Separation of migrant parents from children: violation of the Convention on the Rights of the Child

23.11.2016
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There is a variety of everyday situations involving children, where it is necessary to observe the principle of the best interests of the child, but there is often a dilemma posed. For example, in case of a divorce of parents, whom should the child live with, the father or the mother? How to solve the problem of communication with a parent who lives separately from the child? What if a child is unable to cope with the school curriculum? Should he be sent to a different school, where it is “easier” for him or her to study? Should a child with some particular health problems study in a regular school or should he or her be transferred to a school for kids with disabilities? There are some particularly controversial situations, which are being widely discussed by the public in Russia, such as the cases of taking children away from their families. On the one hand, the child has the right to live in a family environment, on the other hand, staying with his or her family can be dangerous for the child. Guardianship bodies, which decide on taking the child from his parents, sometimes wrongfully rule that staying with his or her family is dangerous for a child (for example, in cases where the parents can not get a job, have accumulated debts on rent, but at the same time they do not suffer from addictions and try their best to take care of their children). But instead of taking away children from their families it would be proper to support these families and help them to get out of their difficult situations.

The existing norm of the Russian legislation, which allows for the withdrawal of children from their parents, is defined by Article 77 of the Russian Family Code. Immediate withdrawal of children from their parents or guardians is allowed only in case of an immediate threat to the life or health of the child. The legal ground for the removal of the child from the family is a decision made by the staff of the guardianship authorities. Immediately after the removal of the child from the family the guardianship and custody authorities must notify the prosecutor, provide for the temporary placement of the child and within 7 days must appeal to court concerning deprivation or restriction of parental rights. In this case, the existence of a threat to the life and health of the child, in essence, is defined alone by a person who carries out the procedure, based on his own perception of proper and acceptable security. The absence of more specific and legally fixed benchmarks sometimes leads in practice to arbitrary decisions, when children are taken from the family without sufficient grounds for that.

There have been many publications in the Russian press on the removal of children from large families or single mothers who were accused of not providing their children with proper care. I would like to point out that there exists another, even less protected category of families, whose children are at risk of being separated from their parents, the families of migrants.

Many existing international and European human rights standards, including the UN Convention on the Rights of the Child, require that the rights of children should be ensured regardless of their migration status. However, in Russia the norms of observing the rights of children of migrants and their parents are often merely declared. In practice children are not taken from migrant parents by guardians, but by police officers. The details of this “procedure” became common knowledge after the tragic death of Umarali Nazarov, a baby from Tajikistan. A police officer compiled a protocol about supposedly discovering an “abandoned child” and did not rewrite it after the child’s grandmother brought to the police station the identity documents of Umarali and his mother. Children taken away from their migrant parents are being placed in children’s hospitals and specialized shelters for homeless and neglected children.

Recently, there was a similar case in Moscow, when Nilufar Mamasaidova, a citizen of Uzbekistan, had been detained by the police and the officers seized her one-year-old daughter following Mamasaidova’s own appeal to the police with a statement that she had been robbed. The formal reason for the removal was the lack of documents for the child, which, according to Mamasaidova, had disappeared as a result of theft. Police officers speculated that it was in fact not her daughter, because she supposedly did not look like her. Fortunately, the efforts of the public resulted in reunification of Mamasaidova with her daughter following timely issue of a certificate for her, which allowed her to return with her child to their native land.

The tragic death of Umarali Nazarov and the case of Nilufar Mamasaidova, which fortunately ended well, are only a few cases of separation of migrant mothers from their children, the ones that became known to the public. In reality there are many more cases when mothers, sometimes even pregnant women, are being placed into temporary detention centers for foreign nationals for violation of the immigration regulations, while their children are being taken to hospitals or “transit shelters”, closed institutions for children found on the street, many of whom in fact are children of migrants. ADC “Memorial” has repeatedly raised the issue of the discriminatory treatment of migrant mothers. These women are being placed in almost prison-like conditions in the temporary detention centers for foreign nationals for merely administrative offenses, and they are separated from their children. At the same time the Russian law prohibits to detain mothers of small children, who are Russian citizens, for more than three hours in case of violations of the Administrative Code.

In 2016 ADC “Memorial” provided legal defense of the rights of Raykin R., a pregnant woman and an Uzbek citizen, who had been placed in the temporary detention center for foreign nationals and whose daughter had been taken away from her and placed in the “transit shelter”. It was possible to get Rayhon expelled from Russia to her native country together with her child, but as a rule children and parents are expelled separately and children are being accompanied to the border by the shelter staff.

This was the case, for example, of Dilafruz Nabotova, an Uzbek citizen expelled from the Russian Federation. Back in September 2015, during a raid carried out by the police and the Federal Migration Service (FMS) in St. Petersburg, Nabotova, who had been in her last month of pregnancy, had been detained for violation of the regime of stay in the Russian Federation. She had been placed in temporary detention center for foreign nationals in Krasnoye Selo (Leningrad region), and her two small children had been taken by an ambulance to a “transit shelter”. Several days later Nabotova had given birth to her child and then she had been transported from the hospital with her newborn baby back to the detention center. According to her, first the employees of the detention center whom she had encountered on arrival had promised her that she would go home with her children, but later she had been told that the documents allowed only for the release of her and her newborn baby, while the rest of her children had to be expelled later and separately from her. Nabotova and her newborn baby were deported in October 2015, and her older children, accompanied by employees of the shelter, arrived in Uzbekistan only two months later.

These cases are evidence not only of violations of the principle of observing the best interests of the child, but also of discrimination against migrant women. The lives and health of children were not in danger in the cases described above, so there was no reason for withdrawing children from their parents and placing them in closed institutions without the possibility of seeing their mothers. Temporary detention centers for foreign nationals do not have conditions for keeping pregnant women there, and not only in practice, but also “on paper”. The rules for keeping foreign citizens in temporary detention centers do not provide for improved nutrition that should be offered to pregnant women even in prisons, there are no specially trained medical staff and no necessary drugs, there is not even place for walks there. Even women convicted of criminal offenses can be granted a deferment of prison sentences, but migrant women, even pregnant ones, never have a possibility to remain free, even in case of only minor administrative offenses, such as exceeding the period of stay in Russia.

In response to a lawyer’s inquiry about the conditions of Nabotova’s detention in the temporary detention center for foreign nationals, the head of the Federal Migration Service for St. Petersburg and the Leningrad region Mrs. Dunayeva stated that “there were no separate allocations in the budget of the FMS, which were aimed at ensuring that pregnant women and women with newborns were kept in detention centers”. However, she stated that the officers of FMS had purchased medical and other products for Nabotova, including a changing table and additional food at their own expense, which apparently should have convinced the lawyers how humane and generous the migration service was.

Pregnant women and mothers in general should not be put into temporary detention centers for foreign nationals and should not be separated from their children. It is quite obvious that this is in the best interests of children. The practice of separate expulsions of children to the country of permanent residence should also be reviewed. It is regulated by the Chisinau Agreement of the CIS countries (2002) and it deals with children left without care, while in the cases described above, the children had their loving parents and were left “without care” by the Russian police and FMS officers who had imprisoned their mothers in temporary detention centers.

Sergey Mikheyev