The law provides for the appointment of a guardian (who is the legal representative) upon identification of an unaccompanied child. When realising that the asylum seeker is an unaccompanied minor, 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 unaccompanied child. The appointed guardian is not only responsible for representation in the asylum procedure and other legal proceedings but also for the ensuring that the child’s best interest is respected.
There have been significant delays in appointing guardians to unaccompanied minors.
For unaccompanied children above the age of 14 and thus held in the transit zones until 21 May 2020, ad-hoc guardians were appointed whose mandate is, by definition, a temporary one. They did not have to be trained to care for children the same way legal guardians need to be. They were also not trained in asylum law and could hardly speak English. Given the physical distance between the ad-hoc guardians’ workplace (Szeged) and the transit zone, the children and their ad hoc guardians mostly only met twice: at the interview and when the decision was communicated. Based on personal interviews with unaccompanied children, the HHC lawyers found out that most of the time there was no direct communication between the ad-hoc guardians and the unaccompanied children they were responsible for.
The legal guardians are employed by the Department of Child Protection Services (TEGYESZ). Obstacles with regard to children’s effective access to their legal guardians remained to be a problem in 2020. Under the Child Protection Act, a guardian may be responsible for 30 children at the same time. 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. 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 do not always have access to his services. In 2018, the Children’s Home hired an Afghan social worker who helps with translation and intercultural communication.
Legal guardians previously had participated in trainings held by the HHC, the Cordelia Foundation and other actors such as IOM. The HHC and other NGOs continue to enjoy a good working relationship with legal guardians.
The regular roundtable discussions initiated by the HHC in 2016 continued throughout 2019 as well. 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 the children’s access to education. Currently this is the only forum where State actors and the NGO sector together discuss how to further the case of unaccompanied children.
The role of the child protection guardian consists of supervising the care for the child, following and monitoring his or her physical, mental and emotional development. In order to fulfil his or her duties, the child protection guardian has a mandate to generally substitute the absent parents. He or she:
- Is obliged to keep regular personal contact with the child;
- Provides the child with his or her contact details so the child can reach him or her;
- If necessary, supervises and facilitates the relationship and contact with the parents;
- Participates in drafting the child care plan with other child protection officials around the child;
- Participates in various crime prevention measures if the child is a juvenile offender;
- Assists the child in choosing a life-path, schooling and profession;
- Represents the interests of the child in any official proceedings;
- Gives consent when required in medical interventions;
- Takes care of the schooling of the child (enrolment, contact with the school and teachers etc.);
- Handles/manages the properties of the child and reports on it to the guardianship services;
- Reports on his or her activities every 6 months.
Due to the above-mentioned shortcomings, the guardians normally find it extremely challenging to adequately fulfil their duties in a due manner and be regularly in touch with the children they are responsible for.
The child protection guardian cannot give his or her consent to the adoption of the child. Although adoption is not an option for unaccompanied minors, SOS Children’s Villages Hungary managed a project in 2017 to recruit and train families who would be willing to become the foster family for children from a migrant background. Based on personal discussions with SOS Children’s Villages Hungary staff members, the HHC can report that a few families have completed the training and one child, who had been represented by the HHC in his asylum procedure, moved to a foster family in September. While being placed with a foster parent, the children’s legal guardian remains the same as before – this role therefore is not given up or shifted to the foster families.
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 they may ask questions to the asylum seeker during the interview.
Section 80/J(6) Asylum Act.
See also ‘Special report further to a visit undertaken by a delegation of the Lanzarote Committee to transit zones at the Serbian/Hungarian border, 5-7 July 2017’, available at http://bit.ly/2C50qfw.
Section 84(6) Act XXXI of 1997 on the Protection of Children.
Section 86 Child Protection Act.
EuroChild and SOS Children’s Villages International, Let Children Be Children, November 2017, 72.