CRC/GC/2005/6
page 12
− Assessment of particular vulnerabilities, including health, physical,
psychosocial, material and other protection needs, including those deriving
from domestic violence, trafficking or trauma;
− All available information to determine the potential existence of international
protection needs, including those: due to a “well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion” in the child’s country of origin
(article 1 A (2), 1951 Refugee Convention); deriving from external
aggression, occupation, foreign domination or events seriously disturbing
public order (article 1 (2), Convention Governing the Specific Aspects of
Refugee Problems in Africa); or relating to the indiscriminate effects of
generalized violence;
(iv)
Unaccompanied and separated children should be provided with their own personal
identity documentation as soon as possible;
(v)
Tracing of family members to be commenced as early as possible (arts. 22 (2), 9 (3)
and 10 (2)).
32.
Any further actions relating to the residence and other status of the child in the territory
of the State should be based on the findings of an initial protection assessment carried out in
accordance with the above procedures. States should refrain from referring unaccompanied and
separated children into asylum procedures if their presence in the territory does not raise the
question of international refugee protection needs. This is without prejudice to the obligation of
States to refer unaccompanied or separated children to relevant procedures serving child
protection, such as those foreseen under child welfare legislation.
(b)
Appointment of a guardian or adviser and legal representative (arts. 18 (2)
and 20 (1))
33.
States are required to create the underlying legal framework and to take necessary
measures to secure proper representation of an unaccompanied or separated child’s best interests.
Therefore, States should appoint a guardian or adviser as soon as the unaccompanied or
separated child is identified and maintain such guardianship arrangements until the child has
either reached the age of majority or has permanently left the territory and/or jurisdiction of the
State, in compliance with the Convention and other international obligations. 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.
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