VIII. RECOMMENDATIONS

To the Autonomous Cities of Ceuta and Melilla
· Provide unaccompanied migrant children with information about their rights under Spanish and international law, including the right to apply for asylum. This information should be available in writing in a language they understand, and should include Spanish, French, and Arabic, with interpreters available for children who cannot understand the written pamphlets.

· Institute mandatory training of members of the local police on the special needs and rights of unaccompanied migrant children.

· Guarantee all unaccompanied migrant children, including those who are not living in residential centers, their right to have access to education, as required by Spanish law.

· Ensure that unaccompanied migrant children are not denied access to emergency services and other health care, including adequate preventive and remedial medical care, and have valid health cards (tarjetas sanitarias).

Residential Centers
· In view of the recommendations of the Committee on the Rights of the Child at its September 2000 day of general discussion on state violence against children, the Department of Social Welfare in each of the autonomous cities should embrace the following guidelines and principles in the design and provision of institutional care for unaccompanied migrant children:

(1) Small institutions caring for children in home-type settings often have a better record of caring for children.
(2) Smaller institutional settings can be less costly and preferable for the full enjoyment of the human rights of children than institutionalization in large establishments.
(3) A lesser number of trained professionals can deliver more appropriate care to children than a large number of poorly trained or untrained workers.
(4) Efforts should be made to avoid the isolation of children in institutions by ensuring, for example, that education, recreation, and health services are provided outside the institution.

· Provide information about the rules of the center to children on entry into a residential center. This information should be available in writing in Spanish, French, and Arabic, with interpreters available as needed.

· Ensure the safety of children in residential centers. Adopt antiviolence strategies and policies and provide training for staff in their implementation.

· As soon as possible after admission, interview children to determine the specific type and level of care they require. Children should be categorized, grouped, and accommodated-for example, by age-to ensure their protection from harmful influences and risky situations.

· All disciplinary measures inflicted upon children that constitute cruel, inhuman, or degrading treatment should be strictly prohibited. Such measures include corporal punishment, placement in a dark cell, closed or solitary confinement, collective sanctions, and any other punishment that may compromise the physical or mental health of a child. Staff persons found responsible for such violations should be held accountable in disciplinary and/or criminal proceedings depending on the nature and extent of the abuse.

· Ensure that residential center staff are trained in and have the capacity to make effective use of nonviolent methods of discipline, and are aware that violence and other forms of abuse are prohibited and punishable by law.

· Provide medical and psychological services that are administered independently of the authorities running residential care centers. Every child should receive a medical examination upon admission to a residential center. Every residential facility should provide children immediate access to appropriate medical facilities with trained medical staff, and children should receive adequate preventive and remedial medical care.

· Ensure that every child of compulsory school age enjoys the right to education suited to his or her needs and abilities. Education should be provided in public schools wherever possible. Children above compulsory school age should be permitted and encouraged to continue their education, and they should have the right to receive vocational training in occupations likely to prepare them for future employment.

· Provide adequate outdoor and indoor recreational facilities for children, including access to a library adequately stocked with instructional and recreational books and periodicals suitable for children.

· Ensure that the physical facilities meet international standards of hygiene and health.

· Provide food that satisfies, as far as possible, the religious and cultural requirements of children.

· Provide clean drinking water to children in residential centers at all times.

· Ensure that each child has personal clothing suitable for the climate and adequate to ensure good health.

· Establish an effective, independent mechanism to monitor the treatment of children in residential centers. Such a mechanism should:

(1) Ensure monitors full access to facilities and records.
(2) Permit unannounced visits by monitors and include private interviews with children and staff.
(3) Monitor the status of children, their development, and safety in addition to inspecting the state of the facilities and the provision of services.
(4) Make adequate provision for reporting or complaints to be received from staff, children, and from nongovernmental organizations.
(5) Provide appropriate protection from reprisals, particularly for children and staff.
(6) Include mandatory reporting by staff of incidents of violence.
(7) Ensure that each child is informed and aware of the complaint process in a language he or she understands.
(8) Provide full guarantees of independent and thorough investigation of all complaints. Ensure that residential center staff who are perpetrators of violence are appropriately disciplined.
(9) Refer particularly serious cases, such as those involving serious bodily harm, to the Ministerio Fiscal and judicial authorities for investigation.
(10) Include public reports on investigations, while maintaining children's right to privacy, and make these reports known to relevant government officials and nongovernmental organizations.

· Permit representatives of humanitarian, legal support, religious, migrants' and human rights groups to visit centers regularly to speak with children.

· Ensure that no child is removed from the Department of Social Welfare's care without legal justification, adequate notice to the child, and the opportunity for the child to be heard.

· In cases in which the child's age is not known, the department should assess all relevant, credible evidence in making age determinations. Such evidence should include birth certificates or other documents from the child's country of origin, and testimony from the child and others who know the child, in addition to the results of medical and psychological examinations.

· Where the department employs age assessments, it should take care to ensure that the method of assessment conforms to the recommendations of the Separated Children in Europe Program and the United Nations High Commissioner for Refugees' Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum. Any assessment must take into account both the physical appearance and the psychological maturity of the child. Any examination must allow for a margin of error to the child's benefit and must take into account the possibility of overestimating a child's age because of the inherent unreliability of many assessment tools that purport to measure chronological age. Further, examinations must employ methods which are safe and which respect human dignity. Finally, authorities should err on the side of extending the protections accorded to minors in cases where an individual cannot be identified as an adult with certainty.

· When the administration and day-to-day operation of residential centers are delegated to a nongovernmental service provider, provide the necessary resources and appropriate supervision.

· Collect and make public accurate, up-to-date, and disaggregated data on unaccompanied migrant children, both those in residential centers and on the street.

To the Spanish Central Government
· Sign and ratify the International Convention on the Protection of the Rights of All Migrant Workers and Their Families and the European Convention on the Repatriation of Minors.

· Ensure that all unaccompanied migrant children present in Spain receive without discrimination the protection and care they are entitled to under international law and European law.

· Reaffirm the Spanish government's standing invitation to the United Nations Special Rapporteur on the Human Rights of Migrants to visit Spain. In the event the special rapporteur accepts the invitation, facilitate her investigation by providing logistical support and ensuring that her itinerary includes Ceuta and Melilla.

· Building on the June 22, 1999 recommendation of the Interior and Public Function Committee of the Spanish Senate, the central government should designate an ombudsman for children to protect and promote the rights of children in Spain.

Ministry of Interior
· Immediately make public detailed guidelines on the application of provisions of Organic Law 4/2000 (as amended) and its implementing regulations affecting unaccompanied migrant children, and monitor their implementation at all levels of government.

· Collect and make public accurate, up-to-date, and disaggregated data on unaccompanied migrant children, both those in residential centers and on the street.

· Halt immediately all unlawful expulsions of unaccompanied migrant children, and conduct prompt inquiries into all reports of unlawful expulsions of unaccompanied migrant children.

· Enforce disciplinary action, including dismissal, and where appropriate refer for prosecution officers found to have subjected children to cruel, inhuman, or degrading treatment or punishment.

· Institute mandatory training of members of the National Police and the Civil Guard on the special needs and rights of unaccompanied migrant children.

Ministry of Foreign Affairs
· Raise cases of unaccompanied Moroccan migrant children present in Spain with the Moroccan government, and facilitate the collection of information on these children's family situations.

· Facilitate the lodging of complaints against Spanish authorities by children who suffered abuse during expulsions from Spain.

Ministry of Justice
· Institute training of members of the judiciary on the special needs and rights of children, including unaccompanied migrant children.

· Ensure that the Ministry of Justice or another appropriate agency provides free legal counsel to unaccompanied migrant children who appear in court proceedings or other hearings. Such services should be monitored to ensure that children have adequate access to counsel and effective representation in all proceedings regarding their status and care.

· Work with the General Council of the Legal Profession (Consejo General de la Abogacía Española) to ensure that members of the legal profession receive training on the special needs of and rights of children, including unaccompanied migrant children.

Ministry of Labor and Social Affairs
· Earmark additional funding for the care and protection of unaccompanied migrant children in Ceuta and Melilla, with an emphasis on funding for the creation of smaller, home-type residential facilities with adequate, trained professional staff.

· Monitor conditions in residential facilities for unaccompanied migrant children to ensure they comply with international standards.

· Monitor the Departments of Social Affairs to ensure that all unaccompanied migrant children who qualify for vocational training have the required work permits to ensure their participation in the practical, work-related aspects of such training.

Ministerio Fiscal
· Institute training of members of the ministry on the special needs and rights of unaccompanied migrant children.

· Require family reunification orders to be supported by current documentation that a family member is willing and able to care for the child or that a bona fide child protection agency will accept the child, and that such return poses no risk or danger to the child's safety, or the safety of his or her relatives.

· Conduct prompt inquiries into all reports of unlawful expulsions of unaccompanied migrant children.

· In cases in which the child's age is not known, assess all relevant, credible evidence in making age determinations. Such evidence should include birth certificates or other documents from the child's country of origin, and testimony of the child and others who know the child, in addition to the results of medical and psychological examinations.

· Where the Ministerio Fiscal orders age assessments, ensure that the method of age assessment employed conforms to the recommendations of the Separated Children in Europe Program and the United Nations High Commissioner for Refugees' Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum. Any assessment must take into account both the physical appearance and the psychological maturity of the child. Any examination must allow for a margin of error to the child's benefit and must take into account the possibility of overestimating a child's age because of the inherent unreliability of many assessment tools that purport to measure chronological age. Further, examinations must employ methods which are safe and which respect human dignity. Finally, authorities should err on the side of extending the protections accorded to minors in cases where an individual cannot be identified as an adult with certainty.

· Regularly inspect and issue public reports on conditions in residential centers for unaccompanied migrant children.

Ombudsman (Defensor del Pueblo)
· Inspect and publicly report on conditions in residential centers for unaccompanied migrant children in Ceuta and Melilla, and where appropriate refer cases to the Ministerio Fiscal for investigation.

· Investigate reports of illegal expulsions of unaccompanied children in Melilla and make public the findings.

· Investigate instances of police abuse based on complaints or other information and where appropriate refer cases to the Ministerio Fiscal for investigation.

Government Delegates (Delegados del Gobierno) in Ceuta and Melilla
· Ensure that children have the opportunity to be heard in cases in which expulsion or family reunification is considered. In all cases of expulsion or family reunification, they should have access to free legal counsel and the right to challenge the lawfulness of the expulsion order.

· Promptly provide all unaccompanied migrant children with information on their rights under Spanish and international law, including their right to apply for asylum. This information should be available in written form in several languages, particularly Spanish, Arabic and French. Interpreters should be provided as needed to convey this information to children who cannot understand the written pamphlets.

· Ensure that no child is repatriated or expelled from Spain unless the delegate has verified that the child is to be returned either to a family member who is willing and able to care for the child or to a bona fide social service agency in his or her country of origin, and that such return poses no risk or danger to the child's safety, or the safety of his or her relatives.

· Provide temporary residence documents and, if appropriate, work permits to all unaccompanied children who cannot be returned to family members or a social service agency.

· Advise unaccompanied migrant children of their right to apply for permanent residence and naturalization and of the requirements for each status.

· Act expeditiously on all requests for permanent residence or naturalization submitted by unaccompanied migrant children. The delegate should prioritize applications by children who are nearing the age of eighteen.

· In adjudicating unaccompanied migrant children's applications for temporary or permanent residence, the government should take into account the length of time that children have lived in Spain and other strong ties to the country, consistent with the principle that the best interest of the child shall be a primary consideration in all actions concerning children.

Ministry of Education, Culture and Sports
· Ensure that every unaccompanied migrant child enjoys the right to education suited to his or her needs and abilities, on equal terms with Spanish children. Education should be provided in public schools wherever possible. Children above compulsory school age should be permitted and encouraged to continue their education, and they should have the right to receive vocational training in occupations likely to prepare them for future employment.

· Ensure that any alternative arrangements for the education of unaccompanied migrant children outside of public schools meets all the requirements of national education policy.

Ministry of Health and Consumer Affairs
· Ensure that unaccompanied migrant children are not denied access to emergency services and other health care, including adequate preventive and remedial medical care, and are issued valid health cards (tarjetas sanitarias).

· Where Ministry or National Institute of Health (INSALUD) staff perform age assessments of unaccompanied migrants whose status as minors is in question, the ministry should ensure that the method of assessment conforms to the recommendations of the Separated Children in Europe Program and the United Nations High Commissioner for Refugees' Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum. Any assessment must take into account both the physical appearance and the psychological maturity of the child. Any examination must allow for a margin of error and must take into account the possibility of overestimating a child's age because of the inherent unreliability of many assessment tools that purport to measure chronological age. Further, examinations must employ methods which are safe and which respect human dignity.

To the Government of Morocco
· Ensure that unaccompanied migrant children who have been returned to Morocco from Spain are protected from violence and neglect. In particular, the government should take steps to protect these children from torture and other cruel, inhuman, or degrading treatment or punishment at the hands of Moroccan police.

· Ensure that all children who have been temporarily or permanently deprived of their family environment or in whose best interests cannot be allowed to remain in that environment receive the special protection and assistance to which they are entitled, with attention given to the rehabilitation of children who are victims of neglect or abuse.

· Enforce the Compulsory Basic Education law and take all other steps necessary to ensure that poor children, girls, and rural children are not discriminated against in access to education.

Ministry of Foreign Affairs
· Ensure that Moroccan embassies and consulates monitor the situation of unaccompanied Moroccan migrant children abroad and provide them with consular services, including responding to foreign governments' requests for assistance in determining children's family situations in Morocco and facilitating repatriation when repatriation is in the child's best interest.

Ministry of Interior
· Institute mandatory training of members of the Moroccan police forces, including those forces responsible for guarding borders, on the special needs and rights of unaccompanied migrant children.

· Initiate investigations of police abuse based on complaints or other information made available to the ministry. Investigators should operate independently of police institutions and have unrestricted access to police stations and all other places of detention used by security forces, and should be directly accessible to children.
· Enforce disciplinary action, including dismissal, and where appropriate refer for prosecution officers found to have subjected children to cruel, inhuman, or degrading treatment or punishment.

· Ensure that all ministry-run juvenile detention facilities meet at least the standards set forth in the U.N. Rules for the Protection of Juveniles Deprived of their Liberty. Priority should be given to improving the conditions in ministry-run temporary facilities, including ensuring they are staffed by qualified and well-trained professionals and provide children with access to education, health care, and services to facilitate their rehabilitation. Detention of children should only be used as a measure of last resort, and the ministry should work with specialized nongovernmental organizations to develop alternatives to detention and programs that facilitate children's reintegration in society.

Ministry of Justice
· Institute training of members of the prosecution office and judiciary on the special needs and rights of unaccompanied migrant children.

· Introduce legislation clarifying the legal obligation of all Moroccan authorities, including the police, to provide special protection and assistance to children deprived of their family environment, including provisions for adequate alternative care for these children and rehabilitation for children who are victims of neglect, exploitation, abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment.

· Promote amendments to the Penal Code and Code of Criminal Procedures to ensure that the best interest of the child is a primary consideration in all proceedings involving children in conflict with the law. In keeping with the principle that arrest, detention, or imprisonment of a child should be used only as a measure of last resort, such amendments should include sentencing guidelines that provide judges with adequate alternatives to incarceration, and provisions to exempt children from criminal penalties for begging, vagrancy, and other minor offenses stemming from their status as unaccompanied minors.

Ministry of Youth and Sports
· Institute mandatory training of the directors and staff of ministry-run child protection centers on the special needs and rights of unaccompanied migrant children.

· Ensure that all ministry-run juvenile detention facilities meet at least the standards set forth in the U.N. Rules for the Protection of Juveniles Deprived of Their Liberty. Priority should be given to ensuring they are staffed by qualified and well-trained professionals and provide children with access to education, health care, and services to facilitate their rehabilitation. Detention of children should only be used as a measure of last resort, and the ministry should work with specialized nongovernmental organizations to develop alternatives to detention and programs that facilitate children's reintegration in society.

To Donor Countries
· Earmark aid for the creation of additional centers in Morocco for children in need of care and protection, as distinct from those who are arrested for acts of delinquency.

· Earmark aid for the training of law enforcement officials on the rights of children.

· Earmark aid for the expansion and improvement of educational and vocational training programs, with a special emphasis on programs designed to ensure that poor children and girls are not discriminated against in access to education.

To the United Nations
· When the Spanish government appears before the Committee on the Rights of the Child in June 2002, the committee should question the Spanish government on its policies and practices with regard to unaccompanied migrant children in Ceuta and Melilla.

· When the Moroccan government appears before the Committee on the Rights of the Child in May-June 2003, the committee should question the Moroccan government delegation on its policies and practices with regard to unaccompanied migrant children.

· The Committee against Torture should evaluate Spain's upcoming report in light of the concerns raised by this report and the reports of domestic nongovernmental organizations about the treatment of unaccompanied migrant children in Ceuta and Melilla.

· The Special Rapporteur on the Human Rights of Migrants should act upon Spain's standing invitation to visit and should investigate the human rights of unaccompanied migrant children in Ceuta and Melilla.

To the Council of Europe
· In its upcoming visit to Spain, the European Commission against Racism and Intolerance (ECRI) should include an investigation of the treatment of unaccompanied migrant children, particularly those in Ceuta and Melilla.

· The European Committee for the Prevention of Torture (ECPT) should monitor conditions in residential centers for migrant children, with a particular focus on the San Antonio center in Ceuta and the Fuerte de la Purísima Concepción Melilla.

To the European Union
· The European Union should ensure that the common policy on immigration and asylum it has been developing since the European Council in Tampere in October 1999 is in full conformity with international human rights standards. Any measures to prevent illegal entry and residence and the removal of illegal residents from the territory of the European Union pursuant to article 63(3) of the EC Treaty must be designed with the view to meeting the obligation of the community and individual member states to protect human rights as part of the general principles of community law.

· In this regard, in the Commission's November 15, 2001 "Communication from the Commission to the Council and the European Parliament on a Common Policy on Illegal Migration," the Commission undertook to draw up guidelines for the Council's consideration "in view of initiating an open coordination policy in the area of immigration." Such guidelines should establish minimum E.U. standards governing the status and rights of undocumented migrants-including specific measures to ensure the full respect of the rights of migrant children-consistent with international human rights law. The European Parliament and nongovernmental organizations should be duly consulted at all stages of this process.

· The European Parliament should address the treatment of unaccompanied migrant children in E.U. member states by, inter alia, convening a hearing on the subject and inviting nongovernmental organizations to share their expertise on the issue. Following the report of the April 2002 visit by a European Parliament delegation to Morocco, the European Parliament should continue to engage the Moroccan authorities on their policies and treatment of migrant children.