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Article Excerpt
Abstract
Using comparisons with international policies and practices, this paper highlights the ambiguities in the identification, case processing, care, and protection of separated children in Canada. It calls for systemic studies of government policies and institutional practices that impact separated children, so that Canadians can take more principled positions towards them. Our current lack of knowledge about separated children puts this highly vulnerable group at greater risk of exploitation and neglect.
Resume
A l'aide de comparaisons entre les politiques et les pratiques internationales, l'article met a jour les ambiguites concernant l'identification, le traitement, le soin et la protection des enfants separes au Canada. Il demande que soient menees des etudes systemiques sur les politiques gouvernementales et les pratiques institutionnelles qui touchent les enfants separes afin que les Canadiens puissent adopter des positions mieux informees. Notre meconnaissance actuelle au sujet des enfants separes rend ce groupe deja vulnerable encore plus a risque detre exploite et neglige.
Introduction
In international comparisons, how a country takes care of its vulnerable populations is often used as an indicator of its human and social development. In most instances, children and refugees are both counted among vulnerable populations. However, when children separated from or unaccompanied by adults responsible for their care seek refuge in a country, they are viewed from two very different perspectives. People who see them as the cargo of human traffickers, or as "anchors" sent ahead by parents wanting to follow them, tend to believe that their good care and protection will only encourage exploitative adults who have used them for their own interests. Others, who see them primarily as children, claim they are in "double jeopardy" because of the circumstances under which they have left their countries and the absence of supportive adults in countries where they have arrived. Very little is empirically known about them. They continue to remain invisible and voiceless, not only because of their inability to speak for themselves, but also because of societal ambivalence towards them, in Canada as well as in other countries.
Bhabha suggests that inconsistent treatment of these children in North America is based on "two opposing normative frameworks--immigration control preoccupations on the one hand, and welfare protection (including child rights) concerns on the other." (1) This ambivalence is reflected in social policies and public services available to separated children seeking asylum in Canada. We have yet to confront what Bhabha and Young call the Janus-like position of societies, on the one hand wanting to protect the rights of children and, on the other hand, wishing to protect the rights of the government. (2) Using comparisons with other countries, this paper identifies some ambiguities in policies and practices towards separated children seeking asylum in Canada. In doing so, it makes a case for a more coherent effort to fill the gaps in our knowledge so that we can take a more principled position towards these children.
International Context
In general, armed conflicts, political upheavals, radical climatic changes, economic hardship and deprivation, and global economic restructuring are considered major reasons for international migration. The 1951 Convention on the Status of Refugees and its 1967 Protocol were the first major international treaties designed to accommodate refugees in the aftermath of World War II. These were followed by other international agreements such as the 1989 UN Convention on the Rights of the Child (CRC) which relates specifically to the protection of separated children. Article 2 of this document states that all rights identified in the CRC must apply to all children in the State; Article 3 emphasizes that "the best interest" of the child should guide all actions of the States concerning unaccompanied children; and Article 12 states that the children have the right to participate in decisions affecting them. (3)
Internationally, there seems to be less disagreement about the normative principles of the CRC than the debate about whether and how its principles should be applied in the face of competing concerns. In the European Union, a step towards harmonization of state policies was undertaken in 1997 with the adoption of Resolution on Unaccompanied Minors who are Nationals of Third Countries. This document lays out a set of basic criteria and procedures for their admission, services, asylum procedure, return, and final provisions. Equally important, it represents the EU member states' acknowledgement that unaccompanied children have specific needs and rights requiring particular attention. However, in contradiction to the guidelines developed by the United Nations High Commissioner for Refugees (UNHCR), which recommend that unaccompanied minors should not be refused access to a territory, one of the resolutions in the EU document states:
Member States should take appropriate measures, in accordance with their national legislation, to prevent the unauthorized entry of unaccompanied minors and should cooperate to prevent illegal entry and illegal residence of unaccompanied minors on their territory. (4)
In the United States the Guidelines for Children's Asylum Claims were issued in December 1998. Building upon the guidelines developed by the UNHCR and by Canada, which focus only on procedural and evidentiary issues, this document also incorporates substantive legal standards for assessing children's claims. However, according to several reports the lack of state funding for legal services, the absence of guardian-like adults appointed to safeguard the interests of separated children, and the lack of priority given to processing their cases make it very difficult to effectively use these guidelines.
Canadian Context
In 1986 Canada received the Nansen Medal from UNHCR for its outstanding effort on behalf of refugees. It was also the first country in the world to develop special guidelines in 1996 for dealing with unaccompanied minors. Advocates of human, refugee, and children's rights have applauded Canada for this initiative and for the support it provides to unaccompanied children. However, the dilemma that Bhabha has pointed to became sharply focused in the Canadian response to the 134 separated Chinese youth who arrived on the shores of British Columbia in 1999 in unseaworthy boats. (5) The Department of Citizenship and Immigration Canada had decided to detain those who arrived after the first boat, but the provincial Ministry of Children and Families placed the minors in especially established group homes. Many of the youth subsequently disappeared, including those whose applications for refugee status had been turned down. Using the above case, Kumin and Chaikel point to the difficult question of what is in the "best interest" of such children. Should they be returned to parents who knowingly (?) had sent them on the dangerous journey? (6) Should they be allowed to "go free" right into the arms of traffickers? Would public services in Canada serve them better than public services or familial networks in countries of their origin?
The development and implementation of policies regarding separated children in Canada are also complicated by the distinct legislative and administrative responsibilities of different levels of government. Two related issues seem to account for most of these complications. First, immigration policies and procedures are generally developed at the federal level while child welfare is a provincial responsibility. The priorities, and resources available to address these priorities, are different at the federal and provincial levels. Second, variations among the provinces, such as the official age until which a person qualifies for child protection services, and the varied structures of the institutions that provide such services make it difficult to develop uniform policies and procedures.
Due to a variety of reasons, little is reliably known about the exact number of separated children arriving in Canada or in other countries. First, children who arrive in a new country unaccompanied by a legal guardian may not know the risks and benefits of declaring their status, or may not know how to do so even if they wanted to. Documented examples of such children include: a fourteen-year-old boy who moved to different city without leaving an address when he heard he could find there members of his own community; a sixteen-year-old who, upon the advice of a compatriot, began working to save for legal fees for a lawyer, and as a result failed to report to the local authorities; and a nine-year-old who was abandoned when his aunt, with whom he had arrived, could no longer care for him because of poverty and stress. (7) Second, adults who may have smuggled the children, or do not want the disclosure for other reasons, may prevent them from reporting their status. Third, authorities responsible for documenting their arrival may have not have sufficient information to assess their status, as in the example of a teenage girl whose age could not be determined because she had travelled under false documents. Fourth, the different definitions of unaccompanied/separated children used by various institutions may create discrepancies in the data. For example, children who travel with an adult, such as a family friend, relative, sibling, or an agent who arranges their travel, but are subsequently abandoned by the adult, are not necessarily recorded as unaccompanied/separated children. And lastly, the case-processing procedures in receiving countries impact the accuracy of the data. For example, at the port of entry unaccompanied children are asked by Citizenship and Immigration Canada (CIC) to report to the Immigration and Refugee Board (IRB). For a number of reasons, such as those listed above, not all children do so. The...
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