Leda Koursoumba Commissioner for the Protection of Children’s Rights

1. Unaccompanied Children Seeking Asylum 15-16 December 2010 THE CYPRUS LEGAL FRAMEWORK FOR THE PROTECTION OF CHILDREN Leda Koursoumba Commissioner for the Protection of Children’s Rights

2. GENERAL LEGAL FRAMEWORK FOR THE PROTETION OF CHILDREN PROTECTION OF AND CHILDREN’S RIGHTS STEMS FROM - Universal Legal instruments – United Nations Conventions, Covenants and protocols International Regional Legal Instruments – Council of Europe European Union Law National law – Constitution and legislation

3. The United Nations Convention of the Rights of the Child (CRC) – ratified with Law 243/1990 Optional Protocol to the CRC on the Involvement of Children in Armed Conflict – ratified with Law 9(ΙΙΙ) του 2010 Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography – ratified with Law 6(III)/2006 General international human rights legal instruments ratified by Cyprus also applicable to children i.e. Covenant on Civil and Political Rights- ratified with Law 14/1969 Covenant on Social, Economic and Cultural Rights- ratified with Law 14/1969 1951 Geneva Convention on the status of Refugees e.t.c. Universal legal instruments

4. International Regional Legal Instruments The European Convention of Human Rights – ratified with Law 39/1962 The Revised European Social Charter – ratified with Law 27(III)/2000 The European Convention on the Exercise of Children’s Rights – ratified with Law 23(III)/2005 The Council of Europe Convention on Action Against Trafficking in Human Beings – ratified with Law 38(III)/2007 Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice adopted on 17/11/2010 4

5. Applicability of international (universal and regional) legal instruments Article 169 of the Constitution – International legal instruments upon ratification • are directly enforceable and applicable before Cypriot Courts with superior force over any other domestic legislation • No need to transpose them into domestic legislation to have legal effect unless implementing measures are necessary for effective enforcement

6. European Union Charter of Fundamental Rights – special provisions on Children (Article 24) Protection and care Freedom of expression Best interest principle Legal instruments on sexual and other forms of exploitation of children, asylum and immigration, include specific provisions on children and particularly unaccompanied children.

7. National Law • The Children Law (CAP 352) (Article 3) • The Combating of Trafficking of Human Beings and Protection of Victims Law of 2007 – Law 87(I) /2007 (Articles 36-39) • The Refugee Law of 2000 – Law 6(I)/2000 (Articles 10, 18, 20H, 20I, 25A) • The Aliens and Immigration Law (CAP 105) (Article 18KI) • The Commissioner for the Protection of Children’s Rights Law of 2007 (Law 74(I)/2007) (Article 4(1)(g)(h))

8. The special situation of unaccompanied minors under the law in Cyprus • Under national law a minor is generally defined as a person who is under the age of 18. • The term of an unaccompanied minor is defined in the Aliens and Immigration Law, the Refugee Law, and the Combating of Trafficking of Human Beings and Protection of the Victims Law.

9. Definition Unaccompanied children are«persons below the age of eighteen who arrive in the Republic unaccompanied by an adult responsible for them whether by law or by custom, and for as long as is not effectively taken into the care of such a person, including minors who are left unaccompanied after they haveentered the Republic»

10. The UN Convention on the rights of the child Article 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. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.

11. The UN Convention on the rights of the child ARTICLE 22 1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or nongovernmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason , as set forth in the present Convention.

12. General Comment No 6 under the CRC • The General Comment No 6 applies to all such children irrespective of their residence status and reasons for being abroad, and whether they are unaccompanied or separated. • Obligations deriving from the Convention vis-à-vis unaccompanied and separated children apply to all branches of government (Executive, Legislature and Judiciary). • legal obligations are both negative and positive in nature, requiring States not only to refrain from measures infringing on such children’s rights, but also to take measures to ensure the enjoyment of these rights without discrimination.

13. General Comment No 6 Non discrimination (Article 2 CRC) • The principle of non-discrimination, in all its facets, applies in respect to all dealings with separated and unaccompanied children. In particular, it prohibits any discrimination on the basis of the status of a child as being unaccompanied or separated, or as being a refugee, asylum-seeker or migrant. This principle, when properly understood, does not prevent, but may indeed call for, differentiation on the basis of different protection needs such as those deriving from age and/or gender.

14. General Comment No 6 Best interest of the child (Article 3 CRC) A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. The right to life, survival and development (Article 6 CRC) Practical measures should be taken at all levels to protect children from the risks mentioned above. Such measures could include: priority procedures for child victims of trafficking, the prompt appointment of guardians, the provision of information to children about the risks they may encounter, and establishment of measures to provide follow-up to children particularly at risk. These measures should be regularly evaluated to ensure their effectiveness.

15. General Comment No 6 Respect for the principle of non-refoulement Respect non-refoulement obligations deriving from international human rights, humanitarian and refugee law and (Article 33 of the 1951 Refugee Convention, 3 of Convention against Torture, Article 3 of the European Convention of Human Rights) Special Protection under the Optional Protocol to the CRC on the Involvement of Children in Armed Conflict - refrain from returning a child in any manner whatsoever to the borders of a State where there is a real risk of underage recruitment.

16. General Comment No 6 • Appointment of a guardian or adviser and legal representative (Articles 18(2) and 20(1)) of the CRC) • Care and accommodation arrangements (arts. 20 and 22) • Full access to education (arts. 28, 29 (1) (c), 30 and 32) of the CRC) • Right to an adequate standard of living (art. 27 of the CRC) • Right to enjoy the highest attainable standard of health and facilities for the treatment of illness and rehabilitation of health (arts. 23, 24 and 39 of the CRC) • Prevention of trafficking and of sexual and other forms of exploitation, abuse and violence (arts. 34, 35 and 36 of the CRC ) • Prevention of military recruitment and protection against effects of war (arts. 38 and 39 of the CRC) • Prevention of deprivation of liberty (Article 37 of the CRC)

17. General Comment No 6 Asylum Seeking Children – special rights • Access to asylum procedures regardless of age • Procedural safeguards and support measures – representation by a legal representative in the asylum procedure, assessment by fully qualified eligibility officers on child specific claims, priority in the examination • Child-sensitive assessment of protection needs, taking into account persecution of a child-specific nature • Full enjoyment of all international refugee and human rights by children granted refugee status • Right to family reunification

18. Protection under national law • The Director of the Social Welfare Services receives any child under his/her care if the child has neither a parent nor a guardian and remains abandoned or if the parents or guardians are prevented from providing for the child’s proper accommodation, maintenance, etc. – General competence of the Director under the Children’s Law (Article 3) • The rights, duties and obligations of the Director of Social Welfare Services as a guardian of children are the same as those of parents. The Director exercises all parental rights for the separated children with a view to take all the necessary measures and to provide for the physical and mental welfare and development of the child.

19. Special provisions Guardianship • The duty of the Director to place children under his/her care is also derived from the Refugee Law and in the Anti - trafficking law Legal Representation • The Refugee Law provides additionally for the legal representation of the unaccompanied children in the asylum procedure to be exercised by the Commissioner for the Protection of Children’s Rights

20. Special provisions on unaccompanied minors • The anti - trafficking legislation provides for unaccompanied minors, but without any special reference to their special needs apart for the issues of return. • As such- • it provides the same rights as adult victims of trafficking on identification, protection, residence permits, social and other rights, • Special rights on deportation /return and tracing of family members as well as on the right to education

21. The Role of the Commissioner Under Law 74(I)/2007 the Commissioner has the competence, inter alia, to - • represent children and their interests at all levels (Article 4(1)(a)) • Submit, on behalf of any child, applications for the appointment of a special legal representative in judicial proceedings affecting the child, where the law or the Court may exclude persons having parental responsibility from representing the child, as a result of conflict of interests with the latter • Represent children and their interests in procedures affecting the children, where provided by law, as well as in judicial proceedings, when he may be appointed by the Court as the representative of a child The above constitute the legal basis for the Commissioner to provide legal representation to unaccompanied asylum seeking minors in the asylum procedure

22. Thank you for your attention Commissioner for Children’s Rights www.childcom.org.cy