Author
The law provides for the appointment of a guardian (who is the legal representative) upon identification of an UaSC. Upon realising that the asylum seeker is an UaSC, regardless of the phase of the asylum procedure, the NDGAP has to contact the Guardianship Authority, which will appoint within 8 days a guardian to represent the child.[1] The appointed guardian is not only responsible for representation in the asylum procedure and other legal proceedings but also for ensuring that the child’s best interest is respected.
The law states that in order to conduct the age assessment procedure, the legal guardian has to agree to it. However in the transit zones, the age assessment came first and then the appointment of the guardian.
In 2023 there were several significant delays in appointing guardians to UaSCs which implied a period of 3 to 4 weeks.
Legal guardians are employed by the TEGYESZ. Obstacles with regard to children’s effective access to their legal guardians remained a problem in 2023. Under the Child Protection Act, a guardian may be responsible for 30 children at the same time.[2] Based on personal interviews with guardians, the HHC found that this is hardly the case, as some of them gave accounts of caring for 40-45 children at once, in 2022, significantly more than 30 at once. This means that in practice, guardians cannot always devote adequate time to all the children they represent. Not all guardians speak a sufficient level of English and even if they do, the children they are in charge of may not. TEGYESZ employs one interpreter but guardians rarely have access to his services. In 2018, the Children’s Home hired an Afghan social worker who helped with translation and intercultural communication who was still present in 2022 and 2023.
As it is no longer possible to apply for asylum in Hungary, children who are not pushed back need to submit a statement of intent at the Embassy of Belgrade or Kyiv. In practice this is done through a guardian, who actually has to travel to Belgrade (see Embassy procedure), which is an additional burden on already stretched capacities of legal guardians.
Legal guardians previously had participated in trainings held by the HHC, the Cordelia Foundation and other actors such as IOM. In 2022, the Menedék Association, together with UNHCR, organised a joint training on the rights of children for civil society, legal guardians and some NDGAP case workers. It was the first such event since 2017. The HHC and other NGOs continue to enjoy a good working relationship with legal guardians. In June 2023, there was a roundtable discussion at the Faculty of Law (ELTE University) regarding children’s rights in migration. NGOs HHC and Menedék were present, as well as employees of TEGYESZ.
The regular roundtable discussions initiated by the HHC in 2016 continued throughout 2021 as well and in 2022 as well, although much more rarely, owing to the increased workload due to the war in Ukraine. With the exception of the NDGAP, all relevant stakeholders – the legal guardians, the Károlyi István Children’s Home, Menedék Association for Migrants, UNHCR Hungary, the Jesuit Refugee Service, HHC and sometimes the Cordelia Foundation for the Rehabilitation of Torture Victims – took part in these meetings most of the time. The discussions aim to serve as a substitution for the non-existent best interest determination procedure by providing for a multidisciplinary case assessment in the case of those children staying in the Károlyi István Children’s Home while also discussing broader, systematic issues such as children’s access to education or health care during the Embassy procedure (regarding the latter see Health Care). Currently this is the only forum where State actors and the NGO sector together discuss how to further the case of unaccompanied and separated children.[3] In 2023 these discussions still took place, but usually in a more ad hoc way and within smaller groups – those stakeholders were present who were working on the relevant case and the discussion was needed to coordinate tasks.
The role of the child protection guardian consists of supervising the care for the child, following and monitoring their physical, mental and emotional development.[4] In order to fulfil their duties, the child protection guardian has a mandate to generally substitute the absent parents. They:
- Are obliged to keep regular personal contact with the child;
- Provide the child with their contact details so the child can reach them;
- If necessary, supervise and facilitate the relationship and contact with the parents;
- Participate in drafting the child care plan with other child protection officials around the child;
- Participate in various crime prevention measures if the child is a juvenile offender;
- Assist the child in choosing a life-path, schooling and profession;
- Represent the interests of the child in any official proceedings;
- Give consent when required in medical interventions;
- Take care of the schooling of the child (enrolment, contact with the school and teachers etc.);
- Handle/manage the properties of the child and report on it to the guardianship services;
- Report on their activities every 6 months.
Due to the above-mentioned shortcomings, guardians usually find it extremely challenging to adequately fulfil their duties in due manner and be regularly in touch with the children they are responsible for.[5]
The child protection guardian may give consent to a trained legal representative to participate in the asylum procedure. Both the guardian and the legal representative are entitled to submit motions and evidence on behalf of the applicant and may ask questions to the asylum seeker during the interview.
[1] Section 80/J(6) Asylum Act.
[2] Section 84(6) Act XXXI of 1997 on the Protection of Children.
[3] EuroChild and SOS Children’s Villages International, Let Children Be Children, November 2017, available at: http://bit.ly/2HjyOKn, 75.
[4] Section 86 Child Protection Act.
[5] Practice-based observation of the HHC.