Published in May 2019 

 

 
  This module is a resource for lecturers  

 

Protection in Practice

 

National responses to the smuggling and trafficking of children should adopt a human rights-based, protection-focused approach, based on the international framework described in the section 'Protecting Smuggled and Trafficked Children: The International Legal Framework'. This is in addition and complementary to approaches designed to both prevent and prosecute smuggling and trafficking (each of which are examined in  Modules 3, 4, 7, 9 and 10 of this University Module Series). There is a vast quantity of materials guiding States as to how to protect children in practice, including those who are smuggled and trafficked. These include, inter alia:

A selection of these materials is drawn on in this section.

While there are many facets of child protection, a comprehensive examination of this topic is beyond the scope of this Module. Rather, an overview of six primary issues is provided below, which are relevant to trafficking and smuggling of children. These include identification and age assessments, best interests assessments and determinations, guardianship, child protection systems, children in criminal proceedings and durable solutions.

 

Identification and age assessment

Identification procedures are an integral part of any domestic response to both trafficking and smuggling of children. Where identification systems are inadequate, the particular needs and vulnerabilities of children may go unaddressed. Incorrect identification, for example where a child victim of trafficking is misidentified as a smuggled migrant, may mean a child is unable to access rights and protection to which they would otherwise be entitled. A child who may be a victim of trafficking should be presumed as such until a proper determination is made (Gallagher 2010, pp. 325-326).

For children, an important element of identification is age assessment. Children who are incorrectly identified as adults will be denied the extra level of protection owed to them. As a general rule, only those children whose age is in doubt should undergo age assessment and, where there is any doubt as to the age of a child, there should be a presumption that they are a child. Importantly, procedures should be holistic and not include invasive or inaccurate medical methods. Tests of bone development, dental exams, and radiological assessments have been extensively criticized by experts as inaccurate and against the best interests of children (see Noll 2016). UNHCR, UNICEF, and the International Rescue Committee (2017, pp. 11-12) guidelines note the following areas of best practice for identification and age assessment:

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Identification

  • Identification and registration of children should occur as soon as a child, or person suspected of being a child, is identified. Children, particularly those unaccompanied or separated, should be given priority.
  • Border authorities and police officials should be trained in how to approach and identify children.
  • Cultural mediators and other actors with special training in engaging with children are crucial to the identification process. "They build dialogue and trust with the children and mitigate the influence of traffickers".
  • Children should be individually registered in a central database and referred to relevant child protection systems.
  • Procedures and systems should be closely monitored to detect and mitigate any malpractice.

Age assessment

  • Two stage age assessments should be used, where it is appropriate that a child's age is assessed. The first, preliminary assessment can take place immediately upon identification, using statements by the child and the impressions of the child specialist undertaking the assessment. A second assessment may take place later where there is still doubt over a child's age or the methodology of the first assessment. The second assessment should be holistic and multidisciplinary, using psychological, social, cultural, and medical methods as necessary.
  • Any age assessment must be sensitive to the vulnerabilities of the child and avoid use of invasive or inaccurate medical tests (such as wrist x-rays or dental radiography).
 

Best interests determinations and assessments

All smuggled and trafficked children have a right to have their best interests taken into account as a primary consideration (see section 'Best interests of the child'). States should operationalize the best interests principle through the use of best interests assessments (BIA) and best interests determinations (BID). Consideration of children's capacity to express agency, their maturity, and the degree to which they can participate is fundamental to each process, consistent with article 12(1) of the Convention on the Rights of the Child. BIAs should be undertaken as soon as a child has been identified and should include assessment of the relationship between a child and any accompanying adults, sources of support available to the child, and an identification of the risks they face. The BIA balances different considerations relating to a child, taking into account all their circumstances, with an emphasis on their need for healthcare, social services, and education (Bhabha and Dottridge 2017, p. 10).

BIDs are used to formally determine the avenue to be taken to secure a child's future, based on careful consideration of all relevant factors and the views of the child. Unlike BIAs, a BID requires stricter procedural safeguards given the gravity and lasting impact of decisions made during such a determination.

 

Guardianship

Most trafficked children and many smuggled children are unaccompanied by their parents or legal guardians or separated from them. In these cases, a holistic protection-based response to such children must include the appointment of a guardian to secure and advocate for their best interests, in accordance with articles 18(2) and 20(1) of the Convention on the Rights of the Child. The United Nations Committee on the Rights of the Child (2005, p.12) outlines the role of the guardian.

The guardian should be consulted and informed regarding all actions taken in relation to the child. The guardian should have the authority to be present in all planning and decision-making processes, including immigration and appeal hearings, care arrangements and all efforts to search for a durable solution. The guardian or adviser should have the necessary expertise in the field of childcare, so as to ensure that the interests of the child are safeguarded and that the child's legal, social, health, psychological, material and educational needs are appropriately covered by, inter alia, the guardian acting as a link between the child and existing specialist agencies/individuals who provide the continuum of care required by the child. Agencies or individuals whose interests could potentially be in conflict with those of the child's should not be eligible for guardianship. For example, non-related adults whose primary relationship to the child is that of an employer should be excluded from a guardianship role.

 

Child protection frameworks

Referral of children to a child protection system, based on a comprehensive legal framework and including both formal and informal structures, is key to protecting them from potential neglect, exploitation or violence. As Bhabha and Dottridge (2017, p. 13) note, a "primary obligation of the child protection system for refugee and migrant children is to support family unity or reunification where this is in the child's best interests, and to provide safe referral systems, irrespective of their migration status (or that of their families), to appropriate services, information, assistance and protection. Where appropriate, the system should also assist these children in making safe and rights protecting choices for themselves". Further, UNODC (2017, p. 5) states that "[s]ocial outreach work to provide assistance to and monitor children who are in situations of particular vulnerability along migratory routes and at destination, including those who are unaccompanied, can assist in early identification and prevention of any further harm". Children should be able to express their views freely on the care decisions made in respect of them, their rights and services available, which should be considered to a degree determinant on a child's age and maturity (UNICEF 2006).

As part of a child protection framework, children must have their basic needs met, in accordance with their rights under the Convention on the Rights of the Child (see above). This includes access to appropriate accommodation, healthcare services and education. Healthcare access should be holistic and include psychosocial care, noting that smuggled and trafficked children may suffer stress or trauma, which can have lifelong negative effects on their development and cause depression and other behavioural problems. Where children are involved in legal proceedings (i.e. regarding removal, the imposition of detention, or asylum claims) they should have access to free legal representation (see King 2013 for a discussion in the international and United States contexts).

Any legal or practical barriers to children accessing basic services must be removed. A particular concern will be where children do not have legal status or papers required for access. It is also important that firewalls are established between public services and immigration enforcement, so that undocumented children do not fear accessing services or reporting human rights violations. The United Nations Secretary-General (2014) encouraged States "to establish effective safeguards and firewalls between public service providers and immigration enforcement authorities. Public service institutions should not be required to report to or otherwise share data with immigration authorities".

 

Children in Criminal Proceedings

Children may be asked to take part in criminal proceedings against their traffickers or smugglers. Where this occurs, States must be mindful of the risks such participation may pose to children. These include trauma from recounting their experiences and vulnerability to interference or threats from accused, including against children's families. The best interests of the child should be a guiding principle where children act as witnesses, together with the views of the child him- or herself. Relevant authorities must determine how the nature and extent of a child's participation best accord with their protection needs and interests (Gallagher 2010, p. 333). For additional reading, please also see Module 13 on Justice for Children of the University Module Series on Crime Prevention and Criminal Justice.

The Legislative Guides (UNODC 2004, para. 65(b)) to the Protocol against Trafficking in Persons provide guidance on this point:

"Ensuring that, during investigations, as well as prosecutions and trial hearings where possible, direct contact between the child victim and the suspected offender be avoided. Unless it is against the best interests of the child, the child victim has the right to be fully informed about security issues and criminal procedures prior to deciding whether or not to testify in criminal proceedings. During legal proceedings, the right to legal safeguards and effective protection of child witnesses needs to be strongly emphasized. Children who agree to testify should be accorded special protection measures to ensure their safety".

In such cases, children are to be afforded the child-sensitive safeguards devised, at the international level, for child witnesses and victims of crime. Authoritative guidance on these matters is provided in the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (the Guidelines), adopted by the Economic and Social Council (ECOSOC) in resolution 2005/20. These guidelines play an important role in assisting Member States to ensure the delivery of effective and just responses for child victims, that protect children's rights pursuant to the Convention on the Rights of the Child. More specifically, the Guidelines set forth good practice with respect to children's right to be treated with dignity and compassion, the right to be protected from discrimination, the right to be informed, the right to be heard and express views and concerns, the right to effective assistance, the right to privacy, the right to be protected from hardship during the justice process, the right to safety, the right to reparation and the right to special preventive measures. Further advice on the implementation of the Guidelines at the national level is presented in the Handbook for Professionals and Policymakers on Justice in Matters involving Child Victims and Witnesses of Crime. This handbook presents good practices relating to the prevention of child trafficking and sensitive justice responses to victims, including: children's right to privacy; the automatic use of closed hearings in cases of child trafficking; the importance of preventing the intimidation of child victims of trafficking; and the importance of specialized training for criminal justice personnel.

 

Durable and child rights-based solutions

The ultimate concern of States must be to secure durable and child rights-based solutions for children. This will be particularly important for unaccompanied or separated children. A durable solution may take a number of forms, including family reunification, return to the country of origin, local integration, adoption and resettlement in a third country. Whichever solution is pursued, it must uphold children's rights, consider the views of the child, address their protection needs and be in their best interests.

Where a durable solution for unaccompanied minors involves long-term stay in a state, this must be based on a secure legal status. Non-citizens without a secure legal status may be denied access to basic services in the state they are present in, or may be at risk of detention or removal. A temporary status may be considered inconsistent with the best interests of the child, causing minors to live in an 'enforced state of limbo' (Pobjoy 2017, p. 226).

Return to the country of origin may pose particular risks for children. In accordance with the comments of the United Nations Committee on the Rights of the Child (2005, p. 24), it is only appropriate where it is in the best interests of the child, and where there is no reasonable risk that such return "would result in the violation of fundamental human rights of the child, and in particular, if the principle of non-refoulement applies".

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Domestic laws protecting children: Italy's Zampa Law

Italy's "Zampa" law (named after Sandra Zampa, a member of the Italian Parliament), enacted in 2017, provides an example of a legal framework covering both smuggled and trafficked children. The legislation, titled (in English) " Provisions on protective measures for unaccompanied foreign minors" [link to Italian language legislation], concerns the protection of unaccompanied minors arriving in Italy. Save the Children has hailed the law as the "most elaborate system for child protection in Europe", while UNICEF states that it is a model for other EU countries.

The legislation contains provisions guaranteeing foreign unaccompanied minors the same rights granted to Italian children and incorporates the best interests of the child principle. Other articles, inter alia:

  • Prohibit removal of unaccompanied minors except in exceptional circumstances.
  • Require identification and age assessment procedures to be carried out, as well as procedures to assess minors' best interests.
  • Mandate minimum standards for accommodation.
  • Grant access to education and healthcare systems and institutions.
  • Provide for the training and appointment of guardians.
  • Provide specific assistance to victims of trafficking in persons.

While the legislation is not perfect, and implementation challenges exist, it is in many respects a positive development and an example for other States.

For further information on the law, please see:

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Domestic laws protecting children: South Africa's Legal Framework

South Africa's laws reflect many of the rights articulated in international law. Its Constitution ( Constitution of the Republic of South Africa Act 1996) grants rights to all children present in the country. Section 28 states that the best interests of a child are of "paramount importance" in all cases, with rights to healthcare, education, access to social services and legal representation also included. Further protections for children, including those smuggled or trafficked, are set out in South Africa's comprehensive Children's Act 2005. The country's High Court has ruled that citizens, foreigners, and illegal foreigners should be treated equally under the Act (in its decision in Centre for Child Law and another v Minister of Home Affairs and others [2005] 6 SA 50 (Transvaal Provincial Division).

The Children's Act includes procedures for unaccompanied children and rules for placing them in alternative care. It mandates that social workers inquire into the needs of such children, including their age, whether or not they have a claim for asylum, and whether family reunification is viable. Regulations to the Act mandate that children receive adequate nutrition, clothing, nurturing, "respect and protection from exploitation and neglect", "care and intervention which respects, protects and promotes his or her cultural, religious, [and] linguistic heritage", and access to "community activities". Under South African law, children should also not be detained.

Where children are victims of trafficking, they are granted further protection under South Africa's Prevention and Combating of Trafficking in Persons Act 2013. Among other things, pursuant to s 31(1), child victims may only be removed from South Africa if it is in their best interests, if there are suitable care arrangements in the country of return, and if their safety is assured.

While some issues do exist regarding implementation of the above laws, in many respects South Africa's legal framework constitutes a best practice approach to child protection.

 
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