IV. Lack of Legal Representation for Unaccompanied Migrant Children

In airport transit zones, unaccompanied migrant child are treated exactly the same as adults with one exception—children are, in theory, appointed a legal guardian, a so-called ad hoc administrator (administrateur ad hoc).[77] Human Rights Watch recognizes the commitment and good intentions of the majority of individual ad hoc administrators and the part they play in helping protect children. Without them the system would be even worse than it is. Nevertheless, we have concerns about the limitations of their role and the capacity of ad hoc administrators to always discharge it in the best interests of the child.

Ad hoc administrators are not supposed to provide legal aid for children nor to co-decide on police decisions, including whether a child is deported. Although they are to “assist” children detained in the transit zone, their primary task is to make up for the child’s legal lack of capacity and to “assure representation” of the child so that authorities’ actions become valid.[78]

Yet, even these requirements are disposable. Although some ad hoc administrators manage to play a protective function for the child, other guardians may perform a purely nominal function without ever meeting the child they represent, and their absence does not block police from detaining or deporting a child.[79]

Two organizations, the French Red Cross and Famille Assistance provide ad hoc administrators for unaccompanied children at Roissy airport. French Red Cross ad hoc administrators are unpaid volunteers, while those who work for the organization “Famille Assistance” receive the minimal remuneration provided for by law.

The requirements to be met for an individual to be appointed an ad hoc administrator are low and remuneration is very small, fixed at 150 Euro per child represented.[80] There is no reimbursement for transport, communication, or interpretation expenses, or for additional workload due to appeals and representation during court hearings. Given these limitations ad hoc administrators are confronted with, the risk is that for all their good intentions some may in practice do little more than rubber stamp the administrative and judicial procedures to which the child is subjected.[81]

Despite the requirement that all unaccompanied children be appointed an ad hoc administrator, in practice, around 30 percent of all children who entered in 2008 were unrepresented and had no guardian assigned. An additional 20 percent never met with their guardian because they were deported or continued their journey before they met their representative.[82] The overall percentage of children represented has improved significantly since February 2009 with the creation of a new organization, Famille Assistance, but as many as 13 percent of unaccompanied children remained without a guardian as of May 2009.[83]

The Limits on the Role of Ad Hoc Administrators

French authorities are obliged under international law to give primary consideration to the child’s best interest in any decision they make.[84] This includes whether a child should be detained, deported, or undergo an age exam. Under French law the child’s ad hoc administrator is mandated to safeguard the child’s best interests. 

Yet, despite the legal mandate, ad hoc administrators are not given the required powers to do so effectively. Airport border police underlined in a meeting with Human Rights Watch that ad hoc administrators did not and should not participate in police decisions regarding the child’s detention, deportation, or decision to carry out an age exam.[85] In practice, these decisions are not subject to a best interest assessment and remain exclusive police decisions in which ad hoc administrators have no say.[86]

Ad hoc administrators act under severe time pressure and have enormous responsibilities. They often represent several children at the same time, in exceptional cases even up to 10, which raises questions about their capacity to build a relationship of trust with the child and assess his or her situation within a very short period involving limited encounters. One child described us the encounter with his ad hoc administrator as follows: “that man gave me a paper with his phone number the day before the [asylum] interview. He explained to me but it was difficult to understand who he was.”[87] Their work becomes even more difficult when representing children who are traumatized, who have complex migration histories, who are trafficked, or children who do not trust their ad hoc administrators and reveal little about the reasons why they came to France. One ad hoc administrator described the daily difficulties she faces as follows:

Sometimes [we] are overburdened and we have complicated cases. It’s horrible to have cases full of misery and psychologically it is sometimes very difficult.... the transit zone is a race against time. You lose time because the child is under shock, jetlagged, tired, confused, passing the age exam, or busy because of the meal hours. You lose a lot of time like this in the beginning until you can finally start figuring out what’s happening. It is also physically tough, because you have to run around a lot.[88]

Ad hoc administrators interviewed by Human Rights Watch were very committed and generally well-qualified to morally support and reassure children, although several lacked a broad knowledge about the rights of migrants and asylum seekers. Human Rights Watch has concerns that training was often limited, which contributed to these low knowledge levels of children’s and migrants rights.[89]

Human Rights Watch witnessed administrators seeking courses of action which belied a lack of understanding of the process. For example, two ad hoc administrators we saw in court hearings demanded that the liberty and detention judge order the police to return the child to the country of origin and not the transit country. While the judge reviews the legality of the child’s detention it does not have the power to give such orders to the police.[90] Human Rights Watch also observed one ad hoc administrator intervening against the interest of the child by declaring before the liberty and detention judge that the boy was lying about his nationality and had given a different version during the police interview.[91] Another ad hoc administrator was unsure about the children’s judge’s power to intervene and was unable to reach her organization to discuss the right course of action.[92] Several ad hoc administrators said they had never heard of subsidiary protection entitlements for asylum seekers that forbid return to inhuman or degrading treatment or to grave threat against one’s life or person, and even an experienced ad hoc administrator did not know how to challenge an administrative detention order.[93]

Additionally, several ad hoc administrators expressed reluctance to consistently challenge government decisions by appealing detention orders or requesting interventions before the children’s judge. They said they feared this would tarnish their credibility or complicate their relationship with these institutions.[94]

Ad hoc administrators for the airport transit zone are not subject to any external supervision or monitoring and their actions are not reviewed by any independent mechanism. Although they regularly submit reports to the prosecutor, the latter is not mandated to assess the exercise of their function.[95] The UN Committee on the Rights of the Child calls on states to introduce review mechanisms to monitor the quality of the exercise of guardianship so that the best interests of the child are respected.[96] 

Absence of Ad Hoc Administrators

The law does not require the immediate presence of an ad hoc administrator when a child arrives at the airport and begins their interaction with the authorities. As ad hoc administrator do not have a permanent presence at the airport—a consequence of their low remuneration—they meet children only after some delay, often the day after the child’s arrival. Therefore the system does not ensure the presence of an ad hoc administrator at a time when the child is subject to some of the most important procedures in the transit zone—including access to the asylum procedure, and the 24 hour protection from deportation—and they are then unable to verify that children’s rights are respected during this time.[97] As described previously, Human Rights Watch found numerous rights violations during this initial period.

Some children are even deported before their ad hoc administrator arrives at the airport. The French Red Cross said that in 2008 around 30 percent of children they represented never met with their ad hoc administrator, in most cases because they were deported or continued their journey before their ad hoc administrator arrived.[98] While shockingly high, this figure represents an improvement to 2007, when 52 percent of all children represented by the French Red Cross did not meet with their ad hoc administrator, in a majority of cases because they were deported or continued their journey within less than 24 hours.[99] A child’s deportation is valid even when the child has never met his or her guardian as long as authorities have requested the appointment of an ad hoc administrator from the French Red Cross or Famille Assistance.[100] 

Furthermore, some children are never appointed an ad hoc administrator because the French Red Cross faces repeated shortages of volunteers. In 2007 for example, 133 unaccompanied migrant children (around 16.7 percent of all unaccompanied children for whom the police requested an ad hoc administrator) did not get any representation at all. In 2008 the situation deteriorated, when the equivalent figures were 300 children (or around 30 percent of all unaccompanied children for whom police requested a guardian).[101] The representation of children through ad hoc administrators has improved since early 2009, when a new non-governmental organization (Famille Assistance) was established to supply ad hoc administrators in addition to the French Red Cross. But around 13 percent of all children remained without legal representation as of May 2009.[102]

The system is positively Kafkaesque because children who are not represented by an ad hoc administrator or who never meet their representative are prevented from challenging the lawfulness of their detention. Under French law they are considered to lack the capacity to file such a claim by themselves.[103]

Under the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) as well as the UN Convention on the Rights of the Child, the detention of a person must come with the right to challenge its lawfulness.[104] If children are detained but barred from challenging their detention because their ad hoc administrator is absent or not appointed and they lack the capacity or ability to challenge the lawfulness of detention on their own account, then the right to challenge one’s detention is being violated.

The UN Committee on the Rights of the Child calls on states to appoint a guardian or advisor as soon as an unaccompanied child is identified. The guardian should be consulted and informed about all actions taken with regard to the child.[105] This requirement derives from the binding obligation that a child’s best interests are a primary consideration in all actions affecting the child.[106] That French law permits the child’s detention and removal from France even when the child remains unrepresented by either a guardian or a lawyer is not in line with these obligations.

According to the Committee on the Rights of the Child, guardians (in this case ad hoc administrators) who represent children should be familiar with the child’s background and ensure that the child’s legal needs are appropriately covered. Guardians should also have the authority to be and actually be present in all decision-making in relation to the child. Children in a judicial or administrative proceeding should be represented by a lawyer, in addition to the guardian.[107]

Obstruction by Border Police

We found instances in which border police deliberately withheld important information from ad hoc administrators and obstructed them from carrying out their mandate. For example, on May 10, 2009, police transferred a 17-year-old Somali boy to the psychiatric emergency ward of a nearby hospital after the boy apparently suffered a breakdown at the airport detention center.[108] Even though doctors attested that his mental state did not permit a deportation, he was sent back to the airport detention center. When the boy’s ad hoc administrator tried to meet with him, police told her he was at the hospital for an age exam. Unaware of this serious incident and the boy’s mental health, the ad hoc administrator did not challenge the boy’s detention. She found out about the incident four days later, when the liberty and detention judge examined the boy’s files. The judge released the child. [109]

Several ad hoc administrators told Human Rights Watch that police routinely deny them access to children’s files. Exceptions were made in a few instances when ad hoc administrators were permitted to quickly view files. Such exceptions, we were told, depended on the willingness of border police officers on duty.[110]

French legislation does not specifically require police to share files with children’s ad hoc administrators that contain police interview transcripts, results of age exams, investigations about the child’s travel route, or medical records. Nevertheless, state officials are obliged under international law to act in children’s best interests and to provide children assistance, and guardians should be consulted and informed regarding all actions taken in relation to the child.[111] By withholding information that is crucial for ad hoc administrators to carry out their function, it is hard to see how these obligations can be met.

Police have also failed to inform ad hoc administrators when a child has been accompanied by an adult who could not prove the parental relationship. One ad hoc administrator told us that in one case the police placed the adult in custody elsewhere and held the child as an unaccompanied migrant in the transit zone but did not inform the ad hoc administrator that the child had been traveling with an adult.[112] Not knowing about such existing relationships prevents ad hoc administrators from accurately understanding a child’s situation, including the impact that separation from a parent can have on a child’s mental health. Furthermore, police neither communicate the result of age assessments to ad hoc administrators, nor do they immediately communicate ad hoc administrators about the justification for a child’s negative asylum decision.[113]

The French Red Cross told us that police do not always grant ad hoc administrators access to airport terminals to meet children held there.[114] Border police also do not inform ad hoc administrators before they deport children. For example, one ad hoc administrator said she left the rooms where children are detained for another part of the detention center. Upon returning, she discovered that border police had taken the boy she represented away for deportation. He refused to board the plane.[115] Another ad hoc administrator described to us how she witnessed two children she represented arriving at the detention center with their suitcases. Only afterwards did she find out that police tried to deport them and that the children had refused.[116]

Because ad hoc administrators are only sporadically present at the airport, they are dependent on border police to provide them with the information about children that is essential for the exercise of their mandate. Ad hoc administrators, however, lack the powers to demand that border police provide such information. One ad hoc administrator told us that the most difficult part of her job was to access information and that the border police’s withholding of information often puts an additional and unnecessary burden on her work.[117]

Some ad hoc administrators also expressed to Human Rights Watch a reluctance to challenge police decisions. Some feared that doing so could be perceived as adversarial and possibly complicate their relationship with the police: “if they choose to make your life hard, they manage,” said one ad hoc administrator of their relationship with the airport border police.[118]

Insufficient Access to Legal Assistance

Unaccompanied migrant children have very limited access to independent legal counsel at Roissy airport. Under French law, unaccompanied migrant children are entitled to legal aid free of charge.[119] In practice, however, there is no state-sponsored scheme to provide this to unaccompanied children immediately after their arrival. Court-appointed lawyers are only assigned to represent children when the liberty and detention judge reviews children’s detention after four days (see below). The organization Anafé operates a legal aid phone line and maintains a sporadic presence at the detention center where it provides legal aid free of charge. It is, however, not in a position to represent the more than 14,000 persons detained there per year, of which around 1,000 are unaccompanied children.

Lack of Competent Legal Aid during Children’s Detention Review

The liberty and detention judge (juge des libertés et de la détention) reviews children’s detention after four days and can grant the child access to France by releasing him or her from detention. The judge may also prolong the child’s detention and in these cases reviews the child’s detention a second time after a maximum of eight days. The maximum time in detention is limited to 20 days. During the review, in addition to their ad hoc administrator, children are typically represented by a court-appointed lawyer from the bar. The judge reviews whether regulations were respected and can order the child’s release if they were not.  The judge can also consider whether the child is in a situation of danger and needs protection, including because of a return to a transit country, but is not mandated to examine whether the child merits refugee protection, which is assessed in a separate procedure (see below). The judge can consider French and international law in their decision-making if the child’s lawyer raises it. If the child’s lawyer does not raise the child’s best interest, or other protection entitlements under the UN Convention on the Rights of the Child and other treaties, the judge may take these into account of their own motion but does not have an obligation to do so.[120]

Human Rights Watch monitored a total of 45 detention review hearings in court where children were represented by a court-appointed lawyer. No lawyer argued in any of the 45 hearings that children’s detention in the transit zone was not in their best interests, nor did they refer to other entitlements under the UN Convention on the Right of the Child (CRC). Neither did lawyers raise the risks for children if returned to a country they merely transited, which could give rise to entitlements under the European Convention on Human Rights and CRC that forbid return to inhuman and degrading treatment.[121] In most hearings, lawyers invoked only procedural grounds to justify the child’s release, including delays in the appointment of ad hoc administrators or the lack of interpreters. In 13 out of these 45 hearings, court-appointed lawyers did not raise a single reason to argue for the child’s release.

Court-appointed lawyers often have more than one dozen persons to represent before the liberty and custody judge, and are paid a lump sum of 600 Euro irrespective of their workload. A lawyer from the bar told Human Rights Watch that lawyers representing children in the transit zone were well trained on immigration legislation but not necessarily on children’s rights, an area where she saw room for improvement.[122] One court-appointed lawyer explained to us after the hearing that she had access to files of detainees only one hour before the hearing starts, which meant she was largely unprepared for the hearing and unable to meet with their clients. She described the situation as “emergency justice.” In some cases, the lawyer told us, Anafé sends them additional information about a child by fax and the organization Famille Assistance also told us they try to assist lawyers in their task by briefing them before the hearing.[123]

In contrast, lawyers for the government invoked several times the Convention on the Rights of the Child to demand the child remain in detention including by saying it was in their best interest. We also witnessed government lawyers call unaccompanied children in the courtroom “liars” or “deceivers,” because they had traveled with fake documents or given false identities.[124] In these cases the children’s lawyers did not respond, such as by pointing out why migrants can not necessarily get valid travel documents.

While the government lawyer’s job is to question a person’s credibility in such hearings, Human Rights Watch witnessed at least one instance in which the basis of such an attack was false. The lawyer asked a 16-year-old boy what currency was being used in Palestinian camps in the south of Lebanon, from where the child claimed to originate. When the child answered the Lebanese pound, the government lawyer falsely declared that “everybody knows the Israeli shekel is being used.” Neither the judge nor the lawyer contested this attack on the child’s credibility on false grounds and the judge extended the boy’s detention for eight days.[125] Human Rights Watch staff in Lebanon confirm that the Lebanese pound was and is in use.  

The Children’s Judge and Children’s Ombudsperson: Limited Powers to Intervene

The children’s judge (juge des enfants) and the children’s ombudsman (défenseure des enfants) are two institutions that may both intervene on behalf of unaccompanied children held in the airport transit zone. Where the child is believed to be in danger, the children judge’s intervention would lead to the child’s admission to French territory and placement in state care. The same powers are also granted to the prosecutor. The children’s ombudsman in contrast may issue recommendations to authorities but does not have the power to mandate government officials to release a child.[126]

Guidelines on what may constitute a dangerous situation for the child are not provided for in law, and the children’s judge’s decision to intervene is subject to his or her assessment of each case. One judge explained to us that there was a reluctance on part of the institution to systematically order children’s access to the territory and said that the institution was acting in a politically difficult environment.[127] A prosecutor, equipped with the same powers as the children’s judge, explained to us further that he intervenes in case children have health problems or suffer from psychological stress in the transit zone. He made it clear that his interventions were limited to cases that would not undermine applicable immigration legislation.[128] The organization Anafé confirmed that it regularly alerts the children’s judge including because the deportation of a child may place him or her in danger, but that the body’s interventions are very rare. Furthermore, alerts to either the children’s judge or the children’s ombudsperson do not have suspensive effect on a child’s deportation. Accordingly, police may still deport a child while the children’s judge or ombudsman are assessing a case before deciding to intervene.