VIII. Absence of Effective Mechanisms to Guarantee Rights

1. Absence of Effective Oversight

Failure to effectively oversee and intervene

Staff in CAMEs  and CAIs report that visits by the Child Protection Directorate can be as few as once or twice per year and may largely depend on the reports submitted by cabildos. The Child Protection Directorate is further said to “take a quick look” when inspecting a center.263 The overall responsibility for residential centers is with the Child Protection Directorate and only the management of centers has been transferred to cabildos. Despite this clear division of responsibility, influence and intervention exercised by the Child Protection Directorate appears to have been limited in practice. In September 2006, the Child Protection Directorate created a unit for unaccompanied migrant children with a total of nine staff with various backgrounds.264 At the time of Human Rights Watch’s field research for this report in January 2007 it was too early to assess what impact this development had made.

Child protection authorities did not intervene for several years over conditions in Llanos Pelados center in Fuerteventura, a CAME that failed to meet basic sanitary standards, and was subject to calls for immediate closure by national and international human rights bodies. Human Rights Watch also found that the Playa Honda CAME/CAI on Lanzarote failed to comply with applicable Canary Islands legislation, especially with regard to sanitation, location, and capacity limit. Despite these obvious shortcomings the center operated for over five years from 2001; children were transferred to another facility in June 2007.265

There were regular official visits to La Esperanza by the Child Protection Directorate as well as visits by a number of journalists. The Tenerife prosecutor told us that his office visited the center “two or three times” but maintained that he never received reports that would have warranted an investigation.266 Based on information given by children, visits by outsiders did not include private interviews with children and they were conducted in a manner that enabled the center staff to remove a select group of children and to prevent children from speaking to the visitors confidentially. Jean-Marie N. told us, “Some outside persons like you came, but they never made interviews with the boys in private. I don’t know who these persons were and the director usually sat next to the children during the interview.”267 Lakh S. reported:

The visitor was probably a big boss. He once caught an educator putting a child to work and sent the guy home. It seemed he had a lot of power—everybody was very nervous when he came. He inspected the rooms and the toilets and he came with a big delegation.… He comes often now, maybe every 10 to 15 days, but he also came before. The director changed completely as soon as they left again. [The inspector] did not interview any boys; he just talked to them a bit in the hallway when walking past them. If a boy said that he didn’t like it in the center he was told he’d be going to another center.268

The tactic of preventing certain children from being present was experienced by Human Rights Watch researchers. We were told how, on the day Human Rights Watch researchers visited, staff members took a group of eight boys outside the center to a nearby forest and kept them waiting for the entire day without any apparent purpose.269 Lamine P. told us, “They prepared the center for your visit and they chose some children to go to the forest because they know that these boys would tell you everything.”270 Aliou N., age 17, also told us that “children were told by the educators that you are from the European Union and that if we said something bad about the center their help would stop.”271

Children at Arinaga center reported that there were no regular visits by outside persons. Contradicting these statements, both the Child Protection Directorate and center director affirmed that the center was subject to regular inspection by the Child Protection Directorate.

Regular and independent oversight by authorities is most important if the organization in charge of a center has no internal oversight mechanisms. In an interview with Human Rights Watch, the president of Mundo Nuevo, the organization running emergency centers, simply dismissed the fact that one former director of a facility for children is the subject of a criminal investigation into alleged ill-treatment, calling it a “revenge act” by a child who “didn’t want to follow the rules.”272

The Office of the Public Prosecutor is mandated to independently oversee state guardianship, the compliance of all state administrative action with the law, and the situation of children in residential centers.273 The Prosecutor’s Office in Gran Canaria, however, limited its oversight over Arinaga center to communication with center staff, without inspecting the center, as of January 2007.274 Center staff equally reported that they were not in contact with the Prosecutor’s Office on issues related to the granting of documentation and residence permits.Contacts instead were limited to instances when children were accused of having committed an offence.275 

Prosecutors acted upon and investigated allegations and complaints that were brought to their office’s attention. However, Human Rights Watch found little to no proactive investigation and supervision by this institution. Clearly, neither of the two offices in the Canary Islands has sufficient resources to fulfill this part of their mandate. The Prosecutor’s Office in Tenerife has four staff in charge of juvenile justice and child protection, but the prosecutor noted that “we are four prosecutors responsible for 3,000 children.”276 The Prosecutor’s Office in Gran Canaria only has four part-time prosecutors dealing with children’s rights among its staff, all of whom are assigned to juvenile justice issues.277 Juvenile detention centers in the Canary Islands have been rocked by numerous scandals in past years, a factor that most likely contributed to the concentration of resources on juvenile justice matters.278

The office of the Prosecutor General recently affirmed its mandate to oversee the state administration’s action concerning child guardianship. It issued an internal circular in September 2006 and requested its offices to report twice a year on the number of guardianships they supervise.279 Additionally, the recently appointed prosecutor in charge of immigration matters announced on March 19, 2007, that the situation of unaccompanied migrant children will be a priority area of his work, and that his office will establish supervision criteria for all prosecutors in Spain.280

Absence of complaints mechanism

Although Canary Islands legislation requires the creation of complaints mechanisms in every residential center, Human Rights Watch found such mechanisms absent in the centers visited.281

The absence of accessible and confidential complaints mechanisms is particularly severe if children are additionally restricted in their freedom of movement, if they don’t speak the language, if they don’t know the location of the nearest police station or Prosecutor’s Office, and if they are not in direct contact with their guardian. Under such circumstances—which describe the situation of children in emergency centers—children essentially find themselves without an opportunity to submit a complaint to authorities in a safe and confidential manner.

Furthermore, as children may accuse or denounce their caregivers and have no alternative place to go, they put themselves into a situation of risk. Mohamad G. described to us his dilemma: “Several times I feel like going to the Police and tell them but I would have problems with the educators when returning; so I decide not to report to the Police.”282 (His experience of actually having complained to the Civil Guard is described below.)

It is absolutely essential that accessible and confidential complaints mechanism are made available in such settings, and that in addition these sites are subject to regular, proactive, and independent oversight by authorities in charge. 

A child deprived of his or her family environment is entitled to special protection and assistance provided by the state, based on Article 20 of the Convention of the Rights of the Child. The Committee on the Rights of the Child specifies that “regular supervision and assessment ought to be maintained by qualified persons in order to ensure the child’s physical and psychological health, protection against domestic violence or exploitation, and access to educational and vocational skills and opportunities.”283

The Council of Europe’s Committee of Ministers, in its guidelines on children at risk and in care, maintains that “an efficient system of monitoring and external control of residential institutions should be ensured.”284

Insufficient protection and investigation

Children reported different levels of intervention by the Police or Civil Guard. In both La Esperanza and Arinaga centers children told us that they approached the Police or Civil Guard on several occasions to complain about incidents or conditions in the centers.

In Arinaga center, children told Human Rights Watch that the Civil Guard took limited action and simply brought children back to their centers, including against their will. Mohamad G. recalled:

I once went to the Civil Guard that is close by to complain about the violence [in the center]; they came but the educator told them that it’s only between the boys and that none of them hit the children. The Civil Guard took a report of what I told them; then they called the center and an educator came to pick me up from the civil guard station. I told them that I didn’t want to go back with the educator to the center. The educator slapped me several times.285

In contrast, children from La Esperanza wing two told us that they reported a violent attack by one of the educators to the Police who took their complaint seriously. Rashid P. remembered the incident:

We have problems with some of the educators. There are two who will come into the dormitory, pull our mattresses off the beds, and throw us to the ground. They don’t show respect for us. They tell us to shut up and keep our mouths shut. One day one of them went too far with one boy…. This educator grabbed a boy, and the boy fell on the floor. We all went with the boy to the Police to complain…. When the Police called us to sign the complaint, we didn’t sign it. We said that we had pardoned [the educator] and that he has treated us well since then. We went to the Police because when he used to grab us he would nearly asphyxiate us. That’s why we went. The boy who fell down—we had to pick him up and put him in bed, because he was nearly unconscious. Then we went to the Police.286

Children at La Esperanza wing one alleged that the Police287 were biased, indifferent to, or even complicit in their ill-treatment.  They felt that the Police did not make an effort to speak to children and hear their views but acted instead in the interest of center staff. Both Salem L. and Papis F. told us about instances when the Police returned children to the center. In one case, four boys subsequently faced more punishment. It is the Police’s duty to return children to the center if notified about an escape, but children were of the view that actions taken by the Police primarily served the interest of center staff:

Once four boys escaped for a party during a Muslim holiday. The Police found them and returned them but the boys told the Police that they didn’t want to stay in the center for the night with the educators. They were taken upstairs [to the punishment room] by the educators by force and were locked up for four days…. They were very quiet afterwards.288

At one point… all the children left [the center] but the Police were notified…. We couldn’t talk to the Police. One police officer even slapped two boys himself. [Center staff] could just tell [their] side of the story. One educator also slapped a child in front of the police. We couldn’t explain to the police what was happening in the center because we didn’t speak Spanish.289

A few children in La Esperanza wing one said that staff had made complaints about the children and had taken them to the Police for alleged wrongdoings on several occasions. At the station these children were interviewed and then sent back to the center, they told Human Rights Watch. At least one criminal investigation against six children is ongoing. Seventeen-year-old Saliou M. recalls how he was brought to the police station and felt that the Police were not interested in the situation in the center:

I was taken to the Police because there was a fight and I was brought there to be interrogated. There was an interpreter. I told them about the problems in the center and told them there were lots of problems in [wing one]…. There was no reply from the Police…. The Police told me that they didn’t want anymore problems with this center.290

Human Rights Watch reported to the Child Protection Directorate and the Prosecutor’s Office in mid-February 2007 that it had received several and consistent reports from children in Arinaga center, regarding allegations of violence and sexual abuse. We requested an immediate investigation into these allegations and that steps be taken to ensure protection for children at risk.

The Child Protection Directorate replied that it was unable to take any steps or to conduct an investigation unless it was given names and details of victims and perpetrators. Human Rights Watch explained its reasons for withholding sensitive information that may put children at risk of reprisal, and reiterated authorities’ obligation to investigate the reports brought to their attention. We received no further reply and were not informed about any steps taken by the Child Protection Directorate.291

In contrast, the Prosecutor’s Office carried out an inspection of Arinaga center. In her report about the visit, the prosecutor concluded that her office could not confirm any allegations contained in our letter.292 Unfortunately, there were serious shortcomings in the way the Prosecutor’s Office carried out its fact-finding visit to Arinaga. The delegation only inspected the centre for 90 minutes, at a time when there were 108 children present. They were not accompanied by interpreters and noted that children spoke little Spanish. The report mentions that the delegation interviewed two groups of children, but it does not make mention of any individual interviews conducted with children in private, despite the fact that we brought to their attention allegations of sexual abuse. The report contains no information on the age and nationality of children the delegation had spoken to. One group of children explicitly told the delegation that they did not want to share information out of fear of being reported to staff members by another child.

Human Rights Watch believes that the failure to effectively oversee and investigate conditions in wing one of the Esperanza center, the repetitious and serious nature of abuses alleged to have occurred, and the confinement of children in a punishment room for several days constitutes inhuman and degrading treatment in violation of Spain’s obligation under international law, in particular Article 3 of the ECHR.293

2. Flawed Guardianship Structure

The guardianship structure in place is insufficient to guarantee that the best interest of the child is upheld in every decision. The current structure does not ensure independence by the guardianship institution, it fails to provide a child with direct contact to his or her legal guardian, and there is a lack of cooperation and coordination among the different bodies in charge of child protection. 

Three different entities at three different levels are responsible for child protection in the Canary Islands. Legal guardianship (tutela) for all unaccompanied migrant children is assumed by the Child Protection Directorate. Cabildos are in charge of managing CAMEs and CAIs. The custody (guarda y custodia) of children and responsibility to provide daily care for these children is with the directors of residential centers.294  

There is considerable lack of clarity and lack of agreement among the three actors as to what their functions are with regard to child protection and how these are being applied in practice. While legal provisions about the division between guardianship and custody are sufficiently clear, in practice it is not evident that this is always followed. One official document names the cabildo instead of the center director as the entity in charge of a child’s custody (guarda y custodia).295 Additionally, representatives from both cabildos in Tenerife and Fuerteventura affirmed that they exercised custody over children, in contrast to legal provisions.296    

This tri-partite structure is cumbersome, it results in unnecessary delays when communicating, and it fails to grant the child direct contact with his or her legal guardian. All relevant communication from a CAME or CAI center director—the child’s custodian—is first sent to the cabildo which then forwards it to the Child Protection Directorate—the legal guardian. A communication back from the Child Protection Directorate follows the same path. The same procedure is valid for the processing of documentation and residence permits, where the Child Protection Directorate additionally forwards all paperwork to the government’s sub-delegate. A child generally remains without direct contact to his or her legal guardian and “a communication back and forth with the Child Protection Directorate through the cabildo usually takes one month.”297 One center staff member simply noted that “the Child Protection Directorate is too far away from the children.”298

Different entities in charge of child protection went as far as taking one another to court over decisions. The cabildo of Gran Canaria took legal proceedings against the Child Protection Directorate in 2006 after the latter ordered the transfer of teenage boys to centers for infants that were managed by the cabildo.299 The Child Protection Directorate responded by instituting its own legal proceedings against the cabildo one week later.”300 This conflict between key entities in charge of child protection raises serious questions of how the two bodies cooperate in practice and how the best interest of children can be guaranteed under such circumstances.

The head of the Child Protection Directorate, the guardianship institution, is appointed by the executive government, a state of affairs that undermines his independence and puts him in a potential conflict with the duty to safeguard the best interest of the child. He is subject to influence by the ruling political party or parties as the executive government has decision-making power over his removal.301 Further, every child is a direct burden on his department’s resources. In January 2007 the head of the Child Protection Directorate publicly advocated for the family reunification of unaccompanied migrant children and for separate legal provisions for their treatment.302 The deputy counselor of the Social Affairs and Immigration Department (Viceconsejero de Asuntos Sociales e Inmigración), to whom the Child Protection Directorate reports, furthermore called for the restoration of a highly controversial instruction by the prosecutor general that allowed the repatriation of unaccompanied migrant children from age 16 without any safeguards in place.303

Canary Islands legislation provides for an advisory commission (Comisión de Atención al Menor) to review and advise the Child Protection Directorate on the protection measures adopted.304 Composition of this body, however, is insufficiently independent from the entity to which it is mandated to give advice. Given that the commission’s chairperson is the head of the Child Protection Directorate himself, it is an inadequate mechanism to review the measures taken by the guardianship institution. Its three members and one secretary are furthermore appointed by the Social Affairs and Immigration Department and the Child Protection Directorate, from among its own or other department staff. The only external member, who is tasked to assess the legality of protection measures taken, does not have a vote.305 If there is no majority vote on a decision, the head of the Child Protection Directorate has decision-making power.

The Convention on the Rights of the Child stipulates that children placed by authorities for residential care and protection enjoy the right to have their treatment as well as all other circumstances relevant to their placement periodically reviewed.306 The Committee on the Rights of the Child states that such reviews are required to respect the child’s best interest.307 It specified that review mechanisms shall “monitor the quality of exercise of guardianship in order to ensure the best interests of the child are being represented throughout the decision-making process and, in particular, to prevent abuse.”308

The Committee on the Rights of the Child furthermore clearly states that “individuals or agencies whose interests could potentially be in conflict with those of the child’s should not be eligible for guardianship,” as such an arrangement fails to secure proper representation of a child’s best interest.309

Canary Islands authorities and the central government initiated the transfer of approximately 80 children into the custody of a nongovernmental organization on the Spanish mainland in May 2007. 310  Guardianship remains with Canary Islands authorities although children are physically transferred to the mainland.311 This care arrangement moves the child even further from his or her legal guardian and potentially causes a series of administrative obstacles. Those include further delays in communication between the child, custodian, and the guardian; delays in the processing of documentation, residence, and other permits; as well as possible obstacles in children’s access to health and education. Moreover, such an arrangement calls into question how guardianship and representation of the child’s best interest will be carried out in practice, how the exercise of guardianship for these children will be reviewed, and who will have general oversight responsibility and carry out inspection of care arrangements for these children.

3. Lack of Access to Legal Representation

Access to legal representation is vital for unaccompanied children from the moment of their arrival, in particular during detention, age determination, while assessing possible grounds for protection, and when requesting documentation and residence permits.

A person with insufficient economic means and who legally resides in the country has the right to free legal aid as granted by the Spanish Constitution and the law on free legal assistance.312 This right includes free legal advice and orientation as well as free legal representation and defense. Bar Associations are required by law to give free advice to persons seeking legal assistance, to facilitate their requests, and to provide free legal representation.313

The Canary Islands Bar Association expressed general concern over children’s lack of access to independent legal representation. But questioned about the need for legal representation during the age assessment, a representative replied that such assistance was “unnecessary, since the judge always assigns the lowest age applicable to a person.”314 It is further unclear why children apparently remain without access to a legal representative while held at police and civil guard commissariats following their arrival. In January 2007 the association told us that it was “negotiating” access to residential centers with the Child Protection Directorate. Subsequently the Bar Association did not reply to our repeated requests for an update on the status of their negotiations and for a clarification on their role while children are detained at police and civil guard commissariats.315

The association affirmed that its lawyers had been trained on children’s rights and refugee rights.316 When Human Rights Watch contacted the association and asked to speak to a lawyer specialized in the rights of migrant children we were told that they had neither a person specialized in immigration matters nor in children’s rights. We were instead offered the possibility to speak to a criminal lawyer. We were told that these children had “illegally entered the country.”317

Furthermore, when we contacted the Bar Association’s legal aid office for legal representation in the case of an unaccompanied child, the organization maintained that this was very complicated since the child would need to visit their office, present a copy of the passport, and fill out an application form for legal aid. We were advised to contact the Prosecutor’s Office instead. 318 Upon our insistence we were finally told that the Bar Association cannot represent a child without the guardian’s approval.

Such a position undercuts a child’s right to legal assistance and is at odds with Spanish legislation and the national ombudsperson’s conclusion that being under guardianship cannot be a ground to exclude legal intervention by a lawyer.319 The ombudsperson further concludes that legal representation independent from the guardianship authorities is necessary to guarantee a child’s best interest in all decision making, in particular during administrative proceedings such as the declaración de desamparo, the age assessment, the granting of documentation, and the decision about a child’s repatriation.320

4. Failure by the Central Government to Guarantee Children’s Rights

As a result of the sudden arrival of a substantial number of unaccompanied migrant children in the Canaries and increased pressure by Canary Islands authorities, the Ministry of Labor and Social Affairs responded to a call for support from Canary Island authorities with its own call for solidarity from other autonomous regions. In fall 2006, it negotiated an agreement to transfer a total of 500 children from the Canary Islands to other autonomous communities and cities.321

Implementation of this transfer agreement, which is fully financed by the central government, has been slow and politicized.322 Several autonomous communities, especially those governed by opposition parties, were accused of not cooperating.323 The Canary Islands government repeatedly criticized the slow implementation of the agreement. The head of the Canary Islands Child Protection Directorate noted in mid-January 2007 that while 250 children had been transferred from the Islands, they witnessed the simultaneous arrival of 270 new children.324 By the end of February more than 320 children had been transferred, and according to press reports that number rose to around 350 children by the end of May.325 In early June, the state secretary for immigration and emigration stated that the central government had fulfilled its obligation and that the transfer agreement was “almost” complete.326

The existing coordination mechanism within the Ministry of Labor and Social Affairs was not used to discuss the modalities of children’s transfers ahead of time. By the end of February 2007 (when over 300 children had been transferred), the transfer had not figured on the agenda of any meetings of the Childhood Observatory.327

Human Rights Watch found that there was one instance when the residence permits of children recently transferred to the Spanish mainland arrived at their former center in the Canary Islands instead of their new location.328 In another case (already described above in Section VII.2), a child’s medical treatment was delayed since he was not in possession of a valid health card to access treatment in the new autonomous community; his lack of documentation further complicated his access to treatment. When 13 children from the Canaries were transferred to Galicia, the center of destination refused to receive them and the children unexpectedly had to be transferred to another autonomous community.329 We noticed, however, that the Ministry of Labor and Social Affairs carefully kept track of children transferred from the Canaries.

According to the State Secretariat for Immigration and Emigration, Canary Island authorities select children who are to be transferred. The criteria for transfer are that the child has been staying in an emergency center and that the child’s file is up-to-date.330 Additional criteria may be put forward by the receiving community that wants certain children to fit homogeneously into structures where places are available. Although officials at the ministry affirmed that the child’s nationality is not a factor taken into consideration, Canary Islands authorities and children themselves reported that Moroccan children are discriminated against and that “other autonomous communities don’t want Moroccan children.”331 Serijme N. highlights the practice:

At one point there were 269 children in this center. It lasted for about two months. Some were transferred to Tenerife, others to the peninsula [mainland Spain]; some also escaped, especially Moroccan children. No Moroccans were transferred to the peninsula. The peninsula people don’t like Moroccan children…. The responsible [person] for the transfers told me that.332

With the completion of the transfer agreement no further plan exists at the national level to support the Canary Islands child protection system and to ensure that all children on its territory are granted their full rights and entitlements. Instead, the central government considers the situation in the Canary Islands as a one-time exceptional situation, despite the fact that capacities in emergency centers in the Canaries continue to be more than saturated: “The government will start looking into the situation once it arises,” we were told by Estrella Rodríguez from the State Secretariat for Immigration and Emigration. 333

Representatives from the Ministry of Labor and Social Affairs pointed out that the responsibility for these children squarely lies with the autonomous community. They added that other autonomous communities never asked for any assistance when they faced similar situations in the past. They also noted that no agreement existed between the central government and the Canary Islands that would limit the capacity of the Canaries to care for only 250 or 300 migrant children.334 The Canary Islands authorities told us that they spent close to €14 million in 2006 for the protection and care of unaccompanied migrant children.335 Although the central government did not allocate any special funds for the Canaries, Estrella Rodríguez pointed out that the Canary Islands did not use roughly €900,000 to improve its services for unaccompanied migrant children that was available from a 2006 integration fund.336

There would appear to be no political will within the central government to address irregular practices in the issuance of documentation and residence permits for unaccompanied migrant children, and the government fails to identify a durable solution that includes secure legal status for children who remain on Spanish territory. Instead, migration control measures are explicitly given preference over the fulfillment of children’s entitlements in accordance with Spanish legislation. Estrella Rodríguez from the State Secretariat for Immigration and Emigration said that residence permits are not granted and justified the practice by saying, “If they enter illegally and are given residence and work permits, there will simply be more boats arriving with more and younger children.… That cannot be encouraged.”337

Cristina Valido García from the Tenerife cabildo explained prevailing practice in similar terms: “Residence permits are not granted to prevent the arrival of more children.”338 Given the absence of information on children’s reason for leaving in the first place, and the serious implications such practice has on the child’s well-being, especially the risks these young adults face after being pushed into an irregular status after turning 18 (see Section V.1, above), these explicit practices are in violation of Spain’s own legislation and in stark contrast to its international legal obligations to act in the child’s best interest and the requirement to identify durable solutions for unaccompanied children.

5. The Push for Repatriation

The government’s failure to protect unaccompanied migrant children and guarantee their full entitlements and rights in accordance with national and international legislation coincides with a reinvigoration of repatriation plans. The government of Spain recently concluded readmission agreements for unaccompanied children with both Senegal and Morocco.339 Further, a working group has been created within the Ministry of Labor and Social Affairs to analyze the possibility of repatriating children.340 In addition, the Office of the Prosecutor General is in the course of spelling out procedures for children’s repatriation.341

Human Rights Watch and other organizations documented in earlier reports how Spain has conducted illegal and ad hoc repatriations of children to unsafe situations in Morocco, and criticized procedures under which these repatriations were carried out.342 The national ombudsperson and the children’s ombudsperson in Madrid called the manner in which these decisions were made and implemented “random” and “automatic decision-making.”343

In 2006 and 2007, judges in Madrid suspended at least 15 repatriation orders issued by the Madrid autonomous community and ruled that some decisions were in violation of the fundamental rights of the child, including the child’s right to be heard, his or her entitlement to legal representation, the right to life, and the right to be free from inhuman and degrading treatment.344

Although the recently concluded bilateral readmission agreement with Morocco includes general references to Spain and Morocco’s international legal obligations, it falls short of specifying explicit safeguards and guarantees before, during, and after a child’s repatriation, and it does not provide for independent monitoring of its implementation. The government explained to Human Rights Watch that “a child’s right to legal representation and his right to be heard are both matters related to internal legislation that are being considered, but that don’t need to be part of the agreement.”345

Human Rights Watch spoke to two children who discovered that their files contained a repatriation order after they were transferred from Tenerife to a residential center on the Spanish mainland. The two boys had no previous knowledge of the existence of these orders, which had been issued months earlier. They were not provided with access to legal representation, and they had not been consulted.346 One of the boy’s custodians furthermore confirmed to Human Rights Watch that the boy’s file neither contained information about the child’s background nor about his family.347 Such details raise serious questions about the manner in which repatriation decisions are made and the way the state administration intends to implement them.

These details also call into question the role of the public prosecutor, who is mandated to act as an independent safeguard over the decision whether a child is to stay on Spanish territory or to be reunited with his or her family. The prosecutor’s independent verification of any repatriation decision by the administration should guarantee that such a decision complies with the rights of the child and procedural safeguards, including that conditions for a safe return without risk to the integrity of the child or the child’s family are in place.348 

The Committee on the Rights of the Child specifies that “the ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution,” and that “a durable solution commences with analyzing the possibility of family reunification.” The committee adds, however, that further separation of a child may be necessary for the child’s best interest. If return is impossible on either legal or factual grounds local integration of an unaccompanied child must be based on a secure legal status. Family reunification in the country of origin should not be pursued where there is a “reasonable risk” that such return would lead to the violation of fundamental human rights of the child. Such a determination of risks includes, inter alia, socioeconomic conditions upon return, the availability of care arrangements, as well as the child’s level of integration in the host country and the duration of absence from the home country. The committee clearly states that “non rights-based arguments such as those relating to general migration control, cannot override best interests considerations.”349 

Repatriation decisions made in the absence of a functioning system that guarantees access to asylum procedures for unaccompanied children and the lack of minimal procedural safeguards can result in refoulement in violation of the Refugee Convention. The readmission agreement between Spain and Morocco requires the Spanish government to transmit all relevant information about an unaccompanied child within one month to Moroccan authorities. Human Rights Watch was informed that Spanish authorities would essentially only seek the “confirmation of children’s nationality.”350 Still, by automatically forwarding within one month “all relevant information about an unaccompanied child” to Moroccan authorities, upon which they “proceed to identify the child and his or her family,” and in view of the current absence of access to asylum procedures, the provision as it stands may put children fleeing persecution, including child-specific forms of persecution, and their families at risk.351

In interpreting Article 16 of the Convention on the Rights of the Child, the Committee on the Rights of the Child explained that “in obtaining, sharing and preserving the information collected in respect of unaccompanied and separated children, particular care must be taken in order not to endanger the well-being of persons still within the child’s country of origin, especially the child’s family members.”352 Further, European Union law obliges member states to exercise special caution when circulating information to trace family members of unaccompanied children who are in need of international protection.353

The European Commission provides financial support for Spain’s plans to repatriate unaccompanied children. It signed agreements with the autonomous communities of Madrid and Catalonia and funds the construction of two residential centers in the north of Morocco with €2 million. The European Commission is furthermore in final negotiations with the Canary Islands government to fund the construction of residential centers for repatriated children in Senegal and the south of Morocco.354

According to the title of the project with the Madrid autonomous community, the centers are intended for children below age 15 who are repatriated from Madrid community.355 One center starts operating in summer 2007 and a second center is due to open in early 2008. Human Rights Watch received no detailed information from the European Commission as to the implementation arrangements of this project due to its “sensitivity,” but we were assured that returns would only be carried out on a voluntary basis.356

The absence of clearly spelled-out safeguards for the repatriation of children that are in compliance with Spain’s obligations under international law, and the implementation of projects that may accelerate children’s repatriation, both raise serious concerns that the government of Spain will continue a practice of repatriating children without provision of effective procedural safeguards and in violation of its obligations under international law, and as a consequence may return unaccompanied children to dangerous situations.

263 Human Rights Watch interview with center staff in January 2007, and Human Rights Watch email correspondence with center staff, March 28, 2007 (names withheld).

264 Human Rights Watch interview with Gloria Gutiérrez González, Las Palmas de Gran Canaria, January 31, 2007.

265 Human Rights Watch telephone interview with Social Affairs Department, cabildo Lanzarote, July 9, 2007.

266 Human Rights Watch telephone interview with Manuel Campos, Tenerife, April 30, 2007. Manuel Campos told us that visits by his office were unannounced and included interviews with children in private.

267 Human Rights Watch interview with Jean-Marie N., La Esperanza center, January 20, 2007.

268 Human Rights Watch interview with Lakh S., La Esperanza center, January 20, 2007.

269 Human Rights Watch interviews with several children, La Esperanza center, January 20, 2007.

270 Human Rights Watch interview with Lamine P., La Esperanza center, January 20, 2007.

271 Human Rights Watch interview with Aliou N., La Esperanza center, January 20, 2007.

272 Human Rights Watch interview with Juan José Domínguez Navarro, president, Asociación Solidaria Mundo Nuevo, Fuerteventura. January 23, 2007.

273 See footnote 43 for relevant legislation

274 Human Rights Watch interview with Maria José Ortega, January 22, 2007, and with Gabriel Orihuela, director, Arinaga center, January 27, 2007.

275 Human Rights Watch interview with Maria José Ortega, January 22, 2007, and telephone interview with Nelida Suarez Díaz, Arinaga center, February 20, 2007.

276 Human Rights Watch telephone interview with Manuel Campos, prosecutor, Prosecutor’s Office, Tenerife, April 30, 2007

277 Parliament of the Canary Islands Official Bulletin,  No. 125, March 28, 2007, p.13.

278 Bernardo Sagastume, “Security at La Montañeta is ‘Zero’ and Encourages Escapes” (“La Seguridad en La Montañeta es ‘Nula’ y Propicia que Haya Fugas”), November 19, 2006, (accessed November 24, 2006); Juan Manuel Pardellas, “24 Staff Members are Suspended from Two Centers for Children in Tenerife” (“Suspendidos en Tenerife 24 Trabajadores de Dos Centros de Menores”), El Pais (Madrid), October 28, 2005, (accessed June 24, 2007); Juan Manuel Pardellas, “One Child Dies and One is in a Coma After a Fire in a Center for Children” (“Una Joven Muere y Otra Queda en Coma en el Incendio en un Centro de Menores”), El Pais, June 8, 2005, (accessed November 24, 2006); Juan Manuel Pardellas, “700 Complaints, 20 Fires and Two Deaths” (“700 Denuncias, 20 Incendios y Dos Muertes”), El Pais, June 8, 2005, (accessed November 24, 2006); Parliament of the Canary Islands Official Bulletin, No. 147, May 19, 2006, (accessed June 24, 2007), pp. 46-49. Ombudsperson, Annual Report 2005 and Debates in Parliament, pp. 147-153.

279 Human Rights Watch interview with Joaquín Sánchez-Covisa Villa, Supreme Court prosecutor and with José M.a Paz Rubio, Supreme Court prosecutor (fiscal de sala del Tribunal Supremo), Madrid, February 22, 2007.

280 “The Prosecutor’s Department on Alien Affairs Prioritizes the Situation of Immigrant Children” (“La Fiscalía de Estranjería da prioridad a la situación de los menores inmigrantes”), El Día (Santa Cruz de Tenerife), March 19, 2007 (accessed March 19, 2007).     

281 Decreto 40/2000, de 15 de marzo, por el que se aprueba el Reglamento de organización y funcionamiento de los centros de atención a menores en el ámbito de la Comunidad Autónoma Canaria, art.57. Complaint books can be found in almost every public setting in Spain, including in taxis, hotels, restaurants, and buses.

282 Human Rights Watch interview with Mohamad G., Arinaga center, January 2007 (age and exact date withheld).

283 UN Committee on the Rights of the Child, General Comment No. 6, para. 40.

284 Recommendation Rec(2005)5 of the Committee of Ministers to member states on the rights of children living in residential institutions, Council of Europe, 16 March 2005.

285 Human Rights Watch interview with Mohamad G., Arinaga center, January 2007 (age and exact date withheld).

286Human Rights Watch interview with Rashid P., La Esperanza center, January 20, 2007.

287 Although children used the term “Police” it is possible that they in fact refer to the Civil Guard.

288 Human Rights Watch interview with Salem L., La Esperanza center, January 20, 2007.

289 Human Rights Watch interview with Papis F., La Esperanza center, January 20, 2007.

290 Human Rights Watch interview with Saliou M.,  La Esperanza center, Tenerife, January 20, 2007.

291 Human Rights Watch correspondence with José Luís Arregui Sáez, director general, Child Protection Directorate, February 13, March 13, and March 27, 2007.

292 Letter and report by Maria José Ortega Mariscal, child protection prosecutor (fiscal de la sección de menores protección), to Human Rights Watch, June 1, 2007.

293 ECHR, arts. 3, 5(d). ICCPR, art.9: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

294 Código Civil, arts. 172 (3), 271,269; Decreto 54/1998, art.30. See also Ley 1/1997 on the aims of protection measures and Decreto 40/2000, art. 37 on the responsibilities of guardian and center directors.

295 Canaries Health Service and Government of the Canaries, “Coordination and Action Protocol on Health Care for Immigrant Children,” p. 5.

296 Human Rights Watch interviews with Cristina Valido García, counselor, social affairs department, cabildo Tenerife, January 18, 2007 and with Natividad Cano Pérez, counselor, department of social affairs, health and immigration, Puerto de Rosario, January 24, 2007.

297 Human Rights Watch interview with center staff, January 2007 (name, exact date, and location withheld).

298 Human Rights Watch interview with center staff, January 2007 (name, exact date, and location withheld).

299 One such transfer decision is on file with Human Rights Watch

300 Erena Calvo, “The Closure of a Center for Children in the Canaries Sparks a War Among Institutions” (“El Cierre de un Centro Canario de Menores Enciende una Guerra Entre Instituciones”), , March 3, 2006, (accessed April 16, 2007); “The Cabildo of Gran Canaria Opposes the Transfer of Migrant Children to Centers for Infants” (“El Cabildo de Gran Canaria se opone al traslado de menores inmigrantes a los centros infantiles”), OffCanarias, February 27, 2006, (accessed April 16, 2007).

301 The Head of the Child Protection Directorate is proposed by the department’s counselor (consejero or consejera) and confirmed by the executive government. Members of the executive government, including counselors, are appointed by the Canary Islands president. Ley 1/1983, de 14 de abril, del Gobierno y de la Administración Pública de la Comunidad Autónoma de Canarias, arts. 15, 20(d).

302 Dory Merino, “The Canaries Exceed Andalusia in Numbers of Migrant Children” (“Canarias Supera a Andalucía en el Número de Menores Inmigrantes”),  El Día (Santa Cruz de Tenerife), January 25, 2007. (accessed January 30, 2007).

303 Teresa Cruz, “The Canaries Government Shelters Children in Industrial Sites” (“El Ejecutivo Canario Acoge a Niños en Naves Industriales”),  El Mundo (Madrid), 24 August, 2006, (accessed April 2, 2007). For an analysis of Instruction 3/2003, see Amnesty International /Spanish Section, “Spain: Unaccompanied and Undocumented Migrant Children Are at Risk,” November 2003, (accessed November 1, 2006). 

304 Decreto 54/1998, de 17 de abril, por el que se regulan las actuaciones de amparo de los menores en el ámbito de la Comunidad Autónoma de Canarias, arts. 15-18.

305 That member is chosen from the Canary Islands judicial department (Dirección General del Servicio Jurídico del Gobierno de Canarias).

306 CRC, art. 25.

307 UN Committee on the Rights of the Child, General Comment No.6, para. 22.

308 Ibid., para. 35.

309 Ibid., para. 33.

310 Dory Merino, “Another 23 out of 619 Children in the Canaries Are Leaving  Today” (“Hoy salen otros 23 de los 619 menores que acoge Canarias”),  El Día, May 17, 2007. (accessed May 17, 2007).

311 Human Rights Watch interview with Estrella Rodríguez, February 23, 2007. “The Church Demands Guarantees in Receiving Migrant Children from the Canaries” (“La Iglesia Exige Garantías en la Acogida de los Menores Inmigrantes de Canarias”), El Día, January 31, 2007, (accessed Feburary 2, 2007).

312 Constitución Española, art. 119; Ley 1/1996, de 10 de enero, de Asistencia Jurídica Gratuita. 

313 Ley 1/1996, art. 22.

314 Human Rights Watch interview with five members of the Bar Association, including Javier Monzón García, abogado, and Joaquín Espinosa Boissier, decano, Las Palmas de Gran Canaria, January 29, 2007.

315 Human Rights Watch email correspondence with Javier Monzón García, March 21, and April 23 and 27, 2007, and numerous phone calls to his secretary during the same period.

316 The Ministry of Interior’s asylum office conducted two three-day workshops on the rights of refugees for the Bar Association in 2006, jointly with UNHCR. Human Rights Watch interview with Julián Prieto Hergueta, February 23, 2007.

317 Human Rights Watch telephone interview with Bar Association’s legal office, Las Palmas de Gran Canaria, January 3, 2007.

318 Human Rights Watch telephone interview with Bar Association’s legal office, Santa Cruz de Tenerife, February 7, 2007.

319 Ley 29/1998, de 13 de julio, reguladora de la Jurisdicción Contencioso-Administrativa, art. 18.

320 Ombudperson, Report on Legal Assistance for Foreigners in Spain, p. 474. Ombudsperson, Report on Legal Assistance for Foreigners in Spain: Abbreviated Edition for Practitioners (Madrid: 2005), p. 37.

321 Human Rights Watch interview with Estrella Rodríguez, February 23, 2007; Real Decreto 1514/2006, de 7 de diciembre, por el que se regula la concesión directa de una subvención a la fundación Nuevo Sol para el traslado de menores extranjeros no acompañados, en el marco del Programa Especial para el traslado y atención de menores extranjeros no acompañados desplazados desde la Comunidad Autónoma de Canarias. For further information about the transfer agreement, see Parliament of the Canary Islands Official Bulletin, No. 125, March 28, 2007, pp. 22-23.

322 The Ministry of Labor finances the transfer of children to another autonomous community with €80 per day and per child, until the end of the child’s guardianship. Human Rights Watch interview with Estrella Rodríguez, February 23, 2007.

323 “Rumí: The Government Fulfils the Compromise to Transfer Migrant Children from the Canary Islands” (“Rumí: El Gobierno Cumple el Compromiso del Traslado de Menores Inmigrantes de Canarias”), Canarias 7 (Las Palmas de Gran Canaria), January 26, 2007, (accessed January 31, 2007).

324 Human Rights Watch interview with José Luís Arregui Sáez, January 19, 2007.

325 Merino, “Another 23 out of 619 Children in the Canaries Are Leaving  Today,” El Día.

326 “Rumí Says the Transfer of Children From the Canary Islands is Complete and Reproaches Madrid for Not Offering Places” (“Rumí Dice que Ha Cumplido Con el Traslado de Menores Desde Canarias y Reprocha a Madrid no Aportar Plazas”),  Geomundos (Madrid), June 3, 2007, (accessed June 8, 2007).

327 Human Rights Watch interview with NGO member of the Childhood Observatory, Madrid, Feburary 1, 2007 (name withheld). Human Rights Watch interview with Amparo Marzal, Alfonso Marina, and Carmen Puyó, February  22, 2007.

328 Human Rights Watch telephone interview with center staff, February 20, 2007 (name and exact location withheld).

329 Human Rights Watch telephone interview with custodian of several children affected, May 2, 2007 (name and location withheld).

330 Ministry officials had to advise Canary Islands authorities not to separate siblings when choosing children for transfer, after they came across one case. Human Rights Watch interview with Estrella Rodríguez, February 23, 2007.

331 Human Rights Watch interviews with Gloria Gutiérrez González, January 15 and 29, 2007. A Madrid-based NGO told us that none of the approximately 80 children who were transferred to NGO care centers in Madrid while their guardianship remained with Canary Islands authorities were of Moroccan origin. Human Rights Watch telephone conversation with Madrid-based NGO, June 11, 2007 (name withheld).

332 Human Rights Watch interview with Serijme N., Arinaga center, January 2007 (exact date withheld).

333 “El gobierno tendrá que analizar la situación cuando llegue,” Human Rights Watch interview with Estrella Rodríguez, February 23, 2007.

334 Human Rights Watch interview with Estrella Rodriguez, February 23, 2007

335 Human Rights Watch interview with José Luís Arregui Sáez, January 19, 2007.

336 Human Rights Watch interview with Estrella Rodríguez, February 23, 2007.

337 “Si entran ilegalmente y luego se les da la residencia y el permiso de trabajo, los barcos llegarían cada vez más cargados de niños cada y más jóvenes…. No se puede fomentar eso,”  Human Rights Watch interview with Estrella Rodríguez, February 23, 2007.

338 Human Rights Watch interview with Cristina Valido García, January 18, 2007. 

339 The readmission agreement with Senegal was signed on December 5, 2006, and with Morocco on March 6, 2007. The agreements contain no provision for the return of third-country nationals to either Senegal or Morocco. For more information on Spain’s readmission agreement with Morocco, see Letter from Human Rights Watch to Prime Minister José Luis Rodríguez Zapatero, January 9, 2007,; Letter from Human Rights Watch to Prime Minister José Luis Rodríguez Zapatero, April 2, 2007,

340 “A National Working Group Studies the Return of Children to Their Countries of Origin” (“Un Grupo de Trabajo Nacional Estudiará las Repatriaciones de Menores a sus Países”), El Día, February 6, 2007, (accessed February 6, 2007).

341 Human Rights Watch interview with Joaquín Sánchez-Covisa Villa, February 22, 2007.

342 Human Rights Watch, Nowhere to Turn: State Abuses of Unaccompanied Migrant Children by Spain and Morocco, vol.14, no. 4(D), May 2002,; Asociación pro derechos humanos de Andalucía (APDHA), “Migration and Rights of Unaccompanied Migrant Children” (“Migraciones y Derechos del Menor Extranjero no Acompañado”)  2006,; Federación SOS Racismo, “Children Between Borders”; Comisión Española de Ayuda al Refugiado (CEAR), Letter to the Office of the High Commissioner for Human Rights, Madrid, September 8, 2006, (accessed November 1, 2006); Ombudsperson, Annual Report 2005 and Debates in Parliament (Informe anual 2005 y debates en las Cortes Generales)  (Madrid: Parliamentary Publications, 2006); UN Commission on Human Rights, Report of the Special Rapporteur on the human rights of migrants, Ms. Gabriela Rodríguez Pizarro, Visit to Spain, E/CN.4/2004/76/Add.2, January 14, 2004, paras. 55-56: “The Special Rapporteur believes that because of the way in which some family ‘reunifications’ have been carried out, allegedly leaving the minor in the hands of the Moroccan police without the presence of his family or the social services, these reunifications are interpreted as expulsions. Nevertheless, many ‘reunited’ minors return to Spain and some speak of ill-treatment by the Moroccan police.… She [the Special Rapporteur] considers that priority should be given to ensuring that repatriations are carried out with due respect for the rights and best interests of minors.”

343 Ombudsperson, Annual Report 2005 and Debates in Parliament, p. 313; Children’s Ombudsperson in Madrid (Defensor del Menor en la Comunidad de Madrid), Annual Report 2005  (Madrid: 2006), p. 75.

344 These decisions and rulings are on file with Human Rights Watch. 

345 “Sus observaciones en relación a la asistencia jurídica del menor y el derecho a ser oído, son aspectos que corresponden a la legislación interna y sobre los que se está trabajando, pero que, a nuestro entender, no han de ser objeto del Convenio.” Letter from María Consuelo Rumí Ibáñez, state secretary for immigration and emigration, Ministry of Labor and Social Affairs, to Human Rights Watch, May 7, 2007. The governments of Spain and Morocco met on July 9, 2007, to discuss the modalities of implementing this agreement. This report went to press before the outcomes of this meeting were known.

346 Human Rights Watch telephone interviews with two children who stayed at La Esperanza center prior to their transfer to the mainland, May 10 and 16, 2007 (names withheld).

347 Human Rights Watch telephone interview, May 2, 2007 (name and location withheld). The UN Committee on the Rights of the Child specifies, “Where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation,” UN Committee on the Rights of the Child, General Comment No.6, para. 36.

348 Circular 2/2006, Sobre Diversos Aspectos Relativos al Régimen de los Extranjeros en España, Fiscal General del Estado, 2006, p. 133.

349 UN Committee on the Rights of the Child, General Comment No. 6, paras. 79-90.

350 “Se trata fundamentalmente de una constatación sobre la nacionalidad de dichos Menores,” Letter from María Consuelo Rumí Ibáñez to Human Rights Watch, May 7, 2007.

351 “Spanish authorities in charge: - Transmit to Moroccan authorities in charge, within one month after a child’s illegal entry into Spain, all relevant information about the situation of children who are subject to state protection. Moroccan authorities in charge proceed with the identification of the child and the child’s family and issue documents giving proof of nationality within three months after Spanish authorities have transmitted information about a child“ (« Les autorités compétentes espagnoles: - Fournissent aux autorités compétentes marocaines, dans un délai d’un mois à compter de la date d’entrée illégale du mineur sur le territoire espagnole, toutes les informations pertinentes concernant la situation des mineurs qui font l’objet de mesures de protection. Les autorités compétentes marocaines procèdent a l’identification du mineur et de sa famille et a la délivrance des documents prouvant sa nationalité, dans un délai de 3 mois a compter de la communication des documents et/ou informations sur le mineur par les autorités compétentes espagnoles”), Cooperation Agreement between the Kingdoms of Morocco and Spain for the Prevention of Illegal Emigration of Unaccompanied Children, their Protection and Planned Return (Accord entre le Royaume du Maroc et le Royaume d’Espagne sur la Coopération dans le domaine de la Prévention de l’Emigration Illégale de Mineurs Non Accompagnés, leur Protection et leur Retour Concerté), signed in Rabat, March 6, 2007.

352 CRC, art. 16.: “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honor and reputation. The child has the right to the protection of the law against such interference or attacks.” UN Committee on the Rights of the Child, General Comment No.6, para. 30.

353 European Council Directive 2004/83/EC, art. 30(5): “Member States, protecting the unaccompanied minor’s best interests, shall endeavor to trace the members of the minor’s family as soon as possible. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis.”

354 Human Rights Watch telephone interview with José Miguel Luengo Barreto, director, Canary Islands representation in Brussels, June 5, 2007.

355 (accessed April 20, 2007).

356 Human Rights Watch interview with Sergio Pagliarulo and Lidia Rodríguez Martinez, European Commission, Europe Aid Unit, Brussels, May 2, 2007.