NGO STATEMENT:
MEETING THE PROTECTION NEEDS OF REFUGEE CHILDREN
GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION
Palais des Nations, Geneva, 22-24 May 2002

1. Legal standards relevant to the protection of children

Asylum seeking children, as well as those who have had their request for asylum rejected, internally displaced children and refugee children all have the same rights as other children in a country.

Their rights set out in detail in the UN Convention on the Rights of the Child (CRC) with its almost global jurisdiction. The principle of non-discrimination is central also in other human rights treaties to which the United States and Somalia (the two states that haven't ratified the CRC) are parties. So, children everywhere are legally protected against discrimination.

But in reality most refugee and internally displaced (IDP) children are discriminated against and their rights are little known and poorly respected. Governments need to put their commitments into practice and humanitarian organizations need to be pro-active in defending the rights of these children.

In 1993, the UNHCR Executive Committee adopted a "Policy on Refugee Children" (EC/SPC/82) and in 1994 the UNHCR "Guidelines on the Protection and Care of Refugee Children" were issued, following a wide consultative process led by the first Senior Coordinator for Refugee Children. These basic documents recognize the CRC as the key treaty for the protection of refugee children.

"Meeting the Rights and Protection Needs of Refugee Children", the recently-published independent evaluation of the impact of UNHCR's activities (EPAU/2001/02) states that:

… the 1993 Policy and 1994 Guidelines remain the most fundamental baseline of objectives and standards expected of the Office for the protection of refugee children. (p.1-2)

Also,

UNHCR's 1994 Guidelines are recognized internationally as an important source of standards and programme guidance on children affected by armed conflict. (p.5)

While recognizing the need for some updating, the evaluation sees no urgent need for revising the guidelines. Instead, the focus of the recommendations is on implementing them - disturbingly little progress has been made in this respect. This is particularly worrying as a previous evaluation of UNHCR's activities concerning refugee children, in 1997, reached similar conclusions and recommendations.

… questions of how the evaluation would be followed up overlaid our discussions throughout the evaluation process. In particular, external stakeholders were concerned that we found limited follow-up to the 1997 children's evaluation. (p.77)

2. Protection problems

Children affected by armed conflict and displacement more so than other children face crucial denials of their fundamental human rights such as birth registration, nationality, water, food, education, shelter, clothing, health and health service, freedom of movement, freedom from arbitrary detention, family unity etc.

The nature and intensity of protection problems affecting children are very different to those affecting adults. Violence against children, for example, as well as different forms of exploitation differs both in character and in effect compared to adults. In addition, violations of children's rights are easily neglected as displaced and war-affected children often have fewer adults who listen to them and are in a position to help protect them.

Some key protection concerns are:

• insecurity including fighting in areas where refugees are;
• separated and unaccompanied children;
• exploitation including trafficking, smuggling, abductions etc. for recruitment of child soldiers, child labour, sexual exploitation, forced marriages;
• disappearances;
• denial of economic and social rights;
• denial of freedom of movement

As protection problems vary in each situation, it is essential that they - as well as priority actions to address them - are identified with the participation of the children themselves, including adolescents, and, particularly for small children, mothers and others who care for them in their everyday life.

In its preparation, UNHCR has focussed on six protection concerns of children (EC/GC/02/9): separation; sexual exploitation, abuse and violence; military recruitment; education; detention; and registration and documentation. While sharing these concerns and many of the recommendations addressing them, this paper focuses on the main concern of the recent evaluation, the need for more thorough implementation of child protection policies, and also makes a more detailed examination of education.

But first, as there is an increase in the use of detention of child asylum seekers, a few questions to governments who use such practices systematically:

• How can detention be in the best interest of the child?
• How can detention of child asylum seekers in penal institutions be justified on the basis of human rights standards?

There is a growing body of evidence that the detention of children, including adolescents, can have a severely detrimental impact on their physical and mental health, as well as their prospects for social rehabilitation and development.

3. Children central to programming

Almost half of the people UNHCR tries to help are children. But in spite of this, children figure last on most agendas, including that of these Global Consultations. To begin with, they were not on the agenda at all as some argued that children's and women's issues would anyhow be mainstreamed throughout the Consultations. Looking closer at what has been said - and more significantly not said - is one way of measuring the importance given to international protection of children so far.

The two UNHCR background documents that go into some detail on child protection are those on asylum processes and on reception of asylum seekers (with strong focus on separated children). Most of the others make only general references to the need for "special attention to women and children". The following two documents make no reference at all to children:

• Situations of mass influx - despite the fact that children are particularly vulnerable to separation from their families, with all the risks that this implies. Critical emergency responses to protect children (family reunification, community mobilization for child protection and education/organized activities for children) are all absent;
• voluntary repatriation - no mention of the basic CRC principle of the best interest of the child (Article 3) or of family unity or parental responsibilities. Nor is the critical issue of education mentioned.

Finally, in the UNHCR background document on the civilian character of asylum, there is hardly any mention of child soldiers and how to treat them. This quick analysis corresponds to the picture emerging from the evaluation.

Instead, children ought to become central to all programming and discussions about refugee and IDP protection. Children are affected differently, and often more strongly, than adults by protection problems. Efforts to assist them must be tailored to meet their specific protection needs.

The evaluation concludes:

274. […] The goal of mainstreaming the protection of refugee children throughout the Office remains vital. However, the Office needs to recognize that not all of the rights and protection needs of refugee children can be met through mainstreaming programmes. The role of specialist staff will always be necessary for policy and programme guidance, technical assistance and overall assurance of the application of international standards and best practice. Effective mainstreaming depends on training, partnership and collaboration. (p.62)

3.1. Action for the Rights of Children (ARC)

In 1997 UNHCR and Save the Children started the ARC project, whose primary goal is to increase the capacity of UNHCR, government and NGO field staff to protect and care for children of concern, including adolescents, from the first phase of an emergency through to a durable solution. Today, this partnership initiative also includes UNICEF and OHCHR.

The resource packs developed within the ARC project include basic ones on legal standards, community-based approaches and situation analyses, which are central to all programming. Other resource packs focus on critical issues or sectors. All can be adapted to specific situations.

The recent evaluation devotes one of its five chapters to "operationalizing protection" and refers extensively to ARC resource packs and recommends:

321. The ARC resource packs on situation analysis and community mobilization are especially good tools towards improving protection and community services work with refugee children and adolescents. DIP should undertake a concerted effort to reach all protection and community services staff with targeted training in this regard, especially national staff. […] (p. 74)

Referring to training and capacity building:

226. […] Bureau senior managers [should] receive a minimum two-hour training on key child protection issues, parallel training sessions should be conducted in each field operation […] (p.52)

227. […] We recommend that ARC trainers be based regionally for one or two years, jointly supported by Save the Children Alliance and UNHCR, and UNICEF where possible. This recommendation could be linked with that of the evaluation of the community services standby team to deploy more than one community services officer in order to focus on training. (p.52)

In the wake of the West Africa study on sexual violence and exploitation, the regional ARC steering committee (composed of UNHCR, UNICEF and Save the Children) have prepared a regional plan of action to train all categories of staff involved in humanitarian actions for refugee, internally displaced and war-affected children.

3.2. Key findings and recommendations of the evaluation

The evaluation team recommends a 'back to basics' approach using the CRC and the 1994 UNHCR Guidelines.

329. [...] we found that reasons for shortcomings in meeting the rights and protection needs of refugee children center on organizational management issues. The main obstacles for the Office to address are a lack of accountability and the dilemma of mainstreaming.

330. In instances where we found UNHCR to be effectively meeting the protection needs of refugee children, it has been due to the following factors:

• The leadership and support of senior management and those with budgetary control to refugee children as a core priority of the Office;
• The degree to which protection staff include social as well as legal and physical aspects of protection and seek to integrate their work with community services and education;
• The degree to which community services staff mobilize and work respectfully with community-based social systems and networks; and,
• Strategic partnerships, especially collaboration with UNICEF and key NGOs.

331. To incorporate the above factors throughout the Office, the confusion about what child protection means must be addressed. Fundamentally, the protection function needs to be oriented to: incorporating child rights as the framework for analysis; including social as well as legal and physical aspects of protection; and working with community services to mobilize community networks. (p.77)

The evaluation repeatedly illustrates the inter-relatedness of child protection issues and the need for integrated responses:

39. Segregating specific child protection issues, such as the five priority areas of the Office's Machel follow up strategy or any other child protection issue, obstructs the fact that the most effective response addresses such issues in harmonization. Firstly, the issues themselves are inter-related. For example, one might be a casual factor to the other, such as separated children being at special risk of military recruitment or sexual exploitation. Secondly, the resources for response are likely to be the same for a number of specific child protection issues. Indeed, the most effective response resources for all issues are common: social systems and community networks. Thirdly, especially in cases of sexual violence, exploitation and children involved in armed conflict, approaches must avoid stigmatizing the child. While requiring careful attention, response to such child protection issues is most effective through education, community services, health and other support mechanisms, rather than as special activities. (p.10)

4. Children's right to participate

A major shift is needed in the way governments and humanitarian organizations work. Today, children's participation is usually considered an optional luxury for programmes designed to protect or assist them. It needs to become mandatory.

When children speak openly to adults they are usually quite able to identify what their key protection problems are as well as what would have to change for their situation to improve. They may also have unexpected suggestions for ways of achieving such changes. Parents too, as well as teachers and others who live close to children, have valuable information and suggestions relevant to child protection. For babies and under five-year-olds, their mothers are usually most critical to their protection and thus need to be consulted and included in situation analysis and project planning processes.

The whole programme cycle, starting with assessments, emergency response and planning, needs to be informed by the reality of the children themselves and their community. Methodology for how to achieve this exists; but it is rarely, if at all, used as a systematic approach for all programs that affect a group of children. UNHCR could play a catalytic role if it systematically uses a community-based approach that includes children in its programming.

The recent evaluation includes focus group discussions with children as a central part of its methodology, demonstrating how vital information is readily available but all too rarely used.

Whereas we were careful in each focus group to not raise expectations as to what would follow our discussion, the refugee children were understanding and simply grateful for what they reported to be 'the first time anyone had listened to them'. (p.99)

Adolescent participation has particularly big potential: The evaluation quotes an adult respondent to its questionnaire: "…the most neglected group… is adolescents". (p.11) But when given the chance to participate, adolescents have proved able not only to express their views, but also to act as animators and assistant researchers.

Youth clubs and child centers where those who attend can feel safe have proved inexpensive and effective measures for child protection. A variety of non-formal education initiatives can involve children in reaching their peers.

271. The model of refugee social animators, including adolescents, should be documented and replicated through the ARC resources on community mobilization and community services function. (p.61)

5. Children's right to education

The Convention on the Rights of the Child reaffirms that children have a right to education (Art. 28). But what does the right to education mean? It means that primary education should be compulsory and available free for all. Secondary education should be available and accessible to every child, and higher education should be accessible to all on the basis of capacity. Governments are requested to take measures to reduce drop-out rates.

In many countries hosting forcibly displaced children, governments have problems fulfilling the right to education for their own citizens. Partnership with, and support from, the international community is therefore a vital prerequisite for the fulfilment of the right to education. In practice, this will have to be achieved progressively - meaning that its implementation will not be achieved over night. However, there is an obligation on the government to take measures to move as expeditiously as possible towards the realization of these rights, so that refugee children, internally displaced children or asylum seeking children have access to education without discrimination. It also means that governments cannot deny these children the right to education, when other actors such as UNHCR, UNICEF, UNESCO and NGOs provide the services. Host governments most often allow displaced children access to primary education, but there are situations where governments have denied refugee children access to secondary and higher education. This is in direct contravention of the UN Convention on the Rights of the Child. The right to education also means that education should be available to forcibly displaced children throughout the displacement cycle.

UNHCR estimates that of the 5 - 17 year age group of concern to the office in 2000 44% had their primary education needs met as compared to 36% in 1993 statistics ¹. Though this is an improvement it still means that 56% of the children of concern to UNHCR do not have their primary education needs met. Secondary education and education in emergencies is even further behind.

Continuity of education is very important to the social and psychological well-being of children and adolescents and can promote reintegration in the country of origin. The first priority in education is to meet the psycho-social needs of displaced people and adolescents, through support of structured activities that bring children together with others of similar age and restore a sense of normality through regular activities.

Adolescents are a particularly vulnerable group in the sense that they are neither children nor adults and attempts to treat them as either group will almost certainly fail. Education and leisure activities can provide a constructive alternative for adolescents, who might otherwise be tempted to join armed forces or armed groups, get involved in prostitution, teenage pregnancies, or experiment with alcohol or drugs.

In the context of forcibly displaced people, decisions about very sensitive education issues will need to be taken. Of particular note are the following: Which curriculum to use? Which language to teach and learn in? What are the political considerations when educating children outside their own countries?

Choice of curriculum could include the following options: using the "home" curriculum; using the curriculum of the host country; borrowing an existing curriculum from elsewhere; adapting any of the above to suit the new circumstances. Sometimes, a completely new curriculum is created. The important point is that all key stake holders in the children's education must be involved in the decision about which curriculum to use.

There are a number of very strong reasons for setting up some kind of representative body to organise and develop education in a refugee situation, such as an educational committee. Education is a long-term and continuous service that needs co-operation, commitment, consistent funding, administration and monitoring. In a refugee situation there are likely to be different parties including educators, students, parents, community leaders, religious bodies, government or opposition representatives and international aid agencies who are, or wish to be involved in the planning and implementation of education. Without some sort of co-ordinating body, many efforts will either be wasted or duplicated.

5.1 Education as a protection tool.

Apart from education being a right in itself, education is also an important protection tool for forcibly displaced children. In most communities, the school is the public service structure which reaches the largest number of children, and it is teachers who have the closest and most frequent contact with them apart from family members. A wide variety of educational activities are available in emergencies to ensure that children have access to this important source of personal and emotional support, including formal and non-formal activities. For children affected by war and displacement, education first serves these psycho-social and protection needs as well as its primary sense of informing. In cases where formal school structures may not exist, these vital needs for protection and development may be equally met by organising basic structured activities for children and adolescents ².

However, the school can also become a place where children are abused or exploited. It is crucial that education whether formal or non-formal is taking place in a safe and child-friendly environment. The school should be physically, emotionally and socially safe. Physical safety should be given carefully consideration in first setting up the camp. Teachers need to be trained adequately in many areas: dealing with children who might have been traumatised by their experiences; identifying children with protection needs; actions they can take to protect children; and children's rights. There should likewise be a code of conduct established for teachers, to ensure that they do not use corporal punishment, abuse or exploit the children, and ensure that the school becomes an impartial and non-political place.

The protection function of education can be divided into three categories: ³.

Education can address violation of rights through:

• Registering children and tracking drop-out patterns
• Designating schools and routes toward them as 'safe zones', free of conflict
• Offering children an alternative to military recruitment, trafficking, drugs, etc.

Education can contribute to respect for rights through:

• Establishing accessible referral mechanisms regarding abuse
• Codes of conduct for teacher behavior, linked to performance reviews
• Information dissemination on children's rights

Education can contribute to fulfillment of rights through:

• Training teachers on issues of child protection, with periodic follow-up
• Supporting education provision when States are unable to provide
• Ensuring available education is inclusive and accessible for all children

5.2 Education and the link to durable solutions

There is a strong link between durable solutions and education. Durable solutions need to be borne in mind already when education programmes are first started. The question whether repatriation is foreseeable in the near future, or not likely to happen in a very long time, is crucial for the choice of curriculum. If repatriation is the likely durable solution, then the curriculum needs to be based on the curriculum of the country of origin perhaps with some teaching of language and culture of the host country. If, on the other hand, local integration seems to be the durable solution then the curriculum most likely needs to be based on the curriculum of the host country.

Some governments are fearful of allowing education for displaced children thinking that this may be a pull factor, or that it will keep refugees from returning to their own country. The entitlement to return in safety and dignity does not end once refugees have crossed the border into their homeland. However, the reality is often that refugees are returning to a country, which has been devastated by conflict and with still divided communities. For refugee children who received assistance in exile, return could be more difficult than the experience of exile itself.

Returnee children may face a number of protection and assistance problems on return to their homeland including physical insecurity (such as land mines), material insecurity (such as lack of access to basic necessities, land, property and/or education) and legal insecurity (such as lack of documentation). They are also vulnerable to abuse (including sexual violence) and exploitation (including military recruitment). Education can be used to prepare children for the protection problems they might be facing upon return. There is also a great potential during the time leading up to the return for teachers and others to work with children and adolescents on issues such as peace building, cultural identity, and reintegration challenges⁴. .

Continuity of education in the country of origin can promote reintegration in the country of origin. Ideally, policy and planning for the reintegration of returnee communities into the educational process will be part of a wider educational rebuilding process coordinated with the appropriate home government bodies and other relevant agencies. Reintegration and renewal cannot be achieved overnight and there is often a need for emergency strategies, in some cases similar to those used in exile, to serve educational needs during the transitional phase ⁵.

6. Meeting the protection needs of children - summary of recommendations:

6.1 Strengthen implementation of the Convention on the Rights of the Child

For states to:

• ratify and implement the Convention on the Rights of the Child and its two Optional Protocols on the Involvement of Children in Armed Conflict and on the Sale of Children, Child Prostitution and Child Pornography;
• apply the non-discrimination principle in all actions that affects refugee, IDP and asylum seeking children;
• reform national legislation so that it accords with human rights treaties;
• train judges, magistrates and other law officials, soldiers and police officers in ways that recognize and protect the human rights of children;
• ensure that adults and children in their country, including those internally displaced, refugees and asylum seekers, know their rights.

NGOs call on UNHCR and other humanitarian organizations to:

• inform children and adults about children's rights and how they can be protected and promoted;
• review relevant national laws and advocate legal reforms so that they conform with international legal standards;
• train its own personnel in child protection, the CRC and other relevant national laws;
• introduce codes of conduct - spelling out how personnel of humanitarian organizations shall behave - as part of a child protection policy;
• introduce accountability mechanisms that are fully accessible and accountable to children intended to benefit from programmes.

UNHCR to ensure:

• child protection recognized as a core activity and organizational priority;
• dissemination and implementation of the "Guidelines on the Protection and Care of Refugee Children";
• a monitoring process to measure implementation of the Guidelines as well as follow-up on recommendations made in its independent evaluation "Meeting the Rights and Protection Needs of Refugee Children";
• clear management accountability structure for child protection;
• systematic training of its own personnel and that of its partners in Action for the Rights of Children (ARC);
• gender analysis should be applied to all programmes and ensure effective protection for refugee girls;
• situation analysis and assessment teams include staff with specialized knowledge in child protection;
• child participation in identification of their protection problems and actions to alleviate them;
• use of community based approaches to mobilize community-based social systems and networks for protection of children from the emergency phase through to durable solutions;
• reviews of policies, terms of reference, memoranda of understanding, sub- agreements etc. to include critical child protection issues;
• Country Operation Plans (COPs) and Annual Protection Reports (APRs) include critical child rights issues and plans of action for child protection developed with partners and refugees - including children.

6.3 Some critical protection tools when defending children's rights

For States, UNHCR and other humanitarian organizations to ensure:

• Survival needs of displaced populations are met through land for agriculture, permission to work and aid in order to avoid extreme "coping mechanisms", which usually leads to various forms of child exploitation;
• Registration: 1. Birth registration; 2. Division of children into age groups; and 3. Identify separated children, child headed households etc.;
• Family reunification of separated children using a community-based approach as part of emergency response;
• Physical protection through a community-based approach in camp-design; in creation of child-friendly spaces where children are safe; for education and recreational activities; in care arrangements etc.
• Expanded cooperation on projects to separate children from adults in demobilizations and to rehabilitate child soldiers through integration into the wider refugee community, especially through education;
• Child asylum seekers should not be detained;
• If however, children are detained they should have access to legal counsel in relation both to their detention and asylum claims;
• Separated children who are detained are entitled to a legal guardian who will assume responsibility for protecting their best interest.

6.4 Children's right to education

• Host governments need to ensure that displaced children are not denied their right to education;
• Education committees should be set up as a matter of priority. All sectors of a refugee community are legitimately concerned with education policy and may have a role to play in any educational planning;
• More emphasis is needed on education in emergencies and post primary education.
• Education should be included in any emergency response with the aim to provide a daily structure and to engage children in meaningful activities;
• Teachers should be trained in the protection aspect of education, both to identify children with protection needs and to address these protection needs in a professional way. Teachers also need training in children's rights, including gender issues and promotion of gender equality.
• Attention should be given to the school and school route being physically, emotionally and socially safe.
• A code of conduct needs to be developed for teachers.
• Attention should be given to gender issues in education.
• Attention is given to secure education, skills training and leisure activities for adolescents.
• Research should be undertaken to identify indicators for education as a protection tool.
• Durable solutions need to form an integral part of the establishment of education for displaced children.
• Education needs to be given attention in voluntary repatriation situations with a view to establish education for the returnees as a matter of priority in the country of origin.
• Ensure that the children are given documentation and certification of their education in exile.

This Statement has been prepared by members of the NGO Group for the Convention on the Rights of the Child's sub-group on children in armed conflict and displacement in consultation with other NGOs.

1. According to the independent evaluation of the impact of UNHCR's activities in meeting the rights and protection needs of refugee children, published 7 May 2002 Back

2. ARC resource pack on education Back

3. Adapted from Gostelow, Lola, Protection & Save the Children in Emergencies, internal discussion paper, 2000 Back

4. ARC resource pack on education Back

5. ARC resource pack on educationBack