publications

IX. Detailed Recommendations

To the Government of the Canary Islands

Protection from violence

  • Ensure that no child is subject to inhuman or degrading treatment or punishment including through the use of any form of disciplinary measure. Investigate any acts of violence against children and hold perpetrators fully accountable.
  • Ensure that staff actively and competently intervenes to prevent and respond to all forms of violence against children.  
  • Ensure that all staff members are informed in writing of all prohibited forms of disciplinary practice and that any staff found to have inflicted corporal punishment, ill-treatment, or any other form of violence shall be sanctioned or prosecuted under applicable law.
  • Screen backgrounds and records, including criminal records, of staff members working in residential centers independently from the organizations that recruit them. Provide training to all staff members on children’s rights, with particular focus on children’s legal status and their entitlement to health, education, residence, and citizenship.
  • Set up a complaints mechanism within residential centers that is safe, accessible, and confidential. Act upon complaints in a swift, confidential, and effective manner. In addition, provide children with full information on whom they can approach outside their residential center to file a complaint, and provide them with relevant addresses, directions, telephone numbers, and contact points.
  • Separate children in residential care according to their age and other vulnerability factors to ensure protection from harm by others.
  • Ensure that all children are interviewed in-depth to determine the specific type and level of care they require and to detect possible protection needs.

Residential centers

  • Develop alternatives to the institutionalization of children in care and provide an environment that is conducive to the child’s well-being and development. Specifically, reinvigorate and promote a foster family system and other community-based alternatives.
  • Merge and mix care arrangements for foreign children with those for Spanish children in order to limit the vulnerability of migrant children and the possibility of discrimination against them, and to enhance their integration.
  • Ensure that the quality of care for all children in residential centers is of the highest possible standard and always takes into account the best interest of the child. Effectively intervene in instances where non-compliance with applicable laws and standards are detected.
  • Carry out regular and effective oversight, including regular inspections, of all residential centers and always include private interviews with children as part of an inspection. Ensure that appropriate measures are taken to protect the confidentiality of these encounters. Follow up should be conducted to ensure that children are not subjected to reprisals following an interview.
  • Ensure continuity in the child’s upbringing and limit changes in residence as much as possible. Ensure that children are consulted prior to any transfer decisions to ensure that no transfers will make a child more vulnerable or disrupt his or her development and integration. Ensure that siblings are housed together.
  • Provide all children with information on their rights in a language they understand and with a particular emphasis on children’s entitlements to documentation, legal residence, work permit, education, and health.
  • Encourage activities in residential centers by nongovernmental and humanitarian organizations that promote the child’s development, while respecting the child’s right to privacy and his or her best interest.
  • Ensure that any restriction on children’s freedom of movement does not unduly limit their right to recreational activity or limit their possibility to seek help, assistance, or advice outside the residential center. Ensure that leave regimes in place are conducive to children’s well-being and development and comply with their best interest. Ensure that any restriction on children’s movement is based on clear criteria, proportionate to the objectives pursued and in the child’s best interest.
  • Ensure adequate presence of on-site interpreters in residential centers to ensure communication between migrant children and center staff and with medical practitioners.
  • Work jointly with local communities to increase acceptance of migrant children and children’s integration within these communities. Publicly condemn any xenophobic and racist attitudes and acts.
  • Issue guidelines on data protection for all staff working with children in care and ensure the non-discriminatory use of such data and full compliance with relevant national and international legislation.

Guardianship of children

  • Establish an independent and transparent mechanism to regularly review the exercise of guardianship. Ensure that such a review mechanism addresses in particular whether measures taken by the guardianship authority are legal and in full compliance with the best interest of a child.
  • Clarify and streamline child protection responsibilities and functions assigned to the Child Protection Directorate, cabildos, and center directors in order to enhance coordination and cooperation among the three bodies and to improve care and protection services for children under state guardianship.
  • Review and revise the current appointment and removal system for the head of the Child Protection Directorate to ensure that the guardianship institution can function fully independently from any influence or pressure exercised by political actors, and that the best interest of the child is paramount in the decision-making process.
  • Inform every child about the guardianship structure in place and provide children with a contact or focal point within the guardian’s office.

Identification of durable solutions

  • Ensure the identification of durable solutions as soon as possible after a child’s arrival. If criteria for a child’s safe return or family reunification are not met or are against the child’s best interest, ensure the child’s integration in the host community and provide him or her with secure legal status. Identify and pursue such solutions in full consultation with the child and from the earliest stage possible.

The right to education

  • Ensure that all foreign children below the age of 16 have access to education on equal terms with Spanish children, as required by Spanish and international law. Support their enrolment in Spanish schools through targeted intervention, in particular language programs, as soon as possible after their arrival.
  • Keep the transition phase before a child is enrolled in public schools as short as possible and offer qualitative and targeted educational programs immediately after a child’s arrival in order to speed up his or her integration process.
  • Ensure that all children of age 16 and above have the same access to vocational training as Spanish nationals. Remove all administrative obstacles preventing children from participating in the practical segment of vocational courses.

The right to health

  • Issue an instruction to all centers to transfer health cards and documentation into the possession of children. Ensure that foreign children have the same access to health care as Spanish nationals.
  • Immediately probe the quality of food provided by the catering company to La Esperanza and Tegueste for sanitary standards and nutritional quality. Ensure the highest standards of food provided to children in care through regular probes and inspection.
  • Ensure that all centers comply with health and safety standards, including general sanitary conditions, safety of food, and the prevention of fire hazards.
  • Ensure that all unaccompanied children have access to psychological support and treatment whenever required or deemed necessary.
  • Ensure that children are fully informed and in a language they understand about medical checks performed, their implications, as well as possible treatment. Additionally, provide information about sexually transmitted diseases and safer sex strategies to all children in care.

Access to legal representation

  • Ensure access to independent legal representation for all children in care, specifically by granting unconditional access for the Bar Association and other legal aid organizations or legal representatives.

To the Government of Spain

  • Ensure that the rights of migrant children in the autonomous community of the Canary Islands are fully respected, protected, and fulfilled. Ensure that any action taken by Canary Islands authorities is in full compliance with Spain’s national legislation and its legal obligations under international human rights treaties, in particular the UN Convention on the Rights of the Child.
  • Collect gender and age-disaggregated data at the national level to keep track of all migrant children, including those who “escape” or “disappear” from the protection system. Revise the policy to fingerprint all migrant children, in compliance with the respect for private life under Article 8 of the European Convention on Human Rights. Ensure that the collection of such data does not unduly limit children’s freedom of movement, prevent their future access to territory, or prevent them from accessing protection and other services in another autonomous community.
  • Ensure that children are granted their entitlements to documentation, residence and work permits, as well as citizenship, in accordance with Spanish legislation. Support the identification and pursuit of durable solutions for unaccompanied children from the earliest stage and in full respect of their rights.
  • Refrain from carrying out repatriations of unaccompanied migrant children who have arrived to the Canary Islands until a functioning system is in place that guarantees children access to asylum procedure or until children’s grounds for protection are competently assessed. 
  • Instruct all delegates and sub-delegates to carefully review requests for repatriation of unaccompanied children and ensure that these requests fully comply with procedural safeguards and the rights of the child.
  • Report publicly on the implementation of the readmission agreements with Morocco and Senegal for unaccompanied children and address whether the implementation of the agreement is in compliance with human rights standards. Provide full access to information and facilities for nongovernmental organizations.
  • Ratify the United Nations Convention on the Rights of Migrant Workers and their Families
  • Ratify the European Convention on the Exercise of Children's Rights, signed by Spain on December 5, 1997.
  • Ratify the 1996 Revised European Social Charter, in particular Article 17, and the Additional Protocol to the European Social Charter providing for a system of collective complaints.
  • Ratify Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed by Spain on October 4, 2005.

To the Ministry of Interior

  • Immediately clarify the compatibility of asylum procedure with an unaccompanied child’s entitlement to a residence permit in accordance with Law 4/2000. Ensure that children seeking asylum can access temporary legal residence on the same grounds as migrant children. 
  • Instruct law enforcement personnel in the Canary Islands to always ask persons for their age and to immediately inform the prosecutor about the presence of a child, even if there are doubts that he or she might be a child, and including if the person claims to be an adult.
  • Instruct law enforcement personnel to immediately refer unaccompanied children to competent protection services and to refrain from holding any child in a police or civil guard station following his or her arrival. 

To the Ministry of Health

  • Issue guidelines requiring that medical check-ups and age assessments of migrant children are only performed with the child’s informed consent. Ensure that migrant children are provided with full information on their medical diagnosis and their access to treatment in a non-discriminatory manner and in a language they understand.

To the Office of the Prosecutor General

  • Spell out clear and detailed safeguard provisions for the repatriation of unaccompanied children by incorporating international law and standards. Ensure that all repatriation decisions are fully compliant with international law and standards prior, during, and after a child’s return to his or her home country.  
  • Establish binding and detailed criteria for all prosecutors to proactively oversee the protection of unaccompanied migrant children under public guardianship and to independently review performance of guardianship authorities.
  • Reform the current age determination process incorporating the recommendation by the UN Committee on the Rights of the Child that age assessment methods should not only rely on a person’s physical appearance but also take into account the person’s psychological maturity and that a person should be given the benefit of doubt. Specify that the child’s guardian or legal representative must be present during the age examination. Information about the exam’s implications and about possibilities to legally challenge the results must be given to the child and his or her representative. Further, the child’s informed consent must be sought prior to carrying out the exam.

To the Bar Association

  • Immediately provide training for all staff in the Canary Islands on the rights of unaccompanied migrant children, jointly with specialized organizations and experts on refugee law and children’s rights.
  • Ensure that migrant children are granted access to legal aid independent of their legal status or the possession of documentation, and independent of their guardian’s consent.
  • Proactively reach out to access and provide legal assistance to unaccompanied migrant children immediately following their arrival and while in residential care.
  • Provide free legal assistance and representation for children held in police and civil guard stations following their arrival to challenge the legality of their detention.

To the Council of Europe

  • The European Committee for the Prevention of Torture (CPT) should carry out a visit to the Canary Islands and investigate the treatment of migrant children following their arrival and specifically in emergency centers. It should further routinely visit care facilities for unaccompanied migrant children in Spain, especially large-scale centers, facilities where migrant children are kept segregated from their national counterparts, and centers from where a substantive number of children “disappear.” 
  • The Commissioner for Human Rights should visit the Canary Islands and investigate the treatment of unaccompanied migrant and asylum-seeking children, especially in emergency centers. He should further question the government of Spain with regard to its policies and practices of repatriating unaccompanied children to their countries of origin.
  • The Parliamentary Assembly’s Committee on Migration, Refugees and Population should convene a hearing specifically on the treatment of unaccompanied migrant and asylum-seeking children in Council of Europe member states with a view to initiating a report on the subject.
  • The European Commission against Racism and Intolerance, in its next fact-finding mission to Spain, should investigate and address the situation of unaccompanied migrant and asylum-seeking children in the Canary Islands, with a focus on the fulfillment of these children’s rights in compliance with national and international law while on Spanish territory, and in case of repatriation to their countries of origin.

To the European Union

  • The European Commission should insist on the suspension of repatriation decisions of unaccompanied children from Spain as long as procedural safeguards are not explicitly spelled out in legislation and followed in practice. It should further suspend the funding of projects facilitating the return of unaccompanied children from Spain until these criteria are fully met.
  • The European Commission should address the situation of unaccompanied migrant and asylum-seeking children comprehensively in the future children’s rights strategy and establish benchmarks and criteria to ensure the full granting of rights for migrant and asylum-seeking children when accessing and on European Union territory.
  • The Fundamental Rights Agency should consider the findings in this report for its annual report on fundamental rights within the EU and it should analyze and address discrimination against unaccompanied migrant and asylum-seeking children in EU member states.

To the United Nations Treaty Bodies and Special Procedures

  • When the Spanish government next appears before the Committee on the Rights of the Child, the committee should specifically question Spain on its policies and practices with regard to unaccompanied migrant children in the Canary Islands.
  • The Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Racial Discrimination, and the Committee on Economic, Social and Cultural Rights should question Spain on its policies and practices with regard to unaccompanied migrant children in the Canary Islands.
  • The Committee against Torture should specifically ask what measures Spain has adopted to address reports of cruel, inhuman and degrading treatment against migrant children, to hold perpetrators accountable, and to prevent further acts. It should also question the government of Spain on its policies and practices to ensure children are not sent back to situations where children are at risk of cruel, inhuman, or degrading treatment by way of their repatriation.
  • The Special Rapporteur on the Human Rights of Migrants should visit and investigate human rights violations of unaccompanied migrant and asylum-seeking children in the Canary Islands.

To the United Nations High Commissioner for Refugees (UNHCR)

  • The UNHCR should remind relevant Spanish authorities of their international obligation to set up a functioning asylum system that enhances unaccompanied children’s access to international protection, and to provide assistance in building capacity where required.

To the National Ombudsperson

  • The national ombudsperson should investigate conditions in emergency centers in the Canary Islands and press authorities to take actions on shortcomings and violations of children’s rights. He should address discriminatory practices against Moroccan children and other irregular practices and press authorities to redress such actions. He should further investigate the ongoing transfer of children to the mainland whose guardianship remains in the Canary Islands, and determine whether the best interest of these children is continuously safeguarded.