The law provides for the appointment of a legal representative to an unaccompanied child. IGI-DAI shall take the necessary steps, as soon as possible, to appoint a legal representative to assist the unaccompanied minor applying for asylum during the procedure, including during the admissibility and Dublin procedure as the case may be.
The law prescribes it is not necessary to appoint a legal representative for the unaccompanied minor asylum seeker if he or she is to reach the age of the majority within 15 days of the filing of the asylum application.
The law also foresees that IGI shall:
- Ensure that the legal representative is given the opportunity to inform the unaccompanied child about the significance and possible consequences of the personal interview and, as the case may be, about the preparation for the personal interview;
- Provide procedural legal information, including information on the withdrawing of international protection, both to the child and to his or her legal representative;
- Inform the legal representative and the unaccompanied child, in a language that the latter understands or is reasonably supposed to understand, about the possibility of carrying out an age assessment. This information should also include details of the medical examination methods, the possible consequences of its outcome and the consequences of any refusal to undergo this examination.
Timing of appointment
Neither the Asylum Act nor the Child Protection Act prescribes an exact time limit for the appointment of the legal representative. However, the Asylum Act prescribes that after registering the asylum claim of the unaccompanied child, IGI-DAI shall immediately notify the competent authority, the Directorate General for Social Assistance and Child Protection (DGASPC) territorially competent for the area in which the Regional Centres located, in order to start the appointment procedure of a legal representative. The Asylum Decree complements these provisions, stating that the officer in charge with the registration of the asylum claim of the unaccompanied child shall immediately notify the relevant DGASPC branch office in order to initiate the procedure of appointment of a legal representative. Once established, the legal representation of the unaccompanied asylum-seeking child continues to operate for as long as the child benefits from international protection in Romania.
In the case of an unaccompanied child who has expressed the intention to apply for asylum, in writing or orally, he or she shall be registered as an asylum seeker and the asylum application will be lodged at the moment of appointment of the legal representative. The asylum procedure is suspended until the appointment of a legal representative. During the period of suspension of the asylum procedure, the child benefits from the rights provided by law.
In practice, the appointment of legal representatives takes place as follows:
Timișoara: The notification is sent as soon as possible to DGASPC and the legal representative is appointed within 2-3 weeks; they present themselves within a few days or even on the same day of the notification being sent. DGASPC appoints the same person, who is a legal counsellor, as the legal representative for all the unaccompanied minors.
Şomcuta Mare: IGI-DAI sends out the notification to DGASPC the second day after the unaccompanied child is accommodated in the Regional Centre. In general, the legal representative is appointed as soon as possible; no delays in its appointment have been reported. Since May 2019, the legal representative is appointed by DGAPSC, but only to legally represent unaccompanied asylum-seeking children. NGO representatives prepare the appeals against negative decisions.
Galaţi: IGI-DAI sends a notification to DGASPC for the appointment of a legal representative within a maximum of 3 days or even on the day of registration of the asylum claim of the unaccompanied child, if possible. The legal representative presents him or herself immediately. In 2019, DGASPC started to appoint a new legal representative for unaccompanied children. He works at the Day Centre for Children in Situations of Risk of Separation from Parents within DGASPC. According to the legal counsellor, none of the unaccompanied children stayed long enough in the reception centre to meet with the new appointed legal representative.
Rădăuţi: IGI-DAI sends a notification to DGASPC for the appointment of a legal representative. The procedure of appointment is burdensome and delayed. There are 2 legal representatives appointed for unaccompanied children and one of them is a psychologist. According to the stakeholders interviewed, the legal representative does not meet or discuss with the unaccompanied minors before the interview, they only attend the interviews.
Giurgiu: DGASPC appoints a legal counsellor to act as legal representatives.
Bucharest: The notification for the appointment of the legal representative is made in 5 days, but there are delays in appointing the legal representative. It was reported by the JRS representative that there were 3-week delays, and even longer if the child arrives in the centre during bank holidays. DGASPC Bucharest appoints only one legal representative for all the unaccompanied minors. The legal representative has no legal studies. The legal representative assists the minor only in the asylum procedure.
According to Save the Children Romania, practice varies from case to case. There have been cases where DGASPC appointed the legal representative in 1-2 months. It was reported that in case of a number of unaccompanied children accommodated in the Regional Centre of Bucharest, some of whom were accommodated in the centre for months, IGI-DAI and NGOs were unaware of whether a legal representative was appointed, as they were not receiving the state financial allowance for children. For the unaccompanied minors that live in the child protection facilities, the legal representative is the director of the respective centre/facility.
The Ombudsman also reported that during their visit in September 2019 they were informed by the IGI-DAI staff that DGASPC has difficulties in appointing a legal representative for the unaccompanied children as well as in accommodating the minors in their centres, therefore IGI-DAI has to accommodate unaccompanied minors under 16 years of age in the reception centre.
Qualifications and duties of the legal representative
According to the Child Protection Act the legal representative is either the parent or person designated, according to the law, to exercise the rights and to fulfil the parental obligations towards the child. This means that the legal representative substitutes the absent parents.
According to the Asylum Act, the interests of a child are defended by his or her legal representative. The unaccompanied child is immediately informed of the appointment of the legal representative. The legal representative performs his or her duties in accordance with the principle of the best interests of the child and has the necessary expertise for this purpose.
The Child Protection Act provides that, in order to adequately support the interests of the child, DGASPC designates a person with legal or social assistance background from its staff or an authorised private body, to support the rights of the child and to participate, together with the child to the entire refugee status determination procedure.
The legal representative has to be present at the interview with the unaccompanied child, and may intervene at the end of the interview. The legal representative informs the unaccompanied child asylum seeker of the purpose and possible consequences of the personal interview and takes the necessary steps to prepare the child for it. In the case of a child, the appeal is filed by his or her legal representative. A child who has reached the age of 16 may file the complaint in his or her own name.
The legal representative also has to submit the request of enrolment of the unaccompanied child to preparatory courses.
In Bucharest, it has been reported that a male beneficiary of international protection is appointed as a legal representative for several asylum-seeking children. This practice has been in place for 2-3 years. According to Save the Children, this did not occur in 2018, or in 2019. The JRS representative stated that this was a good practice.
With the exceptions of the legal representative in Galaţi (which was replaced by another legal representative during 2019) and Şomcuta Mare, legal representatives consider their mandate limited only to assist the child in administrative and judicial procedures related to the asylum claim, i.e. to attend interviews and court hearings. As a consequence, this mandate ends when the asylum procedure is completed. Legal representatives consider that is not their mandate to ensure the well-being of the unaccompanied child.
In Şomcuta Mare, it was reported that if the unaccompanied minor wishes to discuss with the legal representative, IGI-DAI notifies the legal representative and it also provides an interpreter. The legal representative also fills in the request for the state social aid for children.
According to the legal counsellor in Giurgiu the situation of legal representatives improved in 2018 and 2019. The new legal representatives collaborate with the NGOs and ask for guidance and advice from NGO representatives. However, the appeals against negative decisions are prepared by JRS.
Several issues regarding legal representatives have been reported by NGO workers.
The legal representative who was appointed by DGASPC to represent unaccompanied children in Rădăuţi was substituted by 2 male representatives. The legal representatives only attend the interviews and court hearings and do not file appeals against negative decisions.
In Bucharest, it was reported by the JRS representative that the unaccompanied minors are not receiving the state social allowance for children because the legal representative is not applying for it. This is a persistent issue, which affects the social rights of unaccompanied children. Another issue reported is that one legal representative represents all the children accommodated in the Regional Centre Vasile Stolnicu (Bucharest). Thus, there is not enough time for the legal representative to develop a relationship with the minors and to learn about their individual situation. In most of the cases, the unaccompanied children are meeting their legal representative at the preliminary interview.
On the other hand, in Timișoara, the legal representative only assists the unaccompanied child during the interviews; he appeals the negative decision of IGI-DAI and assists the child in the court proceedings but does not fulfil any other task.
According to Save the Children Romania, the unaccompanied child usually meets for the first time his or her legal representative at the interview and not beforehand. The legal representative only shows up at interviews and court hearings, usually without establishing any relation with the minor. DGASPC considers that the legal representative does not need to replace the absent parent and does not fulfil the duties of a guardian. It was also mentioned that the duties of the legal representative end when the procedure is finalised. When a form of protection is granted to the unaccompanied child, a different legal representative is appointed, but with a gap as the child’s best interests are not represented by anyone.
The legal representative is often unaware of the situation of the unaccompanied minors that live in the reception centre and they don’t facilitate their access to goods and services offered by NGO’s. Several cases were reported when the legal representatives either refused or did not come to sign for the unattended minor to receive financial or material assistance.
According to UNHCR Romania, the lack of active involvement of legal representatives in the asylum procedure is due to the lack of clarity of the current legislation regarding the duties of the legal representative. There is no coherence between the 2 legal acts (Asylum Act and Child Protection Act) and no guidelines regarding the role of the legal representative in the asylum procedure. This was confirmed by Save the Children.
The same was echoed in the special report of the Romanian Ombudsman on Respecting Children’s Rights in Romania of 2019. It was stated that there are major legislative gaps regarding the legal representation of unaccompanied children and that there is a need for clear legal provisions on the appointment, duties and especially the scope of the duties of the legal representative of unaccompanied minors.
Save the Children noted that legal representatives have attended several conferences organised by the NGOs active in the field of asylum. They are therefore very much aware of all the concerns regarding the best interests of the child. Still, they motivate their shortcomings by the many other responsibilities they receive from the Child Protection Directorate and the limits of their mandate – as given by their superiors.
The issue of the inefficient collaboration with DGASPC in the protection of unaccompanied children was discussed during a meeting between the Ombudsman’s representatives and IGI. IGI stated that they are drafting a Protocol that will establish different points regarding the collaboration of the Regional Centres with DGASPC in order to remedy this situation.
Articles 16 and 40 Asylum Act.
Article 16(2) Asylum Act.
Article 16(3) Asylum Act.
Article 16(4) Asylum Act.
Article 21(3) Asylum Decree.
Article 40(1) Asylum Act.
Article 39(3) Asylum Act.
Article 40(2) Asylum Act.
Ombudsman, Report 75/2019, p.4-5.
Article 4(g) Child Protection Act.
Article 39(1) Asylum Act.
Article 16(2^1) Asylum Act.
Article 77(3) Child Protection Act.
Article 47(1) Asylum Act.
Article 23(1) Asylum Decree.
Article 47(2) Asylum Act.
Articles 56(2) and 66(2) Asylum Act.
Article 6(4) Asylum Decree.
Ombudsman, Special Report on Respecting the Children’s Rights in Romania, 2019, 198, available in Romanian at: https://bit.ly/362ZDef.
Ombudsman, Annual Report 2018, 601-602.