Legal representation of unaccompanied children

Serbia

Country Report: Legal representation of unaccompanied children Last updated: 23/03/21

Author

Nikola Kovačević

A lower number of children, including unaccompanied and separated children in particular, was registered during the course of 2020 and at the same time the number of genuine asylum seekers out of this population remains low. In total, 71 UASC were issued with the registration certificate (compared to 823 in 2019). However, only handful of them submitted asylum application and only in the last two months of 2020.

The legal framework that aims to protect unaccompanied and separated children in the course of the asylum procedure is largely in line with the international standards, however, it is clear that the authorities do not have the capacities to meet the established level of protection.[1]

Asylum Act explicitly prescribes the principle of the best interests of the child. Accordingly, when assessing the best interests of the child, the competent authorities must take into account the well-being, social development and background, his or her views depending on his or her age and maturity, the principle of family unity and the need to provide assistance, particularly if suspected that the child might be a victim of human trafficking or a victim of family violence or other forms of gender-based violence.[2]

The Asylum Office requested the SWC to carry out a best interests assessment in 5 cases which were positively resolved in 2020.[3]

The guardianship for an unaccompanied child is governed by the Family Act that prescribes conditions and rules for placement of children without parental care under guardianship. The appointed guardians are persons with personal characteristics and abilities necessary to perform the duties of a guardian who have agreed to be guardians. In order to establish whether one fulfils the conditions to be a temporary guardian of a child, a procedure defined in the Family Act and the accompanying by-laws must be conducted. This decision may only be taken by a guardianship authority and it includes a guardianship plan.[4]

A temporary guardian must be appointed immediately after it has been established that the child is unaccompanied / separated and no later than prior to the lodging of his or her asylum application.[5] The police cannot register an unaccompanied child who expressed the wish to seek asylum in absence of a temporary guardian.[6]

The temporary guardian must be present with the child in all the procedures before the state authorities and represent his or her interests. It is also prescribed that a temporary guardian must be a person with personal characteristics and abilities necessary to perform the duty of a guardian, and this assessment is made by a competent territorial guardian authority, under the provisions of the Family Act and accompanying by-laws. A guardian may not be, inter alia, a person whose interests are adverse to the interest of a child put into his or her guardianship, and a person who due to different reasons cannot be expected to properly perform the activities of a guardian.[7]

One of the greatest challenges in practice has been the fact that the guardianship authorities lacked sufficient human resources to ensure effective support to each individual child.[8] For instance, it was a frequent situation that one guardian was appointed to dozens of UASC making it impossible for them to develop a meaningful and trusting relationship with the children notwithstanding their enormous efforts and motivation.[9] Thus, only those children who apply for asylum are provided with the possibility to establish a deeper connection with the multidisciplinary team which involves legal representative, temporary legal guardian and psychologist. The children who do not apply for asylum are mainly provided with accommodation, urgent health care and food, but their more fundamental needs are not assessed at all.

UNHCR launched project conducted in cooperation with the Ministry of Labour, Employment, Veteran and Social Affairs and the CSO IDEAS to improve the capacity-building of guardianship authorities in Belgrade, primarily through funding the work of a certain number of professional guardians. This project is still ongoing and IDEAS psychosocial workers and legal representatives have started providing full support to understaffed social welfare centres in Belgrade, Sjenica and Bogovađa, where UASC are accommodated. With the help of other CSOs such as CRPC which provides translators, the problem with communication with children has largely been overcome in 2020.

It is worth mentioning that a special instruction is issued by the Government which stipulates that field social workers inform the territorially competent guardianship authority immediately upon the information or direct knowledge about an unaccompanied child.[10] The next step is urgent appointment of a temporary guardian to the child.

In 2020, BCHR, IDEAS and HCIT did not notice any difference in the treatment of unaccompanied children in comparison to adult asylum seekers in terms of the length of asylum procedure, interviews and behaviour of asylum officers. There were still situations in which the personal interview lasted for hours. However, in several decision standards regarding the International Child Law (ICL) were thoroughly taken in consideration during the asylum procedure. On the other hand, there were instances in practice in which child-specific guarantees were entirely neglected (e.g. due to the inadequate BID and the length of asylum interview) in terms of the ICL standards.[11]

[1] Committee on the Rights of the Child, Concluding observations on the combined second and third reports of Serbia, 7 March 2017, CRC/C/SRB/CO/2–3, para 12-13, 22-23, 54 (d), 56-57, 62 (a) and 68 (d); Human Rights Committee, Concluding observations on the third periodic report of Serbia, 10 April 2017, CCPR/C/SRB/CO/3, para. 32-33.

[2] Article 10(2) Asylum Act.

[3] See for instance, Asylum Office, Decision Nos. 26-1437/18, 13 February 2020, 26-218/19, 20 February 2020, 26-20163/17, 11 August 2020 and  26-2573/19, 15 October 2020.

[4]  Articles 125 and 126 Family Act.

[5] Article 12 Asylum Act.

[6] Article 11 Asylum Act.

[7] Article 128 Asylum Act.

[8] Human Rights Committee, Concluding observations on the third periodic report of Serbia, 10 April 2017, CCPR/C/SRB/CO/3, para 32-33; Committee on the Rights of the Child, Concluding observations on the combined second and third reports of Serbia, 7 March 2017, CRC/C/SRB/CO/2–3, para 56-57. See also BCHR, Situation of Unaccompanied and Separated Children in Serbia, 2017, 22 and 39.

[9] That was the case in AC in Bogovadja, which was designated for the accommodation of UASC in 2020, as well as AC in Sjenica. .

[10] Instruction of the Ministry of Labour, Employment, Veteran and Social Affairs on procedures of centres for social welfare – guardianship authorities in accommodation of minor migrants /unaccompanied refugees, no. 019–00–19/2010–05 of 12 April 2018, Chapter II.

[11] Asylum Office, Decisions Nos. 26-378/19, 11 February 2020 and 26-374/19, 14 February 2020.

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