CRC/GC/2005/6
page 13
34.
In the case of a separated child, guardianship should regularly be assigned to the
accompanying adult family member or non-primary family caretaker unless there is an
indication that it would not be in the best interests of the child to do so, for example, where
the accompanying adult has abused the child. In cases where a child is accompanied by a
non-family adult or caretaker, suitability for guardianship must be scrutinized more closely. If
such a guardian is able and willing to provide day-to-day care, but unable to adequately represent
the child’s best interests in all spheres and at all levels of the child’s life, supplementary
measures (such as the appointment of an adviser or legal representative) must be secured.
35.
Review mechanisms shall be introduced and implemented to monitor the quality of the
exercise of guardianship in order to ensure the best interests of the child are being represented
throughout the decision-making process and, in particular, to prevent abuse.
36.
In cases where children are involved in asylum procedures or administrative or judicial
proceedings, they should, in addition to the appointment of a guardian, be provided with legal
representation.
37.
At all times children should be informed of arrangements with respect to guardianship
and legal representation and their opinions should be taken into consideration.
38.
In large-scale emergencies, where it will be difficult to establish guardianship
arrangements on an individual basis, the rights and best interests of separated children should be
safeguarded and promoted by States and organizations working on behalf of these children.
(c)
Care and accommodation arrangements (arts. 20 and 22)
39.
Unaccompanied or separated children are children temporarily or permanently deprived
of their family environment and, as such, are beneficiaries of States’ obligations under article 20
of the Convention and shall be entitled to special protection and assistance provided by the
relevant State.
40.
Mechanisms established under national law in order to ensure alternative care for such
children in accordance with article 22 of the Convention, shall also cover unaccompanied or
separated children outside their country of origin. A wide range of options for care and
accommodation arrangements exist and are explicitly acknowledged in article 20 (3) as follows:
“… inter alia, foster placement, kafalah of Islamic law, adoption or, if necessary, placement in
suitable institutions for the care of children”. When selecting from these options, the particular
vulnerabilities of such a child, not only having lost connection with his or her family
environment, but further finding him or herself outside of his or her country of origin, as well as
the child’s age and gender, should be taken into account. In particular, due regard ought to be
taken of the desirability of continuity in a child’s upbringing and to the ethnic, religious, cultural
and linguistic background as assessed in the identification, registration and documentation
process. Such care and accommodation arrangements should comply with the following
parameters:
− Children should not, as a general rule, be deprived of liberty;
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