Is Europe failing migrant children in their access to justice?
Upon arrival to the EU, migrant children face systematic barriers to their right to access justice.
Particularly for unaccompanied children this is often due to a lack of access to guardians, determination of the best interests of the child, access to information, legal assistance and legal aid as well as problems with the age determination procedures.
Guardians play an important role in different situations for unaccompanied children, those separated from their families or those who cannot avail themselves of the protection of their parents or carers.
States must make sure that the gaps creating these systemic barriers are filled and must invest in supporting lawyers, making sure they are sufficiently trained in the field of children’s rights and that they know how to communicate with them. Strategic litigation to international redress mechanisms can play a crucial role in advancing access to justice for children, so qualified well-informed lawyers are key.
The International Commission of Jurists (ICJ) has identified access to a qualified lawyer as a crucial prerequisite for a child’s access to justice, including access to a guardian and to fair procedures, ESC rights or their right to family life. From 2016-2018, the ICJ developed the FAIR (Fostering Access to Immigrant Children’s Rights) project to create a pool of European lawyers in seven EU countries (Spain, Italy, Greece, Malta, Bulgaria, Germany and Ireland). The lawyers received training materials and litigation support, participated in national trainings and in a strategic litigation retreat.
The recently published set of training materials on access to justice for migrant children should help lawyers when representing migrant children to increase their knowledge of the rights of migrant children, their understanding of the use of international redress mechanisms for violations of human rights of migrant children and to give advice on how to effectively communicate with child clients. It was published in six languages (English, Spanish, Greek, Italian, German and Bulgarian) and can be downloaded here.
Thanks to the trainings and exchanges with their peers, lawyers became better equipped to represent migrant children and to make access to justice a reality both at a national and international level.
The Spanish lawyers have for instance brought a number of cases to the CRC for violations of children’s rights in the age assessment procedure in Spain, which often disregards official passports and children’s ID documents, does not work with the benefit of the doubt principle, relies solely on X-rays without taking their margin of certainty into consideration and often leaves children in limbo situations without access to their rights. The UN Committee on the Rights of the Child decided in favor of the complainants in a number of interim measures requests. For the moment Spain argues that it is not bound by the decisions of the Committee, although the opposite is true.
Existing international law and jurisprudence affirm that any State party’s non-compliance with a request for interim measures constitutes a breach of its legal obligations under international law.
By Karolína Babická, International Commission of Jurists