Given this humanitarian crisis, how does international law legally protect minors? The Convention on the Rights of the Child, adopted by the United Nations General Assembly in 1989, is very clear regarding the special protection that child refugees or asylum seekers should have. This treaty regulates the fundamental rights of children, such as the right to primary consideration of their best interests, in addition to the rights to family life, health and education.
In addition, there are several international standards developed to protect minors and safeguard their best interests. In this respect, the 1996 Hague Convention contains numerous measures, and in Europe, it is the Brussels II bis Regulation which regulates all aspects concerning minors. There are also cooperation mechanisms among the various states through the signing of multilateral agreements to strengthen the protection of minors.
How are minors and other vulnerable people protected in Spain?
In Spain, current legislation on child protection regulates the possible situations foreign children seeking international protection are found in. Current legislation stipulates that the specific situation of each child will be taken into account, and preferential treatment will be given (when necessary) to applicants or beneficiaries of international protection in vulnerable situations, such as minors, unaccompanied minors, people with disabilities, the elderly, pregnant women, etc. Furthermore, it notes that special treatment will be given to those who, due to their personal characteristics, may have been subject to persecution for any of the grounds specified in Law 12/2009 of 30 October, regulating the rights to asylum and subsidiary protection.
Spanish legislation also provides that the stay of an applicant for international protection in Spain may be authorized for humanitarian reasons other than those specified in the subsidiary protection statute, under the terms provided in current legislation concerning immigration.
As stated in Title V of the aforementioned Law 12/2009, unaccompanied minors requesting international protection will be referred to the relevant child protection services, and the public prosecutor will be informed. This situation covers foreign children under 18 years of age who arrive in Spanish territory without being accompanied by an adult responsible for them (whether by law or by custom), assessing the risk of the child’s vulnerability. In cases when minor status cannot be established with certainty, since in the majority of cases, unaccompanied minors arrive in the country without documentation proving their identity, the public prosecutor will immediately be informed of said fact, and will initiate proceedings to determine their age. If the supposed child applicant for international protection refuses to submit to the medical examination scheduled to determine their age, that will not prevent a decision from being issued regarding their international protection request.
Once their age is determined, if it is confirmed that they are a minor, the public prosecutor will make the relevant child protection services available to them. In addition, immediate action will be taken to ensure that the minor’s representative, appointed in accordance with current legislation, acts on behalf of the unaccompanied minor, and assists them in regards to the examination of the international protection request.
To that end, the Framework Protocol on certain actions concerning Unaccompanied Foreign Minors (Resolution of 13 October 2014 of the Undersecretary of the Ministry of the Presidency, which publishes the agreement for the approval of the Protocol) stipulates that the unaccompanied minor must be informed by the public child protection entity whose legal guardianship, custody, or provisional protection they are under of the basic content of their right to international protection and the procedure established to apply for it, in a reliable manner, in writing and in a language that they can reasonably understand. Furthermore, it provides that the unaccompanied minor must appear with the person appointed by the public protection entity responsible for them, so that they can be assisted at the corresponding administrative offices in order to formalize and process their application for international protection.
The Protocol establishes that the Spanish authorities cannot contact the diplomatic representatives of the country of origin of an unaccompanied minor requesting international protection.
Despite everything explained above, past experience has shown that the various regulations in effect are insufficient to resolve the serious humanitarian crisis that the world is experiencing. We must all commit to addressing the various situations we are faced with and seek solutions to ensure the protection of the most defenseless and vulnerable people: children. It is in our hands.