Provision of legal representation
Where the child needs to have a guardian/representative appointed, the lodging of the application for international protection should not take place before the appointment of a guardian/representative, who should also assist with the lodging of the application.
An independent and qualified guardian/representative should be appointed as soon as possible as part of the guarantees for unaccompanied and separated children. The guardian should possess a number of qualities, i.e. expertise with respect to young people, and sufficient capacity along with expertise in child-specific protection needs, to mention a few. It is important that the child have support (61) throughout the asylum procedure, from the appointed guardian/representative as well as access to legal assistance and counselling.
It is key to ensure the continuity of the designation of guardians/representatives and set a maximum number of children that they can represent at one time.
| Examples of practice |
| In BE, the court decides whether an accompanying adult can be nominated as the child’s civil guardian once the procedures to obtain permission to stay in Belgium have ended. During the asylum procedure, an accompanying adult cannot be nominated as the child’s guardian. In IE, it is considered to be in the best interests of any unaccompanied child in the state to be allocated a social worker (who acts in loco parentis as the child’s guardian) immediately. |
The guardian/representative should be fully informed of the procedures and provide consent where in line with the best interests of the child. They should be present in any interview conducted with the child, as the guardian’s presence is part of the guarantees of the child’s rights being respected during the interview. However, in the cases of children with parents or separated children, where the caregiver is a relative, the best interests of the child could require not to have them present during the interview (see also 3.6 Appointing relative/accompanying adult as caregiver/guardian).
Provision of legal advice
APD (recast) states that the Member States shall appoint a representative as soon as possible (62) APD (recast) also foresees provision of free legal and procedural information on request of the applicant at first instance. The child should be provided with access to legal advice and counselling. It is good practice to ensure that the child has access to legal aid services free of charge at all stages of the asylum procedure.
The child’s legal advisor should also be given the opportunity to attend any interview of the child. Overall, the child should be accompanied in the interviews, unless the child prefers otherwise and it is possible to accommodate such a request. Given the significant safeguarding roles performed by the legal advisor and/or representative, it should be decided whose presence would be in the best interests of the child.
Provision of information and interpretation
Safeguards should be in place to ensure that the child can participate, fully understands and has been informed about the asylum process and its consequences in a child-friendly, gender sensitive and ageappropriate manner, and in a language that the child can understand, in order to allow the child to express views, wishes and opinions, ask questions and to make an informed decision to participate in the process.
The child should be provided with timely information, interpretation and materials explaining the asylum procedures and should be able to review the information throughout the process. Where possible, the interpreter should be experienced in interpreting for children. Appropriate guidance should be provided to the child at all stages of any vulnerability assessments, in line with their age and maturity. The child should not be left without appropriate guidance, which is to be provided by the guardian/representative and other relevant actors, i.e. personnel responsible for daily care arrangements.
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(61) In some Member States, this could include only legal and mental/moral support. Depending on the Member State, the role of the representative is not to give social support (i.e. difference with the caregiver role) but to be a legal representative.
(62) Article 25(1)(a) APD (recast).