Legal representation of unaccompanied children

Malta

Country Report: Legal representation of unaccompanied children Last updated: 23/05/22

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Significant delays in the transfer to open centres of persons found to be minors and in the issuance of ‘Care Orders’ were observed already in 2019.[1] One of the main issues in 2021, beyond the waiting time to conduct an age assessment, was the delay in appointing legal guardians.

The new Minor Protection (Alternative Care) Act came into force in July 2021 replacing earlier legislation on the protection of children in need of care and support, including unaccompanied minors and/or separated children. The Act establishes the position of the Director (Protection of Minors) within the Foundation for Social Welfare Services, Malta’s welfare entity, who is responsible for protecting minors. It introduces the duty for all persons to report any minor who is at risk of suffering or being exposed to significant harm and establishes various forms of protection orders the Juvenile Court may impose, including care orders.

In terms of Article 21 of the Act, “any person who comes in contact with any person who claims to be an unaccompanied minor shall refer that minor to the Principal Immigration Officer who shall thereupon notify the Director (Child Protection) so that the latter registers such minor and issues an identification document for such minor within seventy-two (72) hours”.

The Act provides that immediately  after  the  registration  of  the  minor  and  the issuing of appropriate identification documents, the Director (of Child Protection) shall request the Court to provide any provisional measure in regards to the care and custody of the minor according to the circumstances of the case and in the best interests of the minor and shall appoint a representative to assist the minor in the procedures undertaken in terms of the International Protection Act. AWAS is identified by the Act as being the entity responsible for the care of unaccompanied minors and will act as the legal guardian.

The December amendments of the Reception Regulation also reflect these changes. The Regulations now provide that “entity for the welfare of asylum seekers shall as soon as possible take measures to ensure that the unaccompanied minor is represented and assisted by a representative”.[2]

After receiving the conclusions of the investigations and evaluations from the competent authority (AWAS) that establish that the applicant is in fact an unaccompanied minor, the Director (Child Protection) shall, by application, request the Court to issue a protection order according to this Act and shall prepare a care plan. In practice, the Court will entrust the UMAS to the care of AWAS.

The Procedural Regulations provide that, as soon as possible and no later than 30 days from the issue of the ‘Care Order’, unaccompanied minors shall be represented and assisted by a representative during all the phases of the asylum procedure.[3] The assigned legal guardian is an AWAS staff member, usually a social worker, and the Regulations provide that he shall have the necessary knowledge of the special needs of minors.

On the contrary, if the investigations and evaluations from the competent authority establish that the applicant is not an unaccompanied minor, the Director (Child Protection) shall request the Court to revoke its first decree and to provide according to the circumstances of the case.

In practice, AWAS is the entity in charge to refer the minor to the Child Protection Services, which would then Child Protection Services request the issuance the temporary care order to the Court and, upon confirmation by AWAS that the individual was assessed as an UAMs then inform again the Child Protection Services of its conclusions.

However, NGOs reported that the temporary care orders are rarely issued and that they actually have to refer the minor themselves to the Child Protection Services after noting that AWAS failed to refer the UMAS to the Child Protection Services. NGOs therefore assume that AWAS actually refer UAMs only if it confirms them to be minors after the first assessment. It means that UMAS are effectively deprived of any level of care and protection before the conclusion of the assessment, which usually happens several weeks or months after their arrival.

In January 2022, lawyers from aditus foundation secured the release of 5 UMAS from their illegal detention at Safi Barracks. They were detained for 2 months without any legal basis, waiting for the conclusion of their age assessment, which happened at about the same time as the Court case. They had arrived in November 2021 and were only seen by AWAS for the age assessment in mid-January 2022.[4]

Moreover, the backlog of pending care orders is reported to be significant and some UMAS, identified for more than 6 months were not yet referred to the Child Protection Unit at the end of 2021.

AWAS being the assessor, the legal guardian and the entity responsible to accommodate and provide protection and care to the UMAS, raises concerns regarding the agency’s ability to ensure that no interference exist between these activities.

In particular, the panel for age assessment is composed of social workers who also care for recognised minors within the UMAS Protection Unit of AWAS. The current representative’s position as an employee of AWAS and the Leader of this UMAS Protection Unit raises serious concerns as to the level of independence enjoyed from other State Entities, not to mention the direct hierarchical link with the social workers in charge of the assessments. JRS and aditus reported that the legal guardian is not present at any stage of the age assessment procedure and has already acted against the best interest of the child on several instances, including refusing to facilitate the release of UMAs pending age assessment appeal procedures.

However, the vast majority of minors in 2021 did not have any legal guardian appointed to them, mainly due to shortcomings in the new judicial procedure. This resulted in minors having their asylum procedures put on hold, as well as the issuing of documentation attesting their status as asylum-seekers. However, even when a care order was issued, and a legal guardian was actually appointed, little to no change was actually observed with regards to access to the procedure or other services.

 

 

 

[1] Information provided by JRS, January 2019.

[2] Reception Regulations, Regulation 14(1)(b).

[3] Regulation 18 Procedural Regulations.

[4] Ibidem.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation