Information note on refugee children: UNHCR's efforts to address some persistent protection problems

EC/1993/SCP/CRP.4

I. INTRODUCTION

1. At its forty-third session, the Executive Committee requested the High Commissioner to present a policy paper on refugee children to its next session and to report on activities and measures taken by her Office to improve the situation of refugee children.¹ It also welcomed UNHCR's initiative to revise the format of the Guidelines on Refugee Children (Guidelines)² and encouraged the Office to formulate targeted training programmes and to develop additional training material on refugee children to be used with existing programmes.³

2. The purpose of the present note is to inform the Sub-Committee of the Whole on International Protection of certain present protection concerns relating to refugee children which, in UNHCR's view, require particular attention. In addition to its ongoing efforts to resolve these problems in the field, the Office intends to address them in the above-mentioned policy paper, in the revised version of the Guidelines as well as in related training materials and programmes. They are (a) military recruitment; (b) detention; (c) implementing the right to education; (d) the situation of unaccompanied children in the care of families which are not their own; and (e) irregular adoption of refugee children. The following is a brief description and discussion of the problems confronted in these areas of concern.

II. PERSISTENT PROTECTION PROBLEMS FACING REFUGEE CHILDREN

A. Military recruitment

3. In its Conclusion Number 59(XL) (1989), the Executive Committee called upon UNHCR "to promote the best possible legal protection of unaccompanied minors ... with regard to forced recruitment into armed forces" and "urged UNHCR to intensify its efforts to increase public awareness of the ... impact of armed conflict" on refugee children.⁴ This position is supported in law by, inter alia, the two 1977 Protocols Additional to the Geneva Conventions of 1949⁵ and the Convention on the Rights of the Child⁶, which provide that children below the age of fifteen years shall not be recruited into armed forces and that all feasible measures should be taken to ensure that they do not take a direct part in hostilities. UNHCR's field offices report that refugee and returnee children below the minimum ages of military service allowed by national or international law continue to be recruited, forcibly or voluntarily.

B. Detention

4. The Guidelines,⁷ Executive Committee Conclusion Number 44(XXXVII) (1986) on the Detention of Refugees and Asylum-Seekers and Number 47(XXXVIII) (1987) on Refugee Children⁸, as well as international human rights law⁹, all stress the importance of avoiding any form of detention of children, including refugee and asylum-seeker children. Yet this practice continues, upon their - or their parents' - irregular entry into some countries of asylum, as well as in the case of suspected criminal or undisciplined behaviour. Related to the problem of detention is the deleterious effect on children of confinement in crowded conditions in closed camps.

C. Implementing the right to education

5. Education is a universal right.¹⁰ The 1951 Convention relating to the Status of Refugees requires, in article 22, that refugee children receive the same treatment with respect to elementary education as is accorded nationals in the country of asylum, and at least as favourable treatment as is accorded to aliens generally in the same circumstances with respect to education other than elementary education. These standards are further supported by the Convention on the Rights of the Child¹¹ and past Executive Committee conclusions¹². The Guidelines are very clear regarding the right of all refugee children, including girls, to be educated while in the country of asylum.

6. While excellent education programmes are available to refugees in many countries of asylum, elementary education continues to be unavailable to refugee children in some areas. Difficulties are encountered particularly in regions where the availability of education for nationals is severely limited and where its provision to refugee children could be perceived as discrimination against the host population; where few, if any, education facilities existed for the refugee population in their country of origin; and where there are severe constraints on the availability of essential resources, especially teachers. In some countries the difficulty of recruiting women teachers is an obstacle to the expansion of education programmes for girls.

7. The implementation of the right to education thus depends upon political and programme considerations as well as the availability of adequate human and financial resources. The subject will be addressed in detail in the policy paper on refugee children to be presented to the forty-fourth session of the Executive Committee.

D. The situation of unaccompanied children in the care of families not their own

8. In the past, the Executive Committee has expressed concern about unaccompanied children separated from their parents who are in the care of other families. It has called for specific measures to ensure individual assessments of their situation so as to facilitate provision for their immediate and long-term needs and appropriate durable solutions.¹³ Countries of asylum, non-governmental organizations working with refugee children and UNHCR have sought to implement such measures, in conformity with the relevant provisions of UNHCR's Guidelines.¹⁴

9. In several countries, however, UNHCR and the agencies concerned have encountered significant obstacles in identifying and securing the cooperation of the families caring for such children. These are the consequences, inter alia, of the spontaneous and unregulated way in which unaccompanied refugee children are often received into families not their own, as well as cultural sensitivities to inquiries by strangers or officials about their welfare. In such situations the Office's information concerning the children's circumstances is incomplete and has had to be obtained indirectly. This information suggests that, while most of these children are taken into caring homes, in others they may be neglected, exploited or abused, either because the families which have taken the children do not have the means to care for them, or because the intent from the start was to exploit or abuse them in some way.

10. The Office is working to develop practical approaches to overcome these obstacles to the implementation of its policies for the protection and care of unaccompanied children. Improved teamwork among the various parties concerned, including governmental and non-governmental agencies responsible for refugees, as well as social services, protection and programme staff, is clearly vital to locate unaccompanied minors in the care of other families, monitor their situation, and meet their needs, as well as to protect them against neglect, exploitation or abuse. These issues will be addressed through targeted training and incorporated in the revised Guidelines.

E. Irregular adoption

11. In its Conclusion Number 59(XL) (1989)¹⁵, the Executive Committee also called upon UNHCR to promote the legal protection of unaccompanied minors with particular regard to the risks associated with irregular adoption. Since the forty-third session of the Executive Committee, the Office has collaborated with UNICEF and Defense for Children international in evaluating the situation and making recommendations for children orphaned, abandoned or otherwise in need of placement as a result of the war in the former Yugoslavia. In addition, over the past two years, UNHCR has participated in a Special of a Convention on International Co-operation and Protection of Children in respect of Inter-country Adoption, to be adopted in late May of this year. The Office has underlined the responsibility of the country of asylum, in cooperation with UNHCR and other relevant agencies, for determining the best interests of individual refugee children who are not in the care of a parent or guardian and for regulating and monitoring the international adoption of refugee children for whom this solution may be found to be in the child's best interests.

III. CONCLUSION

12. The protection problems discussed above by no means include all those which confront refugee children and which the Office continues to address in the field with the help, as appropriate, of the Guidelines and training programmes. Three recent documents relevant to the protection of refugee children illustrate the scope of these concerns. The guidelines and considerations contained in the pamphlet entitled Evacuation of Children from Conflict Areas¹⁶, sponsored jointly by UNHCR and UNICEF, have many implications for the international community's efforts to secure the protection of refugee children. The Note on Certain Aspects of Sexual Violence against Refugee Women, submitted to the Sub-Committee simultaneously with this note¹⁷, describes grave problems faced by refugee girls and also boys. And the Note on the Personal Security of Refugees, also submitted to the Sub-Committee¹⁸, describes threats to the safety of refugees, including children. A further discussion of these concerns will be included in the policy paper on refugee children to be submitted to the forty-fourth session of the Executive Committee.

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1 Report of the forty-third session of the Executive Committee of the High Commissioner's Programme (A/AC.96/804, para. 31 (i)).

2 UNHCR, 1988.

3 A/AC.96/804, para. 31(h).

4 See paras. (h) and (i).

5 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), article 77(2); and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), article 4(3), both as annexed to the Final Act of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, signed on 10 June 1977.

6 United Nations General Assembly res. 44/25. See article 38.

7 See Section II.C

8 See in particular, paragraph (n).

9 See Convention on the Rights of the Child, article 40(4); and paragraph 2 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, annex to United Nations General Assembly resolution 45/113 of 14 December 1990.

10 See Universal Declaration of Human Rights, UNGA resolution 217 A (III) of 10 December 1948, art. 26.

11 See article 28, paras. 1 and 3, and article 29.1 (c)-(d).

12 See Conclusion No. 47(XXXXIII), paras. (o) and (p), and Conclusion No. 59(XL), para. (f).

13 See Conclusion No. 47(XXXVIII) (1987), paras. (i) and (j).

14 See paras. 156-158.

15 See paras. (g) and (h).

16 UNHCR/UNICEF, December 1992.

17 EC/1993/SCP/CRP.2.

18 EC/1993/SCP/CRP.3.