ࡱ> T^S~@ mbjbjFF !,,e(d)d)d)8),)lb@*V*(~*~*~*Y+f+$+FbHbHbHbHbHbHb$wdRfPlb.Y+Y+..lb~*~*be2e2e2.~*~*Fbe2.Fbe2e2^ na~*4* d)Y/`:aLb0ba^g11gtnagna+,|e2!-d-4+++lblbd#d) 2Xd)  EMBED Word.Picture.8  Save the Children comments on:- Draft Convention of the Council of Europe on action against trafficking in human beings. (Ad hoc Committee on action against trafficking in human beings CAHTHEH 2004 INFO 4) Further information from :- Diana Sutton European officer Save the Children Rue Montoyer 39 B 1000 Bruxelles Tel + (32 2) 502 5853 or 512 7851 Fax + (32 2) 513 4903 August 2004 Introduction Save the Children is an international childrens rights organisation working in over 100 countries worldwide. We work globally to promote the rights of the child and at European level to influence policy and legislation to ensure childrens rights are promoted and protected. Save the Children has substantial experience on the issue of child trafficking and is working both in the European region and internationally on anti child trafficking programmes. Our published work includes an extensive study on the situation of children trafficked from Albania, a report from our European network against child trafficking on child trafficking in six countries, and Separated Children How they come to Europe and Why they travel and a study of the situation of children trafficked into Greece. In conjunction with the Separated Children in Europe programme we have produced the statement of Good Practice which sets out standards for unaccompanied (or separated children), available at www.separated-children-europe-programme.org. The following real cases, illustrate the horrific reality of the situation of trafficked children. The traffickers can be very cruel. I know people who have been cut with knives and hurt to make them work better. People are frightened of the traffickers, they threaten to kill us and our families. Ela 14. Her mother sold her sister, 13, for prostitution to Italy. She also sold her baby girl. Some boys from Fier took a 15 year old girl. They sold her in Italy. She did not want to work as a prostitute so they beat her and broke her leg. She escaped to a centre run by nuns. Everyone knows who the trafficker is. He has a big house built with the money. Child victims are sometimes sold to traffickers by their parents and often face dangerous travels, they may be sexually exploited and/or exploited in illegal activities or other forms of labour exploitation, exposed to the violence of the exploiters and the clients. They often live on the streets or in inadequate accommodation, with no adult carers and no access to health, education and social services. These children usually have no legal status and therefore are prevented from seeking protection, for fear of being returned. When identified by law enforcement authorities, they are often treated as illegal immigrants, criminalised, held in detention centres and finally deported to their country of origin. Families sometimes do not want the child back, because of the stigma attached, and in the worst cases children are re-trafficked. Save the Children welcomes the draft Council of Europe Convention and in particular the emphasis placed by the Council of Europe on the human rights violations of victims, the criminalisation of traffickers and the recognition that victims are the subjects of rights, in need of protection and that they should not be criminalised. However there are significant gaps in the text with regard to the protection and rights of the child. These needs and rights are different from those of adults, as children are particularly vulnerable to the serious effects of being trafficked and exploited because they have a lower status in society. States are also obliged, through their ratification of the Convention on the Rights of the Child to protect children. Procedures specifically designed for children are needed in the Convention. Save the Children therefore recommends that a specific article on children is included in the text as well as more references in some of the articles. We would be pleased to advise members of the Committee on appropriate draft articles on childrens rights. We are also appending a proposed text for an article. Article 1 - Purpose We particularly welcome the strong emphasis on the human rights of victims of trafficking in this article. In point b we recommend the following amendment:- to protect the human rights of victims of trafficking and design a comprehensive framework for the protection and assistance of victims and witnesses including gender equality and childrens rights aspects. Article 2 Scope We welcome the reference to the fact that trafficking can be both national and transnational and is not always related to organised crime. Article 4 Definitions We support the definitions used in this article which are those used in the Palermo protocol. We also agree with the definition of the child as a person under 18 years of age which is consistent with the internationally agreed definition in the Convention on the Rights of the Child 1989 and we strongly oppose any attempt to introduce a lower age. Article 5 - Prevention 5.2 We think that it is very important that prevention programmes also examine the root causes of trafficking. Until these are addressed, prevention programmes will only be dealing with the symptoms of the problem and not the cause and we therefore recommend adding the phrase including root causes to this article. In addition, any effective prevention strategy must respond to the complexity of trafficking and should therefore include different prevention strategies. 5.3 We welcome the reference to include a child sensitive approach". 5.4 We particularly welcome the fact that the explicit link between safe, legal migration and trafficking is recognised. Access to safe, legal migration will help to reduce the numbers of children who are trafficked (with or without their families). 5.5 We welcome the reference in 5.5 to the need to take specific measures to reduce the vulnerability of children to trafficking. However much greater detail is needed about the protective framework that is necessary for children, including a reference to the Convention on the Rights of the Child. In our view this must also include the following:- dealing with the specificity of trafficking in children in training, awareness raising and administrative controls providing specific procedures to identify trafficked children at the border and on the territory of the State collecting disaggregated data by age Article 6 Measures to Discourage Demand Addressing the demand side of child trafficking should include specific measures to address the different kinds of child exploitation: sexual exploitation, with particular attention to child prostitution and child pornography; child labour exploitation (e.g. forced labour, cheap labour, hazardous or harmful work, work under the minimum age); illegal adoption; removal of organs. Article 7 Border Measures We believe that this clause needs a detailed sub clause on the measures that need to be put in place to safeguard suspected victims of child trafficking at borders, including a provision of not detaining and not returning unaccompanied children. However, relying only on initiatives to address child trafficking at borders may have limited effectiveness for two reasons first the difficulty of establishing the precise relationship between the child and accompanying adult (if the child is accompanied) but most importantly because in many cases the exploitative nature of the relationship between the adult and child only becomes evident once in the country of destination. Therefore, procedures should be put in place to identify trafficked children as soon as possible, in countries of origin, transit and destination, as well as at the border and on the territory of the State. Agencies (including law enforcement, social service, health, education agencies, and NGOs) should co-operate and share information so as to ensure that child victims are identified and assisted as early as possible. Unaccompanied children should never be refused entry or returned at ports of entry. Article 8 Security and Control of Documents Registration of childrens biometric data, both in the country of origin and in the destination country, could be useful but should be aimed only at the childs protection and the promotion of his/her best interests, and not for immigration control purposes (e.g. expulsion enforcement). Article 10 Assistance for Victims of Trafficking We welcome Article 10.6 which specifically clarifies that assistance to a child victim is not dependent on their willingness to cooperate with the authorities. However much more detail is needed with regard to the specific needs of children and we recommend that a sub clause is included that specifies:- - that the best interests of the child is the primary consideration. - The child should have access to care, accommodation, health care (physical and psychological), social assistance, education, and vocational training on an equal basis with national children - should automatically be granted a temporary residence permit on humanitarian grounds and be entitled to stay in the country on a valid legal basis pending identification of a durable solution, whether or not they co-operate with the criminal justice system - should be provided with special safeguards in legal proceedings - Child welfare systems and child protection legislation should be responsible for them. An individual needs assessment for each child victim should be conducted. - Child victims should be placed in foster families or in residential settings specific for children and with appropriate adult support; older children should not be treated as de facto adults and placed in reception centres without adult support. Foster families and care workers should have an understanding of the needs and rights of trafficked children, including their linguistic and cultural needs. Child victims should not be held in detention centres for reasons of immigration status nor to protect them from traffickers. As soon as a child victim is identified, the child protection system should appoint a guardian, who has the function of acting in the best interest of the child and accompanying the child throughout the process. The child protection system is obliged to inform the guardian regarding all the encounters the child may have with the authorities in order that the guardian is always present when the child has contacts with the authorities. Regardless of the legal status of the person (eg legal guardian, NGO worker) their responsibilities should be as follows:- to ensure that all decisions taken are in the childs best interests - to ensure that a separated child has suitable care, accommodation, education, language support and health care provision - to ensure a child has suitable legal representation to deal with her or his immigration status or asylum claim - to consult with and advise the child - to contribute to a durable solution in the childs best interests - to provide a link between the child and various organisations who may provide services to the child - to advocate on the childs behalf where necessary - to explore the possibility of family tracing and reunification with the child - to help the child keep in touch with his/her family. Article 11 Compensation and Legal Redress Below in our commentary on Article 28 we give detailed guidance on the safeguards that are needed for children who are seeking legal redress. Article 12 Protection of Private Life This clause needs a stronger reference to the need to protect the safety and the privacy of child victims and their families. If the childs safety is at risk, whether or not he/she agrees to co-operate with the criminal justice system, protective measures (safe house accommodation, re-location etc.) should be provided. It is also important to protect the identity of the childs family who may often face reprisals by traffickers in the country of origin. Article 12.2 needs strengthening with respect to confidentiality, we therefore recommend the following text:- "In cases where there may be a threat to the life or integrity of the child or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis." Article 13 Identification of the Victims We welcome the addition of point 3 regarding unaccompanied children. However, greater details are needed on the safeguards for children in this clause. A specific reference is also needed to individuals who are trained in the field of child trafficking. In cases where there is suspicion that the child is a victim of trafficking, the child should be referred to the appropriate child welfare authorities. After placing the child in safe accommodation, appropriate measures to establish the relationship between the child and the accompanying adult and if the child has been trafficked or exploited should be taken by the child welfare authorities (e.g. assessing the psychological and physical condition of the child, interviewing the child and the adult, contacting the consulate for the childs identification etc.), as well as by the law enforcement authorities (e.g. consulting the database of missing persons etc.). The child should be separated from the adult only if this is considered to be necessary to protect the child, and in this case measures should be adopted to reduce trauma of the separation and the length of time that the child stay separated from the adult pending the assessment of the relationship between them. If the child is accompanied by an adult who is not able to demonstrate through valid identity and travel documents that they are an immediate relative, law enforcement authorities should take appropriate measures to establish the relationship between the child and the adult and if the child is trafficked. Where the age of the victim is uncertain, due to the absence of papers or to false identity papers, and s/he claims to be less than 18 years of age, the presumption should be that the victim is a child and s/he should be provisionally treated as such. Age assessments should take into account physical, psychological and cultural factors, should never be forced and should be carried out by independent professionals with appropriate expertise. In making an age determination, children should be given the benefit of the doubt, in accordance with current UNCHR guidelines. Article 14 Recovery and Reflection Period and Article 15 Residence Permit We welcome the fact that the position of children has been strengthened in this text. Child victims of trafficking should have access to full protection and assistance and should be granted a residence permit for social protection or humanitarian reasons, whether or not they co-operate with the authorities in testifying against the trafficker or exploiter, consistent with the principle of the best interests of the child. Co-operation may not be in the best interests of the child. In our experience children are very reluctant to testify as not only they may suffer from retaliation, but their families in the sending country also suffer from retaliation:- Some families do not report cases of trafficking because they are too frightened of what the traffickers might do. I know one family who was terrorised by traffickers into letting their daughter go. He said he would burn their house down. The guardian should assess, taking into account the situation and the age and maturity of the child and having listened to him/her,if it is in the child's best interests to co-operate with the authorities in the criminal procedure. If this is the case, the guardian should inform and assist the child in fully understanding the risks and benefits of co-operating with the competent authorities. If the child expresses the wish to co-operate, the legal guardian should assess if this is in the child's best interests. If needed, the reflection period for children should be extended, in order to build sufficient confidence to co-operate with authorities. We welcome the inclusion of text on family reunification in Article 15.4. The text needs to be amended to reflect the situation of children who need to join parents who have been trafficked. We recommend that the following phrase is added:- "Where the victim is a child, state parties shall facilitate family reunification in a timely manner and in the country which is in the child's best interests. All parties shall facilitate family reunification, if it is in the child's best interests to join their parent who was trafficked and who has temporary residency abroad." Article 16 Repatriation of victims Much more detail is needed in sub clause 7 of this article on the specific situation of children. It should include the following principles:- Child victims should be returned only if return is in his/her best interests, safe, voluntary and assisted. The child should be fully informed and consulted at all stages and provided with appropriate counselling and support. Child victims of trafficking should never be returned to their country of origin if: following a risk assessment, there are reasons to believe that the childs safety or that of their family is in danger, taking into consideration inter alia risks of re-trafficking, reprisals from the traffickers, exploitation, abuse, involvement in armed conflicts, persecution; the family has not been traced or does not agree or is not able to provide the child immediate and long-term care; other suitable care-givers different from the family may be considered only if the child agrees; the child opposes being returned to the country of origin so that the return could only be executed forcibly. Prior to the return, contact between the child and his/her family should be facilitated and a reintegration project (including education, vocational training, employment opportunities etc.) should be proposed to the child and the family. During the return the child should be properly accompanied. After the return the reintegration project should be implemented, also through development cooperation, and the wellbeing of the child should be effectively monitored. If return is not in the best interests of the child, long-term care, long-term residence permit and an individual integration project should be provided in the host country. Tracing for a childs family should be undertaken as soon as possible, provided that it does not endanger the child or the childs family in the country of origin. Relevant international organisations and NGOs should be involved in this process. Children should be properly informed and consulted about the process and their views taken into account. Where appropriate, the carer or legal guardian should facilitate regular communication between the child and her/his family. Save the Children has proposed text which is included in the proposed draft article on children at the end of this document. Article 24 Aggravating Circumstances We agree with point b that if the offence has been committed against a child, this should be an aggravating circumstance. Article 26 Non punishment provision We agree with option 3 and would underline that this should be clearly stated in the case of children. Detention is incompatible with the Convention on the Rights of the Child 1989. Article 27 Third Party Applications We support the inclusion of the reference to NGOs in bullet point 3. Article 28 Protection of Victims and Witnesses We support the inclusion of this clause and would underline that in the case of children the inclusion of the victims family is particularly important. Article 30 Specialised Authorities and Co-ordinating Bodies We recommend that a reference to specialised training in the particular needs of children is included in this clause. We also recommend that age disaggregated data is collected when monitoring. We recommend inclusion of a specific sub clause:- Measures shall include a specific strategy against child trafficking that sets out the framework for how each Party will implement this article Article 32 Court Proceedings More detail is needed in the section on childrens specific needs. Legal proceedings (including both the investigative and the court phase) need to be specifically adapted to the needs and interests of the child and should avoid retraumatisation. We would therefore recommend a sub clause which includes references to the following:- - The legal guardian should always be present whenever the child has contacts with the law enforcement and judicial authorities. Child-friendly procedures should be provided; in particular: the length and scope of questioning should be minimized and repeated interrogations should be avoided; authorities should defer to the guardian for information that does not legally require the first person testimony of the child the child should be questioned at an appropriate time, considering his/her best interests, and in a child-friendly setting the child should not be exposed to direct contact with the suspected trafficker/exploiter and appropriate procedures should be provided for this (deposition in a video or audio format etc.) - Legal counsel and representation, and interpretation into the childs native language should be provided. - The staff of law enforcement and judicial authorities dealing with child victims and the legal representatives of child victims should be adequately trained in childrens needs and rights and in interpreting statements by children. - Investigations and court processes should be conducted as soon as possible after the event. - The taking of a testimony by law enforcement and judicial authorities should not inhibit or delay the reunification of the child to his/her family in the country of origin, if this is the best interests of the child. Proposed Article on Children 1. The best interests of the child shall be a primary consideration when implementing the provisions of this Convention 2. The views and wishes of the child must be sought and taken into account in line with their age and maturity Trafficked children, including those suspected of being trafficked are entitled to the same treatment and rights as national or resident children. They must be treated as children first and foremost. Decisions that are taken regarding children must be taken in a timely fashion and with due consideration for the long term interests and welfare of the child Appointment of a representative:- States parties shall as soon as possible and without undue delay appoint a representative and ensure that s/he represents and assists the child. The representative shall:- - ensure that all decisions are taken in the childs best interests - ensure that a child has suitable care, accommodation, education, language support and health care provision ensure a child has suitable legal representation consult with and advise the child - contribute to a durable solution in the childs best interests - provide a link between the child and various organisations who may provide services to the child - advocate on the childs behalf where necessary - explore the possibility of family tracing and reunification with the child - help the child keep in touch with his/her family. Care and Welfare Services States parties shall ensure that the trafficked child has:- access to care, accommodation, health care (physical and psychological), social assistance, education, and vocational training on an equal basis with national children - access to full protection and a residence permit on humanitarian grounds, whether or not they co-operate with the criminal justice system - is provided with special safeguards in legal proceedings States parties shall ensure that:- Child welfare systems and child protection legislation is responsible for trafficked children and that an individual needs assessment for each child victim is conducted. - Child victims are placed in accommodation appropriate to children and are not held in detention centres. Return States parties shall ensure that child victims of trafficking are not returned to their country of origin without a thorough assessment of situation in the country of origin including the family context and the potential risks of reprisal or re-trafficking. Before returning a child to a country of origin, states shall ensure that return is in the best interests of the child by:- - considering an assessment, which has been carried out by an independent and professional organisation of whether it is safe to return the child to his or her home country, and of the family situation - consulting with the childs carer and guardian/adviser in the host country to ascertain whether it is in the childs best interests to return; - confirming that the childs parents, relatives or other adult care-taker agree to provide immediate and long-term care upon the childs arrival in the country of origin. - ensuring that the child is fully informed and consulted at all stages and is provided with appropriate counselling and support; - taking the childs views and wishes on return into consideration, in accordance with his/her age and maturity; Furthermore, prior to returning a child, state parties shall facilitate contact between the child and his or her family. 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