Legal representation of unaccompanied children

Serbia

Country Report: Legal representation of unaccompanied children Last updated: 30/11/20

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Belgrade Centre for Human Rights Visit Website

A significant number of children, unaccompanied and separated children in particular, was registered during the course of 2019 but at the same time the number of genuine asylum seekers out of this population remains low. In total, 823 UASC were issued with the registration certificate.

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]

The old Asylum Act merely provided that attention in the asylum procedure should be paid to the specific situation of persons with special needs, including unaccompanied children. In contrast, the new 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 interest’s assessment in two cases which were positively resolved in 2019.[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] even though that was the practice in many instances during the course of 2019.[7]

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.[8]

One of the greatest challenges in the past practice has been the fact that the guardianship authorities lacked sufficient human resources to ensure effective support to each individual child.[9] For instance, it was a frequent situation that one guardian was appointed to dozens of unaccompanied children making it impossible for them to develop a meaningful and trusting relationship with the children notwithstanding their enormous efforts and motivation.[10] Communication with the child represents an additional problem. Namely, the guardianship authority does not directly provide interpreters for the languages of unaccompanied and separated children in Serbia. Rather, the guardians communicate with them with the assistance of interpreters whose services are paid for by CSOs engaged in protection of refugees and migrants. Since the presence of such CSOs in certain parts of Serbia is not sufficient or infrequent, temporary guardians in some municipalities could not establish even basic communication with the children.[11] For these reasons, UNHCR launched a project which is being conducted in cooperation with the Ministry of Labour, Employment, Veteran and Social Affairs and the CSO IDEAS envisages the capacity-building of guardianship authorities in Belgrade, primarily through funding the work of a certain number of professional guardians.

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.[12] The next step is urgent appointment of a temporary guardian to the child.

In 2019, BCHR 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.[13] 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 in terms of the ICL standards and length of asylum interview.[14]

 

 


[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] Asylum Office, Decision Nos 26-2348/17, 28 January 2019 and 26-784/18, 20 November 2019.

[4] Articles 125 and 126 Family Act.

[5] Article 12 Asylum Act.

[6] Article 11 Asylum Act.

[7]See more in BCHR, Right to Asylum in the Republic of Serbia 2018, 55-56.

[8] Article 128 Asylum Act.

[9]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.

[10]Ibid.

[11]Ibid.

[12] 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.

[13] For example, the minutes of the asylum interview in Decision No 26-2348/17 state that the interview lasted from 11:15 am. to 6:40 pm.

[14] BCHR, Right to Asylum in the Republic of Serbia 2019, 105-112

 

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