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We established the Separated Children in Europe Programme in 1997, it is a programme dealing with the rights and needs of “unaccompanied children” with UN High Commissioner for Refugees, and linked to a broader network of children's rights and refugee organisations. The programme has published several documents, including the statement of good practice which is available at this meeting and in several languages as well as an assessment the situation at EU level and at member state level. We hope that these documents and this meeting can be useful to member states, particularly those who have had limited experience with separated children. In my presentation I will discuss the report “Separated Children and EU Asylum and Immigration policy” which explores the strengths and weaknesses of the EU’s approach. It is essential to change the approach of lowering standards and moving towards ‘lowest common denominator’ policies. I will conclude with key recommendations from the report for taking forward a positive child-centred approach. Who are separated children? What problems do they face? Definitions: The definition of separated children used by UNHCR and Save the Children is ‘children under 18 years of age who are outside their country of origin and separated from both parents, or previous/legal customary primary care giver’. This is based on the Convention on the Rights of the Child which has almost universal ratification including by all EU member states which 18 is the age of majority. We would stress also the emphasis on the phrase legal primary care giver. It is not always appropriate to assume that if a child is accompanied by an extended family member that this person will then take care of the child as the following case study shows:- “A five year old arrived in Belgium and was travelling with her uncle who wanted to take her to her mother in Canada. Because her papers were false she was stopped in Brussels, whilst her uncle who was legally living in the Netherlands had to continue on his way. She was kept for two months in a detention centre at the border where she was living with families and adults – it was a totally inappropriate place for a child alone. Her asylum application was refused and she was sent back to her country. She travelled alone and nobody was waiting for her at her arrival.” Secondly in some member states children under 18 who are married are assumed to be accompanied – we would highlight here that there will be cases where underage girls are forced into marriage and in fact may have been trafficked. A vast majority of separated children remain within their regions of origin, but a small and increasing number – currently estimated around 20,000 each year, most of them older boys - seek asylum in Europe. The practical problems separated children face on arrival in Europe are immense. The Director of the UNHCR Bureau for Europe has said: ‘Separated children are still being detained regularly in some countries and deported without necessary safeguards; increasing numbers of separated children disappear either shortly after arrival, during the procedure or after being finally rejected and run a high risk of becoming victims of trafficking and other crime; guardianship systems are inadequate; in several countries specialised reception conditions are still lacking…’.  The EU legal and policy context – towards the lowest common denominator? It is an appropriate time to assess whether EU harmonisation has lowered or raised standards for separated children as we come to the end of the first phase of harmonisation. The legal framework which is used is largely based on the 1997 Council Resolution on Unaccompanied Minors. Although the resolution provides some protection, it is not legally binding. Nor does it reflect adequately all the principles of the UN Convention on the Rights of the Child (CRC). In relation to separated children, a number of EU legislative proposals have lowered standards. For example, the definition of ‘family’ in the Directive on Family Reunification (and in the ‘Dublin II’ Regulation), was narrowed in the latter stages of negotiation between Member States. Both now only recognise the rights of spouses and minor children, leaving to Member State discretion over issues relating to unmarried partners and their children, and ascending relatives and adult children. Another unsatisfactory aspect of the Family Reunification directive is that it not only draws upon a limited notion of the ‘family’, but it also redefines what is meant by the ‘child’. Article 4.1 allows Member States to derogate from the principle that ‘child’ should be defined up to age 18. Now, where the child is over 12, he or she may have to meet an ‘integration test’, a provision which is in apparent breach of international law (CRC, Article 1; Article 8, ECHR ‘respect for family life’) Similarly, the importance of guardianship is recognised in several Directives, but this provision has been weakened in all cases so that a ‘representative’ is deemed adequate rather than a ‘legal guardian’. The draft of the Asylum Procedures Directive on which political agreement has been reached has watered this down further by reference to certain circumstances in which a representative need not be appointed. The first draft also set out that authorities that carry out medical examinations to determine the age of a separated child must use ‘methods that are safe and respect human dignity’, recognising the dangers of unnecessary X-rays and intrusive bodily examinations. This safeguard has been removed from later versions, although children do have to consent to a medical examination. There are of course wider concerns with the Procedures directive which are not specific to children. The latest draft was recently strongly criticised by UNHCR who argued that, given the sharp drop in the numbers of asylum seekers coming into the EU: ‘There is no need to focus so single-mindedly on reducing standards and trying to deter or deny protection to as many people as possible’. Strengths and weaknesses of the EU’s approach It is also important to acknowledge that some progress has been made in defending, and in a few cases advancing, the rights of separated children within the Common Asylum Policy. To give one policy example, the Directive on the Definition of a Refugee recognises the existence of child-specific forms of persecution, such as the recruitment of children into armies, trafficking for prostitution, female genital mutilation, and forced labour. There is also a post in DG Justice and Home Affairs with responsibility, among other things, for monitoring issues relating to separated children horizontally across all asylum and immigration policies. Although there are some optimistic signs, the overall trend is much less hopeful. Let me highlight briefly some of the other weaknesses in the EU’s approach, which are set out in more detail in the report’s findings: Issues concerning separated children who are not asylum seekers have not been sufficiently addressed, there are many separated children who travel to Europe to escape situations of extreme poverty, or who may have been trafficked for the purpose of exploitation. Such children may often apply for asylum; many others lack any form of status, existing on the margins of society, vulnerable to appalling exploitation and abuse. The problem of child trafficking to and within the EU is also disturbing. There are no reliable statistics but UNICEF estimates there are 1.2 million children trafficked worldwide.  A number of EU initiatives have been taken to ensure common definitions, penalties and criminal procedures in the Member States in relation to trafficking, sexual exploitation of children and child pornography. The Directive for a short-term EU residence permit for victims who co-operate with the authorities leaves much discretion for Member States, who can decide whether to extend the provisions to children, and from what age. On trafficking, there are often occasions where trafficked children who have been coerced into illegal activities are perceived as criminals rather than victims. Similarly disappearances from reception centres can be linked to trafficking, rather than to children disappearing to avoid deportation. We are now in an enlarged EU and what is noticeable from the questionnaires is how few separated children some of the new member states have dealt with. This is of course an opportunity for new member states to set best practice with procedures to deal with separated children. An assessment for the separated children in Europe programme based on NGO assessments in 11 Central Europe and Baltic states concluded that in general many of the necessary safeguards were included in legislation but the practice fell short of the standards set out in the statement of good practice. Recommendations What are the main recommendations in the report ? In relation to the legal framework, it is essential that the focus within the Common Asylum and Immigration Policies on children’s rights is strengthened. Rather than just transpose into EU and national law the relatively weak safeguards set out in the 1997 Council of Ministers Resolution on Unaccompanied Minors, the more comprehensive provisions of the 1997 UNHCR Guidelines and the Separated Children in Europe (SCE) Programme ‘Statement of Good Practice’ should be used. First, the ‘best interests of the child’ (from Article 3, CRC) would be incorporated as a core principle throughout – as in the Reception Directive - rather than just referred to in relation to particular Articles in some of the Directives. Ideally, the EU should develop guidance on interpreting this principle. Second, the child’s right to participate in decisions affecting him or her (derived from Article 12 of the CRC) would be referred to in each Directive – currently it is only mentioned in the Temporary Protection directive. Third, separated children would never be refused entry to EU territory; in contrast, the draft Asylum Procedures Directive contains no exemptions for children from special procedures. Fourth, the use of detention in relation to immigration status would be forbidden for all separated children; again, there are no provisions to prevent children from being detained in the Reception or draft Asylum Procedures Directive. Fifth, all children under 18 would be assisted by a legal guardian or adviser at all stages of the asylum process and in relation to durable solutions. Looking to the future, the proposed draft directive setting out minimum standards for returns, should also protect the rights of separated children. For example: it must be safe to return the child to his or her home country; appropriate care must be available in the country of origin for each child; and the child should be fully informed at all stages, and his or her views taken into account. In relation to separated children within the enlargement process, the SCE Programme endorses last year’s call by the Council of the Baltic Sea States for the elaboration of a ‘Plan of Action Regarding Unaccompanied Children’ in the region, and believes the plan should be extended to other states in Central and Eastern Europe and supported by the EU institutions. This would involve establishing national and regional focal points to initiate and monitor activities, and co-ordinate resources, and building competence and capacity (especially through training for law enforcement and migration authorities on how to work with separated children). Conclusion In conclusion, it is essential that the development of common EU asylum and immigration policy does more than entrench current policy and practice failings and does not lead to ‘lowest common denominator’ policies. Beyond what has already been agreed, it is of course also vital to look to the future. By the Autumn of this year, we will have experienced not only the success or failure of the first phase of the new Asylum System, but also enlargement, European elections, and the establishment of a new Commission. The text of a new EU Constitution – which currently contains some positive references to children’s rights - may well be agreed by June, subject to the approval of national parliaments and, in some countries, referendums. In our view the development of the second phase of asylum must recognise that stronger safeguards for children are necessary particularly given the increase in the number of children who may be trafficked. 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