ADC Memorial continues its series publications on children’s rights as part of its cooperation on the project “Promotion of modern international standards of children’s rights: deinstitutionalization and humanization of closed institutions in Belarus, Moldova and Ukraine” (supported through the EaP Civil Society Forum Re-granting Scheme (FSTP) to Members and funded by the European Union as part of its support to civil society in the region).
In 2021, the ODIHR OSCE prepared a detailed report on the expert meeting ” The Rights of Migrant Children in Regional Processes: what happens after the Chisinau agreement?”. The meeting was held at the initiative and with the participation of ADC “Memorial” at the end of 2020; it was devoted to the problems of outdated legislation and inhumane practices that still regulate the return of migrant children to their homeland in the countries of the former USSR.
Among the 40 participants of the meeting there were experts of the UN Committee on the Rights of the Child Renata Winter and Mikiko Otani, independent expert of the UN Global Study on Children in Detention Manfred Novak, MEP Tineke Strick, ODIHR OSCE officers, representatives of the Human Rights institutions of Moldova and Kyrgyzstan, representatives of national authorities and civil society of Belarus, Moldova, Ukraine, Kazakhstan, Kyrgyzstan, Tajikistan, Uzbekistan.
At a regional level, the 2002 Chisinau Agreement on the Return of Minor Children to Their Country of Origin regulates the return and repatriation of migrant children. Under this agreement, migrant children are returned to their countries of origin through “transit institutions” which result in family separations and children being placed in institutional settings, often in the penitentiary system, unsuitable for their wellbeing. Due to outdated legislation and state policies, migrant children often faced barriers in accessing their rights, resulting in risks to their wellbeing and personal development. A number of countries have recognised these problems and reformed their social protection systems to address them; these examples show that when appropriately conducted, policy and legislative reforms can bring improvements in access to rights. For instance, Armenia, Georgia, Kazakhstan and Moldova, have already taken steps to reform their systems and this has included the closing down of police-run reception centres and the placement of migrant children under more appropriate institutions within social or educational system. Other countries, such as Kyrgyzstan, Ukraine and the Russian Federation, are currently in the process of enacting or considering reforms.
In 2019, ADC Memorial started a campaign #CrossBorderChildhood to promote bilateral treaties between countries based on the recommendation of the UN Committee on the Rights of the Child and the UN Committee on the Rights of all Migrant Workers and Members of Their Families. The campaign has brought together several actors in the region and resulted in the elaboration of a rights-based Model Agreement for the Return of Children, an initiative which has prompted action from Moldova and Ukraine on such a bilateral agreement and which has potential relevance for other countries in the region.
The expert discussion highlighted that not only is the Chisinau Agreement outdated, it is no longer being applied by some of the original signatories because they have left the CIS or have reformed their national laws and practices to be more child rights compliant. The Chisinau Agreement is therefore not only in need of reform, but should be replaced by bilateral or regional agreements on the readmission of children that take into account the best interests of the child and human rights standards.
The ratification and implementation of the UNCRC has led to many positive developments in the region, and following the recent guidance provided in the joint General Comments, more progress should now be made to implement the UNCRC principles and to respect the rights of children in the context of international migration. In particular, decision making concerning the potential return of a child should be based on a ‘best interests’ determination with appropriate support and procedural safeguards.
In his presentation, Ruslan Kolbasa, Head of the Directorate for the Development of Social Services and Protection of Children’s Rights of the Ministry of Social Policy of Ukraine, spoke about the ongoing close cooperation with Moldova, including mutual visits to better familiarize with the systems of the two countries, emphasizing that Ukraine is currently developing a new bilateral agreement with Moldova and is negotiating agreements with other countries, such as France and Germany.
Igor Kishke from the Ministry of Health and Social Policy of Moldova, spoke about Moldova’s experience in the field of child repatriation. He stressed that consulates and embassies play an important role in providing assistance, and that protection authorities also monitor post-repatriation returns, as well as support for rehabilitation and reintegration (currently suspended due to the pandemic). Mr. Kishke explained that Moldova is no longer part of the Chisinau Agreement and is therefore negotiating new bilateral agreements with the countries of the region and the EU states. In his opinion, best practices in the field of child repatriation need to be disseminated with the participation of the OSCE, following the example of the recently published OSCE guidelines on the establishment of national focal points for the protection of child victims of trafficking.
During the discussion, the participants noted the significant efforts of Kyrgyzstan to overcome the problem of immigration detention of children; thus, the repatriated children are immediately transferred to a family or social institution; while in some other Central Asian countries, children who have repatriated are often kept behind the bars in closed institutions for a long time.
The presentations and plenary discussion during this meeting generated a number of recommendations; the most important are the following:
4. End child and family immigration detention and the criminalization of child migrants
- States should: clearly define deprivation of liberty in line with international standards; prohibit child and family immigration detention in law; decriminalize irregular entry, stay and exit; adopt child-sensitive identification and referral procedures in the context of migration; dedicate sufficient resources to appropriate non-custodial solutions for children and their families; and, develop national action plans aimed at an overall reduction in the numbers of children in detention and the elimination of detention for children.
- States should provide unaccompanied children with alternative care and accommodation, in line with the United Nations Guidelines for the Alternative Care of Children.17
- States should not separate children from their families. The need to keep the family together is not a valid basis for deprivation of liberty of the child; instead, the State should provide community-based, non-custodial solutions for the entire family.
- States should ensure that when deprived of their liberty children should have the right to prompt legal and other assistance to challenge the legality of their detention.
- States should ensure that any children have the right to effective remedies, including the ability to lodge complaints with an independent and impartial authority on any grievances and human rights violations experienced during detention.
6. Advance legislative and policy reform efforts at the national level to protect children’s rights and engage in international co-operation to develop bilateral and regional agreements to protect children’s rights in return decisions and readmission procedures
As stressed by the Committees in their Joint General Comment No 4 of the CMW/23 of the CRC18, “The Committees reaffirm the need to address international migration through international, regional or bilateral cooperation and dialogue …In particular, cross-border case management procedures should be established in an expeditious manner in conformity… with international human rights and refugee law obligations. States should develop child rights based bilateral agreements and involve child protection actors including NGOs providing case management expertise in these processes.”
- Ombudspersons in the region should promote reform of the Chisinau Agreement to ensure respect for children’s rights in decision making on durable solutions and during readmission procedures.
- ODIHR could develop a toolkit to showcase good practices, model legislation and model bilateral agreements.
- States should consider using the opportunity to request a review of proposed legislation in this area by ODIHR to inform greater compliance with international human rights standards.
Within its Re-granting Scheme, the Eastern Partnership Civil Society Forum (EaP CSF) supports projects of its members that contribute to achieving the mission and objectives of the Forum. Grants are available for CSOs from the Eastern Partnership and EU countries. Key areas of support are democracy and human rights, economic integration, environment and energy, contacts between people, social and labour policies.
This publication was produced with the financial support of the European Union. Its content is the responsibility of ADC Memorial and does not necessarily reflect the views of the European Union.
OSCE report on the Meeting on CHildren Rights, 7-8 December 2020, Chisinau agreement