Children of Ukraine in the face of war, migration and separation

On October 3, 2022, at the OSCE/ODIHR Human Dimension Conference in Warsaw, a side event was held on protecting the rights of Ukrainian children in a situation of mass migration.

The side event was organized by the Coalition for the Rights of the Child in Ukraine and the Ukrainian Network for the Rights of the Child with the support of ADC Memorial. The meeting began with the premiere of the documentary animated film “We left. Voices of the Children of Ukraine.” The film is based on interviews conducted by psychologists with children who found themselves in forced migration in the EU countries. Children talk about how they survived the news of the beginning of the war, shelling, evacuation under bombing, and separation from loved ones, they talk about their pain, hopes and dreams.

Experts from Ukrainian public organizations involved in the protection of children’s rights spoke at the side event. Svetlana Shcherban (NGO “Kharkiv Institute for Social Research”) spoke about the problems of evacuating families with children from the temporarily occupied territories and territories where active hostilities are taking place. Tatyana Luzan (NGO “Right to Zakhist”) devoted her speech to unaccompanied migrant children and the practices of different EU countries in dealing with such children. Natalia Dmytruk (NGO “Gender Creative Space”) spoke about internally displaced children who ended up in safer regions of Ukraine and the problems their families face. Marianna Onufryk (SOS Kinderdorf Ukraine project “Right to Family”, Deputy Head of the Board of the Ukrainian Network for the Rights of the Child) spoke about the situation of children with disabilities, emphasising the need to continue the deinstitutionalization reform in Ukraine. The discussion was moderated by Tatyana Semikop (Public Movement “Faith. Hope. Love”).

Due to the significant security threat, people continue to evacuate from temporarily occupied territories and areas of active hostilities. Since July 29, mandatory evacuation of residents of unoccupied areas of Donetsk region has been introduced in Ukraine. For this, the Cabinet of Ministers supported the initiative of the Ministry of Reintegration to create a Coordination Headquarters, which will deal with the organization of moving people from the Donetsk region. In case they refuse to evacuate, citizens must sign a refusal form where they agree that they understand all the consequences and are responsible for their lives. An important decision regarding mandatory evacuation also strengthened the Government’s responsibility for orphans and children deprived of parental care. For refusing to evacuate, families, as well as foster carers and orphanages, will lose the right to take care of children. In the future, there are plans to expand the mandatory evacuation to the territory of other regions, where there is constant shelling and public services are destroyed without the possibility of their restoration (supply of gas, water, heat and electricity) – these are, first of all, Luhansk, Kharkiv, Zaporizhzhya, Kherson and Mykolaiv regions. In addition, in autumn, evacuation is complicated by weather conditions. Rainfall can wash out the dirt roads along which a large part of the evacuation routes pass.

Evacuation is usually organized by local authorities and volunteer organizations. There are no official humanitarian corridors for the civilian population to leave.

Families are also trying to leave on their own. But leaving the temporarily occupied territories is often associated with a number of risks. Ukrainians are taken for long-term filtering, they can be deported to the territory of Russia, men can be mobilized for war. The occupants at the checkpoints demand money for permission to leave, and can take away water and food, which are desperately needed during a several-day journey, especially in summer. There are also cases of shelling of vehicles. Any of the described situations can be critical for children whose parents are trying to get them out.

On August 1, Russian occupants fired at a bus at close range during an evacuation from the village of Starosillia, Kherson Region, to Kryvyi Rih. Two people died. Two more were hospitalized in critical condition.

According to Melitopol Mayor Ivan Fedorov, there is a case when parents were sent for filtering, two children aged four and six were left alone to sit in the car for eight hours. Also, on August 21, the mayor announced the death of a woman in a car queued for an exit in Vasylivka. The total number of deaths recorded in evacuation convoys has already exceeded a dozen. It is also known about the case of a baby with heatstroke that was brought to a local hospital, because the Russian military did not let the car through for two days.

According to the Ukrainian Parliament Commissioner for human rights, Dmytro Lubinets, during the filtering, the Russians keep men, women, and children separately. Then, at the same time, interrogations are conducted and they compare the data obtained. There is also a possibility of separation of parents and children, parents are not allowed to go with the children and are arrested because of certain issues with them. In this case, the children are sent to the territory of the Russian Federation by themselves.

It should be noted that threats of nuclear terrorism from Russia also prompt the evacuation of citizens. On March 4, 2022, the occupants captured Energodar and Zaporizhzhya NPP near the city. The Russians brought weapons and explosives to the Zaporizhzhya NPP, and also replaced a number of networks. Among them are gas, electricity and water supply of the station. The enemy has repeatedly shelled the ZNPP, which creates a danger of man-made catastrophe not only for Ukraine, but also for other countries of the world.

Lack of study of children’s needs, appropriate monitoring-planning-providing and accompanied leisure activities for TDP children. Lack of actualization of the problem and need for recreation and rest for TDP children.

Moderate assistance within community in organizing children’s education, despite their vulnerability and insecurity. Lack of places in preschool educational institutions for TDP children of preschool age, lack of adaptation for the parents’ with primary school age children needs to preschool education services.

Unsatisfactory level of living comfort for families with children, lack of living space, in particular in rented apartments, forced and critical adaptation for children/adolescents in temporary accommodation. The economic inaccessibility of rented housing for families with children, which causes the minimization of the comfort parameters within such housing, for children of all age groups, especially for teenagers – the lack of an individual sleeping place, the possibility of accumulating children’s attributes of life (clothes, books, toys), scarce parameters regarding leisure facilities for children/teenagers – sports equipment, TV and music devices, laptops/computers. And also, additional risks for children in the absence of their own living space. Distancing of communities from solving problematic situations with a shortage of housing and responsibility for the prospective improvement of living conditions for families with children.

Lack of logistical procedures for the organization/ provision of psychological support services for children/adolescents, in particular in rural areas. Lack of plans for an operational system-wide response, including alternative education and psychological support programs for TDP children.

Moderate redirection of psychological support services for children and of services for TDP children with special educational needs, children with psychophysical development disorders and children with disabilities.

Understaffing in residential institutions for persons with disabilities and the lack of accommodation for recreation, rehabilitation and leisure in these institutions, given their pre-war infrastructural underdevelopment, lack of resources and responsible leadership, partnership between community authorities and authorities at the regional levels, as well as irrational empathy in the issues of accommodation of evacuated TDP with disabilities.

Moderate medical services availability at the local level, the need to mobilize time and resources of parents to receive specialized medical care at the secondary and tertiary levels. The shortage of medicines and vaccines for children (including seasonal ones).

(preconditions for language discrimination) Underdeveloped children’s Ukrainian language skills, which causes situational discrimination from politically engaged and intolerant representatives of local communities, as a result of the authorities and public of the host communities not developing rules of empathic verbal communication with TDP families, in particular TDP children.

Despite the fact that the reform of deinstitualization has been going on for 5 years in Ukraine, the number of institutionalized children has not practically decreased. At the beginning of the full-scale invasion of Ukraine by the Russian Federation (24. 02.02.2022), there were more than 105 thousand children in institutions.

During February and July, 2022 4,505 of them were evacuated outside of Ukraine. Most children in institutions stayed in Poland – 36%, Germany – 17%, Italy – 8%, Austria – 6%, Romania – 6% , Turkey – 6%.

According to information from the EU Agency for Refugees, as of June 16, 2022, there were 7,962 unaccompanied children in the EU countries who are registered for temporary protection.

Now our efforts should be focused on the next goals in order to protect the Ukrainian children in institutions following the principle of the best interests of the child:

• to join efforts of Ukraine and all countries that hosted children from institutions and unaccompanied children in order to monitor their transfers and needs and provide them support;
• to direct all international, charitable and humanitarian aid in order to meet the individual needs of the child, with an emphasis on family based care – to develop services in Ukrainian communities;
• to prevent the restoration/reconstruction of the infrastructure of institutions during and after the war in Ukraine;
• To ensure the return of children from institutions, that have been evacuated to safe regions in Ukraine or host countries, to families or family-based care;
• To reset the DI reform in Ukraine.

• A clear narrative in relation to unaccompanied minors: temporary protection is not a refugee status
• Reconciliations of the Ukrainian and EU approaches to the unaccompanied minors and persons accompanying children crossing the state border

Before discussing the TPD and challenges connected to its application regarding the unaccompanied minors (UM) it is necessary to start with its predecessor in the EU landscape in relation to the UM, namely, the Council Resolution of 26 June 1997 on UM who are nationals of third countries.

The Regulation introduced the EU approach to the UM in a specific context. Namely,

1. it introduced in 1997 a definition of the UM at the EU level;
2. it is called to combat unauthorized immigration and residence by nationals of third countries on the territory of Member States (MSs);
3. MSs may refuse admission at the frontier to UM unless they look for the asylum, meaning that an alternative in this case is to obtain a refugee status;
4. where a minor is not allowed to prolong his stay after crossing border in a MS, it may return her.

In a couple of years in 2001 the TPD was adopted bringing a new option for displaced people because of inter alia a war – the temporary protection.

For the purpose of non-exhaustive comparison with the Regulation, it is necessary to mention that

1. the definition of UM is almost identical to the one in Regulation;
2. it was adopted to provide protection in the EU with limited duration, meaning temporary, to the displaced population, including UM, who cannot return to their country due to war, for example;
3. the displaced population is not required to give up on their citizenship nor to resort to the only alternative – refugee status although such a possibility is not excluded by the TPD; granting protection is relatively automatic for Ukrainians;
4. voluntary return of persons under temporary protection is prescribed.

To sum up the described above, it is possible to say that although procedures and mechanisms embedded in the named legal instruments differ quite significantly, the difference in the definition of the UM is almost indistinguishable. Moreover, this approach was introduced at the EU level at the end of the previous century.

Proceeding from this, it is necessary to bear in mind that Ukrainians, including the UM, are not refugees. They are in the EU temporarily, the EU protection is granted to them almost automatically. They have a right to voluntary return.

Additionally, there are in Ukraine efficiently functioning central and local child protection authorities that must be properly involved in the process of providing protection and care to the Ukrainian UM in the EU.

Meaning that such a situation that happened in Italy when Ukrainian children evacuated as an institution were locked in a facility with a legal representative barred from return may never take place again.

Returning to the point of definition of the UM which is two decades old, I would like to bring up a problem of its relevance and compatibility with both modern reality and Ukrainian legislation.

It is necessary to start with that the Ukrainian legislation does not contain a definition of the UM. Besides, it was announced by Ukrainian officials that UM are not allowed to cross the Ukrainian state border which we know is not the case. At least it is possible to state in relation to children of age 16-18 who are allowed to cross the state border independently.

Consequently, there is no comprehensive approach to the UM in Ukraine. However, only children aged 16-18 clearly fall under scope of the definition of UM in the TPD and shall be allowed to enter the EU. However, it was reported that at the Polish border children aged 16-17 are denied access to Poland and sent back to Ukraine.

Unfortunately, if to discuss the definition of UM in the TPD it is also far from being comprehensible. According to the TPD UM means third-country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person, or minors who are left unaccompanied after they have entered the territory of the Member States.

This definition was widened by the Commission in its Q&A. Namely, including to the UM a ‘separated child’ who is, citing, “a child who arrives on the territory of the Member States accompanied by relatives or known (non-related) adults, whereby sometimes the latter have been provided by the parent(s) an authorisation to travel with the child and/or provide temporary care”. The Commission, relying on the UN General Comment No 6 of the Committee on the Rights of the Child, freely interpreted it by omitting legal or customary primary care-givers and extending it to non-relatives authorised by parents.

Summing up here, the Commission issued a non-binding document relying on the non-binding UN document providing its interpretation of the definition of UM diluting it by introducing a notion of the separated child absent in binding legal instruments.

Next, the status of UM is directly linked with those adults who are traveling with them. So, the Commission again “legislated” by stating “[t]here are two other categories of children who are not strictly speaking ‘unaccompanied’ or ‘separated’, but who also need additional protection and guarantees as the latter.”

According to the Commission, these are: – children from the Ukrainian institutions, who often arrive to the EU in groups and accompanied by a guardian appointed by the competent Ukrainian authorities, and – children who arrive on the territory of the EU accompanied by a guardian appointed by the competent Ukrainian authorities.

What is the “additional protection” was not clarified, nor its correlation with the temporary protection?

So navigating here independently, it is necessary to mention that simultaneously the Commission in relation to the question of guardians referred to the 1996 Hague Convention on the protection of children. Specifically, it was mentioned that “sometimes acts issued by the Ukrainian authorities to appoint guardians are not directly recognised – as they should, under the 1996 Hague Convention on the protection of children”.

Unfortunately, there was no clarification on the specific issues, cases, documents, countries. That is why the only possible way to deal with this issue is to infer Article 40 of the named Convention. It says that the capacity and powers indicated in the certificate delivered to a person having parental responsibility in the broad sense by the State of a child’s habitual residence are presumed to be vested in that person, in the absence of proof to the contrary.

Consequently, the question is what kind of proofs to the contrary were presented by the MSs to deauthorize the legal representatives appointed by the Ukrainian authorities? Another example from Italy in this relation, a grandmother traveling with a girl was not recognized as a legal guardian despite Ukrainian authorizing documents. Now, the mother of the girl is trying to reunite with her daughter in the Italian court.

As a final conclusion, six months into the war it is less and less clear who the UM from Ukraine are. Inconsistencies between the MSs approaches should be overcome only by legislating at the EU level and amending inter alia the TPD. Inconsistencies between Ukraine and the EU should be overcome by joining the efforts of the EU and Ukrainian central authorities. In any case, family reunification and voluntary return prescribed by the TPD must be respected.