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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.