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IV. Arrival

Children arriving in the Canary Islands reported that the Spanish Red Cross provided them with initial assistance that included clothing, food, water, and medical assistance, as needed. Some children were hospitalized after their arrival and treated for several days. All children interviewed by Human Rights Watch arrived by boat. Some children told us that their boats arrived unnoticed, but others reported that they were intercepted and escorted to the coast by the Spanish Red Cross or Coast Guard. One child reported that they were far from the Spanish coast when their boat was about to sink. According to the child, they were rescued by the “Red Cross” and taken to Gran Canaria after one-and-a-half days of further travel.⁴⁴

Guardianship (tutela) is assumed by the Child Protection Directorate through an administrative finding that a child is in need of protection, known as a declaración de desamparo .⁴⁵ An unaccompanied child is automatically considered in need of protection.⁴⁶ Although the law provides that a child can be immediately referred to protection services even if there are doubts about his or her age, guardianship in practice is not assumed before the age is determined through an assessment.⁴⁷ As a consequence, children spent up to two weeks at police or civil guard stations with no guardian present either during this period, the initial interview, or during the age examination.

1. Detention upon Arrival

Children told Human Rights Watch that they were brought to police or civil guard stations after receiving initial assistance from the Red Cross.  They were held or detained at police stations for periods ranging from a few hours to up to two weeks. They were generally separated from adults. None of the children had access to a lawyer during this period in custody.⁴⁸  Several children reported that they did not receive enough to eat while they were at the police and civil guard stations.⁴⁹

The following accounts were typical of those we heard from children:

“We arrived in Tenerife and were met by the Red Cross. Then we came to the Police. I was four days at the police station. I was with adults for two days, then two days with children.… We had only bread and sometimes nothing to eat. Sometimes we were not given food. For two days we were not given lunch. It happened only twice. I was unable to complain because nobody ever stopped by. One guard guarded us but I was not able to speak Spanish to him. We were in a big room and I was only able to leave that room after two days. With the children I was in a cell locked up. I could only leave to go to the toilet,” said 17-year-old Jean-Marie N.⁵⁰

 “We were met by the Police. I spent five days at the police station. They made an age assessment during that time. I was separated [from adults] with two other children in one cell…. I received no information and have not seen an interpreter,” Abdulahi F., age 17, told us.⁵¹

“We were met by the Red Cross. One person spoke French to me. We were brought to the Police and spent eight days at the Police. I was with other children and first in a big room. I spent two days in hospital initially. They had made a camp for children outside the police station. I spent the first day at the Police; they called an ambulance because I had high fever. I was brought to the hospital and then back to the Police,” Aliou N., age 17, reported.⁵²

“I spent one day in the Red Cross tent, the next day I was brought to the police station. I spent five days there. I was with two other persons in one room at the Police. We were all of the same age. I was asked the names of my parents, who had brought me to Spain, and whether I had any money with me,” 17-year-old Ali S. said.⁵³

“I was met by the Red Cross… then I was at the Police. We arrived in El Hierro. I was at the Police with two other boys…. I did not see a judge and I did not have an interview. I spent two weeks at the police station. I had only bread to eat with water. I was hungry. I was able to leave and I was in a big room,” said 17-year-old Yunus S.⁵⁴

The purpose of their initial detention appears to be the registration of basic data such as their name, nationality, age, identity of parents, place of origin, and how their travel to the Islands had been arranged. The interview to record this information on average lasted for about 10 minutes and in a large number of cases was conducted without an interpreter. While in detention children are brought to a hospital for an age assessment (see below). A small minority of children said they were brought before a judge, but only jointly with adults.

Contradicting these accounts, police officials told Human Rights Watch that children in need of protection are “never detained” and “receive treatment in full compliance with Spanish legislation.”⁵⁵

The Convention on the Rights of the Child stipulates that “the arrest, detention or imprisonment of a child shall be in conformity of the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.” Furthermore, a detained child shall have the right to prompt access to legal representation and the right to challenge the legality of his or her deprivation of liberty.⁵⁶ 

2. Age Determination

Depending on where a boat arrives, the initial authority that receives migrants is either the Civil Guard or the National Police. The National Police services the main ports on the Islands and the Civil Guard covers the rest of the coastline.⁵⁷ Initial identification of children is conducted by these authorities as well as by the Spanish Red Cross at ports of entry. Those who are presumed to be children and not accompanied are subsequently separated from adults by authorities.

Acknowledging that it is very difficult to correctly identify those who should be presumed to be children in practice, the Spanish Red Cross points out that the responsibility to decide which persons are to undergo an age determination lies with the government.⁵⁸ Authorities have the obligation to immediately inform the Prosecutor’s Office about the presence of an undocumented person who might be a child. The prosecutor in turn orders an age assessment, and if the test determines that the person is under the age of 18, and he or she is unaccompanied, the prosecutor refers the child to the protection services.⁵⁹

In January 2007 the Prosecutor’s Office of the Madrid community claimed that procedures in the Canary Islands for identifying children were flawed, noting that some children had been treated as adults by Canary Islands Police and judiciary.⁶⁰ These children had not been reported to the Prosecutor’s Office, but were instead treated as adults and received detention and expulsion orders by a judge, in the presence of a lawyer.⁶¹  According to the NGOs SOS Racismo and the Spanish Commission for Refugee Assistance (Comisión Española de Ayuda al Refugiado, CEAR), which referred the cases to the national ombudsperson, such treatment affected persons who physically appeared to be children but who claimed to be older than 18, but also persons who stated that they were underage including one eight-year-old and one ten-year-old who were never given an age assessment by authorities.⁶²

The age determination method in practice is an X-ray of the wrist bone, a method for the diagnosis of growth pathologies developed in the 1930s based on tests of Western European children.⁶³ Medical professional bodies have criticized both the method’s inaccuracies and the practice of exposing individuals to X-rays for non-medical purposes.⁶⁴ The British educational and standards body for pediatric medicine, the Royal College of Paediatrics and Child Health, observes that “age determination is an inexact science and that the margin of error can sometimes be as much as five years either side,”⁶⁵ and further advises practitioners that it is “inappropriate for X-rays to be used merely to assist in age determination for immigration purposes.”⁶⁶

Although the transfer of the child to a hospital for the age assessment is legally considered a period of detention, the child remains without a guardian or legal representative during that time.⁶⁷ Human Rights Watch spoke to children who had been recorded as a significantly higher age than they themselves claimed after the test and whose assessment result should have been challenged by a legal representative or the child’s guardian.⁶⁸ Thirteen-year old Rashid P. recalls how his friend of the same age was treated as an adult and repatriated following the age assessment:

There were 12 of us at the civil guard station the first night. Then just four of us were there the second night: the others were my brother, another boy who ended up going to Tegueste, and another boy who they repatriated to Morocco. This last boy was my age, but the machine said he was older, I think because he is fat. I know how old he is because he studied with me, and we arrived together on the same patera [boat]. There in school, they have a document that says your age and your date of birth.⁶⁹

A number of children told Human Rights Watch they were in fact older than the tests determined, by as many as four years.

Legal challenge to an age determination is in practice very difficult.⁷⁰ By law, medical staff are responsible for conducting the age assessment, which will provide an age range, and the lowest of possible age ranges is to be assigned to the person.⁷¹ The Spanish ombudsperson notes that in a majority of cases, no formal age declaration is issued by the prosecutor, instead the medical report itself is taken as the basis for the person’s age. He is of the view that an age declaration should always be issued by the prosecutor. Only such a formal administrative procedure would permit an age determination to be legally challenged before the courts, which is not the case if an age determination is based solely on the medical report. ⁷²

The Committee on the Rights of the Child calls for age assessments to take into account not only the child’s physical appearance but also his or her psychological maturity. If uncertainty remains, the assessment “should accord the individual the benefit of doubt such that if there is a possibility that the individual is a child, she or he should be treated as such.” The Committee further recommends that in cases where children are involved in administrative or judicial proceedings, “they should, in addition to the appointment of a guardian, be provided with legal representation.”⁷³

The European Council Directive on Minimum Standards on Procedures for Granting and Withdrawing Refugee Status requires that, in cases where medical examinations are used to determine age for the purpose of an asylum determination, unaccompanied children shall be both informed about the method and about the consequences of undergoing such a medical examination. They may refuse to undergo the examination. Further, the Directive requires states to seek the consent of a child and/or of his or her guardian prior to carrying out such an assessment.⁷⁴ While the Directive governs the establishment of minimum standards in relation to refugee status, the minimum standards it sets out should be more generally applied, as age determination is part of a process to establish a child’s identity and not necessarily only as part of the asylum procedures. Otherwise, applying different standards of age determination to different categories of children could result in creating arbitrary distinctions between children seeking asylum and those seeking other forms of international protection.

3. Assumption of Guardianship

As noted above, an unaccompanied child is automatically considered in need of protection, and guardianship (tutela) is assumed by the Child Protection Directorate through a declaración de desamparo. Center staff report that the declaración de desamparo is often delayed by several months.⁷⁵ The Canary Islands ombudsperson noted in 2004 that 56 percent of unaccompanied migrant children’s files included no indication of their administrative status—that is, their files did not show whether a declaration had been made.⁷⁶

The Committee on the Rights of the Child spells out that in the case of a child outside his or her country of origin, the principle of a child’s best interest “must be respected during all stages of the displacement cycle,” and “a best interests determination must be documented in preparation of any decision fundamentally impacting on the unaccompanied or separated child’s life.” It furthermore lays out that a key safeguard to ensure the best interest of the child includes “the appointment of a competent guardian as expeditiously as possible.”⁷⁷

In similar terms, UNHCR recommends, “A guardian or adviser should be appointed as soon as the unaccompanied child is identified. The guardian or adviser should have the necessary expertise in the field of child caring, so as to ensure that the interests of the child are safeguarded and that his/her needs are appropriately met.”⁷⁸

European Union law requires that “Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship or, where necessary, representation by an organization which is responsible for the care and well-being of minors, or by any other appropriate representation.”⁷⁹ As indicated above in the context of age determinations, although the European Council Directive on Minimum Standards for the Reception of Asylum Seekers limits this requirement in scope to asylum-seeking children, in practice it should be applied to all unaccompanied children as soon as they are identified, in order to avoid arbitrary distinction at a moment when it is not necessarily determined whether an unaccompanied child falls under the asylum procedure.

4. Placements in Care

Child protection services do not follow a transparent or obvious set of criteria in placing a child into a particular type of residential center.  Some newly arrived children are transferred directly to a CAME, whereas other children remain in emergency centers for indefinite periods.

We were told by Gloria Gutiérrez González from the Child Protection Directorate that younger children—those under the age of 14—are sent to Tegueste emergency center.⁸⁰  Yet, despite this criterion in place, we met 12-year-old children in Arinaga emergency center and 13-year-olds in La Esperanza emergency center.

Transfers within the Canaries

In the absence of clear criteria for placement, children interpret transfers to certain centers as punishment for their behavior and told us that they risk transfer to La Esperanza center 0n Tenerife if they didn’t behave well. Seventeen-year-old Ahmed A. described the prevailing view among children in Arinaga: 

Yesterday, for example, there was a big meeting among all educators in which they decided who was going to Tenerife: 24 children will be transferred. They are being told they are going to houses, not the center in the mountains [La Esperanza]; however, they know that the Moroccans are in that center in the mountains. After the meeting yesterday, six to eight kids escaped and slept outside the center out of fear to be taken to Tenerife. They returned in the morning and were locked up in the room upstairs for the day; they won’t get their pocket money and won’t be allowed to go to Las Palmas. The Moroccans were told if they wanted to go to the peninsula [mainland Spain] they would have to prove that they had family there, otherwise they would be transferred to a bad center. Those children who are the most conflictive are chosen for the transfers. Each time they select 25 children to be transferred, among them those who are difficult.⁸¹

We spoke to some boys who told us that they had run away out of fear of being transferred to La Esperanza.  “Three weeks ago I escaped with other children; we stayed outside the center for four nights and were sleeping on cardboards; we escaped because we were told we’d be transferred to Tenerife,” Mohamad G. told us in Arinaga.⁸²

Children may be transferred multiple times and seemingly at random.  In one case, a 13-year-old child stayed in five different facilities in little more than one year and was finally placed in an emergency center.⁸³ Another child who arrived at the age of 13 had been in seven different facilities by the age of 17, spending less than a year in all but one.⁸⁴ Children unanimously told us that they were not asked their opinion of an upcoming transfer, and even if they explicitly objected to a transfer they were either simply given notice several days ahead or none at all. Abdurahman A., age 16, Shai L., 17, and Ibrahim K., 17, described the way their transfers took place and how it affected them:

Twelve children were chosen without any information about anything. We were just put into cars and then transferred to La Esperanza.⁸⁵

Life there [where we were originally] was good and it was calm because there weren’t too many children. Nobody molested one another. We studied in the center and outside the center. I went to a Spanish school.… I was not consulted about the transfer. I was told that I shouldn’t be in that center because it was a center for Spanish children only. They just informed me about the transfer.⁸⁶

I was transferred to Los Alanzos center. I was already accustomed to the center… [where I stayed before], to the schedule there, and the transfer was disruptive. There was a different schedule and I lost my friends. There were new neighbors. I wasn’t asked about the transfer but I was only informed one week earlier.⁸⁷

Children also commonly expressed the belief that where they ended up depended on their national origin. Moroccan children felt they were discriminated against by Spanish authorities. Thirteen-year-old Zubir F. and Abdul Q., age 17, provided typical accounts:

All [sub-Saharan African] children are going to the peninsula [mainland Spain] but not the Moroccans; I heard there’s a center in the mountains in Tenerife. The Moroccans are being taken there. When children hear that they will be transferred to Tenerife they escape. All Moroccans from Tenerife have escaped and come back to Las Palmas to complain about that center. The educators threaten to take us to Tenerife; usually they come at four or five in the morning to take the children for the transfer. They ask the child to gather his belongings and then take him to Tenerife. Children who return from Tenerife called their family to send them money so that they can pay for the boat back to Las Palmas.⁸⁸

With the [sub-Saharan Africans], they’re always transferring 15 or I don’t know how many. Us, never. What fault do we have? We ask how long it will be for us. At first the director said one month, two months. But we’re still here [La Esperanza] four months later.⁸⁹

Authorities furthermore fail to take into consideration important aspects of a child’s well-being when making transfer decisions. One boy repeatedly requested that he be housed jointly with his brother but has been transferred to another center instead.⁹⁰ Although Human Rights Watch raised this matter with the Child Protection Directorate in mid-January 2007, the two brothers had still not been reunited as of early June.⁹¹ Zubir F. told us that he was unable to attend public school after his transfer.⁹² Yussef A. reported that the transfer of two children left a younger child unprotected and subsequently subject to violence by his peers: “I used to protect the smaller children with two other boys but the two other boys have been transferred; now we can’t protect them anymore.”⁹³

By taking frequent, random, and possibly punitive transfer decisions, and not upholding his or her right to be heard, it is hard to see how the best interest of the child is being met or indeed given appropriate weight in the process.

The Committee on the Rights of the Child spells out that when choosing alternative care for children deprived of their family environment, “the particular vulnerabilities of such a child, not only having lost connection with his or her family environment, but further finding him or herself outside of his or her country of origin, as well as the child’s age and gender, should be taken into account.” Furthermore, the committee clarifies that to ensure continuity of care and the best interest of the child, changes in residence should be “limited to instances where such change is in the best interest of the child,” that “siblings should be kept together,” and that “children must be kept informed of the care arrangements being made for them, and their opinions must be taken into consideration.”⁹⁴

The Council of Europe’s Committee of Ministers, in its guidelines on children at risk and in care, elaborates that a child’s placement “should be subject to periodic review with regard to the child’s best interests that should be the primary consideration,” and that the “decision taken about the placement of a child and the placement itself should not be subject to discrimination.”⁹⁵