In the context of unaccompanied minors, professionals refer to individuals working in the public or non-governmental sector who are interested in deepening their knowledge on the topic of children in migration and family-based care.

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Unaccompanied minors: International Legal Framework

An unaccompanied minor is defined by the United Nations as “a person who is under the age of eighteen and who is separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so”.

As minors, they fall under the UN Convention on the Rights of the Child 1989, which Malta ratified on January 26, 1990. The convention, with its three Optional Protocols, encompasses all aspects of a child’s life, in that it lays down the civil, political, economic, social, as well as, cultural rights that all children all around the world are entitled to.

Article 20 of the UN CRC states that:

‘1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.’

A second UN legislation concerning unaccompanied minors is the UN CRC General Comment 6: Treatment of unaccompanied and separated children outside their country of origin, 2005.

The objectives of this Comment are to “draw attention to the particularly vulnerable situation of unaccompanied and separated children; to outline the multifaceted challenges faced by States and other actors in ensuring that such children are able to access and enjoy their rights; and to provide guidance on the protection, care and proper treatment of unaccompanied and separated children based on the entire legal framework provided by the Convention on the Rights of the Child, with particular reference to the principles of non-discrimination, the best interests of the child and the right of the child to express his or her views freely.”

The Comment also includes a section named “Care and accommodation arrangements” (arts. 20 and 22; paras 39-40) of unaccompanied minors where it outlines that a child should not be placed under immigration authorities but in alternative care systems.

Unaccompanied minors: National Legal Framework

In 2003, the Office of the Commissioner for Children was set up in Malta by means of the Commissioner for Children Act. The Commissioner’s role is to promote compliance with the UN Convention on the Rights of the Child, as ratified by Malta in 1990.

In 2017 the National Children’s Policy (2017) was launched, and it mentioned the following with respect to unaccompanied minors:

– Policy Objective 13: “Strengthen initiatives that address the unique protection risks and needs of migrant children, particularly those who are unaccompanied.”

– Policy Objective 29: “Invest further in residential homes that accommodate unaccompanied minor asylum seekers within the community.”

In July 2020 a new Minor Protection (Alternative Care) Act, Chapter 602 came into force replacing earlier legislation on the protection of children in need of care and support, including unaccompanied minors and/or separated children. The act outlines the position of the Director (Protection of Minors) within the Maltese Social Welfare Services, it introduces the duty for all persons to report any minor who is at risk of suffering or being exposed to harm and invests the Juvenile Court with the power of deciding on Care Orders for unaccompanied minors.

Procedures concerning unaccompanied minors

The Director (Child Protection), together with AWAS, is the responsible authority for the procedures concerning unaccompanied minors.

AWAS is the national agency in charge of the welfare of asylum seekers. It was legally set up in 2009 and it currently falls under the responsibility of the Ministry for Home Affairs and National Security. The functions of AWAS include: management of reception facilities, conducting age and vulnerabilities assessments, providing information programmes in the area of employment, housing, health, welfare and education, and promoting government schemes related to resettlement voluntary returns.

When an asylum seeker claims to be a minor or they are referred to AWAS as minors by a third party, the age assessment procedure begins and only when the person is officially declared a minor, the Director (Child Protection) will send the application for the issuing of a Care Order, legal guardian and a child’s advocate to the Court. The age assessment procedure takes several months, with the consequence of leaving minors without protection for a prolonged amount of time. Moreover, according to the law, without a Care Order the person cannot take any decisions, for instance, they cannot work or enrol in school.

According to the Minor Protection (Alternative Care) Act, “immediately after the registration of the minor and the issuing of appropriate identification documents, the Director (Child Protection) […] shall appoint a representative to assist the minor in the procedures undertaken in terms of the International Protection Act.” However, in practice, it is unclear if a representative is appointed to each minor before the age assessment.

The court invested with the powers of making decisions on Care Orders is the Juvenile Court and since it operates within a criminal jurisdiction, it has been very hard to prove that unaccompanied minors are indeed minors and unaccompanied, because this has to be proven beyond reasonable doubt. In fact, to the best of our knowledge, for the past year and a half no care order for unaccompanied minors has been issued. The law has since been amended, and the Juvenile Court has been put under civic jurisdiction (when it deals with care orders for unaccompanied minors), however this has not yet translated into care orders being issued within a timeframe that adequately ensures the care and protection of the child. [UPDATE MARCH 2022: the court has recently started to issue care orders, however, only few children have received it].

According to the Procedural Regulations, after the Care Order has been issued, the Court shall appoint a legal guardian and a child’s advocate, in order to secure the child’s best interests. This should be done as soon as possible and no later than 30 days from the issue of the Care Order.

Unaccompanied minors are accommodated in either smaller centres such as Dar-il-Liedna and Balzan open centre or, if they are over 16 years of age, they are placed in Hal Far Tent Village in a separated area created for minors.

Currently, family-based care is not really an option for unaccompanied minors in Malta, due to numerous legislative, institutional and procedural barriers (some of which are detailed above). However, through this project we aim to spread awareness on the topic and to create dialogue amongst the stakeholders involved, advocating for unaccompanied minors to have full access to their fundamental rights, including their right to alternative family-based care.

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