VII. The Right to Education and the Right to Health

1. The Right to Education

Spanish law grants foreign children equal access to compulsory education up to the age of 16, and the lack of a residence permit cannot be an obstacle in the child's access to educational programs and activities.[217] Children in possession of residence permits are also able to access non-compulsory education, including tertiary education.[218]Canary Islands legislation requires the drafting of an individualized education program (proyecto educativo individual p.e.i.) for all children in residential care.[219]

Children below the age of 16 staying in CAMEs were in most cases enrolled in Spanish school, typically following an initial language training of a few months within the center. We spoke with children who, with as little as six months of classes, were able to be interviewed in Spanish. Children enrolled in public schools were generally enthusiastic about this learning opportunity.

Children staying in emergency centers receive significantly less education than those in CAMEs. Whereas children enrolled in Spanish schools receive around six hours of education per day, children as young as 12 in Arinaga center received as little as three hours of classes per week, taught by center staff rather than qualified instructors, and over a period of at least six months. The center only opened classroom facilities and introduced a new education program at the end of January 2007.

• "Only some time ago I started studying more. Since last Monday we started studying more. Before, we were organized in modules. Before there were classes every day but my module did not attend classes every day, only one day per week, maybe two, from 10 a.m. to 1 or 2 p.m.," 14-year-old Adama S. told us.[220]

• "Yesterday we had classes but not today. Only on Thursday this week, from 11 to 12 a.m. There were no Spanish classes before. The first time was on Monday, the second time on Thursday. Only this week they started, never before," said Mohammad I., age 12.[221]

• "We didn't go to school there. We studied in the kitchen there and here also. I would like to go to school. [Here] class isn't every day," 13-year-old Rashid P. reported.[222]

Human Rights Watch did not attempt to evaluate the curriculum that children received in Arinaga and other emergency centers, but we observed other features of those centers that suggested that the instruction children received there was not equivalent to the education they would receive in a local school.For example, neither Tegueste nor La Esperanza had classroom facilities when we visited; Arinaga center was due to open a building for classes at the end of January 2007. Cafeterias may provide adequate, if not ideal, spaces for instruction, but none of the emergency centers appeared to have any instructional materials at the time of our visit-we saw no blackboards, books, or school supplies in any of these centers. In addition to the lack of instructional materials, children reported that they had no homework or other assignments. As a consequence, they spend their free time hanging around in the courtyards or watching TV.

Access to and quality of education is in practice determined by the type of center a child is assigned to. This poses a serious obstacle for children placed in emergency centers since access to quality education is key to enhancing their chances for successful integration including access to the regular labor market.

Vocational education

Children from the age of 16 have the possibility of pursuing vocational training to develop skills and increase their chances for job opportunities.

The lack of places in such training programs for national and foreign children alike is a shortcoming in the Canary Islands. Most children have attended short-term workshops of a few weeks or months only, and a majority of children in emergency centers did not attend any vocational training at all. Arinaga and La Esperanza centers only started preparations to offer on-site vocational training workshops in January 2007.

Human Rights Watch received contradictory information on whether migrant children were able to attend the full vocational training without a valid work permit. One child reported no problems in attending vocational training over a period of up to two years. Two boys, however, told us that the absence of a work permit prevented them from attending the practical segment of a vocational training program. "I attend professional training every day. I was not included in the practical part because I don't have the required permit to do the practical part. I have to wait some more months but I don't know when I will receive my permits," 17-year-old Abdullahi F. said.[223] Shai L., age 17, told us, "I followed a vocational training course for six months. I only did the part of the vocational education in the school, and I didn't do the practical part in the company."[224]

Participation in the practical segment provides an important opportunity for children to secure a work offer, access to the regular labor sector, and consequently regularization of their status after age 18. In the practical segment, a child can directly establish contact with a potential employer and is able to prove himself or herself as a future employee.[225]

Children enjoy the right to education, and state parties to the International Covenant on Economic, Social and Cultural Rights are obliged to provide education in a non-discriminatory manner. The principle of non-discrimination is enshrined in the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the ICESCR, and the International Convention on the Elimination of All Forms of Racial Discrimination.[226]

The UN Committee on Economic, Social and Cultural Rights held that the prohibition against discrimination in education is an immediate obligation on states parties to the ICESCR and "is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination."[227] The committee further "confirms that the principle of non-discrimination extends to all persons of school age residing in the territory of a State party, including non-nationals, and irrespective of their legal status."[228]

Thus, regardless of its resources, the state must provide education "on the basis of equal opportunity," and "without discrimination of any kind irrespective of the child's race, colour, sex, language, religion, political or other opinion, national ethnic or social origin, property, disability, birth or other status."[229] The guarantees of equality before the law and the equal protection of law prevent a government from arbitrarily making distinctions among classes of persons in promulgating and enforcing its laws.A state will violate the prohibition on discrimination in education both with direct action, such as introducing or failing to repeal discriminatory laws, as well as when it fails "to take measures which address de facto educational discrimination."[230]

With regard to unaccompanied children, the Committee on the Rights of the Child spells out that "States should ensure that access to education is maintained during all phases of the displacement cycle. Every unaccompanied or separated child, irrespective of status, shall have full access to education in the country that they have entered. The unaccompanied or separated child should be registered with appropriate school authorities as soon as possible and get assistance in maximizing learning opportunities." With regard to vocational education, the committee recommends that "all adolescents should be allowed to enroll in vocational/professional training or education."[231]

2. The Right to Health

Spanish legislation guarantees equal access to health care to all children on Spanish territory.[232] Access to medical services is through a personal health card (tarjeta sanitaria). Residential centers typically coordinate and cooperate with external medical facilities and provide children with access to medical services and medicine. Coordination among authorities and medical intervention for migrant children is regulated by a protocol.[233]

Children's health cards remain in the possession of center staff, which is not an ideal situation insofar as this could give occasion for neglect or abuse by withholding the card when children are in need of medical care.

The large majority of children interviewed underwent a medical check-up within the first weeks after their arrival, which included screening for a range of infectious diseases. Children whom we interviewed typically did not receive any information about the tests that were to be performed, and screenings were generally carried out without their informed consent; as a rule, children did not receive their test results unless they specifically asked for them.Similarly, children who were receiving treatment did not always know what they were being treated for.In one case involving up to a dozen boys, they did not even know that they were receiving medication against a bacterial infection-instead, staff told them that they were being given vitamins.[234]

Human Rights Watch observed differing levels of children's access to treatment. One child appeared to be well attended following the diagnosis of a heart disease. Another child, though, maintained that center staff refused to take him to a doctor for an injury despite his explicit request. A third child told us that he repeatedly asked to be taken to hospital because of a toothache but had to wait for one month until he received treatment.[235] A fourth child reported that his throat infection had not been immediately looked after during a period of overcrowding, although he had had high fever and repeatedly requested that he be taken to hospital.[236]

The absence of on-site interpreters in emergency centers is a serious obstacle in communicating with children, in providing counseling services, as well as in recognizing possible special needs. Other children are not able to act as ad hoc interpreters due to their lack of access to quality education. The interpreter visiting an emergency center with Human Rights Watch was spontaneously asked by the center director to "talk" to a child, because the boy had changed his behavior following his father's death.[237]

We followed the case of 17-year-old Ousmane E., who waited almost nine months for treatment.The boy had injured his knee in mid-August 2006. By the end of January 2007, when we met him at La Esperanza center, he had been waiting for surgery for five months and was suffering constant pain.[238] He was taking painkillers twice a day.[239]Center staff members told Ousmane that he was on the waiting list for surgery and would be called by the hospital any day. But when Human Rights Watch investigated his case in February 2007 we found that he was no longer on the waiting list because the hospital had attempted several times to contact his center, without success, to schedule surgery.[240] After we informed the center about the boy's status the director tried to include him on a different waiting list through a personal contact.

In early March Ousmane was suddenly transferred to the Spanish mainland without having received treatment in the Canaries. His access to treatment in the new autonomous community was delayed for another two months because he did not have a valid health card to access treatment there. The fact that he still did not possess an identification document further complicated his access to treatment.[241]In early May, almost nine months after his injury, Ousmane still depended on painkillers twice a day and was finally about to start treatment.

Food at La Esperanza center

Food at La Esperanza center is delivered by a catering service. Children report that they do not get enough to eat, and the number of reports of food-related illnesses suggests that it is not prepared, stored, or handled in a manner that meets standards of hygiene.[242] Although children acknowledged that they received bigger bread rolls as a result of repeated complaints since January 2007, they generally felt that their complaints about the quality and amount of food they receive were not taken seriously.

"I don't like the food very much. It's not very good. I sometimes don't eat and buy chocolate or candy instead. I throw out the food a lot. In the morning we receive cold milk and bread with something inside. I don't know what is inside. It is not possible to heat the milk. Our meals are never hot and we don't eat any vegetables-ever. I complained to the director about the food," seventeen-year old Yunus S. told us.[243] "I complain every day to the educators about the food, the reply is because there is no money we are not given something else-we eat the same thing for dinner and lunch; there is also fruit for dinner," we were told by Jean-Marie N.[244]

Children reported that vegetables are not part of their diet. They further told us that they repeatedly suffer from "upset stomachs" and diarrhea. Yunus S. told us, "We had an upset stomach and diarrhea yesterday so we didn't receive breakfast this morning. We protested but did not get any response. Sometimes children have diarrhea for three days, I usually only have diarrhea for one night; then it's ok."[245] A case of large-scale food poisoning in November 2006 led to the treatment of dozens of children including the hospitalization of some in both La Esperanza and Tegueste centers.[246] This food poisoning, which was widely reported in the news, was not an isolated case. On the contrary, 17-year-old Abdul Q. vividly remembers another incident:

They sent about 10 boys to the hospital. We were all sick. This was about 12 days ago. They said it was because of the soup, that it was bad. I was one of the ones who went to the hospital. I was in a lot of pain; I felt almost like I was going to die. Every two minutes I had to go to the bathroom. My stomach hurt. They didn't tell us what we had.[247]

A ban on bringing in any food from the outside exacerbated the situation and contributed to children's food shortage. The ban was in place in La Esperanza wing one until the end of 2006, when there was a change of directors.[248] Staff during that period searched children upon their return from the city and confiscated any food they found.[249]Jean-Marie N. told us, "We could not bring in candies and were searched and candy was being confiscated; everyone found ways to bring in some candy nevertheless. We were told we had to eat that food [they served us] to integrate."[250]

The ban was a factor behind children stealing from each other, in which the vulnerable fall prey to older or stronger children. Seventeen-year-old Yunus S. was unable to protect his belongings from theft by stronger children: "There are lots of problems in the center. A lot of children steal money. My money is stolen every week. I complained to the educators but they didn't help me. It always happens to me."[251] Lakh S, age 17, described the circumstances behind children's thefts: "There is theft of food but we are not thieves, the only reason we steal is because we are hungry; we wouldn't steal otherwise."[252]

Food and clothes at Arinaga center

Children at Arinaga center reported that they did not receive enough food during the time the center was overcrowded. "It was very difficult; there wasn't enough food; it was just enough to fill one part of your stomach. We had to wait until 11 a.m. to get our breakfast on some days. This lasted for three to six months," said 17-year-old Modou M.[253]

Some educators also reportedly abused their position and withheld food from children. Zubir F., age 13, told us, "One educator comes on the weekends, he is very racist and he doesn't give us our afternoon snack."[254] Modou M. reports similar behavior: "The bad educators react and get our pocket money cut; they are also withholding food. If a certain educator you had an argument with happens to serve the food, he refuses to give more. So you don't get a second helping."[255]

Some children did not have enough clothes and whenever they washed their clothes they had to borrow a set from a friend. As Mohamad G. told us, "I have only one set of clothes. I received my trousers outside and got my shoes as a gift from an educator. My t-shirt is full of holes and the clothes in the center are too big for me."[256] According to law 1/1997, children in residential care are entitled to receive essential needs for their daily life in accordance with an adequate personal development.[257] It would appear that in the case of Arinaga, the authorities are not meeting this legal requirement, and that, moreover, some center staff are profiting from this: children we interviewed alleged that some staff members sell clothes and shoes to them, charging 5 for a pair of sandals.[258] Several children told us that they pick up clothes from a collection site nearby, or that their families send clothes from home.

Every child has the right to the highest attainable standards of health and states are obliged to provide the right to health in a non-discriminatory manner. They are further "obligated to ensure that unaccompanied children have the same access to health care as children who are nationals." In ensuring children's access to the highest attainable standard of health, states parties to the Convention on the Rights of the Child must assess and address the particular plight of separated and unaccompanied children and should in particular take into account the fact that these children have "undergone separation from family members and have also, to varying degrees, experienced loss, trauma, disruption and violence."[259]

States parties to the ICESCR have "immediate obligations in relation to the right to health, such as the guarantee that the right will be exercised without discrimination of any kind" and states must "refrain from denying or limiting equal access for all persons."[260]

The UN Committee on Economic, Social and Cultural Rights spells out that the right to health "extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment."[261] Violations of the obligation to respect the right to health include the "denial of access to health facilities, goods and services to particular individuals or groups as a result of de jure or de facto discrimination; [or] the deliberate withholding or misrepresentation of information vital to health protection or treatment."[262]