Children migration has become an important phenomenon in recent years. In the European Union, 110,000 children have sought asylum between January and July 2015, among which 12,000 were unaccompanied (UNICEF, 2015, p.1). While there is a lack of exact data about migrant children in detention, the Global Detention Project reported in 2015 that “child migrants are routinely detained in many countries” (2015, p.18). The practice of detaining migrant children, in addition to having negative consequences on children’s health and development, also violates several children’s rights and state obligations under the Convention on the Rights of the Child (CRC). Greece has ratified the Convention, and has committed itself to give protection to children, with respect for the principle of the best interest of the child. However, Greece does not comply with the standards on the protection of migrant children. This article will focus on the situation of unaccompanied migrant children in Greece, and in particular on the issues of detention and guardianship.
Migrant Children Detention: Effects and International Standards
According to the EU Qualification Directive 2011/95/EU, an unaccompanied minor is defined as a person below the age of 18 who arrives in a member state without a responsible adult, or who is left without a responsible adult after arrival. These children are often detained in administrative detention, used as a means to regulate immigration, which results in their placement “in closed institutions or settings from which they are not free to leave at will” (The Children’s Legal Centre & UNICEF, 2011, p.59). This deprivation of liberty can induce restrictions on, or violations of, children’s rights, including being held with adults, a lack of access to medical services, to the asylum application procedure, to education, and creates risks of abuse and maltreatment. Moreover, detention can have “devastating effects  on the mental and physical health of children” (JRS, 2012). In fact, the European Court of Human Rights (ECtHR) has recently found in the case Rahimi v. Greece (2011, para.95) that the detention of migrant children and the failure of Greece to take care of unaccompanied migrant children may amount to degrading treatment in violation of article 3 of the European Convention on Human Rights (ECHR). Concerning international standards, the United Nations Committee on the Rights of the Child and the UNHCR agree that children “should in principle not be detained at all” (UNHCR, 2012, p.34). The best interest of the childshould always prevail over a child’s migration status (Ibid.), and detention should only be “a measure of last resort and for the shortest appropriate period of time” (CRC, 1989, art 37(b)). Article 20 of the CRC also stipulates that states have an obligation to provide “special protection and assistance” to children separated from their family, under the form of alternative care.
The Greek Situation
Greek law has developed in recent years to provide more protection for unaccompanied migrant children, including provisions for the examination of their asylum requests by the Greek Asylum Service (Presidential Decree no. 141/2013), and a procedure for determining the age of minors in order to recognise their specific needs, as well as the provision of medical services and psychological support (Ministerial Decision no. 92490/2013). These developments are positive, yet, despite such improvements, Greece still fails to comply with international standards concerning migrant children detention. Article 46 of the Law 4375/2016 provides that unaccompanied children can be detained for up to 25 days, which can be prolonged by 20 days in case of large numbers of arrivals, while they await transfer to children centres. Since the EU - Turkey Refugee deal agreed on in March 2016, Greece started automatically detaining all migrants arriving on its territory, including children (AI, 2016). This does not comply with the requirement that detention should be a measure of last resort. The U.N. Special Rapporteur on the Human Rights of Migrants, Francois Crepeau, reported in May 2016 that some unaccompanied migrant children were “locked in police station cells 24/7 without access to the outdoors for over two weeks and  some may stay for a month”, and called for alternatives to detention for unaccompanied minors (OHCHR, 2016). Others, such as Amnesty International and the Council of Europe’s Parliamentary Assembly, have also insisted that detention was an exceptional measure for children and that unaccompanied children should not be detained (AI, 2010, p. 29; Global Detention Project, 2014).
The practice of detaining migrant children is all the more harmful when Greece is regarded as having some of the worst conditions of detention for migrants in Europe (Global Detention Project, 2014). In Rahimi v. Greece (2011, para. 86), the ECHR found that the conditions in the detention center in question in this case were so dire that they amounted in themselves to degrading treatment under article 3 of the ECHR, despite the fact that the applicant (an unaccompanied child) had only be detained for two days. Children face bad detention conditions: they are placed in unsanitary and overcrowded detention centers, which lack food and with limited access to medical services (AI, 2016). As noted by the U.N. Special Rapporteur on the Human Rights of Migrants (2016), migrant children are also subject to prolonged detention while they wait to be placed in centers adequate for children. There are limited places available in the few reception centers adapted to minors in Greece; Save the Children reported in 2016 that around 2,000 unaccompanied minors are present in Greece for only 477 shelter spaces available (Tagaris, 2016).
In addition, the CRC provides that in case a child is separated from his or her family, the state should provide “special protection and assistance” under the form of alternative care (CRC, Art. 20). This means the existence of a system of guardianship that takes responsibility for children and help them access their rights and protection, and go through the asylum application procedures. However, due to the high numbers of arrivals of unaccompanied children, “the guardianship system in Greece is at breaking point” (Beirens & Clewett, 2016).
What can Greece do?
Recent developments in Greek law regarding unaccompanied migrant children are encouraging, but Greece needs to do more to be in line with international standards on children’s rights and unaccompanied migrant children detention. Numerous reports by civil society and international organizations denounce a lack of ‘ethic of care’ that would consider the special vulnerability of migrant children over the fact that they are illegal migrants, and act in consequence (UNHCR, 2012, para. 52). Greece creates serious risks of violations of children’s rights by automatically detaining children, sometimes with adults, in unsanitary and unsafe detention centers, for prolonged periods of time, which also threatens the right to education. There needs to be further amendments to Greek law in order to establish provisions that better protect migrant minors, and specifically, unaccompanied children. Alternatives to detention can be developed, and the capacity of adequate centers for children should be increased. The most basic recommendation is that Greece should stop arbitrarily and automatically detaining children because of their migrant status, as this is contrary to article 37(b) of the CRC.
An appropriate system of guardianship is also key for unaccompanied migrant children. Greece is currently developing proposals for “a more structured system of guardianship”, and the UN Special Rapporteur on the Human Rights of Migrants emphasised the importance of training and competence, and the availability of resources, for guardians who are responsible to safeguard the best interests of the child (OHCHR, 2016).
Furthermore, enacting legislation must be followed by enforcement. Greece suffers enormous migration pressure and lacks resources to address the situation. Thus, support from the European Union can help greatly to ensure the rights of the CRC for unaccompanied migrant children. Besides developing EU standards on unaccompanied migrant children as part of its asylum policy, the EU could provide targeted technical and financial support to enable Greece to address the challenge of child migration.
As this article has shown, the migration of unaccompanied minors raises issues of child rights protection in Greece. Despite international standards and developments in Greek and EU law covering unaccompanied migrant children, in practice, Greece has been violating children’s rights with the automatic detention of migrant children, especially those unaccompanied, and detention has also affected children’s access to their other rights. Greece needs to urgently correct its approach and provide protection to unaccompanied migrant children, but it will need the EU’s support to be able to do so.
By Salomé Guibreteau
This article was originally published in issue 4.3 of the magazine.