years for family tracing before long-term alternative care solutions are explored. Intercountry adoption may be acceptable where no appropriate form of family- and community-based care can be provided within a developmentally acceptable time frame for a child and where it is implemented in keeping with the Hague Convention on intercountry adoption. In these contexts, in-country adoption options should be prioritized to ensure the continuity of care arrangements and that a child can thrive in a stable family environment (The Better Care Network).

Example
Alternative care system in Burundi

Plan International implemented a comprehensive community-based child protection programme in Mahama refugee camp in Rwanda by designing an alternative care system with independent living arrangements for unaccompanied Burundian children.

“For separated children the first care arrangement option was kinship care, whereby the child lived with extended family with a relationship to the child. For children who did not have the option to live in kinship care, two alternative care options were developed. A first option was foster care, whereby the child was placed into a preselected family that was screened, trained and supported to take care of an unaccompanied child. A second option was supervised independent living. In this arrangement, girls and boys below the age of 18 would stay together in small groups of maximum seven adolescents, with a head of the ‘household’ above the age of 16. This option was the preference of mainly siblings and children who had already formed spontaneous groups in the camp. Both options were seen as temporary solutions during efforts to reunite children with their original caregivers and families”.

Fuente

Plan International, 2017:7.

Mensajes clave
  • Las garantías procesales que dimanan de la Convención sobre los Derechos del Niño garantizan que los niños migrantes puedan tener acceso a las mismas disposiciones en materia de protección y bienestar de la infancia que el resto de menores en el territorio del Estado.
  • La evaluación del interés superior forma parte del proceso general de consideración del interés superior y constituye una herramienta de evaluación del nivel de protección del que goza cada menor. Asimismo, permite valorar la situación del menor y formular recomendaciones para la protección y la provisión de cuidados. La evaluación del interés superior inicial constituye un primer paso fundamental para iniciar el proceso de consideración del interés superior y puede asimismo dar lugar a una determinación del interés superior, en función de si el menor necesita una solución sostenible.
  • Los países deben establecer un procedimiento o mecanismo de determinación del interés superior, es decir, realizar una evaluación holística de todas las posibles soluciones sostenibles que redundarían en beneficio del interés superior de los menores que las requieran, y que aborden sus derechos y necesidades, en particular cualquier necesidad de protección internacional y modalidad de cuidados apropiada.
  • Todas las modalidades alternativas de cuidado deben implementarse en el contexto de una evaluación que aborde el interés superior del niño y trabaje en aras de la reunificación familiar cuando ello redunde en beneficio del interés superior del niño.
  • La decisión sobre si un menor debe reunirse con su familia en el país de origen, de tránsito o de destino debe fundamentarse en una evaluación integral en la que el interés superior del niño sea la consideración primordial.
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