| International Legal Principles for
Judges and Child Welfare Agencies to Apply with Unaccompanied
and Undocumented Immigrant Children
Howard Davidson, JD, Director, ABA Center on Children and
the Law
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Article
“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….”
Article 20, Convention on the Rights of
the Child
It is not uncommon for children to find themselves deprived
of a family environment in countries other than that of their
habitual residence or citizenship. It is critical that juvenile
court judges and child welfare professionals do more to ensure
the care and protection of immigrant minors unaccompanied by a
suitable adult caretaker.
Article 3 of the Convention on the Rights of the Child (CRC)
establishes—for the world—a commonly accepted criterion for
decisions regarding unaccompanied or separated children: the
best interests of the child. In 2006 the United Nation’s high
commissioner for refugees issued a commentary entitled UNHCR
Guidelines on Formal Determination of the Best Interests of the
Child. These guidelines state that in most cases it will be
in a child’s best interests to be reunified with parents or
substitute family caretakers. Furthermore, Article 9 of the CRC
is intended to ensure that a child will not remain separated
from parents against their will (except, of course, when there
has been abuse, neglect or abandonment by parents that renders
them unsuitable caretakers).
In September 2005, the UN Committee on the Rights of the Child
issued Treatment of Unaccompanied and Separated Children
Outside Their Country of Origin. Using the CRC as a
framework, it provides one hundred suggestions for government
actions. It indicates that return of a child to his or her
country of origin should not be an option if “it would
lead to a ‘reasonable risk’ that such return would result in the
violation of fundamental rights of the child.” Factors to be
taken into account in return decisions include:
- Safety, security and other conditions, including
socio-economic ones, awaiting the child upon return
- Child’s expressed views about return
- Child’s level of integration in the host country and
duration of absence from home country
- Child’s right to preserve his or her identity, including
nationality, name and family relations
- Desirability of continuity in a child’s upbringing and to
their ethnic, religious, cultural and linguistic background
Another useful document in guiding judicial and agency
responses to these children is the Interagency Guiding
Principles on Unaccompanied and Separated Children published
by the International Committee of the Red Cross. It includes
detailed suggestions for tracing parents and family members and
conducting the cross-border family reunification process.
The Hague Convention on Jurisdiction, Applicable Law,
Recognition, Enforcement and Cooperation in respect of Parental
Responsibility and Measures for the Protection of Children
(Child Protection Convention) is an important international
convention, to date ratified only by a handful of countries (the
US is not among them, but the US State Department has begun
action to move toward ratification). The convention could be
especially useful due to the frequent cross-border movement of
children that is creating a pressing need for
non-criminal-law-focused solutions to the retention and
repatriation of children separated from parents. Its cooperation
procedures can be helpful in instances where unaccompanied
minors cross borders and find themselves in vulnerable
situations where they may become subject to exploitation and
other risks. Its enactment will help establish a global
framework—in child protection situations—for transnational
coordination of legal systems and international judicial and
administrative cooperation.
This convention could be used to facilitate mediated resolution
of intercountry family disputes involving an unaccompanied
child. It could be the mechanism through which judicial
authorities in one country consult with authorities in another
country regarding placing that child in care or repatriating the
child. When a child is to be transferred to a receiving country
for foster or other institutional care, the Child Protection
Convention requires consultation with authorities in the
receiving country, a written report on the child’s case and a
description from the sending country of the reasons for the
proposed placement. This convention would also provide access to
an early determination of conditions under which the child would
live if sent to a receiving country.
Five Principles for Juvenile Courts and Child Welfare
Agencies
Based upon an analysis of relevant international instruments and
best practices noted by those who have been involved with cases
of unaccompanied alien minors, I propose the following
principles for juvenile courts and child welfare that handle
their cases:
- We should collectively respond to unaccompanied child
immigrant victim cases through a child welfare, not a
criminal justice, system.
- Juvenile courts and child welfare agencies should assure
prompt repatriation decision-making.
- Juvenile courts and child welfare agencies should not
hesitate to serve immigrant children and families,
regardless of immigration status, as well as accept prompt
custody of those children into agency foster care when
needed.
- Juvenile courts and child welfare agencies should
provide culturally-sensitive support to immigrant children
and families.
- Juvenile court judges and child welfare agency attorneys
should, where appropriate, ensure initiation of local
intervention that helps permit unaccompanied or separated
children to remain in-country when necessary for their care
and protection.
It is our duty to uphold the rights of all children
and to promote separated children’s safety, permanency and
well-being regardless of where they came from or to where
they may be returning. It is more critical than ever to
understand exactly how our current system fails unaccompanied
children from other countries and to develop improved practices
that will help prevent such children from falling through the
cracks.
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