The Law on Protection provides for the appointment of a legal representative to an unaccompanied child – a special guardian (kurator).[1] There are no exceptions; each child has to have a legal representative and all unaccompanied children get one in practice. The Head of the Office for Foreigners or the BG immediately lodges the request to the district custodial court. The court appoints the legal representative. Under the law, the deadline for appointing the guardian is 3 days. There is no information on compliance with this rule in practice. One guardian is appointed for the following proceedings: international protection, Dublin procedure, social assistance, and voluntary return.
There is no special requirement in the Law on Protection for being eligible as a representative of an unaccompanied child for an asylum procedure: the representative should be an adult and have legal capacity. No training is required. There are no limits on the maximum number of unaccompanied children that a representative can be in charge of at the same time.
Under the law, only the person who undertakes procedural acts in the proceedings granting international protection to an unaccompanied minor should fulfil certain conditions.[2] No remuneration is provided to legal representatives. In practice, in the last years, there were problems arising from the insufficient numbers of trained legal representatives for unaccompanied children. NGO personnel and students of legal clinics at universities are appointed as guardians. The legal representative should be present during the interview, together with a psychologist, and may ask questions and make comments.[3]
The Border Guard reports that since December 2015, they use a list of NGO workers who declared their willingness to be a representative of a child.[4] However, as the Border Guard confirms, due to the lack of funding, some NGOs withdrew their representatives from the list. The last update of the list took place in 2019. As of 2023, there were a total of 11 legal representatives on the list, for a total number of 217 unaccompanied children.[5] Their presence on that list is not binding, which means they are not obliged to become a representative.[6] In 2023 and 2024, the Border Guard indicated that, for every UAM, the competent court was asked to appoint a representative and the representative was chosen from the persons eligible by a respective court.[7]
There are no complaint mechanisms for children against their representatives apart from the institution of the Commissioner for the Rights of the Child. In 2024 the Commissioner for the Rights of the Child and Ombudsperson together called on the Polish Prime Minister to introduce amendments to the law, allowing for better protection of foreign children in Poland.[8] The Ombudsperson and the Commissioner referred to the situation in 2024 with numerous interventions concerning unaccompanied minors crossing the border from Belarus. They reported cases where unaccompanied minors for many days were kept without a secured place in foster care.
In Poland, unaccompanied children are placed in various intervention facilities (based on a court ruling) instead of being placed in a central institution. According to the Ombudsperson and Commissioner appointing one central foster care institution for urgent cases would prevent the situation where there is no place to find shelter for a foreign child.
Problems concerning legal representations of unaccompanied minors are clearly presented in a case litigated by the Commissioner for Human Rights in 2022.[9] An unaccompanied minor O.A. was intercepted by the Border Guard with a group of other foreigners 60 km from the border with Belarus. On the same day, the Border Guards issued to all of them orders to leave Poland. The unaccompanied minor was considered a dependent of another foreigner and returned in the same manner. Two days later, O.A entered Poland again. This time he was appointed a legal guardian, was placed in foster care and applied for international protection. The Commissioner for Human Rights lodged a complaint against the order to leave Poland to the Voivodeship Administrative Court in Bialystok. In the complaint it was brought up, i.e., that the Border Guard took no action to identify O.A. as an unaccompanied minor and infringed the Convention on the Rights of the Child by not appointing a legal guardian, ensuring his best interest. In the judgement from 27 October 2022, the Court admitted that the unaccompanied minor should have had a legal guardian appointed for the case and the lack of appointment indeed constituted an infringement of Article 12 of the Convention of the Rights of the Child. The Court also noted that the Border Guard should have informed the intercepted foreigners about the possibility to apply for international protection in order to respect the principle of non-refoulement.
In 2023, SIP started a project which envisages training for candidates for legal representative of UAM and for the personnel of foster care facilities. Within this project they trained 44 persons and 8 facilities in 2023. They also created a list of persons ready to act as a guardian in case there is an unaccompanied minor in need.[10] In 2024 SIP trained 33 specialists and caregivers and acted as guardians in 18 cases of UAMs. [11]
If the asylum procedure terminates with a negative decision, the minor remains in the same foster family or institution. In April 2024 the Commissioner for the Rights of the Child met with the Border Guard and the main issue discussed during this meeting was foster care. There are not enough places in foster care institutions and there are very few foster families, ready to take care of foreign child.[12]
In 2024, there were 297 unaccompanied children (up from 292 in 2023) applying for international protection in Poland.[13]
In 2024 HFHR intervened in the case of a group of migrants, including an unaccompanied minor, who had been stranded in the border strip for several days without access to water, medicine and food, and who declared their intention to seek asylum. The Foundation has filed applications to the court demanding enforcement of the obligation to accept applications for international protection. In the case of the minor, the Foundation filed an application for international protection on her behalf, as this is possible under Polish law.[14] The case is pending as of April 2025.
[1] Article 61 Law on Protection.
[2] Article 66 Law on Protection.
[3] Article 65(3) and (4) Law on Protection.
[4] Information provided by the Border Guard, 17 January 2023.
[5] Information provided by the Border Guard on 4 March 2022, KG-OI-III.0180.7.2022/JL, still applicable for 2022.
[6] Information provided by the Border Guard, 17 January 2023.
[7] Information provided by the Border Guard, 18 March 2024.
[8] Ombudsperson for Children, ‘RPD i RPO wspólnie apelują do premiera. Chodzi o migrujące dzieci bez opieki’, 5 November 2024, available in Polish here.
[9] Judgement of the Voivodeship Administrative Court in Bialystok, no II SA/Bk 558/22 of 27 October 2022, see the judgement and comments from the Ombudsperson: here.
[10] SIP, Ruszamy z projektem wspierającym dzieci bez opieki w Polsce, 14 September 2023, available here.
[11] SIP, Mamy wpływ! Podsumowanie najważniejszych działań SIP w 2024, available in Polish here.
[12] Commissioner for the Rights of the Child, Children need to be protected at the border, 19 April 2024, available here.
[13] Information provided by the Office for Foreigners, 16 February 2024 and 3 February 2023.
[14] HFHR, ‘HFPC składa do sądu wnioski w sprawie zapewnienia bezpieczeństwa migrującym rodzinom i osobom małoletnim bez opieki’, 29 May 2024, available in Polish here.