Guardianship for children deprived of parental care : a handbook to reinforce guardianship systems to cater for the specific needs of child victims of trafficking.
Date: 2016-02-05
Institutions: European Commission, European Union Agency for Fundamental Rights
Subjects: child, child care, child protection, guardianship, trafficking in human beings, user guide

F

R

A

G

u

a

r

d

i

a

n

s

h

i

p

f

o

r

c

h

i

l

d

r

e

n

d

e

p

r

i

v

e

d

o

f

p

a

r

e

n

t

a

l

c

a

r

e

HANDBOOK

Guardianship for children 
deprived of parental care

A handbook to reinforce  
guardianship systems to cater  
for the specific needs  
of child victims  
of trafficking

 
 
 
 
 
 
A great deal of information on the European Union Agency for Fundamental Rights is available on 
the Internet. It can be accessed through the FRA website at http://fra.europa.eu.

This document in no way constitutes a binding interpretation of the legislation cited, but is intended 
to be a reference document designed for ease of use. It does not necessarily reflect in its entirety 
or partially the position of the European Commission.

Europe Direct is a service to help you find answers  
to your questions about the European Union

Freephone number (*):
00 800 6 7 8 9 10 11

(*)  The information given is free, as are most calls (though some operators, phone boxes or hotels 

may charge you).

Cover picture: © Shutterstock

More information on the European Union is available on the Internet (http://europa.eu).

Luxembourg: Publications Office of the European Union, 2015

Paper 

PDF 

TK-01-15-636-EN-C 

978-92-9239-973-3 

10.2811/640071

TK-01-15-636-EN-N 

978-92-9239-959-7 

10.2811/22305

© European Union Agency for Fundamental Rights, 2015

Reproduction is authorised, except for commercial purposes,  
provided the source is acknowledged.

Printed in Luxembourg

Printed on FSC paper

Guardianship for children 
deprived of parental care

A handbook to reinforce guardianship 
systems to cater for the specific needs of 
child victims of trafficking

Foreword

Children who are unaccompanied or separated from their primary caregiver are par-
ticularly vulnerable to abuse and exploitation. They are entitled to special protection. 

Guardians are one of the most important features of a protection system for children who 
are deprived of their family environment or who cannot have their interests represented 
by their parents, as may be the case in situations of parental abuse or neglect. 

A comparative report on child trafficking published by the European Union Agency for 
Fundamental Rights (FRA) in 2009 showed significant differences among European 
Union (EU) Member States on how the concept of guardian is understood and applied. 
In addition, interviews carried out by the FRA for a report on separated children 
seeking asylum published in 2010 revealed that the quality of the services and the 
degree of protection offered to children under existing guardianship systems may 
vary considerably even within the same state. 

In this framework of diverse national practices, the Anti-Trafficking Directive (2011/36/EU) 
requires Member States to appoint a guardian or a representative for a child victim of 
trafficking from the moment the child is identified by the authorities as unaccompanied 
as well as in cases where the holders of parental responsibility cannot ensure the child’s 
best interest and/or represent the child. The EU Strategy towards the eradication of 
trafficking in human beings 2012–2016 also recognises that comprehensive child-sensitive 
protection systems, ensuring interagency and multidisciplinary coordination, are key 
in catering to the needs of diverse groups of children, including victims of trafficking. 
The EU Strategy therefore included as a deliverable the publication of this handbook. 

This handbook aims to strengthen the protection of children by assisting national author-
ities and other stakeholders across the EU to further develop existing guardianship 
systems. It seeks to clarify the role of guardians as an essential component of an 
integrated child protection system. It underlines the importance of the role of guardians 
and legal representatives in preventing and responding to child abuse and exploitation, 
and in protecting and assisting child victims of trafficking. The handbook promotes a 
shared understanding of the main principles and features of a guardianship system. By 
presenting a set of core common principles and key standards it aims to improve condi-
tions for children under guardianship, and promote respect for their fundamental rights.

We would like to thank the many experts who contributed with constructive com-
ments to the development of this handbook.

Cecilia Malmström
EU Commissioner  
for Home Affairs

Morten Kjaerum
Director of the European Union Agency  
for Fundamental Rights

3

Contents

FOREWORD ��������������������������������������������������������������������������������������������������������������������� 3

LIST OF ABBREVIATIONS ����������������������������������������������������������������������������������������������� 7

HOW TO USE THIS HANDBOOK ������������������������������������������������������������������������������������� 9

INTRODUCTION ������������������������������������������������������������������������������������������������������������ 13

1.  Who is a guardian? ......................................................................................................13

2.  Guardianship as an essential component of child protection systems ..............16

3.  What does this handbook cover?..............................................................................20

4.  Transnational cooperation in the context of child protection ............................. 22

PART I – REINFORCEMENT OF GUARDIANSHIP SYSTEMS ����������������������������������������25

1.  Fundamental principles of guardianship systems .................................................25

2.  Guardianship systems: initial considerations .........................................................28

2.1.  What should be laid down in legislation and/or policy? ..............................28

2.2.  One uniform guardianship system for all children? ......................................29

2.3.  Employment status of guardians: professionals or volunteers? ................31

2.4.  Who can act as a guardian? ..............................................................................32

2.5.  Appointment of relatives as guardians in the context of 

child trafficking ...................................................................................................37

2.6.  Representatives and/or legal representatives ..............................................37

2.7.  Legal counselling and legal assistance ...........................................................38

3.  Managing guardians ...................................................................................................39

3.1.  The guardianship authority ............................................................................. 40

3.2.  Develop guidelines for guardians ................................................................... 40

3.3.  Coordination and cooperation with other agencies  

and authorities ...................................................................................................42

3.4.  Case administration .......................................................................................... 44

3.5.  Training ............................................................................................................... 46

3.6.  Support to guardians .........................................................................................51

3.7.  Review and oversight mechanisms ................................................................52

5

4.  Assigning a guardian to a child .................................................................................55

4.1.  When should a guardian be appointed? .........................................................55

4.2.  What is the best procedure for assigning a guardian to a child? ...............56

4.3.  When does guardianship end?.........................................................................61

4.4.  When should a guardian be changed? .......................................................... 64

PART II – GUARDIAN’S TASKS ������������������������������������������������������������������������������������� 67

5.  Safeguarding the best interests of the child ......................................................... 72

6.  Promoting the child’s safety and well-being ..........................................................74

6.1.  Risk assessment .................................................................................................75

6.2.  Individual needs assessment ...........................................................................80

6.3.  Support the child in maintaining family links ................................................82

6.4.  Adequate standard of living, including appropriate housing and 

material assistance ............................................................................................83

6.5.  Healthcare ...........................................................................................................85

6.6.  Education and training ......................................................................................87

7. 

Facilitating child participation .................................................................................. 88

8.  Acting as a link between the child and others ...................................................... 90

9.  Helping identify a durable solution in the best interests of the child ................92

9.1.  Repatriation and return .....................................................................................94

9.2.  Integration in the receiving country ...............................................................97

10.  Exercising legal representation and supporting the child in legal procedures ..... 99

10.1. Age assessment procedures ...............................................................................100

10.2. Procedures for residence permits.......................................................................102

10.3. International protection procedures ..................................................................103

10.4. Compensation and restitution .............................................................................106

10.5. Civil law procedures ..............................................................................................106

10.6. Criminal proceedings ............................................................................................107

10.7. Police investigations .............................................................................................110

ANNEX 1: LEGAL SOURCES ��������������������������������������������������������������������������������������� 111

ANNEX 2: SELECTED LITERATURE ����������������������������������������������������������������������������� 113

6

List of abbreviations

CRC 

United Nations Convention on the Rights of the Child

ECHR 

 European Convention on Human Rights (Convention for the Protection of 
Human Rights and Fundamental Freedoms)

SCEP 

Separated Children in Europe Programme

UN 

United Nations

UNHCR  United Nations High Commissioner for Refugees

UNICEF  United Nations Children’s Fund

7

How to use this handbook

This handbook aims to support public officials in European Union (EU) Member States 
who are in charge of, or involved in, guardianship and legal representation of children at a 
national, regional or local level. It provides guidance on how to establish and run national 
guardianship systems, and it points to the main tasks that a guardian should carry out. In 
doing so, the handbook also aims to foster a common understanding of the function and 
role of guardians and legal representatives in the EU as an essential component of child 
protection systems. This, in turn, should contribute to promoting a shared understanding of 
the main principles and features of a guardianship system. Such a common understanding 
should help standardise the level of protection offered to children throughout the EU.

The guidance provided is addressed primarily to EU Member State officials and guardians. 
It is also largely applicable to systems for legal representation of children in specific 
procedures (such as asylum procedures), even if a legal representative only complements 
the limited legal capacity of the child for the purposes of a particular procedure and thus 
is not responsible for the full range of tasks normally assigned to a guardian.

This handbook does not address the appointment of lawyers who provide free legal 
aid to a child in specific civil, criminal or administrative procedures. Nor does it deal 
with persons who are in charge of the child’s day-to-day care.

The handbook is structured in three parts.

 • The introduction provides basic information on what the handbook covers and 
on the overall role of the guardian. It relates to national child protection systems 
set up to cater for the needs of different categories of children.

 • Part I of the handbook sets forth the fundamental principles of guardianship sys-
tems  and  provides  guidance  on  managing  and  strengthening  guardianship  sys-
tems. It is addressed to policy makers who are developing a national framework 
for the management and reinforcement of their guardianship system, and to the 
national authorities that are assigned guardianship responsibilities. It further de-
scribes the appointment procedures and the duration of the guardianship.

 • Part II explains the tasks of the guardian. It is primarily addressed to guardians 

and those who are in charge of supervising their work.

The handbook, produced jointly by the European Union Agency for Fundamental Rights 
(FRA) and the European Commission, responds to a request in the EU strategy towards 
the eradication of trafficking in human beings 2012–2016. Various EU law sources, 

9

including the EU Anti-Trafficking Directive (2011/36/EU), the EU asylum acquis, the 
EU Victims’ Directive (2012/29/EU) and the Directive on sexual exploitation of chil-
dren (2011/93/EU) contain provisions referring to guardianship or legal representation 
of children deprived of parental care. Full details of these sources may be found in 
Annex 1. See Tables 1, 2 and 3 for an overview using these provisions in EU law, as 
well as those of other relevant European or international instruments and documents. 
These provisions do not, however, offer comprehensive guidance on what a guardian 
should be and what he or she should do. This handbook is intended to fill this gap.

This handbook takes an integrated, child-centred approach. It puts at its heart the United 
Nations (UN) Convention on the Rights of the Child (CRC), whose provisions are applicable 
to all children without discrimination. The handbook suggests covering the specific needs 
and rights of identified or presumed child victims of trafficking by adapting, where 
necessary, guardianship systems established for all children in need of a guardian. A 
large part of this handbook contains suggestions that are common to all guardianship 
arrangements, regardless of whether they relate to a child victim of trafficking or not. 
The best way to promote the rights and well-being of a child victim of trafficking is by 
adhering to principles and safeguards common to all guardianship systems – such as a 
guardian’s independence or absence of conflict of interest – combined with knowledge 
and skills to do with trafficking in human beings. The handbook discourages, therefore, 
the establishment of separate guardianship systems dealing only with child victims of 
trafficking in human beings. Section 3 of the introduction explains which situations of 
guardianship arrangements the handbook covers and which it does not.

International and European standards on the rights of the child and on the protection 
and assistance of child victims of trafficking have been taken as the starting point 
for this handbook. Provisions from legally binding texts such as the CRC and EU law 
are brought together with non-binding texts that offer authoritative guidance and 
recommendations. The legal sources used to draft the handbook are listed in Annex 1. 
Annex 2 includes further literature that the reader is encouraged to consult. Findings 
from previous FRA research on separated children and on child trafficking were also 
considered in compiling the handbook. Existing legal standards have been translated 
into practical guidance by collecting and comparing, through desk research, how 
EU Member States manage guardianship systems. Separately, FRA will publish a 
comparative overview of such research covering all 28 Member States. 

A group of experts discussed the draft handbook at a meeting organised by FRA at 
its premises in November 2013. The group comprised representatives of relevant 
European and international organisations and of non-governmental organisations 
(NGOs), as well as selected practitioners and representatives of responsible authorities 

10

Guardianship for children deprived of parental careHow to use this handbook

at national level. These were selected to represent different national guardianship 
systems and different realities on the ground. Additional stakeholders working on 
child protection and child trafficking were consulted in writing. Finally, the draft was 
shared with Member State representatives for comments through the European 
Commission’s informal expert group on child rights.

To help the reader to find relevant legal sources relating to a particular issue covered 
in this handbook, the sources are provided in blue and bold in the relevant paragraph.

The handbook also includes examples of promising practices identified in EU Member 
States which provide policy makers and practitioners with suggestions on how to 
address specific challenges. The part on the guardians’ tasks contains checklists of 
possible actions guardians may need to take to promote the best interests of the 
child in his or her various life spheres.

The following textbox outlines the terminology used in this handbook. For some of 
the terms, including ‘guardian’, there is no commonly agreed definition.

KEY TERMINOLOGY 

Victim of trafficking: A ‘victim of trafficking’ is a natural person who has been subject to traf-
ficking in human beings as defined in Article 2 of the EU Anti-Trafficking Directive (2011/36/EU).

Trafficking:  The  EU  Anti-Trafficking  Directive  (2011/36/EU)  defines  ‘trafficking’  as  “the  recruit-
ment,  transportation,  transfer,  harbouring  or  reception  of  persons,  including  the  exchange  or 
transfer of control over those persons, by means of the threat or use of force or other forms of 
coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulner-
ability or of the giving or receiving of payments or benefits to achieve the consent of a person 
having control over another person, for the purpose of exploitation.”

Exploitation: “Exploitation shall include, as a minimum, the exploitation of the prostitution of others 
or other forms of sexual exploitation, forced labour or services, including begging, slavery or prac-
tices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.”

When such conduct “involves a child, it shall be a punishable offence of trafficking in human beings 
even if none of the means set forth in paragraph 1 has been used.”
Anti-Trafficking Directive (2011/36/EU), Article 2

Child: A child “shall mean any person below 18 years of age.”
Anti-Trafficking Directive (2011/36/EU), Article 2 (6); see also CRC, Article 1

“Where the age of the [victim] is uncertain and there are reasons to believe that the victim is a 
child, that person is presumed to be a child in order to receive immediate access to assistance, 
support and protection”.
Anti-Trafficking Directive (2011/36/EU), Article 13 (2)

11

Unaccompanied child: An ‘unaccompanied minor’ is a child “who arrives on the territory of the 
Member States unaccompanied by an adult responsible for him or her whether by law or by the 
practice of the Member State concerned, and for as long as he or she is not effectively taken 
into the care of such a person; it includes a [child] who is left unaccompanied after he or she has 
entered the territory of the Member States.”
Qualification Directive (2011/95/EU), Article 2 (l)

Separated child: A ‘separated child’ is a child who has been separated from both parents, or from 
their  previous  legal  or  customary  primary  caregiver,  but  not  necessarily  from  other  relatives.   
These may, therefore, include children accompanied by other adult family members.
UN Committee on the Rights of the Child General Comment No. 6 CRC/GC/2005/6 and the UN Guidelines  
for the Alternative Care of Children (UN Alternative care guidelines) A/HRC/11/L.13), paragraph 8 

The Separated Children in Europe Programme (SCEP) uses the word ‘separated’ rather than ‘un-
accompanied’ because it more accurately defines the essential problem that such children face, 
namely  that  they  lack  the  care  and  protection  of  their  parents  or  primary  caregiver  and,  as  a 
consequence, suffer socially and psychologically from this separation. In this handbook, the term 
‘unaccompanied’ will be used to refer to both unaccompanied and/or separated children, in order 
to be in line with the terminology ‘unaccompanied’ used in EU law and avoid possible confusions 
and inconsistencies.

Guardian: A guardian is an independent person who safeguards a child’s best interests and gen-
eral well-being, and to this effect complements the limited legal capacity of the child. The guard-
ian acts as a statutory representative of the child in all proceedings in the same way that a parent 
represents his or her child.
UN Committee on the Rights of the Child General Comment No. 6 CRC/GC/2005/6 and the UN Alternative  
care guidelines A/HRC/11/L.13

Representative  (sometimes  referred  to  as  legal  representative):  A  representative  “means  a 
person or organisation appointed by the competent bodies in order to assist and represent an 
unaccompanied [child] in [international protection] procedures with a view to ensuring the best 
interests of the child and exercising legal capacity for the [child] where necessary.”
Reception Conditions Directive (2013/33/EU), Article 2 (j)

Representatives or legal representatives differ from the qualified lawyer or other legal profes-
sional who provides legal assistance, speaks on behalf of the child and legally represents him or 
her in written statements and in person before administrative and judicial authorities in criminal, 
asylum or other legal proceedings as provided in national law

Guardianship authority: The ‘guardianship authority’ is the institution or organisation or other 
legal entity that has the responsibility for recruitment, appointment, monitoring, supervision and 
training of guardians. The role of the guardianship authority or organisation should be laid down 
in the law.
UN Alternative care guidelines, A/HRC/11/L.13 and UN Committee on the Rights of the Child,  
General Comment No. 6 CRC/GC/2005/6

12

Guardianship for children deprived of parental careINTRODUCTION

1�  Who is a guardian?

EU  Member  States  apply  a  variety  of  models  for  guardianship  and  legal 
representation.

Source: FRA (2009), Child trafficking in the European Union: Challenges, perspectives and good practices, 
available at: http://fra.europa.eu/sites/default/files/fra_uploads/529-Pub_Child_Trafficking_09_en.pdf

There is no commonly agreed definition of a guardian. While EU law recognises the 
importance of guardianship and legal representation to safeguard the child’s best 
interests and well-being, it does not define the notion of guardian, nor does it define 
his or her functions. In addition to the term ‘guardian’, EU law uses the terms ‘legal or 
other representative’ and ‘special representative’ to describe the person appointed to 
assist and support unaccompanied children or children whose parents are precluded 
from exercising parental rights. Under EU law, the asylum acquis defines only legal 
representatives (see Table 1). Legal representatives exercise a much narrower function 
than guardians (see Section 2.6). Nor is there a definition of ‘guardian’ in the 2005 
Council of Europe Convention on Action against Trafficking in Human Beings. The 
guardian’s role and responsibilities have been comprehensively described at the 
United Nations level in the UN Guidelines for the Alternative Care of Children and 
by the UN Committee on the Rights of the Child (CRC) in General Comment No. 6.

13

Table 1:  Terminology and definitions used in international and European  

policy documents

Instrument

Terminology used

Reference

United Nations and Council of Europe instruments 

UN Committee on the Rights of the 
Child, General Comment  
No. 6 CRC/GC/2005/6

Guardian
Legal representative

Paragraph 33

UN Alternative care guidelines  
A/HRC/11/L.13

Legal guardian
Recognized responsible adult

Paragraph 100

2005 Council of Europe Convention  
on Action against Trafficking  
in Human Beings

Legal guardian

Article 10 (4) (a)

European Union instruments 

Anti-Trafficking Directive  
(2011/36/EU)

Reception Conditions Directive 
(2013/33/EU)

Asylum Procedures Directive 
(2013/32/EU)

Qualification Directive  
(2011/95/EU)

Victims’ Directive  
(2012/29/EU) 

Sexual exploitation of children  
Directive (2011/93/EU)

Guardian
Representative

Representative

Article 14 (2)
Article 16 (3)

Article 2 (j)

Representative

Article 2 (n)

Legal guardian
Representative

Article 31 (1)
Article 31 (2)

Guardian
Special/legal representative

Article 24 (b) 
Preamble (60)

Special/legal representative

Article 20

Dublin Regulation (604/2013/EU)

Representative 

Article 2 (k)

The use of the terms ‘guardian’, ‘representative’ and ‘legal representative’ is incon-
sistent, and national terminologies also vary, so the emphasis should be on the 
functions of the appointed person, rather than on the title or terminology used.

For the purpose of this handbook, the guardian is considered to be an independent 
person who safeguards the child’s best interests and general well-being, and to this 
effect complements the limited legal capacity of the child, when necessary, in the same 
way that parents do. He or she exercises three distinct functions as shown in Figure 1.

14

Guardianship for children deprived of parental careFigure 1: The mandate of the guardian

Introduction

Ensure the child’s  
overall well-being  

Mandate of  
the guardian   

Safeguard the child’s 
best interests  

Source:  FRA

Exercise legal representation  
and complement the child’s 
limited legal capacity  

The guardian differs from a qualified lawyer or other legal professional who provides 
legal assistance, speaks on behalf of the child and legally represents him or her in 
written statements and in person before administrative and judicial authorities in 
criminal, migration or other legal proceedings as provided for in national law.

The guardian must also be distinguished from social workers and other caregivers 
responsible for the material needs of the child. Social workers or other caregivers 
and persons who provide a child with day-to-day care are not guardians, unless, as a 
result of provision by law, they exercise responsibility for the well-being of the child 
and complement the limited legal capacity of the child.

Responsibility for legal representation of the child within particular legal or adminis-
trative proceedings might be dissociated from the other two functions of guardianship. 
In this case, such responsibility is assigned solely to an independent person or insti-
tution, usually called the ‘legal representative’ or ‘representative’. Representatives, 
unlike guardians, have a restricted mandate, which is in often precisely defined when 
they are appointed: to represent the child in particular proceedings.

Therefore, a guardian who can cover all three functions listed in Figure 1 should 
always be appointed when the child lacks parental care. This will help to ensure that 

15

the child’s best interests and overall well-being are protected and safeguarded. This 
goes far beyond pure representation in given proceedings or complementing the 
limited legal capacity of the child when required.

2�  Guardianship as an essential component 

of child protection systems

The EU Action Plan on Unaccompanied Minors (2010–2014) notes that the standards 
established by the CRC are at the heart of any action concerning unaccompanied 
minors. Article 19 of the CRC calls on states parties to take necessary measures to 
prevent all forms of violence against children, including abuse and neglect, as well 
as to protect and support child victims. Article 20 of the CRC requires states parties 
to offer special protection and assistance to all children who are temporarily or per-
manently deprived of their family environment. The Committee on the Rights of the 
Child, in its General Comment No. 13 (2011) on The right of the child to freedom from 
all forms of violence, underlines the importance of a child rights-based and integrated 
child protection and support system. The prompt appointment of a guardian, when 
necessary, is therefore one of the most important practical measures to be taken 
to protect children (Committee on the Rights of the Child, General Comment No. 6).

Article 16 of the Anti-Trafficking Directive (2011/36/EU) prescribes that Member States 
must take the necessary measures to ensure that, where appropriate, a guardian is 
appointed to unaccompanied child victims of trafficking. Moreover, Article 14 provides 
that Member States shall appoint a guardian or a representative for a child victim 
of trafficking from the moment the child is identified by the authorities and “where, 
by national law, the holders of parental responsibility are, as a result of a conflict of 
interests between them and the child victim, precluded from ensuring the child’s best 
interests and/or from representing the 
child”. The guardian should accompany 
the child throughout the entire process 
until a durable solution is found.

“Violence  against  children  demands  an  integrated 
(systemic,  holistic)  approach.  […]  It  implies  that  all 
programmes  and  actions  aimed  at  preventing  and 
protecting children from violence, in the broad con-
text of the promotion of the rights of the child, should 
operate across a range of disciplines and sectors”.

Source: Council of Europe (2009), Council of Europe’s policy 
guidelines on integrated national strategies for the 
protection of children from violence, Strasbourg, available 
at: www.coe.int/t/dg3/children/News/Guidelines/
Adoption_guidelines_en.asp

16

Historically, child protection has focused 
on particular issues or on specific groups 
of vulnerable children. Although this 
approach can be effective in serving the 
needs of a targeted group, it also has 
important limitations. Many children, 

Guardianship for children deprived of parental careIntroduction

including child victims of trafficking, may have multiple child protection problems. 
Fragmented child protection responses may deal with one of these problems, but 
fail to provide a comprehensive solution. Focusing on selected issues alone, or on 
particular groups of children, is neither sustainable nor effective. In cases of child 
victims of trafficking, identification as a child victim or a child at risk of trafficking 
may occur at different points on a continuum of a child’s individual protection needs. 
Therefore, increasingly, there is a move away at the European and global levels from 
fragmented issue-focused approaches to a systems approach to child protection.

This handbook adopts UNICEF’s inte-
grated  child  protection  approach. 
Although designed with child victims of 
trafficking in mind, it suggests covering 
their specific needs primarily by taking 
measures  which  should  be  common 
to  all  guardianship  arrangements.  It 
also addresses how guardians should 
interact with other actors and elements 
of the child protection system, while 
seeking to ensure the best interests of 
the child are taken into consideration in 
all actions concerning the child.

The  United  Nations  Children’s  Fund  (UNICEF) 
defines a child protection system as:

“the set of laws, policies, regulations and services 
needed across all social sectors – especially social 
welfare, education, health, security and justice – to 
support  prevention  and  response  to  protection-
related  risks.  These  systems  are  part  of  social 
protection, and extend beyond it […]. Responsibilities 
are  often  spread  across  government  agencies, 
with  services  delivered  by  local  authorities,  non-
State  providers,  and  community  groups,  making 
coordination between sectors and levels, including 
routine referral systems, a necessary component of 
effective child protection systems.”

Source: UNICEF (2008), UNICEF child protection strategy,  
E/ICEF/2008/5/Rev.1, 20 May 2008, available at:  
www.unicef.org/protection/files/CP_Strategy _English.pdf

An integrated child protection system 
places the child at the centre. It ensures 
that all essential actors and systems – 
education, health, welfare, justice, civil society, community, family – work in concert 
to protect the child. Such an integrated approach can respond to a variety of situations 
an individual child can encounter. It must respond to the needs of children, including 
victims of trafficking within their country of nationality as well as those who have 
crossed international borders. The best interests of the child must be the primary or 
paramount consideration, as required by the CRC.

An integrated child protection system still needs issue-based expertise and responses, 
but places them within the context of the overall system.

National guardianship systems are an integral part of child protection systems. They 
should seek to respond to the needs of all children who are permanently or tempo-
rarily deprived of parental care and need protection. 

17

The UN General Assembly guidelines on children in 
alternative care provide guidance on the protection 
and well-being of all children deprived of parental 
care  or  at  risk  of  being  so.  The  guidelines  include 
provisions  aiming  to  ensure  that  there  is  always 
a  legally  recognised  person  or  body  holding  legal 
responsibility  for  the  child  when  the  parents  are 
absent or not in a position to make day-to-day de-
cisions deemed to be in the child’s best interests.

The  guardian  should  be  the  person 
with the most comprehensive view 
of the child’s situation and individual 
needs. A guardian is in a unique posi-
tion to connect the various authorities 
and the child. The guardian can also 
help to ensure continuity in the pro-
tection of the child and to enable the 
child to participate effectively in all 
decisions affecting him or her, in line 
with the provisions of Article 12 of the 
CRC. Putting the guardian next to the 
child at the centre strengthens the guardian’s preventative as well as protective 
role (Figure 2).

Source: General Assembly (2010), Resolution 64/142, Guide-
lines for the alternative care of children, 24 February 2010,  
A/RES/64/142, available at: www.unicef.org/protec-
tion/alternative_care_Guidelines-English.pdf

Figure 2: Child protection systems and the role of the guardian

Source: FRA

18

Guardianship for children deprived of parental careHealth system  Community Welfare system Justice system Education system Child protection system Family    Guardianship systemIntroduction

Guardians’ work must be guided by the 
four core principles set out in the CRC 
(Figure 3). States parties are required: 
to respect and promote the right of the 
child to life and development, including 
mental,  physical  and  psychological 
development;  to  give  due  weight  to 
the child’s views based on his or her 
age, maturity and developing capacities; to safeguard the child’s best interests as a 
primary consideration in all decisions and actions involving the child; and to respect 
fully and promote non-discrimination.

The UN Committee on the Rights of the Child, in 
its General Comment No. 14 (2013) on the right of 
the child to have his or her best interests taken as 
a  primary  consideration  (Article  3,  paragraph  1), 
provide comprehensive guidance for the best in-
terest  assessment  and  determination  procedure 
and a list of key elements.

Figure 3: The four core principles of the CRC must guide the work of guardians

Source: FRA

19

!"#$%&'($%')*+,#)-+.$/(0)10/.#2$&%$-"#$34$1&)5#)6&)$&)$-"#$708"-2$&%$-"#$9"0.*$!"#$!!%The best interests  of the child The right of the child  to be heard The right to life and development  Non-discrimination  Guardian’s work UN Convention on the Rights of the Child (CRC)         3�  What does this handbook cover?
This handbook provides guidance on how to establish and run national guardianship 
systems, and it lists a guardian’s main tasks. Most considerations are common points 
applicable to all guardianship situations. They relate primarily to guardianship systems 
for children deprived of parental care in general, although some are specific to child 
victims of trafficking, such as issues relating to the child’s involvement in criminal 
procedures against traffickers.

The handbook describes those considerations that relate to child victims of trafficking 
who have been separated from their parents. They may be third-country nationals, 
EU nationals or citizens of the Member State in which they were trafficked. 

This handbook focuses on the issue of guardianship as a key safeguard for children’s 
rights when their parents are not able or willing to exercise parental rights and duties 
or have been precluded from doing so. This can be the case with child victims of 
trafficking; separation can be the result or the risk factor for trafficking. This handbook 
aims to strengthen the preventative and protective role of guardianship as one of the 
elements of an integrated child protection system. The handbook does not, however, 
deal with the overall protection of child victims beyond guardianship systems.

The handbook also does not cover the particular aspects of all guardianship situations, 
such as, for example, the case of children whose parents are imprisoned. Neither 
does it address all aspects of effective child protection, including how to respect the 
right of the child who is separated from one or both parents to maintain personal 
relations and direct contact and how to re-establish the parent’s capacity to resume 
exercising their parental responsibilities. Figure 4 illustrates what the handbook covers 
and what it does not.

20

Guardianship for children deprived of parental careFigure 4: Children deprived of parental environment and child victims of trafficking

Introduction

Source: FRA

This handbook does not address the appointment of legal professionals who provide 
a child with free legal aid in civil, criminal or administrative procedures. Nor does it 
deal with persons who are in charge of the child’s day-to-day care. Nevertheless, 
some aspects of the handbook may also be useful to them, particularly if they 
interact with guardians.

21

Child victims of trafﬁckingdeprived of parental careChildrenNationalsEU nationalsThird-countrynationals4�  Transnational cooperation in the context 

of child protection

With increased mobility within the EU and globally, a child may be of concern to more 
than one EU Member State. To protect a child effectively from exploitation, abuse, 
neglect and violence, it is essential to have cooperation and coordination mechanisms 
within the EU, as well as internationally.

In cases of unaccompanied children and of child victims of trafficking exploited out-
side their country of origin, cooperation between EU Member States and with third 
countries is vital. There may, for example, be a need to establish the identity of an 
undocumented child, or to identify and evaluate durable solutions (see also Chapter 9). 
In addition, other situations involving children, such as children going missing, parental 
child abduction or inter-country adoption, require effective transitional cooperation 
among different child protection authorities.

Cross-border or transnational coordination involving guardians may be required when:
 • a potential victim of trafficking from one EU Member State is identified in another 

Member State;

 • a  guardian  needs  to  help  the  child  reestablish  family  contact  or  liaise  with  a 
child’s parents or extended family in another EU Member State or outside the EU;
 • an unaccompanied child from outside the EU goes missing from one EU Member 

State and is found in another;

 • children are separated from their family during migration to the EU.

EU Member States should develop structured and systematic intra-EU as well as interna-
tional cooperation mechanisms. Member States should use their resources to ease transna-
tional cooperation, where possible capitalising on EU financial support. EU institutions could 
also take initiatives to coordinate such cooperation, when it falls within their competence.

Currently, two legal instruments address jurisdiction issues when particular cases 
involving children fall under their scope.

The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement 
and Co-operation in Respect of Parental Responsibility and Measures for the Protection 
of Children determines, among other things, the State whose authorities have jurisdic-
tion to take measures directed to the protection of the person or property of the child. 

22

Guardianship for children deprived of parental careIntroduction

At the EU level, the Brussels II Regulation (Council Regulation (EC) No. 2201/2003, as 
amended by Regulation (EC) No. 2116/2004) brings together in a single document the 
provisions on divorce and on parental responsibility. The regulation applies to civil 
proceedings relating to divorce, separation and marriage annulment, as well as to all 
aspects of parental responsibility, and establishes a full system of rules on jurisdiction.

Moreover, the 1993 Hague Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption establishes safeguards to ensure that inter-country 
adoptions take place in the best interests of the child and with respect for his or 
her fundamental rights as recognised in international law. It establishes a system 
of co-operation amongst Contracting States to ensure that those safeguards are 
respected and thereby prevent abduction of, sale of or traffic in children.

Transnational cooperation should go beyond the cooperation of judicial or police 
authorities. When necessary for the child’s best interests, this cooperation should 
extend to national child protection authorities, including guardianship authorities, 
both within EU Member States and with third countries. Such cooperation should not 
be limited to only certain categories of children.

23

Part I – Reinforcement  
of guardianship systems

Part I provides guidance to policy makers developing a national framework to manage 
and strengthen their guardianship system, and to national authorities with guard-
ianship responsibilities. It first lists those core elements which can be considered 
fundamental principles of guardianship systems.

Chapter 2 addresses issues related to the employment status, professional qualifica-
tions and training requirements of the guardian. These include vetting procedures, 
conflicting interests and the impartiality of guardians. It also examines the distinctive 
roles and interaction between the guardian, the legal representative appointed to 
represent the child in particular proceedings and the lawyer or other qualified legal 
professional who provides the child with legal assistance. Chapter 3 offers guidance 
on the management of guardianship systems and of individual guardians, including 
the development of standards and internal guidelines, case administration, account-
ability and monitoring provisions as well as the support and supervision of guardians. 
Chapter 4 describes appointment procedures and the duration of the guardianship.

1�  Fundamental principles of guardianship 

systems

Guardianship systems in EU Member States vary from one country to another, as 
they depend on needs, resources allocated and cultural, social and historical factors. 
Nonetheless, they share common features and encounter common challenges.

Regardless of the type of guardianship system and the national child protection 
system within which it operates, there are six fundamental principles that should 

25

apply to all types of guardianship arrangements. These six, which can be derived 
from international standards (see Tables 1–4 and Annex 1), are shown in Figure 5.

Figure 5: Fundamental principles of guardianship systems

Child  
participation 

Non- 
discrimination 

Sustainability 

Fundamental 
principles of 
guardianship 
systems

Independence 
and impartiality  

Accountability 

Quality 

Source: FRA

1.  Non-discrimination
All children deprived of their family environment and parental care are entitled to the 
same level of protection irrespective of their age, immigration status (i.e. EU national, 
legal resident, asylum seeker, migrant in an irregular situation), nationality, gender, 
ethnic background or any other non-discrimination ground listed in Article 21 of the 

26

Guardianship for children deprived of parental care 
 
 
 
 
Part I – Reinforcement of guardianship systems 

EU Charter of Fundamental Rights. Particular attention should be given to the gender 
dimensions of violence against children.

The principle of non-discrimination also requires equal protection for all children within 
the state’s territory, irrespective of the place of residence. EU Member States should har-
monise guardianship provisions and services. Where protection systems are the respon-
sibility of regional or local government, national governments should ensure consistency 
of standards and practices among different regions and localities within their territory.

2.  Independence and impartiality
Appointed guardians and legal representatives must be in a position to make inde-
pendent and impartial decisions, assessment, actions and representations guided by 
the best interests of the child. Organisations, institutions and/or individuals should 
be precluded from guardianship and/or legal representation duties if their interests 
conflict, or could potentially conflict, with those of the child.

3.  Quality
Appointed guardians and legal representatives should have appropriate professional 
qualifications in the field of child welfare and/or child protection. In addition, they 
should receive appropriate initial and continuous training by the relevant authorities. 
To identify and protect child victims of trafficking it is important that guardians have 
the knowledge and skills required to detect child victims. Guardians who deal with 
children with particular needs, such as child victims of trafficking or unaccompanied 
children, must also have the necessary expertise to respond effectively to such 
needs, for instance knowledge and experience in working with traumatised children.

4.  Accountability
National law should provide the legal basis of guardianship and define the authority 
responsible for it. This guardianship authority should be held responsible and account-
able for the acts of the appointed guardian. The exercise of guardianship and other 
representation functions should be monitored regularly and independently. The legal 
basis of guardianship in national law should include sufficiently precise legal provisions 
defining a guardian’s duties and functions.

5.  Sustainability
Guardianship and legal representation systems should be an integral part of the national 
child protection system. States should allocate sufficient human and financial resources 
for the guardianship system’s operation. The budget should include costs related to 
effective monitoring and oversight of guardianship services as well as training.

27

6.  Child’s participation
Guardianship and legal representation arrangements and procedures should respect 
the child’s right to be heard, and they should give due weight to the child’s view-
point. Children should receive, in a manner they understand, appropriate information 
regarding the scope of guardianship arrangements and about all available services 
that could provide assistance to them. Children should also be adequately informed 
about their rights and the possibility of lodging complaints whenever they feel that 
their guardians are not respecting their rights.

2�  Guardianship systems: initial considerations
An inclusive guardianship system contributes to the efficient prevention of child 
abuse and exploitation, including child trafficking. It makes protection and rehabil-
itation of victims more effective. This chapter covers basic considerations related 
to guardianship systems necessary to ensure effective protection of children, such 
as the employment status of guardians, qualification requirements and safeguards 
against conflict of interest.

2�1�  What should be laid down in legislation and/or policy?

There are certain basic requirements which need to be clarified in a transparent 
manner. The degree to which these requirements are laid down in national law may 
vary according to the legal system. Essential aspects should, however, be defined in 
a clear manner. These include:

 • recruitment  and  appointment  procedures,  including  the  employment  status  of 

guardians and legal representatives;

 • duties, rights and responsibilities of guardians and legal representatives;

 • professional requirements, qualifications and vetting procedures for guardians;

 • training requirements;

 • monitoring  and  oversight  procedures,  including  an  accessible  individual  com-

plaint mechanism for children;

 • the right of children to express their views at different stages of the procedure 
and a duty to ensure that the competent authorities take such views into consid-
eration and give them due weight.

28

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

2�2�  One uniform guardianship system for all children?

No EU Member State has a guardianship system only for child victims of trafficking.

Source: FRA 2014, Child victims of trafficking: overview of guardianship systems in the European Union  
(forthcoming)

To function effectively, the guardianship system should be an integral part of the 
national child protection system, and must operate within the child protection law and 
procedures. This approach is recognised in the EU Strategy towards the Eradication 
of Trafficking in Human Beings 2012–2016, which states that “comprehensive child- 
sensitive protection systems that ensure interagency and multidisciplinary coordination  
are key in catering to diverse needs of diverse groups of children, including victims  
of trafficking”.

The appointment of a guardian may be required in different situations, for example for 
unaccompanied and separated children who find themselves outside their country of 
origin or for those who apply for asylum, or, within the country of origin, for children 
whose parents’ interests are in conflict with the child’s.

Some EU Member States have one guardianship system for all children; in others, there 
are different systems depending on the child’s migration status. Such differences 
affect the treatment of child victims of trafficking, since child victims in the EU may 
have differing migration statuses. They might, for example, be:

 • children who are trafficked and exploited within their own EU Member State;

 • EU nationals trafficked from one EU Member State to another;

 • third-country nationals who hold a residence permit or a right to stay and are 

trafficked;

 • third-country nationals who are in an irregular situation and are trafficked.

29

In  some  countries,  the  appointment  of  a  legal  guardian  is  dependent  on 
international protection applications. Thus, not every victim of child trafficking 
is  automatically  ensured  assistance  by  a  legal  guardian.  Law  and  practice 
regarding the appointment of a legal guardian were found to diverge between 
EU Member States. In some Member States, the appointment of a legal guardian 
is a very rare occurrence because victims of child trafficking are not identified 
and/or because childcare institutions do not focus on this issue.

Source: FRA (2009), Child trafficking in the European Union: Challenges, perspectives and good practices, 
available at: http://fra.europa.eu/sites/default/files/fra_uploads/529-Pub_Child_Trafficking_09_en.pdf

Victims of trafficking are also found among international protection applicants. The 
status of children may change over time from one category to another. An integrated 
approach ensures that children are at the centre, irrespective of their legal or residence 
status. However, although an integrated approach on child protection is needed, 
expert knowledge and issue-based responses are still necessary and should be placed 
within the context of the overall system.

Child victims of trafficking are often unaccompanied, although there are cases where 
the child’s parents or legal guardians are involved in the trafficking and exploitation, 
or where the child has been trafficked together with his or her parents. Separation 
from the parents might be the result of exploitation and trafficking of the child, or it 
might be one of the risk factors that contributed to the child being trafficked.

In view of the need to prevent child trafficking, authorities should pay special attention 
to children who for various reasons are temporarily or permanently deprived of 
their parental environment. This will include, in particular, children who are living in 
residential care facilities and unaccompanied children.

Special consideration should also be given to children with disabilities, including 
intellectual and mental disabilities, who are at high risk of exploitation and abuse. 
Disability can also be the result of being trafficked. Children who have been trafficked 
and abused are substantially more likely to develop disabilities as a result of physical 
and psychological trauma.

The differing circumstances but common needs and rights of unaccompanied or 
separated children are shown in Figure 6.

30

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

Figure 6:  Common needs and equal rights for all children deprived 

of parental environment

Source: FRA

Children in long-term care and from institutionalised backgrounds have additional 
needs. Not only are they separated from their parents but they may also have an 
emotional relationship with the trafficker, one of dependency, for example, in part 
due to their psychosocial needs. This requires specialist assessment to ensure they 
are properly protected and cared for. When such children are returned to alternative 
care settings, special protection measures should be in place to protect them and 
other vulnerable children from traffickers. 

2�3�  Employment status of guardians: professionals or 

volunteers?

EU Member States have a duty to ensure that a guardian is appointed to safeguard 
the child’s best interests and the overall well-being of the child, and to ensure 
appropriate legal representation.

31

• Migration, such as  unaccompanied  children, children  left behind• Parental abuse and  neglect, such as  children in alternative  care institutions• Child trafficking   Article 20 of the CRCon the protection ofchildren deprived ofparental environmentVarious reasonsfor deprivationof familyenvironmentand parentalcare   • Appointment of a   guardian is a key   safeguard of child  protection when   a child is temporarily   or permanently   deprived of the    parental environment• They have experienced   separation and loss of family;   if not already victims of abuse   and exploitation, they are at   risk of becoming victims;  they might suffer from trauma;   they are in need of support,   protection and rehabilitation   measures; those already   victims are at risk of further  abuse and victimisationCommon needsandequal rights“Without  denying  the  added  value  of  individual 
volunteers or the exemplary dedication and com-
mitment of some, a system of professional guard-
ianship is in this regard preferred over a voluntary 
system.  Should  this  be  impossible,  volunteers 
may well be a second best option or a back-up”.

To ensure that each child has a qualified 
and skilled guardian, guardians should 
be employed as such. There must be 
clear  accountability  lines  with  the 
designated guardianship authority.

Source: ENGI (European Network for Guardianship Institu-
tions) (2011), Care for unaccompanied minors: Minimum 
standards, risk factors and recommendations for prac-
titioners, Guardianship in practice, final report, Utrecht, 
p. 17, available at: http://engi.eu/about/documentation/

Volunteers  may  hold  important  sup-
portive roles to the appointed guardian, 
acting  under  his  or  her  or  other  pro-
fessional  supervision.  A  guardianship 
system should not, however, rely entirely 
on volunteer services, meaning guardians who are not trained professionals, either 
employed or self-employed. A system based solely on volunteers may lack continuity 
and sustainability. Guardians may not have the necessary knowledge and expertise. 
This exposes children to additional risks, particularly as they often suffer from trauma 
and are in need of special protection and treatment. Moreover, accountability mech-
anisms and monitoring for volunteer guardians could be weak or difficult to enforce.

It is therefore of primary importance to ensure that, whenever volunteers are 
appointed as guardians, the same standards apply to them as to professional guard-
ians. This includes qualifications, vetting procedures, training, monitoring mechanisms 
and accountability measures. Codes of conducts and written guidance on recruitment, 
training, monitoring, evaluation and supervision developed for professional guardians 
should also be used for volunteer guardians.

Supervision by professionals and continuous support should be offered to all volun-
teers who assist in the care and protection of vulnerable children. This is particularly 
important for those volunteers who are appointed as guardians or are performing 
guardianship duties for child victims of trafficking.

Volunteers who are required to act as guardians should be compensated for their 
expenses when performing their assigned tasks.

2�4�  Who can act as a guardian?

Professional qualifications

Guardians must be qualified and equipped to deal with the wide variety of laws 
and procedures that regulate asylum, migration or other issues they may need to 
engage with. The professional qualifications required to become a guardian should be 

32

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

laid down in domestic law or in official documents. Guardianship authorities should 
have written policies setting out clear procedures, methods and standards for the 
recruitment, training, monitoring, evaluation and supervision of appointed guardians.

Guardianship authorities should ensure that appointed guardians have the profes-
sional knowledge and expertise required to effectively represent the child’s best 
interests and perform their duties.

National  legislation  does  not  always  set  specific  professional  or  educational 
qualification requirements for guardians. This is particularly true for volunteers 
appointed  as  guardians.  Instead,  national  legislation  typically  focuses  on  the 
moral and personal characteristics that potential guardians should fulfil.

FRA, 2014, Child victims of trafficking: overview of guardianship systems in the European Union  
(forthcoming)

This means that individuals appointed as guardians must have:

 • expertise on and experience in child welfare and protection, including child  

development and child psychology;

 • an understanding of cultural as well as gender issues;

 • sufficient knowledge of the national child protection systems, as well as the  

national healthcare and educational systems;

 • sufficient knowledge of the legal framework.

Guardians play a vital role in preventing child abuse and exploitation. They should 
therefore be aware of child-specific risk factors relating to trafficking and be familiar 
with strategies to avoid children disappearing from residential facilities. Guardians 
should know how to contact specialised services, including the European hotline 
number for missing children: www.hotline116000.eu/.

Guardians must have the necessary knowledge to identify and detect child vic-
tims.  Those  working  with  child  victims  should  also  know  and  understand  the 
specific rights and needs of child victims of trafficking and should be capable of 
assessing their needs and dealing with them in a respectful, sensitive, professional 
and non-discriminatory manner.

Table 2 outlines the requirements and criteria that various legal sources lay down.

33

Table 2: Who can act as a guardian? Sources in policy documents and EU law

Instrument

Responsible

No conflict of 
interest

Independent

Qualified

Trained

United Nations and Council of Europe instruments 

Paragraph 33

Paragraph 33

–

Paragraph 33
Paragraph 95

Paragraph 95

Paragraph 19
Paragraph 101

–

–

Paragraph 103  Paragraph 103 

Paragraph 57
Paragraph 103

Article 29 (1) (3)
(general 
provision)

Article 29 (1) (3)
Article 10 (1)
(general 
provision)

Article 29 (3)

European Union instruments

UN Committee on  
the Rights of the Child, 
General Comment  
No. 6 CRC/GC/2005/6

UN Alternative care 
guidelines  
A/HRC/11/L.13

2005 Council of 
Europe Convention 
on Action against 
Trafficking in Human 
Beings

Anti-Trafficking  
Directive  
(2011/36/EU)

Reception Conditions 
Directive  
(2013/33/EU)

Asylum Procedures 
Directive  
(2013/32/EU)

Qualification Direc-
tive (2011/95/EU)

Dublin Regula-
tion (EU) No. 604/2013

Victims’ Directive 
(2012/29/EU) 

Sexual exploitation 
of children Directive 
(2011/93/EU)

–

–

–

–

–

Article 24 (1)

Article 25 (1) (a)

Article 31 (1)

-

–

–

–

-

–

–

–

–

–

–

-

–

–

–

Recital 25
Article 18 (3)

Article 24 (1)
Article 24 (4)

Article 24 (4)

Article 25 (1) (a)

–

Article 31 (6)

Article 31 (6)

Article 6.2

–

–

Article 25
Recital 61
(general 
provisions)

Article 23 (3) 
Recital 36
(general 
provisions)

Gender and cultural considerations

As far as possible, personalised care and assistance should be provided to children.

Particular consideration should be given to gender and cultural aspects. When possible 
and desirable, a guardian of the same gender should be assigned, particularly for girls 

34

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

who are victims of sexual exploitation 
(see also Section 6.5. on gender-specific 
issues and healthcare).

UNICEF  has  developed  a  practical  tool,  providing 
information about the steps and procedures that 
constitute  ‘good  practice’  in  the  protection  and 
assistance  of  child  victims  of  trafficking.  It  com-
prehensively  addresses  aspects  of  gender  and 
cultural identity, as related to the care and assis-
tance of victims.

Guardians should gain culturally sensi-
tive competencies, attitudes and skills 
that enhance cross-cultural communica-
tion and interaction with children from 
different  cultural  backgrounds.  This 
will include knowledge of the effects 
of culture on the beliefs and behaviour 
of others, as well as awareness of one’s own cultural attributes and stereotypes and 
their impact on one’s behaviour and beliefs.

Source: UNICEF (2008), Reference guide on protecting  
the rights of child victims of trafficking in Europe, Geneva,  
available at: http://www.unicef.org/ceecis/UNICEF_Child_ 
Trafficking _low.pdf

Child victims of trafficking share a number of common experiences and circumstances, 
but they also differ in culture, gender and age as well as experiences before, during 
and after being trafficked. This individuality should be acknowledged.

The guardianship authority should promote training activities for guardians on gender 
and cultural aspects in victim support; promote cultural and gender diversity and inclu-
sivity in recruitment of staff and volunteers; provide access to translation and interpre-
tation services by qualified personnel; and use cultural mediators (see also Chapter 7).

Vetting

No guardian should be allowed to work before he or she has undergone a vetting 
procedure. Proactive protection measures should be taken to safeguard respect for 
children’s rights and minimise any risk of abuse or exploitation of children or any 
other violation of their rights.

The guardianship authority should have a written policy ensuring that candidate 
guardians’ references be checked and that those appointed as guardians meet at 
least the minimum education, training and experience requirements.

All candidate guardians must undergo a criminal record and abuse registry check. 
Article 10 of the Directive on combating the sexual abuse of children (2011/92/EU) 
disqualifies persons who have been convicted of certain specific offences from exercising 
professional activities involving regular contact with children. It is essential to check crim-
inal records, particularly in regard to convictions related to child abuse and exploitation 
and/or other illicit activities such as drug-related crimes, which could indicate potential 

35

risks for a child. It is important not only that such checks be applied upon recruitment 
or initial appointment of guardians but that systematic reviews take place.

The same vetting procedures should apply to all guardians, including volunteer guardians.

Conflict of interests

Agencies or individuals whose interests could potentially be in conflict with the 
interests of the child should not be eligible for guardianship. Guardians should be 
in a position to make independent and impartial decisions, assessments and rep-
resentations that are in the best interests of the child concerned and that promote 
and safeguard the child’s well-being.

Therefore, guardianship services and persons appointed as guardians should not be in 
any way linked or related to, or dependent on police, migration or any other authorities 
responsible for formal identification of the child as a victim, or for decisions related 
to return, residence permit or international protection status.

Guardianship services and appointed guardians should be independent and not have 
financial or institutional connections with institutions, services or public authorities 
responsible for providing the child with accommodation or day-to-day care.

Guardians who are at the same time working for a reception facility may find them-
selves in a situation of potential conflict of interest between the management of the 
reception centre and the child. For example, employees are expected to perform their 
tasks in the interest of their employer (the care facility) and act under the instructions 
of the director. At the same time, they have to hold the care facility, its director and 
its staff accountable for the care and protection offered to the child.

Such considerations need to be seen in the light of the fact that violence against 
children very often takes place in the care institution where the child resides. Directors 
or staff of residential care facilities should therefore not be appointed as guardians.

Staff of social welfare services, being responsible for delivering care services, may 
also find themselves in a situation of conflict of interest.

If persons appointed as guardians have any potential conflict of interests that could 
affect their role and duties as guardians, they should declare them to the appointing 
authorities. The appointing authorities are responsible for assessing the possible 
impact of such conflict of interests.

36

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

2�5�  Appointment of relatives as guardians in the context of 

child trafficking

If the child is separated from his or her parents, or the parents are precluded from 
exercising their parental rights and duties in the best interests of the child, other close 
relatives or members of the extended family, may, when possible, be assigned as 
guardians, unless there is an indication that this will not be in the best interests of the 
child, e.g. in cases of conflict of interests. Where extended family members are appointed 
as guardians after a risk assessment, the child protection system should ensure regular 
monitoring and review of the child’s situation. In such cases, the guardianship authority 
should take supplementary measures, such as the appointment of a child’s adviser or 
a family guardian  or assistant to support  the family and monitor the child’s situation.

For child victims of trafficking in particular, the competent authorities must carefully 
scrutinise the suitability of accompanying family members in the receiving country 
or of child’s relatives in the country of origin to avoid further exploitation and victi-
misation of the child and/or the child’s being trafficked again upon return.

When family members are able and willing to provide day-to-day care, but unable to 
adequately represent the child’s best interests in all spheres and at all levels of the 
child’s life a guardian should be appointed to cover these gaps. This is particularly 
relevant for children who have been trafficked and require professional counselling 
and support when involved in often multiple or protracted judicial proceedings.

2�6�  Representatives and/or legal representatives

Legal representation is one of the three key functions of guardianship, along with 
safeguarding the child’s best interests and ensuring his or her well-being (see also 
Figure 1). When EU and national law give priority to this function, attention has to be 
paid to ensuring that a focus on legal representation does not lead to disregarding 
the other two functions. 

EU law provides for the appointment of a representative for unaccompanied children 
applying for international protection Asylum Procedures Directive (Article 25). It 
also safeguards the rights of child victims in criminal investigations and proceed-
ings, where, under national law, the holders of parental responsibility are precluded 
from representing the child as a result of a conflict of interest between them and 
the child victim (Article 15 (1), Anti-Trafficking Directive (2011/36/EU); Article 20, 
EU Directive on combating the sexual abuse of children (2011/92/EU); Article 24, 
Victim’s Directive (2012/29/EU)).

37

In EU law, the term ‘representative’ or ‘legal representative’ is defined as “a person 
or organisation appointed by the competent bodies in order to assist and represent 
a child, when parents are not able, not willing or have been precluded from doing 
so, in civil, administrative or judicial procedures with a view to ensuring the best 
interests of the child and exercising legal capacity for the child where necessary” 
(Article 2 (j), Reception Conditions Directive (2013/33/EU)).

Thus, the appointment of representatives aims solely to ensure representation of a 
child in particular proceedings, so it cannot be seen as equivalent to the appointment 
of guardian. The legal representative’s mandate does not cover all aspects of a child’s 
life and development.

Therefore, the appointment of a guardian should take place in all cases where a child 
is deprived of the parental environment, irrespective of the appointment of a legal 
representative. This approach would follow the spirit of the CRC and of Article 24 of 
the EU Charter for Fundamental Rights.

When a legal representative is appointed before a guardian is assigned, the legal 
representative should continue working (if, for example, his or her expertise is still 
required) in close cooperation with the guardian and the child.

The legal representative must keep the guardian and the child regularly informed 
about the procedure at hand, including possible decisions to be taken, and provide 
feedback on the outcome of his or her actions.

2�7�  Legal counselling and legal assistance

In addition to legal representation, in certain administrative, criminal or civil proceed-
ings in which the child is involved, he or she is entitled to free legal aid. 

The  European  Council  for  Refugees  and  Exiles 
(ECRE)  has  developed  a  tool  on  quality  legal  as-
sistance  to  unaccompanied  children.  The  goal  of 
the tool is to support Member States in improving 
legal assistance systems and to aid legal advisors 
in  providing  effective  legal  assistance.  The  tool 
was developed within the framework of the pro-
ject ‘Right to Justice: Quality Legal Assistance for 
Unaccompanied Children’, co-funded by the EU.

The tool, along with other project materials, will be available in 
the second quarter of 2014 at: http://ecre.org/component/
content/article/63-projects/325-right-to-justice.html

The right to legal aid is realised through 
the appointment of a lawyer or other 
qualified legal professional who pro-
vides legal assistance, speaks on behalf 
of  the  child  and  legally  represents 
him or her in written statements and 
in  person  before  administrative  and 
judicial authorities in criminal, asylum 
or other legal proceedings as provided 
for in national law.

38

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

Article 15 (2) of the Anti-Trafficking Directive (2011/36/EU), read in the light of 
Recital 19, entitles child victims of trafficking to access without delay free legal 
counselling and free legal representation, including for the purpose of claiming com-
pensation, unless they have financial resources. Similar provisions are found in the 
Victims’ Directive (2012/29/EU) (Article 13) and in the Directive on sexual exploitation 
of children (2011/93/EU) (Article 20).

If a child is involved in administrative, criminal or civil proceedings, the guardian and/
or other representative – if no guardian has been assigned yet – should ensure that 
the child has access to free legal aid and that competent national authorities appoint 
a qualified legal professional in accordance with national legal provisions.

Whenever the appointment is not taking place ex officio by the respective national 
authorities, the guardian or other representative should initiate the appointment 
procedure by issuing a request to the competent authorities.

The role of qualified lawyer or other qualified legal professional who provides legal 
counselling and legal assistance to the child differs from the mandate and actual role 
of the ‘representative’ or ‘legal representative’ as defined in EU law (see Chapter 1 
and also the textbox on key terminology).

The distinction between roles should always be taken into consideration, even if 
individuals appointed as ‘representatives’ or ‘legal representatives’ have a legal 
professional background or are lawyers or attorneys-at-law, as happens in many 
EU Member States.

Access to legal counselling and legal assistance, which an independent and qualified 
legal professional provides, functions as an additional safeguard in protecting and 
promoting the child’s best interests.

3�  Managing guardians
This chapter describes the system that should be in place to manage and administer 
guardians. It covers the support and oversight function of the entity entrusted with 
the management of guardians, and the network of cooperation with other entities 
that should be established. The guidance provided in this section is also applicable 
to systems of legal representation for children.

39

3�1�  The guardianship authority

National law should designate an independent authority responsible for guardian-
ship. Such an authority should be an integral part of the national child protection 
system. Where more than one guardianship authority is created to cater for different 
needs (for example a separate authority for third-country nationals), they should all 
be integral parts of the system. The authority should also be part of the national 
referral mechanism for child victims of trafficking. The authority responsible for 
guardianship should be independent, for example from state authorities deciding 
on the residential status of the child, on the removal of the child from parental care 
or on the child’s placement in alternative care (see also Section 2.4 on conflict of 
interest). It should be responsible and accountable for the acts of appointed guardians. 
The mandate and functions of the guardianship authority should be clearly defined 
in domestic legislation.

EU Member States should allocate sufficient human and financial resources to the 
guardianship authority and ensure sustainable funding. A sufficient budget should 
be earmarked for costs related to effective monitoring and oversight of guardian-
ship services as well as necessary training activities, even if these are carried out 
by other authorities.

3�2�  Develop guidelines for guardians

“States  must  put  in  place  formal  processes,  with 
strict procedural safeguards, designed to assess and 
determine the child’s best interests for decisions af-
fecting the child, including mechanisms for evaluat-
ing the results. States must develop transparent and 
objective processes for all decisions made by legisla-
tors, judges or administrative authorities, especially 
in areas which directly affect the child or children”.

UN Committee on the Rights of the Child, General Comment  
No. 14 (2013), paragraph 87, 29 May 2013, CRC/C/GC/14

One of the tasks of the guardianship 
authority is to develop standards and 
to provide guidance to those working as 
guardians. Practical guidelines as well 
as  standard  operational  procedures 
should be considered for the following 
three actions in particular:

 •  assessing  each  child’s 

individual 

needs and protection risks;

 • assessing the parents’ capacity to exercise parental responsibility;

 • determining the child’s best interests when the competent authorities identify a 

durable solution.

Guidelines should clearly define the persons responsible for undertaking such assess-
ments, the factors that need to be considered and how these should be weighed, the 
timing and length of the assessments, and the roles of the different professionals 

40

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

involved. They should include the right of the child to be heard and to have his or 
her views given due weight.

To respect quality standards, guardianship authorities should also consider developing 
a code of conduct for guardians and legal representatives. The code would clearly 
define the ethical standards that guardians and legal representatives need to uphold 
during their work. Codes of conduct for guardians should set out clear rules on the 
principle of confidentiality.

Guardianship authorities should be responsible for ensuring that effective mecha-
nisms are in place to inform the child and other adults responsible for or involved in 
their care, such as social workers and the staff of accommodation facilities, about 
the scope of guardianship duties.

Child-friendly information

As a prerequisite of the right to be heard (Article 12, CRC), the guardianship authority 
should ensure that children receive and understand appropriate information regarding 
the scope of guardianship arrangements, and all available services that could provide 
assistance and support. Children should also be adequately informed about their rights 
and the possibility of filing complaints whenever they feel that their guardians are 
abusing or undermining their rights.

“Many  children  were  not  fully  aware  of  the  responsibilities  of  a  guardian  or 
even whether they had one or who this was. Even some adult respondents – 
not guardians themselves – were unsure of a guardian’s role; for example, if 
this entailed only legal or also welfare support.”

Source: FRA (2010), Separated, asylum-seeking children in European Union Member States, Comparative report,  
available at: http://fra.europa.eu/sites/default/files/fra_uploads/1692-SEPAC-comparative-report_ 
EN.pdf

Guardianship  authorities  should,  therefore,  consider  developing  child-friendly 
information material in languages that children are able to understand, and provide 
guidance on how to disseminate such materials.

Information to children should be provided in different ways, including orally, in 
writing, through social media or otherwise, as appropriate (see also Chapter 7).

41

Information provided to children should cover:

 • the functions, rights and duties of the guardian;

 • confidentiality  of  communication  and  its  limits  as  well  as  accessibility  of  the 

guardian;

 • the role, rights and duties of legal representatives;

 • the individual complaint mechanisms available to a child to report violations of 

his or her rights;

 • the child’s rights, taking into consideration the particular situation of each indi-
vidual child, as regards residence status, international protection needs, need for 
victim support etc.;

 • available assistance and protection measures, and existing service providers, ac-

cording to the particular situation of the child, including helplines;

 • various criminal, administrative and civil proceedings the child might be involved 

in, including access to compensation.

3�3�  Coordination and cooperation with other agencies  

and authorities

The guardian must safeguard the child’s well-being and the continuum of care he or 
she requires. However, guardians must not duplicate the work of other actors. The 
function of the guardian is to coordinate but not replace the actions of social workers 
in child protection, welfare authorities or staff providing the child with care. The 
guardian should function as the child’s reference person and act as a link between 
the child and specialist agencies, individuals and service providers.

The guardian should coordinate the various service providers and ensure that the 
network of services supporting the child functions adequately. EU Member States 
should establish effective coordination mechanisms and foster cooperation between 
the guardianship authority and the authorities related to child victims of trafficking. 
This is an approach stipulated in the Anti-Trafficking Directive (2011/36/EU) and further 
elaborated in the EU Strategy, stating that “a multi-disciplinary, coherent policy against 
trafficking in human beings requires the involvement of a more diverse group of actors 
than before”, such as migration and police authorities, civil society and consular and 
diplomatic staff, child and victim support services.

42

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

Formal protocols and agreements between the guardianship authority and other 
concerned entities can help such cooperation. They also clarify who is responsible 
for a particular task and facilitate oversight, thus promoting accountability.

Possible details to include in such cooperation arrangements are:

 • clear provisions on the roles and responsibilities of all relevant actors involved in 

the protection of a child;

 • clear guidance on when the guardian should be contacted and/or informed, at-
taching contact details of the guardianship authority and of other entities which 
usually deal with victims;

 • instructions on how to inform the child;

 • instructions on what information about the child can or cannot be shared;

 • coordination mechanisms set up to clarify open issues and exchange views on a 

regular basis.

Transnational cooperation

Children may be trafficked within their own country or across borders. When chil-
dren are trafficked across borders, transnational cooperation is essential for the 
prosecution of traffickers as well as for the protection of victims. For the importance 
of intra-EU and transnational cooperation, see Section 4 in the introduction. Such 
cooperation is needed, for example, to obtain the information needed to determine 
the best interests of the child when seeking and implementing a durable solution 
(see also Chapter 9).

The guardianship authority should facilitate transnational cooperation with the rel-
evant authorities, both within EU Member States and with third countries, when 
necessary for the child’s best interests. Such cooperation should not be limited to 
certain categories of children.

Guardianship authorities should be included within the framework of the established 
mechanism of transnational cooperation, e.g. in relation to police and judicial authorities.

Guardianship authorities should, taking into consideration the existing national frame-
work and cooperation agreements, advocate transnational cooperation in ensuring 
effective child protection and safeguarding the rights of the child.

43

3�4�  Case administration

The guardianship authority should ensure that guardians are able to manage effec-
tively all children assigned to them. They should have frequent contact and spend 
sufficient time with each child, providing each with appropriate support.

Promising practice

Finding guardians via search engine

Finland has a database of guardians available for appointment in child pro-
tection cases. The ‘Find-a-Guardian’ search engine provides quick and easy 
access to guardians operating in different regions of the country. The easy-
to-use service helps social services and registry offices to find child protec-
tion guardians within their region. Persons who have participated in training 
courses for guardians, or those already working as guardians, can sign up to 
the register. The database is continually updated, so it is advisable to perform 
the search anew each time a guardian is required.

The  search  engine  for  guardians  was  created  by  the  ‘Guardianship  in  Child 
Protection’ project (2005–2009), coordinated by Save the Children. Selected 
local and regional authorities participated as partners.

Sources: https://www.thl.fi/fi/julkaisut/sahkoiset-kasikirjat/sosiaaliportti; Marjomaa, P. and Laak-
so, M. (2010), Lastensuojelun edunvalvonta – lapsen oikeus osallisuuteen häntä koskevassa päätök-
senteossa: Käsikirja lastensuojelun edunvalvonnasta, Helsinki, Pelastakaa lapset ry, pp. 27–29. 

When making case assignment decisions, the guardianship authority must consider 
not only the number of cases but also the type of case and the level of support 
required. Establishing a defined maximum number of cases to be assigned to an 
individual guardian is one way to make sure that the caseload of guardians remains 
reasonable, allowing guardians to perform their duties efficiently without jeopardising 
the child’s rights. In doing so, national authorities might take into consideration inter-
national and national standards that have been developed for caseload management 
in other professional disciplines, such as social work.

To ensure quality, the maximum number of cases assigned per guardian should be 
monitored and the minimum number of contacts with the child regulated, on either 
a weekly or monthly basis. There must be flexibility, however, to take into account 
every child’s individual needs, which may affect how often such contact is required.

The guardian’s accessibility should also be regulated. The responsible authority should 
ensure that the guardian is nearby and avoid having a guardian located far from 

44

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

where the child resides. It should also make sure that the child can easily contact 
the guardian, particularly in emergencies, and provide the child with the guardian’s 
contact details. Guardians should be available beyond office hours. The authority 
should further provide the child with information on how to act in emergencies.

The guardianship authority should keep records of all children referred to it. It should 
keep individual case files on every child under its care. The guardianship authority 
should ensure the confidentiality of these records, based on applicable EU and national 
privacy and data protection law. Examples of the type of information to be included 
in individual case files include:

 • the date when the child was referred to the guardianship service;

 • the date of the appointment, name and contact details of the guardian, as well as 

any change in the guardianship arrangements and reasons for it;

 • the child’s residence status, accommodation arrangements etc.;

 • the identity and personal data of the child, including copies of the child’s identity 

documents;

 • all changes in guardianship arrangements, in accommodation and/or in residence 

status of the child;

 • the date and results of the child’s needs assessment, by whom it was undertaken 

and which actors were involved;

 • the individual care plan for the child as well as any updates;

 • relevant medical information on the child;

 • the child’s education, including reports on the child’s progress at school;

 • details and relevant documentation on criminal, administrative and/or civil pro-
ceedings, including information related to the legal representation of the child;

 • decisions, actions, assessments and representations taken on behalf of the child 

by the guardian;

 • hearings, meetings and other interaction between the child and other authorities 

and services (e.g. migration authorities, victim support services);

 • interaction  between  the  guardian  and  the  child,  including  date  and  place  of 

meetings;

 • any significant events affecting the child;

45

 • when and why the file was closed.

If a child goes missing, the file should include information on the known circumstances 
of the disappearance. Actions taken by the guardian and the guardianship authority 
to find the child, including reporting to police authorities, should also be recorded 
in the file. The files should be complete and up to date and should follow the child 
throughout the guardianship period.

3�5�  Training

Guardians must possess the knowledge and skills required to perform their tasks. 
This includes, first of all, child protection expertise to ensure that the child’s best 
interests are safeguarded.

In addition to child protection expertise, guardians should have the skills to work 
directly with children. They must have an understanding of the special needs of child 
victims of abuse and exploitation as well as of cultural issues concerning the children 
entrusted to them. Child victims of trafficking are in a particularly vulnerable position, 
as recognised in the Anti-Trafficking Directive (2011/36/EU).

Guardians have a duty not to cause any further harm to the child and to ensure 
protection from further abuse and/or repeat victimisation. Lack of professional knowl-
edge and skills may lead to unintentional mistakes, with serious consequences for 
the child’s well-being.

The UN Committee on the Rights of the Child em-
phasised that guardians should have “the neces-
sary  expertise  in  the  field  of  childcare,  so  as  to 
ensure  that  the  interests  of  the  child  are  safe-
guarded and that the child’s legal, social, health, 
psychological, material and educational needs are 
appropriately covered by, inter alia, the guardian 
acting  as  a  link  between  the  child  and  existing 
specialist  agencies/individuals  who  provide  the 
continuum of care required by the child”.

Source: UN Committee on the Rights of the Child (2005), 
General Comment No. 6, Treatment of unaccompanied and 
separated children outside their country of origin,  
1 September 2005, CRC/GC/2005/6, available at:  
http://www.refworld.org/docid/42dd174b4.html

Well-trained  guardians  are  able  to 
complete tasks effectively and on time. 
Training programmes provide guardians 
with competencies and increased com-
mitment to their work. Guardianship 
authorities should ensure that a variety 
of training initiatives are offered to build 
competencies and align skills with new 
practices  and  methodological  tools. 
This could be facilitated through part-
nerships with universities, educational 
institutions and other relevant entities 
dealing  with  child  protection,  which 

may assist in offering training as well as in developing training materials.

46

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

Training obligation

Guardians should, therefore, receive appropriate training and professional support.

Only a few Member States offer systematic induction training for guardians, 
without this training necessarily being mandatory. 

FRA, 2014, Child victims of trafficking: overview of guardianship systems in the European Union (forthcoming)

Guardianship authorities should ensure that guardians are provided with induction 
training upon appointment and before they exercise any guardianship duties. There 
should also be a system to ensure that refresher training is offered. Guardians should 
be obliged to attend a minimum number of annual training hours, which are defined 
on the basis of needs. The development of training modules for guardians is necessary 
to ensure efficient and harmonised guardian training and to establish and promote 
quality standards. 

Initial training and continuing education of guardians should be required by law. 
The guardianship authority should make sure that appointed guardians receive ade-
quate induction and ongoing training, as required by EU law, to perform their duties 
efficiently. 

Certification

Responsible states and guardianship authorities should not underestimate the poten-
tial for harm through the use of unqualified guardians. The quality of guardianship 
services and the protection of children may be enhanced by certifying guardians. 
A certification process determines the core competencies a guardian must have. It 
includes qualification and training requirements, establishes standards for conduct 
and imposes consequences for failing to meet those standards.

47

General training courses

Training programmes for guardians should, as a minimum, cover general child pro-
tection issues, such as:

Overall, the training of guardians is not organised in a systematic or consistent 
manner.  Only  a  few  Member  States  make  guardians  participation  in  training 
activities mandatory.

FRA, 2014, Child victims of trafficking: overview of guardianship systems in the European Union (forthcoming)

 • CRC principles and provisions;

 • appropriate interview and counselling techniques;

 • child development and psychology;

 • the legal framework (EU and national law of relevance);

 • gender- and culture-related issues including cultural sensitivity and intercultural 

communication.

Furthermore, general training courses for guardians should include the risk factors 
and prevention strategies relating to the disappearance of children, information on 
available specialised services, knowledge of risk factors for child trafficking and 
detection strategies and indicators used for identifying child victims.

Specialised training

In addition to general training, guardians should have expertise and/or receive training 
specifically tailored to the needs and the rights of particular groups of children, such as 
unaccompanied children, child victims of sexual abuse or child victims of trafficking.

The need for specialised and continuous training for all staff and officials coming 
into contact with victims, including guardians, is addressed in the Anti-Trafficking 
Directive (2011/36/EU), Article 18 (1) and (3), according to which “Member States 
shall promote regular training for officials likely to come into contact with victims or 
potential victims of trafficking in human beings, including front-line police officers, 
aimed at enabling them to identify and deal with victims and potential victims of 
trafficking in human beings”.

The Anti-Trafficking Directive (2011/36/EU) in Article 14 obliges EU Member States 
to take measures “to ensure that the specific actions to assist and support child 

48

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

victims of trafficking in human beings, in the short and long term, in their physical 
and psycho-social recovery, are undertaken following an individual assessment of 
the special circumstances of each particular child victim, taking due account of the 
child’s views, needs and concerns with a view to finding a durable solution for the 
child.” Guardians and all other officials who are likely to come into contact with child 
victims of trafficking, and are involved in the needs and risk assessments which 
determine their needs for protection and support (see Section 3.5), should receive 
specific training on how to carry out such assessments. Training should make exten-
sive use of the standard operational procedures for individual needs assessment, 
risk assessment, parental assessment and best interests’ determination, as well as 
any other guidance developed for guardians.

“Persons  assigned  legal  guardianship  duties,  as  well  as  any  other  persons 
in charge of safeguarding the child’s best interests, should be provided with 
appropriate training and support to carry out their functions adequately”.

Source: FRA (2010), Separated, asylum-seeking children in European Union Member States, Comparative  
report, p. 12, available at: http://fra.europa.eu/sites/default/files/fra_uploads/1692-SEPAC-comparative- 
report_EN.pdf

EU Member States should work closely with civil society organisations in research 
and education programmes and in training, as well as in monitoring and evaluating 
the impact of anti-trafficking measures (Anti-Trafficking Directive, Recital 6). When 
developing and implementing general or specialised training on the rights and needs 
of particular groups of children (such as unaccompanied children or child victims 
of trafficking), Member States and guardianship authorities in particular, should 
cooperate with NGOs and other public or private entities that operate in the field or 
have developed specialised services for children in general and for particular groups. 
EU Member States could consider cooperating with NGOs to develop training modules 
and provide training activities. 

EU  Member  States  differ  considerably  in  their  offerings  of  specialised  or 
advanced  training  for  guardians,  focusing  on  the  needs  and  vulnerabilities 
of  particular  groups  of  children,  such  as  child  victims  of  trafficking  or 
unaccompanied children. Most Member States do not offer such training at all 
while others do not do so systematically. 

FRA, 2014, Child victims of trafficking: overview of guardianship systems in the European Union (forthcoming)

49

To provide optimal support to child victims of trafficking, guardians working with 
them should be additionally trained and have sufficient knowledge of:

 • the  culture  of  and  current  conditions  in  the  child’s  country  of  origin,  including 
how to use databases on country-of-origin information (COI) developed for asy-
lum  processing,  such  as  UNHCR’s  www.refworld.org;  the  Austrian  Red  Cross’s 
www.ecoi.net; or EASO’s COI portal;

 • particular  vulnerabilities  (e.g.  substance  addiction)  and  psychological  needs  of 

child victims of trafficking;

 • possible  special  medical  needs  (e.g.  children  at  risk  of  sexually  transmitted  

diseases or pregnant victims);

 • child-specific reasons and risk factors related to trafficking, along with different 
types and sectors of exploitation of child victims, for example in the sex industry, 
begging or petty crime;

 • the  protection  needs  of  child  victims  of  trafficking,  including  victims  in 
a  particularly  vulnerable  position,  such  as  those  being  sexually  abused  and 
exploited or those who have been trafficked with the complicity of their parents 
or other persons of trust;

 • gender-specific issues related to child victims (risk factors, types and sectors of 
exploitation related to the gender of the victim) and their protection needs;

 • issues related to the migration status of child victims and their rights (reflection 
period, entitlements to residence permits, international protection needs etc.);

 • research-based information as the field develops.

Training activities in common with other relevant agencies

Guardians should also be involved in common training activities targeting a wider 
range of officials and professionals who come into contact with child victims and 
children at risk of being trafficked. Such shared or multidisciplinary training activities 
could foster a common understanding of concepts and issues related to child victims of 
trafficking, thus facilitating and strengthening cooperation among the relevant actors.

Training activities could include, for example, study visits or exchange of good 
practices among guardianship authorities in other EU Member States. Such training 
activities would also contribute to strengthening transnational cooperation.

50

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

Promising practice

Supporting and supervising guardians

Belgian Red Cross-Flanders developed a project for coaching newly appoint-
ed, inexperienced guardians. Under the project, guardians meet regularly to 
discuss  various  aspects  of  guardianship  and  to  share  tips,  knowledge  and 
experiences. Between meetings, they can ask questions by email or discuss 
specific  cases  one-to-one.  The  coach  can  guide  them,  provide  information 
where  necessary  and  assist  them  in  their  communication  and  cooperation 
with official bodies.

The  project  primarily  addresses  the  need  of  individuals,  volunteers  and 
freelance  guardians  who  lack  systematic  support  and  supervision,  provid-
ing  them  with  a  structured  forum  to  facilitate  communication  and  coop-
eration.  Ultimately,  it  helps  them  to  cope  better  with  their  daily  tasks  and 
responsibilities.

The  Belgian  Red  Cross-Flanders  has  worked  on  the  project  in  partnership 
with the Custodial Care Department at the Ministry of Justice since 2011.

Source: Belgian Red Cross-Flanders (2012), Annual Report 2012, available at:  
http://jaarverslag.rodekruis.be/content/jvs10/2012/Annualreport2012.pdf

3�6�  Support to guardians

Guardianship authorities should directly provide guardians with access to support 
services or facilitate their access when other actors provide the services.

As  good  practice,  guardians  should  have  access  to  a  multidisciplinary  team 
of  professionals  to  seek  expertise,  advice  and  assistance  when  performing 
their guardianship duties.

It is essential for guardians to have access to legal advice and counselling provided by 
expert lawyers and/or other qualified legal professionals, so that they are adequately 
informed on legal issues related to administrative and criminal procedures in which the 
child victim might be involved (e.g. application for international protection or temporary 
residence permit, criminal proceedings against the trafficker, compensation claims).

When necessary, professional interpreters should be provided to facilitate regular 
communication between the child and the guardian or other representative.

51

Guardians should receive systematic professional supervision and psycho-social 
support to prevent burn-out and ensure the quality of their work. Supervision helps 
guardians to gain knowledge and build the skills needed to conduct their work more 
effectively and efficiently.

Guardians can function only within the limits of the child protection systems and the 
normative framework within which they operate. Guardians should be aware of the 
limits of their competence, including from an emotional perspective.

Working conditions, including remuneration and the number of cases assigned per 
guardian (see also Section 3.4.), should be such as to maximise motivation, job sat-
isfaction and continuity, and hence guardians’ disposition to fulfil their roles in the 
most appropriate and effective manner.

“The exercise of legal guardianship and other representation functions should 
be  monitored  through  regular  and  independent  assessments,  by  judicial 
authorities for instance”.

Source: FRA (2010), Separated, asylum-seeking children in European Union Member States, Comparative  
report, p. 12, available at: http://fra.europa.eu/sites/default/files/fra_uploads/1692-SEPAC-comparative- 
report_EN.pdf

3�7�  Review and oversight mechanisms

Guardianship authorities should define guardians’ reporting duties and monitoring 
criteria. They should also determine the measures to take in case guardians do not 
comply with their duties, including defining effective disciplinary measures and the 
circumstances in which these are to be applied.

Review and oversight mechanisms serve parallel but different purposes. They are 
necessary for monitoring the quality of guardianship services. Indirectly, they help to 
ensure that the best interests of the child are the primary consideration throughout 
the decision-making process. They also fulfil an important preventative function, 
reducing the risk of abuse and violation of the rights of the child.

52

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

Promising practice

Facilitating effective child participation 

Effective child participation is a key quality safeguard for a guardianship sys-
tem. In the Netherlands, NIDOS seeks to promote and facilitate child participa-
tion in the monitoring and evaluation of guardianship services. 

Children are given the opportunity to express their opinion in different ways.

•  They talk about their experiences and express their views in meetings and in 
surveys on their welfare, organised annually by the guardianship authority.

•  At the end of a guardianship period, they complete an evaluation form on the 
performance of their guardian and the implementation of their individual plan.

•  They  have  the  opportunity  to  issue  complaints  against  their  guardians  if 
their rights are violated or they feel that their needs are not met. Guardian-
ship institutions are obliged by law to establish an independent complaints 
procedure. A complaints commission is made up of at least three independ-
ent persons who are not employed by the organisation itself.

To ensure that children are adequately informed and facilitate child participa-
tion,  the  guardianship  authority  has  developed  an  introduction  folder  which 
contains  all  relevant  information  on  guardianship,  including  on  the  complaint 
procedure. Information is provided in the children’s national languages.

Sources: The Netherlands, Youth Care Act (Wet op de jeugdzorg), Article 68; Nidos (2012), 
Annual Report 2011 ( Jaarverslag 2011), Utrecht, Nidos; Knowledge Centre on Social Innovation  
(Kenniscentrum sociale innovatie) (2013), Underage asylum seekers and their guardians 
(Minderjarige asielzoekers en hun voogd), available at: www.innovatievemaatschappelijkedi-
enstverlening.nl/Content.aspx?PGID=4a912568-1d54-4bba-a9a4-70892bf40340

Given their importance, monitoring and oversight mechanisms should be explic-
itly anchored in national law. Evaluation and monitoring should not be restricted 
to financial and case management issues but should be extensive and meaningful, 
encompassing issues of quality of services and level of protection offered to children. 
Monitoring should not be limited to internal mechanisms – such as reporting duties – 
but should also include regular independent evaluations carried out by external actors.

Child participation

Effective monitoring mechanisms require respect for the child’s right to be heard. 
The rights of the child to be heard should be fully respected, and children’s views 
and opinions should always be taken into account, considering their age, maturity 
and developing capacities, as required by Article 12 of the CRC.

53

Therefore, children must be informed about guardianship and legal representation 
arrangements, their right to be heard and to have their views given due weight. 
Information must be adequate and provided in a child-friendly manner.

Children should be encouraged and enabled to participate in and contribute to the 
monitoring of guardianship systems.

Individual complaint mechanisms

Individual complaint mechanisms must be accessible to children. Children should 
be informed, in a child-friendly manner and in a language they understand, about 
individuals to whom or organisations to which they can report complaints against their 
guardians, in confidence and safety, including through telephone helplines. Reliable 
procedures should be in place to ensure that children using complaint mechanisms 
and reporting procedures will not be exposed to retaliation.

In the majority of Member States no particular mechanism or provisions for filing 
complaints against guardians are in place. Where they exist, individual complaint 
mechanisms are insufficiently developed and often inaccessible to children. 

FRA, 2014, Child victims of trafficking: overview of guardianship systems in the European Union (forthcoming)

Given that an increasing number of children go missing from residential care facil-
ities, review and oversight mechanisms should monitor the rate of disappearance 
of children under guardianship, including unaccompanied children and identified or 
presumed child victims of trafficking. An in-depth evaluation and quality assessment 
of guardianship appointment procedures and services would address more efficiently 
the problem of missing children, as an effective guardianship system can contribute 
to resolving the issue of children who go missing or who are at risk of going missing.

Regular reviews of guardianship

Decisions on appointing guardians are based on an individual needs assessment 
of each child (see also Section 4.1).The guardianship authority should review each 
individual guardianship arrangement at regular intervals, at least once a year. Reviews 
of guardianship arrangements must be documented. The views of the child must be 
taken into consideration in any such assessment.

54

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

4�  Assigning a guardian to a child
This chapter contains guidance on the 
procedure for appointing a guardian to 
individual children. It stresses the impor-
tance of timely appointment. In addition, 
it addresses the duration of guardianship 
and what support to provide when chil-
dren reach 18 years of age.

“No  child  should  be  without  the  support  and 
protection of a legal guardian or other recognized 
responsible adult or competent public body at any 
time”.

Source: UN General Assembly, Resolution 64/142, Guidelines  
for the alternative care of children, 24 February 2010,  
A/RES/64/142, paragraph 19

4�1�  When should a guardian be appointed?

Promising practice

Ensuring prompt appointment of guardians

Under the Dutch NIDOS programme, the first contact between NIDOS and the 
unaccompanied child must take place on the day of his or her arrival at the 
application  centre.  From  that  moment,  NIDOS  fulfils  the  role  of  a  guardian 
and asks the court to appoint it to act as guardian until the court appoints 
the child a specific guardian. To facilitate a guardian’s prompt appointment, 
NIDOS signed a memorandum of understanding with migration services to 
ensure NIDOS can be contacted immediately when the services identify an 
unaccompanied child. 

A special team of NIDOS guardians operates in the Ter Apel Application Cen-
tre and at Amsterdam’s Schiphol Airport. Following the initial intake of the 
child by the aliens police, the child is interviewed by NIDOS guardians, who 
try to determine if the child might be a victim of trafficking. If so, the child is 
transferred to a protected reception facility for trafficked children.

Sources: The Netherlands, Executive Order Youth Care Act (Uitvoeringsbesluit Wet op de 
Jeugdzorg), Article 44; Kromhout, M. H. C. and Liefaard, A. (2010), Between control and 
guidance: An evaluation of the pilot ‘Protected Reception UMAS at Risk’ (Tussen beheersing 
en begeleiding. Een evaluatie van de pilot ‘beschermde opvang risico-AMV’s’), The Hague, 
Scientific Research and Documentation Centre (Wetenschappelijk Onderzoek- en Documen-
tatiecentrum, WODC)

Prompt appointment of a guardian is a key safeguard for a child’s rights and overall 
well-being, protecting unaccompanied children and preventing child trafficking and 
other forms of child abuse and exploitation. 

A guardian must be appointed from the moment the authorities identify a child as a 
possible victim of trafficking, when required to safeguard the child’s best interests 

55

and well-being (Anti-Trafficking Directive (2011/36/EU), Article 14 (2)). Thus, domestic 
law should provide that a guardian be assigned as soon as possible. In practice, it is 
possible that unaccompanied children may already have a guardian, because of their 
status as unaccompanied, before being identified as a victim of trafficking.

Prompt appointment of guardians for presumed victims of trafficking or for unac-
companied children at risk of exploitation and abuse is also in accordance with the 
1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and 
Co-operation in Respect of Parental Responsibility and Measures for the Protection 
of Children to which most EU Member States are party. Article 5 of the convention 
sets out the general rule according to which the authorities of the state of the child’s 
habitual residence have jurisdiction to appoint a guardian. For refugee children and 
children whose habitual residence cannot be established, jurisdiction lies in the state in 
which the child is at present (Article 6 and also Article 13 of the Brussels II Regulation, 
amending Regulation (EC) No. 2201/2003). Even when a state does not have juris-
diction, however, it can take an urgent and provisional measure (Articles 11 and 12 
of the 1996 Hague Convention). Article 20 of the Brussels II Regulation (amending 
Regulation (EC) No. 2201/2003) also envisages the possibility to take provisional, 
including protective measures, in urgent cases, with regard to persons or property 
situated in that state. EU Member States 
can use these provisions to appoint a 
guardian  even  if  habitual  residence 
has not yet been established, when-
ever authorities take actions which are 
likely to compromise the protection of 
an unaccompanied child.

The practical handbook on the operation of the 1996 
Hague Convention suggests that a useful approach 
for  authorities  to  determine  whether  a  particular 
situation is ‘urgent’ may be to consider whether the 
child is likely to suffer irreparable harm or to have 
his or her protection or interests compromised if a 
measure is not taken to protect him or her.

Source: Permanent Bureau of the Hague Conference on  
Private International Law (May 2011), Revised draft practical  
handbook on the operation of the Convention of 19 October 
1996 on Jurisdiction, Applicable Law, Recognition, Enforce-
ment and Co-operation in Respect of Parental Responsibili-
ty and Measures for the Protection of Children, Chapter 6.2

The competent authorities should set 
a time limit for appointing a guardian, 
starting from the moment an unaccom-
panied child is identified.

4�2�  What is the best procedure for assigning a guardian to a child?

Core procedural steps to assign a guardian should be the same for all children, even 
when different guardianship systems are in place for EU citizens and third-country 
nationals. If guardians are assigned at a regional or local level, the same safeguards 
should apply regardless of the location. This means, for example, that the time required 
to assign a guardian should not diverge significantly between regions or localities.

56

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

In view of how often children go missing from care, extra efforts should be made 
to prevent disappearances before the guardian has been appointed and/or has first 
met with the child.

Concerning the procedure to assign a guardian, two different situations must be  
distinguished.

 • The child is unaccompanied or separated from his or her parents. In such cases, 

the assignment of a guardian can start immediately.

 • There is a conflict of interest between the holders of parental responsibility and 
the child victim; as a result, they are precluded from ensuring the child’s best in-
terests and/or from representing the child. In this case, a temporary guardian or 
a legal representative should be assigned, if it is deemed necessary by the body 
that, under national law, is responsible for conducting a parental assessment and 
risk assessment to decide on separating a child from his or her parents, if the 
separation is in the best interests of the child.

In principle, a child who is with his or her parents or primary caregiver does not require 
a guardian. The parents will cater for the child’s well-being. There may, however, 
be situations in which the parents have been involved in the trafficking of their 
child, have a conflict of interests with the child or may otherwise be precluded from 
ensuring the child’s best interests (Anti-Trafficking Directive, Article 14 (2)). When 
authorities have reasons to believe, based on an initial risk assessment and of the 
individual circumstances of the case, that the parents or other primary caregivers 
might be involved in the trafficking of the child, they must carefully scrutinise their 
suitability to represent the child’s interests.

Separation from parents can be a serious infringement of a child’s rights and may 
have long-lasting psychological and social consequences. According to Article 9 of 
the CRC, children should not be separated from their parents against their will, unless 
this is necessary for the best interests of the child, as in cases of parental abuse 
and neglect. Article 8 of the ECHR, as interpreted by the European Court of Human 
Rights’ case law, points in the same direction. Such separation may be done only by 
competent judicial authorities in accordance with applicable law and procedures, and 
must be subject to judicial review. Procedural and substantial safeguards established 
by national law must apply, regardless of the nationality of the child.

If children are victims of trafficking, adults accompanying the child, who might appear 
to be parents or caregivers, could instead be part of trafficking networks exploiting 

57

the child. When there is a doubt about the identity of the accompanying adults, and 
in the absence of proper documentation, responsible authorities should carefully 
examine and scrutinise their relationship with the child. Authorities should develop 
standardised procedures for verifying parenthood and family relations. Such assess-
ments should be carried out by qualified professionals.

The following core safeguards should be applied when establishing the need to 
appoint a guardian, following the reporting and referral procedure in place and upon 
identification of a child in need of protection. An individual needs assessment of the 
child’s family situation should take place expeditiously, taking these considerations 
into account (see also Chapter 5).

 • Parental  capacity  to  care  for  and  represent  the  child’s  interests  should  be  as-
sessed where the competent authority has reasonable cause to believe that the 
parents were involved in the exploitation or trafficking of the child and when the 
well-being of the child is at risk.

 • The assessment should be carried out by suitable, qualified professionals on be-

half of the responsible authority.

 • The assessment should be carried out by a multidisciplinary professional team 

and not by a single professional.

 • The child should be informed of the procedures and consulted throughout in ac-

cordance with his or her age, maturity and developing capacities.

 • All stages of the procedure must be documented.

 • Procedures should comply with the applicable laws, and, when relevant, parents 
should be informed of the procedure and their right to a legal representative.

Time of appointment

When the need to appoint a guardian has been established, a guardian should 
be assigned to the child as soon as possible, and within a maximum time limit, 
which should be set by law (Table 3). The appointment decision should be subject 
to judicial review.

When a guardian is being appointed, children should be given the opportunity to be 
heard, and due weight should be given to their views.

58

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

Table 3:  International and European legal sources on the time by which 

a guardian should be appointed

Instrument

Information

Terminology

Appointment should take place 
as soon as possible following 
identification of the child 

United Nations and Council of Europe Instruments

UN Committee on the Rights 
of the Child, General Com-
ment No. 6 CRC/GC/2005/6

Guardian/ 
legal representative

Paragraph 33
“Expeditiously”, “Prompt”  
(Paragraph 21, Paragraph 24)

UN Alternative care  
guidelines A/HRC/11/L.13

2005 Council of Europe Con-
vention on Action against 
Trafficking in Human Beings

Legal guardian/
Recognised responsible 
adult

Paragraph 18

Legal guardian

Article 10 (4)

Anti-Trafficking Directive 
(2011/36/EU)

Guardian and/or 
representative

Article 14 

Reception Conditions  
Directive (2013/33/EU)

Asylum Procedures Direc-
tive (2013/32/EU)

European Union instruments

Representative

Article 24 (1)

Representative

Article 25 (1) (a) 

Qualification Directive 
(2011/95/EU)

Legal guardian/
representative

Article 31 (1)
(As soon as possible after grant-
ing international protection)

Representative

Article 6 (2)

Dublin Regulation (EU) 
No. 604/2013

Victims’ Directive  
(2012/29/EU)

Guardian
Special/legal 
representative

Sexual exploitation of chil-
dren Directive (2011/93/EU)

Special/legal 
representative

–

–

59

Promising practice

Developing child protection hotlines 

The Czech Republic’s Authority of the Social and Legal Protection of Children, 
the country’s guardianship authority, has set up a telephone hotline so it can 
be reached outside working hours.

In cases involving child victims of trafficking, police authorities are required 
to have a guardian or an authority employee present when they interview a 
child. Employees of the authority, in such cases, automatically fulfil the func-
tion of guardian until a court assigns this position officially.

Source: Czech Republic, Ministry of the Interior (Ministerstvo vnitra České republiky) (2011), 
Child trafficking: Recommendations for methods of public authorities (Obchodování s dětmi – 
doporučení pro postup orgánů veřejné správy), Prague, Odbor bezpečnostní politiky, available 
at: www.mvcr.cz/clanek/boj-proti-obchodovani-s-detmi.aspx

Where, for practical reasons, a permanent guardian cannot be assigned swiftly to a 
child, provision should be made for the appointment of a person who temporarily 
carries out the guardian’s tasks.

This could be the case, for example, when the age of an undocumented child – and 
therefore the need for a guardian – is disputed and the authorities are carrying out 
an age assessment. The Anti-Trafficking Directive (2011/36/EU) explicitly sets out that 
where the age of a person subject to trafficking is uncertain, and there are reasons 
to believe that the child is less than 18 years of age, that person should be presumed 
to be a child and receive immediate assistance, support and protection (Recital 22). 
In such a situation, a guardian or temporary guardian should be appointed (see also 
Section 10.1. on age assessment).

In principle, no decision affecting the child should be taken before a guardian is 
appointed, except for immediate measures required to ensure the child’s safety and 
cater for his or her basic needs. In particular, protective measures should be introduced 
to avoid the child’s disappearance while waiting for a guardian’s appointment and 
between the guardian’s appointment and the first actual in-person contact between 
the guardian and the child.

Authorities should allow guardians sufficient time to meet and prepare the child 
before procedures are initiated and decisions taken. The timeframes should be laid 
down in official guidelines.

60

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

The responsibility to ensure that such temporary measures are taken rests with the 
authority which has identified the child or to which domestic law has given this task.

The  transfer  of  responsibility  for  the  child  from  the  authority  which  identi-
fied the child as a victim, such as law enforcement, to the guardianship service 
should be documented.

Provide the child with information

The guardianship authority should provide the child with relevant information about 
the guardian in a language and a manner that the child understands based on the 
child’s age, maturity and developing capacities.

Gender and cultural considerations should also be taken into account when informing 
the child. The particular situation and needs of children with disabilities, including 
intellectual and mental disabilities, should be addressed.

The information provided should include information on what will happen to the child 
after a guardian is assigned, the role and function of the guardian and the rights and 
duties of the child.

To facilitate this, the guardianship authorities should develop child-friendly materials, 
which other bodies and entities can also use.

The guardianship authority should be responsible, upon appointment of the guardian, 
for providing all relevant information on guardianship arrangements to the child and 
particularly for informing the child of when, where, how and to whom he or she can 
report complaints against the guardian, abuse and misconduct or any violation of his 
or her rights. Such information should be provided in oral and/or written form in a 
child-friendly way and in a language that the child understands (see also Section 3.2).

4�3�  When does guardianship end?

The guardianship arrangement must last until a durable solution in the best interests 
of the child is identified and implemented or until the child reaches the age of majority 
(see Figure 7). In the process of identifying a durable solution, reunification of the 
child with his or her parents and reintegration in the family should in principle be 
examined, when in the best interests of the child.

61

If the child wishes to move to another EU Member State, but does not join his or her 
family, the guardianship functions should in principle continue to be exercised in the 
Member State to which she or he moves.

This can be facilitated by establishing cooperation mechanisms between guardianship 
services in different EU Member States. This is an element to be reflected in the 
national or transnational referral mechanisms envisaged in the EU Strategy towards 
the Eradication of Trafficking in Human Beings. The guardian should coordinate any 
action related to family reunification, including family assessment, also in cases where 
the family of the child resides in another country.

Figure 7: When does guardianship end?

Source: FRA, 2014

If the child goes missing, the guardian should immediately report this to the responsible 
authorities and remain in contact with missing children services, including, where appli-
cable, 116 000 hotlines for missing children (see also Section 6.1). If a child under guardian-
ship goes missing, the guardian retains responsibility for the child until there is documented 
evidence that the child is under the care of another responsible individual, institution or 
authority. A court decision should always be required to end the guardianship relation.

62

Guardianship for children deprived of parental care18 years old Orientation to the social services systemSupport fortransition fromchildhood toadulthood andindependent lifeReintegrationin the familyFamily support and follow-up by social servicesChild leaves the country The child goes toanother EU MemberState: enforceexisting provisionsand mechanisms on intra-EUcooperationThe child goes toa third country:use of transnationalcooperationmechanismsbetween countries              Follow-up in thecountry ofdestination:appointment of anew guardian;return to the familyChild is missing  Report to policeand/or otherresponsibleauthorities that thechild is missingPolice and/or otherresponsibleauthorities shouldtake all necessaryaction to locate thechildDocumentedevidenceestablishing thatthe child is undercare of anotherresponsibleindividual,institution orauthorityChild protection system  Part I – Reinforcement of guardianship systems 

Guardians should be entitled to compensation for the time they spend reporting a 
missing child to police and/or any other relevant authorities that national law pro-
vides for, and for the time spent checking that authorities do all within their power 
to locate the child. Such compensation 
entitlements should be in place until 
the  child  is  located  or  guardianship 
is formally terminated.

The  need  to  ensure  a  more  transparent  and  in-
formed  transition  to  adulthood  is  pointed  out  in 
a research study on European states’ practices to 
address the challenges unaccompanied and sep-
arated asylum-seeking and refugee children face 
when they turn 18.

Review  procedures,  standards  and 
safeguards ensuring the best interests 
of the child should be the same as those 
applied in child protection systems for 
all children in alternative care.

Source: UNHCR and Council of Europe (2014), Unaccompanied  
and separated asylum-seeking and refugee children turning  
eighteen: What to celebrate?, available at: www.refworld.org/ 
DOCID/53281A864.HTML

Particularly for unaccompanied children subject to migration law, care provisions, legal 
entitlements, legal options and perspectives might change significantly from the moment 
they turn 18 years old. It is very important that children be well prepared to pass from 
childhood to adulthood and receive the necessary support to do so (see also Figure 13).

Although  guardianship  might  end  when  a  child  reaches  the  age  of  majority, 
EU Member States should, given the vulnerability of these young people, consider 
making support and assistance available beyond the age of 18, to facilitate the child’s 
transition to adulthood.

If  guardianship  services  and  care 
arrangements  are  available  for  child 
nationals of aMember State above the 
age of 18, these should also be available 
for children from other countries, and in 
particular for victims of trafficking. For 
child victims of trafficking, trust is the 
key element in the process of rehabil-
itation and finding a durable solution. 
It  may  necessitate,  in  some  cases, 
longer guardian involvement.

Upon  reaching  18  years  of  age,  as 
long  as  they  are  present  in  the  host 
EU Member State, victims of trafficking 

The Parliamentary Assembly of the Council of Eu-
rope (PACE), taking into account the specific situ-
ation of unaccompanied young migrants who are 
reaching adulthood, and bearing in mind the best 
interests’  of  the  child,  recommends  to  member 
States establishing a transition category, between 
the ages of 18 and 25. During this period, young 
migrants  should  continue  to  receive  support  for 
an  independent  life,  with  guaranteed  access  to 
welfare assistance and housing, to education and 
health services and to information on the relevant 
administrative procedure. 

Source: Council of Europe, Parliamentary Assembly,  
Committee on Migration, Refugees and Displaced Persons  
(Report | Doc. 13505 | 23 April 2014), Migrant children:  
What rights at 18?, available at: http://website-pace.net/
documents/19863/168397/20140313-MigrantRights18-EN.
pdf/ea190a6e-1794-4d30-b153-8c18dc95669f  
http://assembly.coe.int/nw/xml/XRef/Xref-XM-
L2HTML-en.asp?fileid=20589&lang=en

63

should continue to have access to appropriate victim support services in line with the 
Victims’ Directive (2012/29/EU). This means that the individual should have access 
to rehabilitation services, psychological and medical assistance if necessary, legal 
representation and free legal assistance in the judicial proceedings for their entire 
duration. Such services should be provided in the same circumstances and at the 
same level as for victims of crime who are nationals of the Member State concerned.

If children have been separated from their parents for reasons of abuse or neglect, the 
capacity and willingness of the parents to represent the child’s best interests must be 
assessed on a regular basis. Whenever new evidence emerges suggesting that return 
to the family would be in the best interests of the child, the guardian together with 
the competent child protection authorities should support and monitor that return. 
The review procedures, standards and safeguards ensuring the best interests of the 
child should be the same as those applied in child protection systems for all children 
in alternative care.

4�4�  When should a guardian be changed?

To ensure continuity and build on the trust established between the child and the 
guardian, a guardian should normally not be changed once he or she is assigned to 
a child, unless the case’s circumstances make this unavoidable.

The Reception Conditions Directive (2013/33/EU) in Article 24 (1) provides that, “in 
order to ensure the child’s well-being and social development […], the person acting as 
representative shall be changed only when necessary”. It further provides that “reg-
ular assessments shall be made by the appropriate authorities, including as regards 
the availability of the necessary means for representing the unaccompanied minor”.

Temporary guardians appointed as part of preliminary measures for a child’s protec-
tion, should, when possible, also be assigned as ‘permanent’ guardians.

To ensure the child the necessary stability in his or her life and development, the child 
should not be unnecessarily or routinely transferred to another part of the country, 
unless the child’s safety or best interests require a transfer.

If the child has complained of misconduct by the guardian, changing the guardian 
should be considered as an option. A change should be provided for explicitly in law, 
and take place immediately, if the guardian is under investigation for severe violations 
of child’s rights, e.g. abuse or inappropriate behaviour.

64

Guardianship for children deprived of parental carePart I – Reinforcement of guardianship systems 

In addition, the guardianship authority should review each individual case at regular 
intervals, at least once a year. Any such assessment must take the child’s views into 
consideration. The guardianship authority should provide guidelines and criteria for 
such regular assessments. Reviews of guardianship arrangements must be docu-
mented. When relevant, the situation of the family should also be assessed with 
a view to reuniting the child with his or her parents (see Section 4.2).

65

Part II – Guardian’s tasks

As described in Section 1 of the Introduction, the guardian is responsible for safe-
guarding the best interests of the child, ensuring the child’s overall well-being and 
exercising legal representation for the child to complement his or her limited legal 
capacity. The next five chapters describe these core tasks in more detail. They also 
incorporate cross-cutting tasks, such as holding authorities accountable for decisions 
affecting the child and intervening if the child’s welfare is in danger (Figure 8).

The majority of EU Member States do not precisely define a guardian’s tasks in 
law.

FRA, 2014, Child victims of trafficking: overview of guardianship systems in the European Union  
(forthcoming)

The guardian’s rights and duties should be defined in domestic law or policy doc-
uments and, where necessary, further clarified in official guidelines. Table 4 indi-
cates international and European legal sources that describe the tasks of guardians 
or legal representatives.

67

Table 4:  The tasks of the guardian as reflected in European and 

international legal sources

Functions and tasks of appointed person

g
n

i

e
b
-
l
l

e
w
s
’
d

l
i

h
c
e
r
u
s
n
E

e
r
a
c
e
t
a
u
q
e
d
a
d
n
a

d

l
i

h
c
e
h
t

f
o
s
t
s
e
r
e
t
n

i

t
s
e
b
d
r
a
u
g
e
f
a
S

n
o

i
t
a
t
n
e
s
e
r
p
e
r

e
s
i
c
r
e
x
E

Paragraph 
33

Paragraph  
33

Paragraph 
33

Paragraph 
101
Paragraph 
103

Paragraph 
104 (a)

Paragraph 
104 (b)

y
g
o

l

i

o
n
m
r
e
T

Guardian/
Legal repre-
sentative

Legal 
guardian/
Recognised 
responsible 
adult

d
n
a
s
n
o

i
t
a
N
d
e
t
i

n
U

e
p
o
r
u
E
f
o

l
i
c
n
u
o
C

d
n
a
s
t
n
e
m
u
r
t
s
n

i

n
o

i

n
U
n
a
e
p
o
r
u
E

s
e
v

i
t
c
e
r
i
D

UN Committee on 
the Rights of the 
Child, General  
Comment No� 6  
CRC/GC/2005/6

UN Alternative 
care guidelines  
A/HRC/11/L�13

2005 Council of 
Europe Convention 
on Action against 
Trafficking in 
Human Beings

Legal 
guardian

Article  
10 (4) (a)

Anti-Trafficking 
Directive  
(2011/36/EU)

Guardian /
Represent-
ative

Article 13
Preamble, 
Recital 23

Reception Con-
ditions Directive 
(2013/33/EU)

Represent-
ative

Asylum Procedures 
Directive  
(2013/32/EU)

Represent-
ative

Article  
2 (j)
Article 
24 (1)

Article. 
2 (n)
Article  
25 (1) (a)

Qualification  
Directive  
(2011/95/EU)

Legal 
guardian/
Represent-
ative

Article  
31 (4)
Preamble, 
Recital 18

Dublin Regulation 
(EU) No� 604/2013

Represent-
ative

Article  
6 (2)

Victims’  
Directive  
(2012/29/EU) 

Guardian
Special/
legal repre-
sentative

Sexual exploitation 
of children Direc-
tive (2011/93/EU)

Special/
legal repre-
sentative

–

–

68

t
n
e
s
e
r
p
e
b
(

s
g
n

i

d
e
e
c
o
r
p

m
r
o
f
n

i

,

w
e

i

v
r
e
t
n

i

e
h
t

t
a

n

i

d

l
i

h
c
e
h
t
y
n
a
p
m
o
c
c
A

)
d

l
i

h
c
e
h
t
e
r
a
p
e
r
p
d
n
a

Paragraph 
33
Paragraph 
72

-
e

l

p
m

i

d
n
a
y
f
i
t
n
e
d

i

p

l

e
H

n
o

i
t
u

l

o
s
e

l

b
a
r
u
d
t
n
e
m

e

l

o
r

r
o
t
a
n

i

d
r
o
o
c

–
k
n

i
l

s
a
t
c
A

g
n

i
c
a
r
t
y

l
i

m
a
f
d
n
a

s
k
n

i
l

y

l
i

m
a
F

Paragraph 
90

Paragraph  
33

–

–

–

–

Article. 
24 (1)
(be 
present in 
interviews)

Article 25 
(1) (b)

–

–

Paragraph 
104 (c)

Paragraph  
104 (d)

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

Paragraph 
104 (e)
Paragraph 
104 (g)

Article  
10 (4) (c)

–

–

–

–

–

–

–

–

–

Article  
23
Article  
24 (1)

–

Article  
14 (2)

Article 
2 (j)

Article 
2 (n)
Article 
7 (3)

Article  
31 (1) 

Article 
31 (1)

Article 
6 (2)

–

–

–

Article 24 
(b)

Article 20 
(c)

Article 
20 (1)

Article 20 
(3) (f)

Guardianship for children deprived of parental care 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Part II – Guardian’s tasks

The four core principles of the CRC (see Figure 3) must guide the guardian in all 
aspects of his or her work throughout the assignment. In the absence of the parents, 
or if they are precluded from exercising parental responsibility, the guardian is given 
the duty of safeguarding and promoting the child’s well-being. Each time a decision 
is taken affecting the child, the guardian’s role is to promote the option which is in 
the best interests of the child. The guardian must ensure that the child’s views are 
heard and given due weight. The guardian must inform the child and consult with 
him or her on all aspects of the guardian’s work, taking into consideration the child’s 
maturity and developing capacities.

“The frequency and quality of contact between guardians and children varied. 
A significant number of children were satisfied and wanted a more personal 
relationship with their guardian – an issue that adult respondents also thought 
was important for a child’s well-being”.

Source: FRA (2010), Separated, asylum-seeking children in European Union Member States,  
Comparative report, p. 9, available at: http://fra.europa.eu/sites/default/files/fra_uploads/ 
1692-SEPAC-comparative-report_EN.pdf

Figure 8: The guardian’s core tasks

Source: FRA, 2014

69

 The guardian’s core tasks     Safeguard  the child’s best interests Promote the child’s safety and well-being  Facilitate the child’s participation Act as a link between the child and others Assist in identifying  a durable solution in the child’s best interest  Exercise  legal representation, supportthe child in legal procedures and ensure access to legal assistance and counselling Creating and maintaining a trustful relationship with the child

A relationship of trust between the guardian and the child is an essential precondition 
for an effective guardianship. Without trust, the guardian will not be able to ascertain 
the child’s wishes and feelings, making it difficult to promote the child’s best interests.

The guardian should communicate with the child in a child-friendly way, showing cultural 
sensitivity and adopting a gender-sensitive approach. Although many factors have an 
impact on whether trust is built or not, the following four are particularly significant:

 • respecting the views of the child;

 • treating the child with respect and dignity;

 • being available for and accessible to the child;

 • respecting confidentiality.

Frequent contact and accessibility of the guardian are necessary elements in building 
a relationship of trust with the child.

Guardians who work with child victims of trafficking should be aware of the effect 
that the experience of trafficking can have on children’s behaviour and of the conse-
quences of trauma. Individuals suffering from trauma often have memory problems, 
for example, and are unable to recall details of events, or they may recall different 
information over time. This does not mean that the child is lying or does not trust 
the guardian. The guardian should raise awareness of these aspects with the other 
professionals working with the child.

Emotional care of the child is a basic need, which the guardian should not disregard. 
Appointed guardians must be supported in performing their roles, including providing 
this emotional care, in particular by ensuring that their workload and the number of 
cases assigned to them allow them sufficient time to spend with the child and build 
a personal relationship with him or her (see also Section 3.6).

70

Guardianship for children deprived of parental carePart II – Guardian’s tasks

The Core standards for guardians of separated children in Europe provide guidance on the role and 
responsibilities of the guardian (standards 1–6), the relationship with the child (standards 7–9) and 
the guardian’s professional knowledge and competences (standard 10). They have been devel-
oped in consultation with separated children, guardians and other experts, such as foster parents, 
lawyers and social workers. Core standard number 8 lists a number of indicators for a positive 
relationship built on mutual trust, openness and confidentiality. According to it, the guardian:

A)  knows the child personally;

B)  keeps all information about and from the child confidential unless it is necessary to disclose 
it to keep the child or another child safe, and informs the child, when possible, about a confi-
dentiality breach;

C)  does not judge the child’s reasons for exile or allow this to affect his or her relationship with 

the child;

D)  is always honest with the child and keeps his or her promises;

E)  gives clear information about his or her role and limitations in a way that the child under-

stands and can recall;

F)  demonstrates to the child that he or she works from the heart, really caring for and feeling 

responsible for the child;

G)  makes  it  clear  to  the  child  that  a  child  who  disappears  is  always  welcome  to  contact  the 

guardian;

H)  pays attention to verbal, non-verbal and emotional communication;

I) 

is empathetic towards the child and gives moral and emotional support.

Source: Defence for Children – ECPAT The Netherlands (2011), Core standards for guardians of separated children  
in Europe, Leiden, Defence for Children – ECPAT The Netherlands, available at: http://www.corestandardsforguardians.eu/

Confidentiality

The guardian will learn details of the child’s private life, which he or she must treat 
confidentially. Communication with the child should take place in a confidential setting 
and should fully respect the child’s dignity and privacy rights.

Confidentiality is an important element in the child’s relationship with the guardian. 
The child’s right to privacy should be protected by law. The code of conduct for 
guardians should cover the implications of the principle of confidentiality (see also 
Section 3.2). The guardian should be able to decide when and under what conditions 
it could be in the best interests of the child to pass certain information on to other 
relevant actors and agencies.

71

Confidentiality is also a requisite for the child’s safety, particularly for child victims of 
trafficking or unaccompanied children seeking international protection. Information 
about a child victim must not be disclosed if it could endanger the child or the child’s 
family members (see also Section 6.3). The consent of the child victim must be sought, 
in an age-appropriate manner, before sensitive information is disclosed, taking into 
consideration the child’s maturity and developing capacities.

5�  Safeguarding the best interests 

of the child

Safeguarding  the  best  interests  of 
the  child  must  guide  the  guardian’s 
work and actions.

The  Committee  on  the  Rights  of  the  Child,  with 
its  General  comment  No.  14  (2013)  on  The  right 
of the child to have his or her best interests taken 
as a primary consideration (Article 3, paragraph 1) 
provides  a  framework  for  assessing  and  deter-
mining  the  child’s  best  interests.  The  committee 
notes  that  “an  adult’s  judgment  of  a  child’s  best 
interests cannot override the obligation to respect 
all the child’s rights under the Convention.”

Source: UN Committee on the Rights of the Child (2013), 
General Comment No. 14, 29 May 2013, CRC/C/GC/14

The  best  interests  of  the  child  are  a 
dynamic  concept,  aiming  to  ensure 
the  child’s  holistic  development  by 
promoting the full and effective enjoy-
ment of all CRC-recognised rights. The 
guardian  is  called  on  to  assess  the 
child’s best interests on a daily basis, 
whenever decisions affecting the child are taken. These might include, for example, 
decisions about the child’s accommodation, safety, education, healthcare, leisure 
activities and legal representation.

The guardian shall hold public authorities accountable for any decisions affecting the 
child and ensure respect for the principle of the best interest as a primary consider-
ation as required by Article 3 of the CRC throughout the decision-making processes 
The guardian must hold public authorities accountable. He or she must intervene 
if the welfare of the child is in danger and challenge, within the limits of his or her 
authority, any decision that is deemed to be contrary to and/or does not promote 
the child’s best interests.

72

Guardianship for children deprived of parental carePart II – Guardian’s tasks

Assessment and determination of the child’s best interests

The child’s best interests shall be assessed in a child-sensitive manner, taking due 
account of the child’s age and maturity, as well as the child’s views, needs and 
concerns. In its 2013 General Comment No. 14, the Committee on the Rights of the 
Child lists the elements that need to be taken into account when assessing the 
child’s best interests:

 • the child’s views;

 • the child’s identity;

 • preservation of the family environment and maintaining relations;

 • the care, protection and safety of the child;

 • a situation of vulnerability;

 • the child’s right to health;

 • the child’s right to education.

The committee also provides guidance on how to balance these elements. Preserving 
the family environment, for example, may conflict with the need to protect the child 
from the risk of parental violence or abuse. In such situations, the elements will have 
to be weighed against each other to find a solution that is in the child’s best interests.

In addition to such regular assessments of the child’s best interests, national law may 
require a formal best-interests determination may be required under national law for 
decisions affecting the life of a child, such as the identification of a durable solution. 
Such determination should be done by a multi-disciplinary team following strict proce-
dural safeguards.EU law also provides guidance to Member States when assessing the 
child’s best interests. Article 23 (2) of the Reception Conditions Directive (2013/33/EU), 
provides that ”in assessing the best interests of the child, Member States shall in 
particular take due account of the following factors: 

(a)  family reunification possibilities; 

(b)  the minor’s well-being and social development, taking into particular consider-

ation the minor’s background; 

(c)  safety and security considerations, in particular where there is a risk of the minor 

being a victim of human trafficking;

(d)  the views of the minor in accordance with his or her age and maturity.”

73

The guardian must participate in such formal best-interests determinations to make 
sure that the child’s best interests are a primary consideration in all decision-making 
processes and that the right of the child to be heard is respected, as required by 
Article 12 of the CRC.

6�  Promoting the child’s safety and 

well-being

Promoting the child’s well-being requires the guardian to ensure that the child’s 
legal, social, health, psychological, material and educational needs are met (Figure 9). 
Children deprived of their parental environment, and child victims of trafficking in 
particular, have very often experienced violence and suffer from trauma. Exposure 
to violence increases a child’s risk of further victimisation and an accumulation of 
violent experiences. Ensuring child safety and protection of child victims should be 
prioritised to avoid further victimisation and reduce the risk of re-trafficking.

Figure 9: Promoting the child’s safety and well-being

Source:  FRA, 2014

74

Guardianship for children deprived of parental care                                                              Promote the child’s safetyand well-being      6.1. Risk assessment 6.2. Individual needs assessment 6.3. Support the child in maintaining family links  6.4. Adequate standard of living, including appropriate housing and material assistance  6.5. Healthcare 6.6. Education and training   Part II – Guardian’s tasks

6�1�  Risk assessment

The competent child protection authorities should assess the risk of abuse, violence 
and exploitation for each individual child under care and decide on appropriate pro-
tection measures. Such risk assessments should also be conducted for unaccompanied 
children when competent authorities are deciding on a durable solution for the child. 
This is to ensure that the proposed solution is in the child’s best interests and does 
not put the child at any risk of exploitation, abuse or violation of his or her rights. In 
addition, a risk assessment should always be conducted for child victims of trafficking, 
to provide adequate protection and ensure the safety of the child, so that they are 
not trafficked again or further exploited and abused.

Pursuant to Article 12 of the Anti-Trafficking Directive (2011/36/EU), victims of human 
trafficking, including child victims, have the right to appropriate protection measures 
based on an individual risk assessment.

Such an assessment should be timely and aim to identify those measures which are 
required to protect the child from retaliation, intimidation and the risk of being traf-
ficked again. The risk assessment should be regularly updated until a durable solution 
is found for the child. The risk assessment should be conducted by a multidisciplinary 
team of professionals including representatives of child protection authorities and 
health and social service providers.

The guardian must ensure that the competent authorities undertake an individual 
risk assessment for each child victim of trafficking. The guardian should always be 
consulted on specific protection measures to be adopted and be able to provide 
suggestions and recommendations. While not directly responsible for the protection 
measures taken, the guardian nevertheless has an important role to play (Figure 10).

75

Figure 10: Risk assessment and the role of the guardian

Health 
professionals

Other

Accommodation 
facilities/ 
 care workers 

Guardian

The guardian should 
safeguard the right 
of the child to be 
heard and facilitate 
his/her 
participation 

Victim support 
services/ 
child  psychologists 

Legal advisor/
lawyer

Police and
judicial
authorities

Child
protection
authorities/
social 
workers

Source:  FRA

76

Guardianship for children deprived of parental care              
 
                            
Part II – Guardian’s tasks

Checklist:  Possible actions by the guardian in relation to 

the child’s safety

 √ Inform the child about existing protection measures that could be taken.

 √ Request a risk assessment for the child.

 √ Actively participate in the risk assessment process along with 

representatives of other relevant authorities, law enforcement officials  
and the child’s legal representative.

 √ Regularly assess the risk that the child may go missing from care.

 √ Ensure that the views of the child are heard and given due weight 

depending on age and maturity.

 √ Inform the relevant authorities when new information is available 
related to the child’s safety which might require changes to the 
protection measures applied.

 √ Request that the risk assessment be reviewed and documented if new 

information surfaces which may require different or additional measures.

 √ Ensure that the relevant authorities are notified without delay of any 
disappearance of a child and that efforts are made to find the child.

 √ When victims are third-country nationals, regularly remind all authorities 
involved not to share information on the child’s status as a victim of 
trafficking with the authorities in the country of origin before the risk 
assessment is finalised.

Access to victim support services

The guardian should advocate that child victims of trafficking be given access to 
confidential victim support services as established under Articles 8 and 9 of the 
Victims’ Directive (2012/29/EU).

77

Checklist:  Possible actions by the guardian in relation to 

victim support services

 √ Facilitate access to appropriate and safe accommodation for child victims in 
need of a safe place because of an imminent risk of secondary and repeat 
victimisation, intimidation or retaliation.

 √ Provide information about support networks available to the child; 

information should be provided in a child-friendly manner in a language 
that the child understands, orally and in writing.

 √ Facilitate access to helpline services.

 √ Facilitate access to targeted and integrated support for victims with specific 
needs, including victims of sexual violence, victims with disabilities and 
victims of gender-based violence, such as trauma support and counselling.

“Family members shall have access to victim support services in accordance with their 
needs and the degree of harm suffered as a result of the criminal offence committed 
against the victim” (Article 8 of the Victims’ Directive (2012/29/EU)). EU Member 
States should ensure that, under certain conditions, victim support services are also 
available to the child’s family members, if they are in the (receiving) country.

The family should be assessed to ensure that they are not accomplices or otherwise 
involved in the trafficking, and do not pose a risk to the child.

In addition, Article 18 of the Victims’ Directive (2012/29/EU) provides that Member 
States shall ensure protection of “victims and their family members from secondary 
and repeat victimisation, from intimidation and from retaliation, including against the 
risk of emotional or psychological harm, and to protect the dignity of victims during 
questioning and when testifying. When necessary, such measures shall also include 
procedures established under national law for the physical protection of victims and 
their family members”.

Placement in safe houses

Restrictions on the child’s freedom of movement should be proportional and follow 
on from the results of the risk assessment. They should always be confirmed by 
judicial authorities. The guardian should also check that intrusive safety measures, 
such as frequent changes in place of residence or severe restrictions to the child’s 
freedom of movement, are taken only when deemed absolutely necessary to protect 
the child’s safety. When the victim is placed in a ‘safe house’ where exit and entry 

78

Guardianship for children deprived of parental carePart II – Guardian’s tasks

is controlled, mitigating measures should be taken to ensure that the child is not in a 
detention-like regime. Depending on the security risks, such measures could include 
regular outings with the guardian, social workers or volunteers. The guardian should 
have unimpeded access to a child hosted in a closed facility and the child should have 
unimpeded access to the guardian. Unimpeded access to legal assistance and access 
to appropriate treatment and rehabilitation services should also be safeguarded.

If a child is placed in a safe house where restrictions of movement are applied, 
decisions should be reviewed by judicial authorities every month, to ensure that the 
placement is absolutely necessary for the safety of the child and is limited to the 
minimum time necessary (CRC, Article 25 and ECHR, Article 5).

Missing children

A  European  Commission  study  found  that  some  authorities  implemented 
a waiting period before following up on disappearances of certain categories 
of children, in particular unaccompanied children.

Source: European Commission (2013), Missing children in the European Union: Mapping, data collection  
and statistics, available at: http://ec.europa.eu/justice/fundamental-rights/files/missing_children_ 
study _2013_en.pdf

All children on EU territory have the right to protection. Disappearances should be 
acted upon on the same basis for all categories of children.

Accommodation facilities should have a system to ensure missing children are 
recorded, along with details about their nationality, migration status and, where 
available, the circumstances of their disappearance. This system should also require 
facilities to notify the guardian and other appropriate bodies as soon as the disappear-
ance is detected, without delay and within a maximum of 24 hours. Accommodation 
facilities should be held accountable if they fail to report on time.

Likewise, upon learning his or her assigned child is missing, the guardian must immedi-
ately contact the police and/or any other relevant authorities as provided for in national 
law. Guardians must be held accountable for failure to do so. Guardians should see that 
authorities take all necessary action and put into effect all available means and proce-
dures to locate the missing child. The authorities must cooperate with the competent law 
enforcement agency and, where applicable, the 116 000 hotline for missing children, and 
possibly launch a SIS II Article 32 alert. Once a missing child is found, the guardian must be 
actively involved in appropriate follow-up, to prevent the child’s repeat disappearance.

79

Promising practice

Drawing up a care plan

Irish legislation sets out the requirements for a child’s care plan – a written 
plan, agreed and drawn up in consultation with the child and those involved 
in his or her care. The care plan should reflect the child’s individual needs, 
both now and in future. It establishes short-, medium- and long-term goals 
for the child and identifies the services required to attain these goals. The 
care plan also addresses the assessment of a durable solution. The Irish leg-
islation includes arrangements for the plan’s review.

Source: Ireland (1995), Child Care (Placement of Children in Foster Care) Regulations 1995  
(SI No. 260 of 1995), Regulation 11

6�2� 

Individual needs assessment

Guidance on individual care plans is contained in 
Recommendation  CM/Rec  (2007)9  of  the  Coun-
cil  of  Europe  Committee  of  Ministers  to  Member 
States on life projects for unaccompanied migrant 
minors. Life projects pursue the social integration 
of  children,  their  personal  and  cultural  develop-
ment,  and  their  needs  for  housing,  health,  edu-
cation and vocational training and employment.

Child  victims  are  entitled  to  assis-
tance  and  support  that  takes  into 
account  their  special  circumstances, 
according  to  the  Anti-Trafficking 
Directive (2011/36/EU) (Article 14) and 
the  Victims’  Directive  (2012/29/EU) 
(Article 22). To make sure that the appro-
priate forms of assistance and support 
are  provided,  a  needs  assessment  is 
necessary.  The  purpose  of  the  needs 
assessment is to define which support measures are in the best interests of the child. 
An assessment of special needs is also required for asylum-seeking children under 
Article 22 of the Reception Conditions Directive (2013/33/EU),  Article 24 of the Asylum 
Procedures Directive (2013/32/EU) and for refugees and beneficiaries of subsidiary 
protection under Article 31 of the Qualification Directive (2011/95/EU).

Source: Council of Europe Committee of Ministers,  
Rec (2007)9, 12 July 2007

The needs assessment should be carried out by a multidisciplinary team in cooperation 
with the guardian and with the participation of others, including health professionals, 
child psychologists and care workers. Based on the needs assessment, the guardian 
should draw up an individual plan for the child.

The plan should take into account possible traumatising experiences to which the 
child may have been exposed. It should give due weight to the child’s views. The 
child should be involved in drawing up the plan, depending on age and maturity. It is 
the guardian’s task to facilitate child participation by providing adequate information 

80

Guardianship for children deprived of parental carePart II – Guardian’s tasks

to the child and ensuring that the child’s views are heard and are given due weight. 
In any event, the plan should be discussed with the child, and his or her agreement 
should be sought. Various players need to be involved, as illustrated in Figure 11.

Figure 11: The needs assessment and the guardian’s role

Source: FRA, 2014

Although an assessment of the child’s needs will need to start from the moment a 
guardian is assigned, the individual plan for the child should be drawn up only after 
the guardian has a good understanding of the child’s needs and wishes. The plan 
should be reviewed and adjusted at regular intervals.

81

Health professionals Child protection services/  social workers   Child  psychologistsOthers        (such as teachers) Accommodationfacility/ care workers  Guardian  The guardian is responsible for  safeguarding the  right of the child  to be heard An individual plan should include at least the following core elements:

 • accommodation arrangements;

 • safety and protection measures;

 • relationship with the parents;

 • social and psychological counselling and access to mental health services;

 • healthcare provision and medical treatment;

 • legal counselling and legal representation;

 • education, including language training;

 • migration status and international protection needs.

6�3�  Support the child in maintaining family links

The family is the fundamental unit of society and the natural environment for the 
growth and well-being of its members, particularly children. The right of the child 
to family life should be fully protected. Preventing family separation and preserving 
family unity are important components of the child protection system. In cases of 
separation, the child has the right to maintain direct contacts and personal relations 
with his or her parents and family members, except when this is contrary to the 
child’s best interests (CRC Article 9 (3)).

Child victims of trafficking may have been separated from their families before they 
were trafficked, i.e. because of migration, or possibly as a result of being trafficked.

Guardians acting in the best interests of the child should assist the child in tracing 
the family, when the child wishes it, and in establishing or maintaining contacts with 
family members. Before efforts are made to restore contact, institutions should assess 
parental capacity, to ensure that the parents will not put the child at risk and that 
there was no parental involvement in the initial trafficking of the child.

Family tracing is an integral part of searching for a durable solution. It should be carried 
out irrespective of any measures to assess return of the child to the country of origin.

82

Guardianship for children deprived of parental carePart II – Guardian’s tasks

Checklist:  Possible actions by the guardian in relation 

to family tracing

 √ Encourage family tracing to take place, as soon as possible following 

identification, and with the child’s consent.

 √ Note that family tracing (restoring family contacts) should not take place 

when there are serious grounds to believe that restoring family links might 
endanger the child or family members.

 √ Based on the particular situation of each child, assist the child in family 

tracing and/or establishing and maintaining communication and links with 
his or her family where this is found to be in the child’s best interests.

 √ Cooperate with the respective public authorities and possibly also seek the 
assistance of relevant organisations and authorities, e.g. the International 
Organization for Migration or the Red Cross.

 √ After successful family tracing, and before family reunification and return, 
ensure that a risk assessment is conducted to assess the suitability of the 
parents and/or other family members to care for the child and represent 
her or his interests.

 √ In any efforts to trace or reunite families, act in the child’s best interests 

and respect any requirements laid down in law.

6�4�  Adequate standard of living, including appropriate 

housing and material assistance

Article 27 of the CRC states that “States Parties recognize the right of every child to a 
standard of living adequate for the child’s physical, mental, spiritual, moral and social 
development”. The convention sets forth the obligation of Member States to safe-
guard the child’s well-being and to provide adequate care and support to all children 
who are deprived of their family environment, including unaccompanied children, 
and in particular to those who have suffered from abuse (Article 19 and Article 20). 
In addition, Article 24 of the EU Charter on Fundamental Rights provides that children 
must have the right to such protection and care as is necessary for their well-being.

Care and assistance must respect the child’s cultural identity, origin, gender and age. 
They should not expose the child to safety risks. Moreover, adequate, specialised 
assistance should be provided to children with special needs, for example if they 
have disabilities or severe trauma.

83

The Anti-Trafficking Directive (2011/36/EU) and the Victims’ Directive (2012/29/EU) con-
tain a number of provisions regarding the right of victims of trafficking, children included, 
to assistance and support. Similarly, the Reception Conditions Directive (2013/33/EU) and 
the Qualification Directive (2011/95/EU) oblige EU Member States to provide adequate 
support, including accommodation, to unaccompanied children. Support given to child 
victims of trafficking includes the provision of adequate and safe housing which should 
promote recovery from the trafficking experience. Although it is not the guardian’s role to 
provide housing to the child, he or she should be involved and take a number of actions.

Checklist:  Possible actions by the guardian in relation to 

accommodation and material assistance

 √ Verify that accommodation and residential care arrangements are 

adequate for the child’s physical, mental, spiritual, moral and social 
development; the guardian should report any issues to be addressed to 
those providing housing to the child; involvement and consultation with 
cultural mediators should be provided, where appropriate.

 √ Provide the child with information on his or her rights and duties in relation 
to the accommodation facilities and make sure that the child is aware of 
those rights and of how to lodge a complaint.

 √ Make sure that the child is informed about the rights and duties of the 
personnel and the care givers in accommodation facilities, and that the 
child is able to distinguish his or her role and responsibilities from those 
of the guardian.

 √ Promote the child’s access to leisure activities, including play and 

recreational activities appropriate to his or her age, maturity and interests. 
Such activities should be offered within the accommodation facilities or in 
the community when appropriate, and should aim to facilitate the child’s 
communication and interactions with peers and the local community.

information,  consult 

For  more 
the  General 
Assembly (2010), Resolution 64/142, Guidelines for 
the alternative care of children, 24 February 2010, 
is  available  at: 
A/RES/64/142,  p.  19,  which 
www.unicef.org/protection/alternative_care_
Guidelines-English.pdf.

In ensuring adequate living conditions, 
the guardian should visit the child in 
the place where he or she is staying 
and consult with the child in a confi-
dential  setting.  The  guardian  should 
follow up on any alleged violation of, 
complaint about or breach observed of 
the child’s rights.

84

Guardianship for children deprived of parental care 
Part II – Guardian’s tasks

6�5�  Healthcare

General Comment No. 13 of the UN Committee on 
the Rights of the Child offers comprehensive guid-
ance on the protection of children from all forms 
of violence.

The CRC, in Article 24, lays down that all 
children have the right to the enjoyment 
of the highest attainable standard of 
health, and Article 39 obliges states to 
take appropriate measures to promote 
physical and psychological recovery and social reintegration of children who have 
suffered from abuse. Recovery and reintegration must take place in an environment 
which fosters the health, self-respect and dignity of the child.

The Anti-Trafficking Directive (2011/36/EU) in Article 11 acknowledges the vulner-
ability of victims and stipulates that all victims of trafficking are entitled to neces-
sary medical treatment including psychological assistance. Under Article 19 of the 
Reception Conditions Directive (2013/33/EU), asylum seekers are entitled to necessary 
healthcare whereas, under Article 30 of the Qualification Directive (2011/95/EU), 
recognised refugees and those with subsidiary protection are entitled to equal access 
to healthcare as the Member State’s own nationals.

Child victims of trafficking may suffer from serious physical or psychological trauma, 
depression or other mental health issues including post-traumatic stress disorders, 
as a result of past abusive experiences. This may be particularly the case for victims 
who were trafficked by a person they trusted.

Special consideration should be given to healthcare issues that are gender-specific 
or related to the type of exploitation experienced, such as:

 • reproductive health issues for girl victims;

 • voluntary testing and confidential counselling for transmittable diseases for chil-

dren trafficked for sexual exploitation;

 • drug and/or alcohol addiction.

The role of the guardian is to provide relevant information to children, to facilitate the 
child’s access to medical services and to provide support when important decisions 
need to be taken.

85

Checklist:  Possible actions by the guardian in relation to healthcare

 √ Ensure that child victims are provided with the necessary health card or 
other document which entitles the child to access healthcare services.

 √ Refer the child to the relevant medical service, make appointments, 
accompany the child, make sure that the child keeps track of his or 
her appointments and follow-up checks, and make sure that the child 
understands the information received.

 √ Alert the healthcare provider to the need to provide appropriate 

and child-friendly information to the child in a language he or she 
understands, when relevant.

 √ Give, or assist the child in giving, informed consent before exams are made 

or treatment is initiated when required by domestic law.

 √ Ensure that children do not undergo unnecessary medical examinations.

 √ Ensure that a specialist assesses the child’s psycho-social needs and, if 

necessary, initiates treatment.

 √ Request healthcare providers to pay particular attention to gender and 
cultural considerations, including, for example, by enabling girls to be 
seen by a female doctor if they prefer, or by ensuring that food during 
hospitalisation is culturally appropriate.

 √ Facilitate adequate interpretation services.

When children are victims of trafficking, particular consideration should be given to 
their need for psychological support and access to rehabilitation services. Guardians 
must ensure that the child receives appropriate care and treatment and has access 
to mental health services when required. Guardians should support the child during 
therapy, fully respecting medical ethical codes.

Children with disabilities require special protection (Article 23 of the CRC). Disability 
can be the result of exploitation and trafficking but can also be a risk factor for being 
trafficked. The particular situation of children with disabilities should be taken into 
consideration by guardians and all other actors involved in the identification and 
protection of victims. Victim support services and child protection services should 
ensure adequate support to children with disabilities. When appropriate, special-
ised assistance should be provided through cooperation with other specialised 
services and organisations.

86

Guardianship for children deprived of parental carePart II – Guardian’s tasks

6�6�  Education and training

The right to education for all children is provided for in Article 28 of the CRC. The 
EU Charter of Fundamental Rights in Article 14 also provides that everyone shall 
enjoy the right to education. For child victims of trafficking, Article 14 of the Anti-
Trafficking Directive (2011/36/EU) explicitly provides for access to education and so 
does the EU asylum acquis (Reception Conditions Directive (2013/33/EU), Article 14 
and Qualification Directive (2011/95/EU) Article 27). In respecting the right of a child to 
education, EU Member States should consider ensuring access for all children beyond 
the mandatory schooling age and beyond the provisions of compulsory education.

Access to vocational and continuing training should also be safeguarded for all 
children. FRA research has found that many children wanted training courses 
but often could not pursue them. Such training could be particularly useful for 
third-country nationals who may eventually return to their countries of origin.

Source: FRA (2010), Separated, asylum-seeking children in European Union Member States,  
Comparative report, available at: http://fra.europa.eu/sites/default/files/fra_uploads/1692-SEPAC- 
comparative-report_EN.pdf

School enrolment should take place following any necessary recovery period for 
the child and in consultation with the child. Children should have access to language 
courses, where appropriate.

Guardians should collect information on the child’s past educational experience, 
provide the child with appropriate information on available educational opportuni-
ties and programmes, and then develop, in consultation with the child, a personal 
educational plan. This specific plan should form part of the broader individual plan 
drawn up for the child.

The guardian should ensure that the child receives all necessary psychological and 
educational support for his or her integration into the school environment and to 
overcome any learning difficulties resulting from post-traumatic disorder or from a 
longer school absence.

87

Checklist: Possible actions by the guardian in relation to education

 √ Take all actions required for the child’s successful registration and 
enrolment in school or other educational institution, based on 
the education plan.

 √ Contact the school staff frequently and request information on the child’s 

progress and his or her behaviour at school.

 √ Attend school meetings and parent–teacher meetings.

 √ Discuss challenges and concerns with the child’s teachers.

 √ Consult the child on her or his educational plan and possible challenges 
that she or he faces and, when needed, arrange adequate support in 
cooperation with other entities, for example NGOs providing language 
courses or support classes.

7�  Facilitating child participation

The right of the child to be heard and have his or her views given due weight is 
enshrined in Article 12 of the CRC. Respect for the principle of the best interests of 
the child requires that authorities take the child’s views into consideration whenever 
they take decisions affecting the child.

As the person responsible for safeguarding the best interests of the child, the guardian 
must help the child participate in all decision-making processes affecting him or her, 
ensuring that the decision-making authorities respect the child’s right to be heard 
and that his or her views are given due weight.

When necessary, the guardian should speak on behalf of the child and communicate 
the child’s views. This requires that the guardian systematically consult with the child.

To help strengthen the child’s participation, the guardian should assist the child to 
form his or her own views by keeping him or her adequately informed of all relevant 
aspects, taking into consideration the child’s age and maturity.

How should the child be informed?

The guardian must keep the child informed of his or her rights and duties as well as 
on the proceedings in which the child might be involved. Furthermore, the guardian 
must provide appropriate direction and guidance in the exercise by the child of his 

88

Guardianship for children deprived of parental carePart II – Guardian’s tasks

or her rights under the CRC, including the right to be heard. This should be done in a 
manner consistent with the child’s developing capacities.

Promising practice

Enlisting cultural mediators

The Italian municipality of Naples introduced in 2007 a special registry of vol-
unteer tutors with different cultural and ethnic backgrounds to act as cultural 
and linguistic mediators. The use of cultural and linguistic mediators is a great 
support to the work of guardians and aids children’s social integration.

Source: FRA research (2013)

The guardian should speak to the child in a confidential setting (see also the intro-
duction to Part II).

To participate appropriately, the child must have received adequate information. 
That is a prerequisite to:

 • fulfilling  the  right  of  the  child  to  participate  fully  in  all  proceedings  and  deci-
sion-making processes and have his or her views heard and be given due weight;

 • ensuring that the child’s best interests are fully represented and respected;

 • promoting the child’s well-being;

 • creating a relationship of trust and mutual understanding and respect with the 

child.

Information should be provided in a child-friendly way. To be effective, it should 
be given in oral and/or written form, depending on what is most appropriate, and 
should be provided in a language that the child understands, taking into considera-
tion the child’s age, maturity and developing capacities. The guardian should make 
sure that the child understands and can recall the information provided. Gender 
and cultural considerations should also 
be taken into account when informing 
the child. The use of cultural media-
tors may be invaluable and should be 
encouraged where appropriate.

The UN Committee on the Rights of the Child in its 
General Comment No. 12 provides guidance on the 
effective implementation of the right of the child 
to be heard.

89

The EU Commission developed The EU rights of victims of trafficking in human beings, 
which  provides  an  overview  of  those  rights  based  on  the  Charter  of  Fundamental 
Rights of the European Union, EU directives, framework decisions and European Court 
of Human Rights case law. The 2013 publication is available in all EU languages.

For child victims of trafficking, the Anti-Trafficking Directive (2011/36/EU) and the 
Victims’ Directive (2012/29/EU) stipulate the victims’ right to information. The Victims’ 
Directive (2012/29/EU) in Article 4 (1) stipulates that all victims of crime are entitled 
to information, without unnecessary delay, from their first contact with the com-
petent authorities (such as the police or judicial authorities). Information should be 
provided in a language the victim understands, otherwise it is not effective (Victims’ 
Directive (2012/29/EU) Article 3 (1) and 3 (2)). EU law provides a comprehensive list of 
information that victims of crime, child victims of human trafficking included, should 
receive (Victims’ Directive (2012/29/EU) Article 4 (1)).

In the context of trafficking, guardians, as well as other professionals working with 
child victims, must fully respect the right of the child to be heard but should keep 
in mind that the child might be under the influence of the trafficker. It is necessary 
to gain an understanding of the extent to which the trafficker still controls the child 
psychologically or otherwise. In such cases, there might be a need for objective and 
expert advice that can place the child’s evidence in the appropriate context, to ensure 
the child’s safety and protection.

8�  Acting as a link between the child 

and others

To fulfil his or her tasks end ensure that the child’s legal, social, health, psychological, 
material and educational needs are appropriately covered, the guardian must act as a 
link between the child and the specialist agencies and individuals who are responsible 
for providing the continuum of care the child requires. It further requires him or her 
to respect, and argue for, the child’s right to be heard, and to facilitate the child’s 
participation in all decisions affecting the child.

The guardian replaces biological parents or other persons holding parental responsi-
bilities. He or she is the reference person for the child and the link between the child 
and specialists who provide care and assistance to the child. The guardian should 
facilitate the child’s contact and communication with other professionals as well as 

90

Guardianship for children deprived of parental carePart II – Guardian’s tasks

monitor their actions to ensure that the services they provide meet the child’s best 
interests. Figure 12 shows the types of actors the guardian should interact with.

Figure 12: The guardian acting as a link between various actors

Health services  

Other  

School/ 
education institutions  

Guardian 

Legal aid/ 
lawyer  

Migration/ 
asylum  
authorities 

Community 
services  

Residential care/  
accommodation 
facilities 

Child protection 
services  

Victim support 
services  

Police and 
judicial 
authorities  

Source: FRA, 2014

91

Promising practice

Identifying a durable solution: the guardian’s role  

Under Belgian law, the guardian submits to the authorities a written opin-
ion  on  a  durable  solution  in  the  best  interests  of  the  child.  He  or  she  also 
communicates any changes in the child’s situation that could have an effect 
on  the  durable  solution  to  the  Minors’  Bureau  of  the  Entry  and  Residence 
Directorate.

Migration  authorities  have  the  final  say  but  guardians  can  appeal  against 
their decision if they consider it to be contrary to the best interests of the 
child.

Sources: Belgium, Circular Letter of 15 September 2005, in force since 7 October 2005; Guardi-
anship Act of 24 December 2002, in force since 29 January 2004

9�  Helping identify a durable solution in the 

best interests of the child

This chapter deals with unaccompanied children who are outside their country of 
origin. In addition to addressing the child’s immediate needs, a long-term plan is 
necessary for every child under care. For unaccompanied children who are outside 
their country of origin, a longer-term plan means finding a ‘durable solution’ that 
will be in the best interests of the child. Examples of possible durable solutions are 
local integration in the receiving country, reintegration in the child’s country of origin 
and placement with family members in a third country. If children are outside their 
country of origin and their family members are still in the home country, a decision 
needs to be made whether return to the child’s parents or integration into the host 
society would be in the best interests of the child.

The Anti-Trafficking Directive (2011/36/EU) states (Recital 23) that:

“A decision on the future of each unaccompanied child victim should be taken 
within the shortest possible period of time with a view to finding durable 
solutions based on an individual assessment of the best interests of the child, 
which should be a primary consideration. A durable solution could be return and 
reintegration into the country of origin or the country of return, integration into 
the host society, granting of international protection status or granting of other 
status in accordance with national law of the Member States”.

92

Guardianship for children deprived of parental carePart II – Guardian’s tasks

Moreover, Article 14 (1) of the Anti-Trafficking Directive (2011/36/EU), in line with 
Articles 3 and 12 of the CRC, emphasises the principle of child participation and lays 
down that “with a view to finding a durable solution for the child respective authorities 
should take into account the child’s views, needs and concerns”.

A durable solution should ensure that the child’s rights are protected in the future. Such a 
solution should take into consideration the immediate needs of the child but also address 
developmental considerations. One key component is to ensure that the child is able to 
develop into adulthood in an environment in which his or her rights and needs as defined by 
the CRC are safeguarded and which protects him or her from serious harm and persecution. 
A decision or plan that merely provides for the child to be supported until the age of 18 is 
not a durable solution. Nor would it be appropriate to unduly delay a decision on the child’s 
right to international protection until he or she turns 18.

Durable solution decisions have a major 
impact on the child. The decision-making 
procedure  should,  therefore,  have 
the  appropriate  safeguards,  and  the 
decisions should be taken by a multi-
disciplinary team involving all relevant 
authorities and giving the child’s views 
due weight according to his or her age 
and maturity. Such a process entails the 
weighing of different factors as listed 
in  Chapter  5,  and  is  often  referred  to 
as a ‘best interests determination’. The 
reasons  behind  the  decision  must  be 
specified and the decision itself must be 
documented in the child’s personal file.

The guardian should actively contribute 
to the determination process, making 
sure  that  the  views  of  the  child  are 
adequately  heard  and  considered  in 
line with General Comment No. 14 of the 
Committee on the Rights of the Child.

When determining the best interests of 
the child, authorities should always seek 

Guidance  on  how  to  find  a  durable  solution  for 
an unaccompanied child who is outside his or her 
country  of  origin  can  be  found  in  UN  Committee 
on  the  Rights  of  the  Child  (2005),  General 
Comment  No.  6,  Treatment  of  unaccompanied 
and  separated  children  outside  their  country  of 
origin, paragraphs 79–94, 1 September 2005, CRC/
GC/2005/6,  available  at:  http://www.refworld.
org/docid/42dd174b4.html

Respecting  the  right  of  the  child  to  express  his 
or her own views and ensuring appropriate legal 
representation of the child are two key procedural 
safeguards  set  forth  in  General  Comment  No.  14 
(2013) for the best interest assessment and deter-
mination process. It states that “a vital element of 
the process is communicating with children to fa-
cilitate meaningful child participation and identify 
their  best  interests.  Such  communication  should 
include informing children about the process and 
possible  sustainable  solutions  and  services,  as 
well  as  collecting  information  from  children  and 
seeking their views” (Article 3, paragraph 1).

Source: UN Committee on the Rights of the Child (2013), 
General Comment No. 14, on the right of the child 
to have his or her best interests taken as a primary 
consideration, available at: http://www2.ohchr.org/
English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf

93

the views and the opinion of the guardian to ensure both respect for the best interests 
principle and proper representation of the child’s views in the process of identifying 
a durable solution. The guardian’s position and role in such proceedings should be 
reinforced by reflecting it in national legislation or official guidelines, which should 
establish the right and duty of the guardian to submit a written report on the matter.

9�1�  Repatriation and return

The UNHCR guidelines on determining the child’s 
best  interests  (2008)  and  the  field  handbook  for 
implementing  these  guidelines  (2011)  provide 
comprehensive  guidance  to  responsible  authori-
ties and practitioners involved in decision making. 
They explain how to apply the best interests’ prin-
ciple in practice, when identifying and implement-
ing durable solutions for unaccompanied children.

Return of the child to the country of 
origin should in principle be arranged 
only if it is in the best interests of the 
child. It must be in accordance with the 
principle  of  non-refoulement,  which 
prohibits return to torture, persecution 
or other serious harm.

Sources: UNHCR (2008), UNHCR guidelines on determining 
the best interests of the child, May 2008, available at: 
www.refworld.org/docid/48480c342.html; UNHCR and 
International Rescue Committee (IMC) (2011), Field hand-
book for the implementation of UNHCR BID guidelines, 
available at: www.refworld.org/pdfid/4e4a57d02.pdf

T h e   A n t i -Tr a f f i c k i n g   D i r e c t i v e 
(2011/36/EU)  states  that,  if  a  victim 
has been trafficked outside his or her 
country of origin, return might be one 
of the possible options, but not the only 
one (Recital 23). Article 16 (2) of the Directive provides that Member States “shall 
take the necessary measures with a view to finding a durable solution based on an 
individual assessment of the best interests of the child”. The Anti-Trafficking Strategy 
further notes in Priority A, Action 3, ‘Protection of child victims of trafficking’, that 
Member States “should ensure where return is deemed to be in the child’s best 
interest, the safe and sustainable return of children to the country of origin, in and 
outside the EU, and prevent them from being re-trafficked”.

The Committee on the Rights of the Child lists spe-
cific criteria that should always be taken into consid-
eration  in  procedures  determining  the  child’s  best 
interests when assessing possibilities of return.

Article 10 of the Return Directive (2008/115/EC) requires that, “before deciding to 
issue a return decision in respect of an unaccompanied child, assistance by appro-
priate bodies other than the authori-
ties enforcing return shall be granted 
with due consideration being given to 
the best interests of the child.” It also 
requires that an unaccompanied child 
be returned to a member of his or her 
family, given a nominated guardian or 
sent to adequate reception facilities.

Source: UN Committee on the Rights of the Child, 
General Comment No. 6, Treatment of unaccompanied 
and separated children outside their country of origin, 
1 September 2005, CRC/GC/2005/6, paragraph 84

94

Guardianship for children deprived of parental carePart II – Guardian’s tasks

Generally, the interests of an unaccompanied child are best met when the child can 
return to his or her family. However, safety considerations, including the risk of being 
trafficked again, may outweigh the benefits of family reunification. To determine 
if family reunification is in the best interests of the child, different factors must be 
assessed and balanced, including the child’s views. The factors to balance are the 
same as those listed in Chapter 5 on assessing best interests.

When, following due process, family reunification in the country of origin has been 
considered to be in the best interests of the child, the guardian shall assist the vol-
untary return process. After having obtained the child’s consent, the guardian may 
establish direct contact with the child’s family members as well as with relevant 
entities both in the receiving country as well as in the country of origin, to prepare 
for the child’s return.

Only  a  few  EU  Member  States  specify  a  role  under  law  for  the  guardian  in 
identifying  a  durable  solution.  In  most  Member  States,  however,  guardians, 
acting as legal representatives of the child, have the right to appeal against a 
return decision, when they deem it not to be in the best interests of the child.

Source: FRA, 2014, Child victims of trafficking: overview of guardianship systems in the European Union  
(forthcoming)

The guardian should be a first point of contact for authorities intending to issue a 
return decision to an unaccompanied child. They should contact and consult with 
the guardian, and give due consideration to his or her views on what is in the best 
interests of the child. To determine whether or not return is in the best interests of a 
child, good practice includes undertaking a best interests determination as described 
above. The guardian could trigger the process by requesting competent national 
authorities to obtain and examine information from the child’s country of origin. 

It is also important to ensure that the competent authorities conduct a family and 
social assessment as a precondition for taking an informed decision on whether or 
not repatriation and family reunification would be in the child’s best interests.

95

Checklist:  Possible actions by the guardian in 

relation to repatriation

 √ Approach the authorities taking a return decision and ask to be consulted.

 √ Share conclusions on whether or not return is in the best interests of the 
child and request that due consideration be given to his or her views.

 √ Advocate that a child be returned to his or her country of origin only when 

it is in the child’s best interests.

 √ Advocate for voluntary over forced return, and request time to prepare the 

child if return is considered to be in his or her best interests.

 √ Request that no return decision be issued until the guardian’s and the 

child’s views are considered.

 √ If the authorities issue a return decision against the views of the guardian, 
request written explanations of why other considerations outweighed the 
best interests of the child.

 √ Request that a removal be suspended, if no authorities other than those 

enforcing return have been involved before taking a return decision. in line 
with Article 10 of the Return Directive (2008/115/EC).

 √ If the child is being returned but not to family members, discourage return 
until preparations for secure and concrete arrangements for care and 
custodial responsibilities are completed.

 √ Oversee the preparation and monitoring of an individual reintegration plan 

before and after the return.

 √ Provide information to the child on the situation in the country of origin 

upon his or her return and prepare the child for return.

 √ When it is considered necessary, and in consultation with the child, 

accompany the child during his or her return or make sure that other 
persons of trust will do so and that they meet with the family upon arrival.

 √ Promote the creation of a mechanism for monitoring and the provision of 

feedback on the child’s post-return situation.

 √ Cooperate with international organisations, such as the International 

Organization for Migration or other institutions that implement voluntary 
return and reintegration programmes.

96

Guardianship for children deprived of parental carePart II – Guardian’s tasks

9�2� 

Integration in the receiving country

Another possible durable solution in the best interests of the child could be his or 
her integration into the receiving country, where he or she will not be at risk of 
abuse and exploitation.

Such a solution must include a safe pathway from childhood to adulthood. When 
integration is found to be in the child’s best interests, the child should be issued a 
stable residence permit. When he or she turns 18, and is therefore no longer entitled 
to support and accommodation or leave to remain in the state of destination, this 
permit will also ensure the child’s protection from prolonged detention, going missing 
or being vulnerable to trafficking networks.

Merely allowing a child to remain in a particular country until the age of 18 is not a 
meaningful or durable solution. It does not address the future needs of the child or 
take a long-term perspective. It does not ensure that the child’s rights are protected 
in the foreseeable future.

When integration in the receiving country is in the best interests of the child, guardians 
should insist that the child’s long-term needs be addressed. This will require the 
competent authorities to ensure that the child has a residence status in the country 
that allows him or her to stay lawfully after reaching the age of majority.

The guardian should support the child in his or her path from childhood to adulthood 
and prepare him or her for an independent life (Figure 13; see also Section 4.2).

The guardian should provide adequate and honest information and must make the 
child aware of changes in residence status, rights and obligations, and protection 
entitlements when relevant.

The guardian should refer the child or young adult to social welfare services, create 
links with community services and in general assist the child in creating a social safety 
net that could support him or her and ensure a smooth transition to independent life.

97

Figure 13: Preparing the child to pass from childhood to adulthood

Source: FRA, 2014

“Where a minor involved in the implementation of 
his or her life project attains the age of majority and 
where  he  or  she  shows  a  serious  commitment  to 
their educational or vocational career and a deter-
mination to integrate in the host country, he or she 
should be issued with a temporary residence permit 
in order to complete the life project and for the time 
necessary to do so.”

Source: Council of Europe, Committee of Ministers (2007),  
Recommendation CM/Rec(2007)9 of the Committee of 
Ministers to member states on life projects for unaccompanied 
migrant minors, 12 July 2007, paragraph 26, available at:  
http://www.coe.int/t/democracy/migration/
ressources/recommendations-resolutions_en.asp

When integration into the host society is 
in the child’s best interests, the guardian 
should fully support that process, giving 
particular consideration to such issues 
as: education opportunities, language 
and vocational training courses avail-
able,  healthcare  provision  and  reha-
bilitation services, social contacts and 
bonds with the local community.

The guardian should develop an indi-
vidual  care  plan  in  cooperation  with 
the child, aiming to support the child in 
developing his or her capacities and allowing him or her to acquire and strengthen 
the skills necessary to become independent, responsible and active in society. The 
concept of ‘life projects’, promoted by the Council of Europe, provides useful guidance 
in that regard. Life projects pursue the social integration of children, their personal 

98

Guardianship for children deprived of parental careBefore  guardainship ends   Prepare the child for independent life/provide sufﬁcient information about changes, challenges and support services        Ensure continuous access to victim support services (in cases of child victims):• rehabilitation services• psychological treatment   and medical assistance• legal representation   and free legal   assistance      Orientation to welfare system/referral to social services  Orientation/referral to community services     End of guardianship  Turning 18 years old Part II – Guardian’s tasks

and cultural development and their needs in relation to housing, health, education 
and vocational training and employment.

The short- and long-term health consequences of violence against children and child 
maltreatment should not be underestimated. Child victims of trafficking and of other 
forms of violence and abuse are particularly vulnerable. This should be taken into 
consideration and guardians should ensure that the children have access to adequate 
support and rehabilitation services.

The guardian should provide adequate and honest information and support the child 
in growing out of care. In that regard, the guardian should advocate for young adults’ 
continued special assistance and support when appropriate, under the same condi-
tions applied to young adults who are nationals of the receiving country.

10� Exercising legal representation and 

supporting the child in legal procedures
Children deprived of parental care may be involved in different legal procedures. 
This chapter describes the most common (other than return procedures, which are 
described in Section 9.1). The guardian has a role to play in these procedures, regard-
less of whether the child has been assigned a specific legal representative.

In general terms, the guardian must:

• 

inform the child of his or her right to legal advice and representation;

 • ensure that a legal representative be appointed and free legal advice provided 

whenever the child is entitled to it;

 • monitor the work of professionals providing legal assistance and representation;

 • facilitate communication between the child and such professionals when neces-
sary, including by taking steps to organise the presence of a qualified interpreter;

 • where necessary, accompany the child and actively participate in interviews and 

hearings with the child.

In addition to such general tasks, the guardian may also play a more specific role 
which depends on the type of procedure and the individual child’s situation. The 
following sections describe the tasks of the guardian in particular administrative, 
civil and criminal procedures (Figure 14).

99

Figure 14:  Exercising legal representation, supporting the child in legal 

procedures and ensuring access to legal assistance and counselling

Source: FRA, 2014

10�1�  Age assessment procedures

The Anti-Trafficking Directive (2011/36/EU), in Article 13 (2), sets forth the presumption 
of childhood, whereby “Member States shall ensure that, where the age of a person 
subject to trafficking in human beings 
is uncertain and there are reasons to 
believe that the person is a child, that 
person is presumed to be a child in order 
to receive immediate access to assis-
tance, support and protection”.

EASO  notes  that  there  is  currently  no  method  to 
identify  an  individual’s  exact  age.  Age  assessment 
methods should be respectful of individuals and their 
human  dignity;  there  are  concerns  about  the  inva-
siveness and accuracy of certain methods in use. The 
consequences of age assessments are serious, since 
they could result in a child being treated as an adult, 
or an adult as a child. EASO further recommends that 
a  guardian  or  a  legal  representative  should  be  ap-
pointed prior to age assessment procedures. 

Traffickers may have provided victims 
with  false  documents  or  may  have 
instructed child victims to state that 
they are adults or, conversely, told adult 
victims to say that they are children. 
Immigration or judicial authorities may 

Source: European Asylum Support Office (2014), EASO age  
assessment practice in Europe, available at: http://easo. 
europa.eu/wp-content/uploads/EASO-Age-assessment- 
practice-in-Europe.pdf

100

Guardianship for children deprived of parental careEExxeerrcciissiinngg  lleeggaall  rreepprreesseennttaattiioonn,,                  ssuuppppoorrttiinngg  tthhee  cchhiilldd    iinn  lleeggaall  pprroocceedduurreess    aanndd  eennssuurriinngg  aacccceessss    ttoo  lleeggaall  aassssiissttaannccee  aanndd  ccoouunnsseelllliinngg   10.1. Age assessment procedures 10.2. Procedures for residence permits  10.3. International protection procedures 10.4. Compensation and restitution   10.5. Civil law procedures  10.6. Criminal procedures 10.7. Police investigations    Part II – Guardian’s tasks

request that an age assessment be carried out. Authorities should initiate an age 
assessment determination process, not only when they dispute the age of the person 
concerned but also when there are reasons to believe that a person presenting him- or 
herself as an adult may be a child victim.

EU asylum law contains certain provisions in relation to the age assessment proce-
dure of unaccompanied children. Article 25 (5) of the Asylum Procedures Directive 
lays down that the person concerned should be given the benefit of the doubt. The 
consent of the child and/or his/her representative’s consent to the age assessment 
procedure is a prerequisite (Article 25 (5) (b) of the Asylum Procedures Directive).

Before the age assessment procedure begins, the person who carries out a guardian’s 
tasks should be assigned to the individual claiming to be a child. Depending on the 
circumstances, this person may exercise these tasks only temporarily or be a more 
permanent guardian. The person should prepare the child for the assessment and 
should accompany and support the child throughout the entire process.

Checklist:  Possible actions by the guardian in relation 

to age assessment

 √ Check that there is a legitimate reason for the age assessment and 
request that children who are clearly underage not be subjected to 
such an assessment.

 √ Ensure that the child receives all relevant information about the age 

assessment procedure, including clear information about its purpose, the 
process and possible consequences; the information should be provided in 
a child-friendly manner and in a language the child understands.

 √ Ensure that the age assessment is conducted with the informed consent of 

the child and the guardian.

 √ Check that independent professionals with appropriate expertise who are 
familiar with the child’s ethnic and cultural background undertake the age 
assessment and conduct it in a safe, child- and gender-sensitive manner 
with due respect for the child’s dignity.

 √ In case doubt remains about the child’s age after the age assessment is 

completed, insist that a person be considered a child.

 √ Ensure that the outcome of the procedure is explained to the child in a 

child-friendly manner and in a language he or she understands.

101

 √ Request that the results of the assessment procedure be shared with the 

guardian and include these in the child’s file.

 √ Review with the child the possibility of an appeal against the age assessment 

decision, in accordance with national legislation.

 √ With the child’s agreement, be present during the age assessment procedure.

10�2�  Procedures for residence permits

All child victims of trafficking without the right to stay in the host country do have 
the right to a reflection period during which they cannot be removed, according 
to Article 6 of the Trafficking Victims (Residence Permits) Directive (2004/81/EC) 
and Article 13 of the Council of Europe Convention against Trafficking. All victims of 
trafficking are, unconditionally and irrespective of their residence status, entitled 
to this reflection period, which is designed to allow them time to recover, escape 
the influence of traffickers and take an informed decision on what to do, including 
whether or not to cooperate with the authorities in charge of prosecuting traffickers 
(see also Anti-Trafficking Directive (2011/36/EU), Recital 18).

The Trafficking Victims (Residence Permits) Directive (2004/81/EC) applies to all 
third-country nationals, although its application can be restricted to adults, as a 
few Member States have done. When applying the directive to children, Member 
States must respect the best interests of the child and, in the case of third-country 
nationals who are unaccompanied children, take, among other actions, “the necessary 
steps immediately to ensure legal representation, including representation in criminal 
proceedings, if necessary, in compliance with national law” (Article 10 (c)).

Article 8 of the Trafficking Victims (Residence Permits) Directive (2004/81/EC) requires 
EU Member States to issue a residence permit to victims of trafficking who cooperate 
with authorities, provided certain conditions are fulfilled. The permit must be valid for 
at least six months and be renewable. Article 14 of the Council of Europe Convention 
against Trafficking provides that the competent authority can issue renewable res-
idence permits to victims if it believes the victim’s stay is necessary owing to their 
personal situation or for the purposes of criminal investigation. For child victims, it 
provides that the residence permit be issued in accordance with the best interests of 
the child and, where appropriate, renewed under the same conditions (Article 14 (2)). 
Domestic law may also provide other avenues for issuing a residence permit to a child 
victim of trafficking.

102

Guardianship for children deprived of parental carePart II – Guardian’s tasks

Decisions on granting a reflection period or issuing a residence permit are normally 
taken by the immigration authorities often in consultation with the judiciary and/
or authorities responsible for social affairs. The guardian should intervene with the 
immigration authorities, requesting that a permit be issued, when this is provided 
for in domestic law, and support the child in this regard.

Checklist:  Possible actions by the guardian in relation 

to residence permits

 √ Inform the child about his or her residence status and about existing 

options to regularise his or her stay.

 √ Check that the child victim has been adequately informed in a child-friendly 
manner, and in a language that he or she understands, about his or her 
right to a reflection period and of the possibility of a residence permit 
based on his or her status as a victim under EU and national law.

 √ Request that a legal representative be assigned to the child to advise 

and support the child and the guardian with expert advice on the legal 
procedures and issues involved and represent the child, when provided for 
in national law.

 √ Apply for the reflection period and/or residence permit on behalf of the 

child, assisted by a legal representative if necessary.

 √ Accompany the child and be present during the child’s interview with the 
immigration authorities to safeguard the child’s best interests and ensure 
that the child’s views are heard and given due weight.

 √ Throughout the process, help ensure the child has access to appropriate 

translation and interpretation services.

10�3�  International protection procedures

Although not all victims of trafficking 
are in need of international protection, 
some victims may qualify for refugee 
or subsidiary protection status under 
the Qualification Directive (2011/95/EU).

The legal representative required by the 
EU asylum acquis is a person who car-
ries out one of the tasks of a guardian 

UNHCR has issued guidelines on the application of Ar-
ticle 1A(2) of the 1951 Convention and/or the 1967 Pro-
tocol  relating  to  the  status  of  refugees  to  victims  of 
trafficking and persons at risk of being trafficked.

Source: UNHCR, Guidelines on International Protection 
No. 7: The application of Article 1A(2) of the 1951 Con-
vention and/or 1967 Protocol relating to the status of 
refugees to victims of trafficking and persons at risk of 
being trafficked, 7 April 2006, HCR/GIP/06/07, avail-
able at: www.refworld.org/docid/443679fa4.html

103

as described in this handbook, namely legal representation. Preferably, this should 
be done by the child’s guardian, if there is one, as he or she is typically most familiar 
with the child’s situation. Given the complexity of asylum procedures, the guardian 
should request the support of an asylum law specialist, based on the domestic law 
procedures for legal aid in asylum cases.

Article 25 of the Asylum Procedures Directive (2013/32/EU) requires that a child 
be represented in asylum procedures and includes a general description of such 
a representative’s tasks.

Checklist:  Possible actions by the guardian or, in his or her absence, 
by the legal representative in relation to asylum

 √ Inform the child about his or her right to seek asylum.

 √ Submit an asylum application on behalf of the child, or assist the child in 

submitting an application, if this is in the child’s best interests.

 √ Seek the support of a qualified asylum lawyer, unless one has already been 

appointed, and keep track of the lawyer’s actions, where appropriate.

 √ Facilitate communication between the child and the lawyer.

 √ Request that the child be provided with all relevant information on the 
asylum procedure and on his or her tasks and duties in a child-friendly 
and age-appropriate way.

 √ Request safe reception arrangements for the victim, which take into 

account the child’s specific needs, including an exemption from mandatory 
places of accommodation when this would put the child’s safety at risk.

 √ Accompany the child to the asylum interviews and support the 

lawyer, if necessary.

 √ Support and prepare the child, emotionally and psychologically, for the 
asylum interview(s) and make referral for any additional psychological 
counselling after the interview if necessary.

 √ Make sure that the child is given the opportunity to be heard and that his 
or her opinion and views are given due weight, and represent and argue 
for the child’s best interests.

 √ Ensure that the child is provided with appropriate translations and has 

access to free interpretation services, when necessary.

 √ Ensure that an appeal against a negative asylum decision is submitted 

when it is in the best interests of the child, with a lawyer’s expert support.

104

Guardianship for children deprived of parental carePart II – Guardian’s tasks

 √ Discuss the asylum decision with the child, explaining its relevance for the 
child’s future; when required, revise the child’s individual plan accordingly 
in consultation with the child. Ensure continuity of procedures when the 
child turns 18.

Additional considerations for Dublin procedures

The EU asylum acquis provides for a mechanism, usually referred to as the Dublin 
procedure, to determine which EU Member State is responsible for examining an 
application for international protection. 

Article 6 of the Dublin Regulation (Regulation (EU) No. 604/2013), which deals with 
children, requires that primary consideration be given to the best interests of the 
child. Unaccompanied children must be assisted by a representative who has the 
necessary qualifications and expertise to promote those best interests at each step 
of the Dublin procedure. 

Checklist:  Additional possible actions by the guardian or, in his or  

her absence, by the legal representative in relation 
to Dublin procedures

 √ Review the relevant documents contained in the child’s asylum file.

 √ Check to ensure that the asylum authorities are respecting all Dublin 

Regulation safeguards to protect unaccompanied children.

 √ Advocate for decisions guided by considerations relating to family unity, 

the child’s well-being and social development and the child’s safety as well 
as by the views of the child.

 √ Ensure that the child is appropriately informed and facilitate  

child participation.

 √ Facilitate contacts with family members, when requested by the child.

 √ Advocate against deprivation of liberty and request reception 

arrangements which are safe and take into account the specific needs 
of the child.

 √ Advocate for transfers to other EU Member States to be carried out in 
a child-friendly manner and accompany the child when circumstances 
require or advocate for a transfer taking place only when this is in the best 
interests of the child.

105

10�4� Compensation and restitution

Article 17 of the Anti-Trafficking Directive (2011/36/EU) requires that victims of 
trafficking have access to existing schemes of compensation for victims of vio-
lent crimes. Article 15 (2) of the same directive provides for child victims’ access 
without delay to free legal counselling and to free legal representation, including for 
the purpose of claiming compensation. In addition, Article 4 (1) (e) of the Victims’ 
Directive (2012/29/EU) provides that victims have the right to receive information, 
from the first contact with the competent authority, about their right to receive 
compensation and how and under what conditions they can access compensation.

Checklist:  Possible actions by the guardian in relation 

to compensation claims

 √ Provide information to the child on his or her right to claim compensation.

 √ Ensure that the child receives legal counselling and advice on the possibility 
of claiming compensation and on the particular legal procedures required 
by national law.

 √ If the child lodges a compensation claim, assist the child throughout the 
process, including collecting required documentation and requesting 
assistance from a qualified lawyer.

 √ Administer the compensation amounts the child receives.

 √ Ensure continuity of procedures if the child turns 18 during them.

10�5�  Civil law procedures

In cases of child abuse and exploitation, including child trafficking, civil law procedures 
may be initiated if a parental assessment indicates that one or both parents are involved in 
the child’s abuse and/or trafficking. Such procedures will decide if parents should be pre-
cluded from exercising their parental rights and the appointment of a guardian is needed.

Furthermore, if a child is deprived of the parental environment, when return or family 
reunification is not an option or has been found not to be in the child’s best interests, 
relevant child protection authorities might initiate civil law procedures to place the 
child in residential institutions or with foster families, to support integration or to 
prevent risks. The guardian should participate fully and represent the child’s best 
interests in such proceedings, ensuring that decisions are made in the best interests 
of the child and that the child’s views are taken into consideration and given due 
weight in line with the child’s age and maturity.

106

Guardianship for children deprived of parental carePart II – Guardian’s tasks

Checklist:  Possible actions by the guardian and/or the legal 

representative in the context of civil law procedures

 √ Inform the child about the procedures and the decision-making process.

 √ Inform the child about available options and explain to the child the 

possible outcomes of the proceedings.

 √ Ensure that the child has access to legal assistance.

 √ Ensure that the child is given the opportunity to exercise his or her rights to 

be heard and that due weight is given to his or her views.

 √ Prepare the child for the hearings and interviews with the relevant 
authorities and support him or her throughout the proceedings.

 √ Promote the child’s best interests in the decision-making process.

 √ In all cases, ensure that the child’s best interests are the paramount 

consideration, that all procedural safeguards were respected and that the 
child’s consent was sought.

 √ Be present at periodic reviews of placement processes.

10�6�  Criminal proceedings

The Victims’ Directive (2012/29/EU) contains a number of provisions for the protection 
of victims of crimes (see in particular Article 24). Protection safeguards for children 
involved in criminal proceedings are also provided in the Directive on combating the 
sexual abuse and sexual exploitation of children and child pornography (2011/93/EU). 
Both directives reflect standards set forth in the Council of Europe Guidelines on 
child-friendly justice (2010).

Trafficking in human beings is a serious 
criminal  offence.  Accordingly,  the  Anti-
Trafficking  Directive  (2011/36/EU)  sets 
forth a series of beneficial provisions for 
the  protection  of  victims  before,  during 
and after criminal proceedings. Child vic-
tims  of  trafficking  might  be  involved  in 
criminal proceedings. The guardian must 
be  prepared  to  support  the  child  in  this 
regard. The directive contains specific safe-
guards for victims of trafficking in criminal 
investigation and proceedings in general 

In 2010, the Council of Europe adopted Guidelines 
on child-friendly justice intended to enhance chil-
dren’s access to and treatment in the justice sys-
tem. The issues covered include information, rep-
resentation and participation rights, protection of 
privacy,  safety,  a  multidisciplinary  approach  and 
training,  safeguards  at  all  stages  of  proceedings 
and deprivation of liberty.

Council of Europe Guidelines on child friendly justice 
adopted by the Committee of Ministers of the Council  
of Europe on 17 November 2010, available at:  
http://www.coe.int/en/web/children/child-friendly-justice

107

(Article 12) and of child victims in particular (Article 15). Furthermore, Article 8 of 
the Anti-Trafficking Directive (2011/36/EU) sets out the principle of non-punishment 
of victims, whereby:

“Member States shall, in accordance with the basic principles of their legal 
systems, take the necessary measures to ensure that competent national 
authorities are entitled not to prosecute or impose penalties on victims of 
trafficking in human beings for their involvement in criminal activities which 
they have been compelled to commit as a direct consequence of being 
subjected to trafficking.”

Such  provisions  are  particularly  relevant  for  child  victims  trafficked  for  use 
in criminal activities.

Normally, the criminal justice system assigns the child victim a lawyer to provide 
him or her with legal advice and assistance. It is the guardian’s task to ensure that 
the child has access to legal assistance, in accordance with national legal provi-
sions. If no lawyer is appointed, the guardian should ask the competent authorities 
to appoint one.

The guardian should, in close cooperation with the lawyer assigned to the child, argue 
for the child benefitting fully from the provisions set forth in the Anti-Trafficking 
Directive (2011/36/EU) and/or in domestic law and insist that the rights of the child as 
a victim, and as witness in criminal proceedings against the trafficker, be protected.

In criminal proceedings, the role of the guardian is mainly to support the child, as the 
lawyer will provide the core legal assistance.

Checklist:  Possible actions by the guardian in relation 

to criminal proceedings

 √ Ensure that the child has access to appropriate legal assistance: that a 

qualified lawyer is appointed without undue delay to provide legal advice 
and represent the child as required by national law.

 √ Help the child take an informed decision regarding participation and 

cooperation in criminal proceedings: make sure that the child victim is 
informed of security and safety issues and the risks involved, and has a 
clear understanding of them, before deciding whether or not to participate 
and testify in criminal proceedings against the suspected traffickers.

108

Guardianship for children deprived of parental carePart II – Guardian’s tasks

 √ Make sure that the child is fully aware of which entitlements to assistance 
and protection are conditional on his or her willingness to participate in 
criminal proceedings and which are not, and that he or she has the right to 
review cooperation with the justice system in the future.

 √ Encourage the child victim to make full use of the reflection period before 

deciding on the matter, if this is in the best interests of the child.

 √ Support the child to understand any communications received, including 

communications from the legal representative.

 √ Accompany the child and attend all interviews and hearings with 

him or her.

 √ Prepare the child emotionally and psychologically before interviews and 
hearings and make sure that he or she has a proper understanding of the 
proceedings and the outcome.

 √ Discuss with the child the outcome of the proceedings and court decisions 
and explain its relevance to the child’s particular situation and the future 
options and steps available.

 √ Ensure, in cooperation with the person providing legal assistance to the 
child, that the child is not prosecuted and/or penalties are not applied 
for criminal activities consequent upon the exploitation of the child, as 
stipulated in Article 8 of the Anti-Trafficking Directive (2011/36/EU).

Overall, the guardian should promote 
the  best  interests  of  the  child  as  a 
primary consideration throughout the 
proceedings,  and  protect  the  child’s 
rights, to prevent secondary victimisa-
tion. To this end, the guardian should 
collaborate with the legal represent-
ative  so  that  full  use  is  made  of  all 
existing procedural safeguards.

“The guardian should have the right to refuse to 
give testimony about the child if he/she is called 
on to do so. Guardians should also be guided by 
the  principle  that  they  must  ‘do  no  harm’  to  the 
child  for  whom  they  are  responsible,  either  by 
their actions or by any decisions they are involved 
in taking on the child’s behalf. It is important that 
police  and  prosecution  services  are  aware  of 
these  stipulations  and  understand  that  they  are 
not entitled to put a guardian under any pressure 
to take any action which the guardian considers to 
be against the best interest of the child”.

Source: UNICEF (2008), Reference guide on protecting  
the rights of the child victims of trafficking in Europe,  
Geneva, p. 54, available at: www.unicef.org/ceecis/ 
UNICEF_Child_Trafficking_low.pdf

109

10�7�  Police investigations

On all occasions and whenever a child is in contact 
with  the  law  and  is  involved  in  judicial  systems, 
including police investigations, EU Member States 
are  encouraged  to  apply  the  Guidelines  of  the 
Committee  of  Ministers  of  the  Council  of  Europe 
on child-friendly justice (2010).

Police investigation activities involving 
children, such as interrogations, hear-
ings or searches, should not take place 
until the child has a guardian (even if 
temporary) and a lawyer or other qual-
ified legal professional (when provided 
for by law). The same should apply to 
judicial investigation activities.

110

Guardianship for children deprived of parental careAnnex 1: Legal sources

EU Charter of  
Fundamental Rights 
Reception Conditions  
Directive  
(2013/33/EU)
Asylum Procedures 
Directive  
(2013/32/EU)
Dublin Regulation 
(EU) No. 604/2013

Victims’ Directive 
(2012/29/EU)

Qualification Direc-
tive (2011/95/EU)

Directive on combat-
ing the sexual abuse 
and sexual exploita-
tion of children and 
child pornography 
(2011/93/EU)
Anti-Trafficking 
Directive  
(2011/36/EU)

Return Directive 
(2008/115/EC)

Brussels II 
Regulation

Directive on Resi-
dence Permits for 
Victims of  
Trafficking  
(2004/81/EC)

EU instruments

Charter of Fundamental Rights of the European Union, OJ 2000 C 364, 
Vol. 43, 18 December 2000
Directive 2013/33/EU of the European Parliament and of the Council of 
26 June 2013 laying down standards for the reception of applicants for inter-
national protection, OJ 2013 L 180, pp. 96–116
Directive 2013/32/EU of the European Parliament and of the Council of 
26 June 2013 on common procedures for granting and withdrawing  
international protection, OJ 2013 L 180, pp. 60–95
Regulation (EU) No. 604/2013 of the European Parliament and of the  
Council of 26 June 2013 establishing the criteria and mechanisms for  
determining the Member State responsible for examining an application for 
international protection lodged in one of the Member States by a third-country 
national or a stateless person, OJ L 180, 29 June 2013, pp. 31–59
Directive 2012/29/EU of the European Parliament and of the Council of 
25 October 2012 establishing minimum standards on the rights, support  
and protection of victims of crime, and replacing Council Framework  
Decision 2001/220/JHA, OJ 2012 L 315, pp. 57–73
Directive 2011/95/EU of the European Parliament and of the Council of  
13 December 2011 on standards for the qualification of third-country nation-
als or stateless persons as beneficiaries of international protection, for a 
uniform status for refugees or for persons eligible for subsidiary protection, 
and for the content of the protection granted, OJ 2011 L 337, pp. 9–26
Directive 2011/92/EU of the European Parliament and of the Council of  
13 December 2011 on combating the sexual abuse and sexual exploitation  
of children and child pornography, and replacing Council Framework  
Decision 2004/68/JHA, OJ 2011 L 335, pp. 1–14

Directive 2011/36/EU of the European Parliament and of the Council of 
5 April 2011 on preventing and combating trafficking in human beings  
and protecting its victims, and replacing Council Framework  
Decision 2002/629/JHA, OJ 2011 L 101, pp. 1–11
Directive  008/115/EC of the European Parliament and of the Council of 
16 December 2008 on common standards and procedures in Member 
States for returning illegally staying third-country nationals, OJ 2008 L 348, 
pp. 98–107
The Council Regulation (EC) No. 2116/2004 of 2 December 2004 amending Reg-
ulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and 
the recognition and enforcement of judgments in matrimonial matters and the 
matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, as 
regards treaties with the Holy See, OJ 2004 L 367, 14 December  2004, pp. 1-2
Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued 
to third-country nationals who are victims of trafficking in human beings or 
who have been the subject of an action to facilitate illegal immigration, who 
cooperate with the competent authorities, OJ 2004 L 261, pp. 19–23

111

Directive 2004/38/EC of the European Parliament and of the Council of 
29 April 2004 on the right of citizens of the Union and their family members to 
move and reside freely within the territory of the Member States amending 
Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC,  
72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 
93/96/EEC (Text with EEA relevance), OJ 2004 L 158, pp. 77–123

International instruments

UN Convention on the Rights of the Child, United Nations, New York,  
20 November 1989, Treaty Series, Vol. 1577, p. 3

Council of Europe Convention on Action against Trafficking in Human Beings, 
Warsaw, 2005

1951 Refugee Convention, United Nations, Treaty Series, Vol. 189, p. 137

Convention of 29 May 1993 on Protection of Children and  
Co-operation in Respect of Intercountry Adoption
Convention of 19 October 1996 on jurisdiction, applicable law, recognition, 
enforcement and co-operation in respect of parental responsibility and 
measures for the protection of children

Other non-binding legal sources 

United Nations Committee on the Rights of the Child, General Comment 
No. 6, Treatment of unaccompanied and separated children outside their 
country of origin, 1 September 2005, CRC/GC/2005/6
United Nations Committee on the Rights of the Child, General Comment No. 12, 
The right of the child to be heard, 1 July 2009, CRC/C/GC/12
United Nations Committee on the Rights of the Child, General Com-
ment No. 13, The right of the child to freedom from all forms of violence, 
18 April 2011, CRC/C/GC/13
United Nations Committee on the Rights of the Child, General Comment No. 14 
(2013) on the right of the child to have his or her best interests taken as a 
primary consideration, 29 May 2013, CRC/C/GC/14
General Assembly, Resolution 64/142, Guidelines for the  
alternative care of children, 24 February 2010, A/RES/64/142

Council of Europe, Guidelines of the Committee of Ministers of the Council 
of Europe on child-friendly justice, adopted by the Committee of Ministers 
on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies) – 
edited version 31 May 2011
Council of Europe, Committee of Ministers, Recommendation  
CM/Rec(2007)9 of the Committee of Ministers to member states on life 
projects for unaccompanied migrant minors, 12 July 2007

Free Movement  
Directive  
(2004/38/EC)

UN Convention on 
the Rights of the 
Child, United Nations
Council of Europe 
Convention against 
Trafficking
1951 Convention  
relating to the Status 
of Refugees 
The Hague Conven-
tion 1993
The Hague Conven-
tion 1996  

UNCRC General  
Comment No. 6

UNCRC General  
Comment No. 12
UNCRC General  
Comment No. 13

UNCRC General  
Comment No. 14

Resolution 64/142. 
Guidelines for the 
alternative care of 
children
Council of Europe, 
Guidelines on 
child-friendly justice

Council of Europe, 
Life projects for 
unaccompanied 
migrant minors

112

Guardianship for children deprived of parental careAnnex 2: Selected literature

Council of Europe (2009), Council of Europe’s policy guidelines on integrated 
national strategies for the protection of children from violence, Strasbourg,  
www.coe.int/t/dg3/children/News/Guidelines/Adoption_guidelines_en.asp.

Council of Europe (2011), Parliamentary Assembly, Committee on Migration, 
Refugees and Displaced Persons, Migrant Children: What rights at 18?, 
(Report|Doc. 13505|23 April 2014), http://website-pace.net/documents/ 
19863/168397/20140313-MigrantRights18-EN.pdf/ea190a6e-1794-4d30-b153-
8c18dc95669f http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.
asp?fileid=20589&lang=en.

Council of Europe (2010), Guidelines of the Committee of Ministers of the Council of 
Europe on child friendly justice and their explanatory memorandum, adopted by 
the Committee of Ministers of the Council of Europe on 17 November 2010,  
http://www.coe.int/t/dghl/standardsetting/childjustice/Guidelines%20on% 
20child-friendly%20justice%20and%20their%20explanatory%20
memorandum%20_4_.pdf.

Defence for Children – ECPAT The Netherlands (2011), Core standards for guardians of 
separated children in Europe, Leiden, http://www.corestandardsforguardians.eu/.

EASO (European Asylum Support Office) (2014), EASO age assessment practice in 
Europe, http://easo.europa.eu/wp-content/uploads/EASO-Age-assessment-
practice-in-Europe.pdf.

ENGI (European Network for Guardianship Institutions) (2011), Care for 
unaccompanied minors: Minimum standards, risk factors and recommendations  
for practitioners, Guardianship in practice, final report, Utrecht, http://engi.eu/
about/documentation/.

European Commission (2013), Missing children in the European Union: Mapping, 
data collection and statistics, Rotterdam, http://ec.europa.eu/justice/fundamental-
rights/files/missing_children_study_2013_en.pdf.

European Commission (2013), The EU rights of victims of trafficking in human 
beings, Luxembourg, Publications Office of the European Union (Publications 
Office), http://ec.europa.eu/anti-trafficking/EU-Policy/EU_rights_victims.

European Commission (EC) (2010), Communication from the Commission to the 
European Parliament and the Council. Action plan on unaccompanied minors 
(2010-2014), 6 May 2010, COM(2010) 213/3, Brussels, http://eur-lex.europa.eu/
LexUriServ/LexUriServ.do?uri=COM:2010:0213:FIN:EN:PDF.

113

European Commission (EC) (2012), Report from the Commission to the Council and 
the European Parliament, Mid-term report on the implementation of the Action 
Plan on Unaccompanied Minors, Brussels, 28 September 2012, COM(2012) 554 final, 
http://ec.europa.eu/dgs/home-affairs/e-library/docs/uam/uam_
report_20120928_en.pdf.

FRA (European Union Agency for Fundamental Rights) (2009), Child trafficking in 
the European Union: Challenges, perspectives and good practices, Luxembourg, 
Publications Office, http://fra.europa.eu/sites/default/files/fra_uploads/529-Pub_
Child_Trafficking_09_en.pdf.

FRA (2011), Separated, asylum-seeking children in European Union Member States, 
Comparative report, Luxembourg, Publications Office, http://fra.europa.eu/sites/
default/files/fra_uploads/1692-SEPAC-comparative-report_EN.pdf.

International Organization for Migration (IOM) (2007), The IOM handbook on Direct 
Assistance for Victims of Trafficking, Geneva, Switzerland, http://publications.iom.
int/bookstore/free/IOM_Handbook_Assistance.pdf.

International Committee of the Red Cross (ICRC) (2004), Inter-agency Guiding 
Principles on Unaccompanied and Separated Children, Central Tracing Agency and 
Protection Division, Geneva, Switzerland, http://www.unicef.org/violencestudy/
pdf/IAG_UASCs.pdf.

OSCE ( for Security and  in Europe) (2004), National Referral Mechanisms – Joining 
Efforts to Protect the Rights of Trafficked Persons: A Practical Handbook, Office for 
Democratic Institutions and Human Rights (ODIHR), http://www.osce.org/
odihr/13967.

United Nations (2011), Joint UN Commentary on the EU Directive – A Human 
Rights-Based Approach, Prevent Combat Protect Human Trafficking, https://www.
unodc.org/documents/human-trafficking/2011/UN_Commentary_EU_Trafficking_
Directive_2011.pdf.

United Nations Children’s Fund (UNICEF) (2008), Reference guide on protecting the 
rights of the child victims of trafficking in Europe, Geneva, www.unicef.org/ceecis/
UNICEF_Child_Trafficking_low.pdf.

UNICEF (2008), UNICEF Child Protection Strategy, E/ICEF/2008/5/Rev.1, 
20 May 2008, www.unicef.org/protection/files/CP_Strategy_English.pdf.

UNICEF (2013), Age assessment: a technical note (by Smith, T. and Brownless, L.), 
New York, http://www.unicef.org/protection/files/Age_Assessment_Note_final_
version_(English).pdf.

United Nations High Commissioner for Refugees (UNHCR) (2006), Guidelines on 

114

Guardianship for children deprived of parental careAnnex 2: Selected literature

international protection No. 7: The application of Article 1A(2) of the 1951 
Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of 
Trafficking and Persons at Risk of Being Trafficked, HCR/GIP/06/07, www.refworld.
org/docid/443679fa4.html.

UNHCR (2008), UNHCR Guidelines on Determining the Best Interests of the Child, 
May 2008, www.refworld.org/docid/48480c342.html.

UNHCR and Council of Europe (2014), Unaccompanied and separated asylum-
seeking and refugee children turning eighteen: What to celebrate?, Strasbourg, 
France, www.refworld.org/DOCID/53281A864.HTML.

UNHCR and International Rescue Committee (IMC) (2011), Field handbook for the 
implementation of UNHCR BID Guidelines, www.refworld.org/pdfid/4e4a57d02.pdf.

United Nations, Office for the High Commissioner of Human Rights (OHCHR) (2008), 
Recommended principles and guidelines on human rights and human trafficking: 
commentary, http://www.ohchr.org/Documents/Publications/Commentary_
Human_Trafficking_en.pdf.

115

HOW TO OBTAIN EU PUBLICATIONS

Free publications:
one copy: 
• 
via EU Bookshop (http://bookshop.europa.eu);

•  more than one copy or posters/maps: 

from the European Union’s representations (http://ec.europa.eu/represent_en.htm);  
from the delegations in non-EU countries (http://eeas.europa.eu/delegations/index_
en.htm);  
by contacting the Europe Direct service (http://europa.eu/europedirect/index_en.htm) or  
calling 00 800 6 7 8 9 10 11 (freephone number from anywhere in the EU) (*).

Priced publications:
• 

via EU Bookshop (http://bookshop.europa.eu);

Priced subscriptions:
• 

via one of the sales agents of the Publications Office of the European Union  
(http://publications.europa.eu/others/agents/index_en.htm).

(*)  The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you).

T
K
-
0
1
-
1
5
-
6
3
6
-
E
N
-
N

 d
o

i
:
1
0

.
2
8
1
1
/
2
2
3
0
5

F

R

A

G

u

a

r

d

i

a

n

s

h

i

p

f

o

r

c

h

i

l

d

r

e

n

d

e

p

r

i

v

e

d

o

f

p

a

r

e

n

t

a

l

c

a

r

e

Guardianship for children deprived of parental care aims to strengthen the protection of children, 
specifically addressing the particular needs of child victims of trafficking. The EU Strategy towards the 
Eradication of Trafficking in Human Beings 2012–2016 recognises the importance of comprehensive 
child-sensitive protection systems, for which a robust guardianship system serves as a touchstone. 
Effective  guardianship  systems  are  key  to  preventing  abuse,  neglect  and  exploitation.  Yet  the 
roles, qualifications and competences of guardians vary from one Member State to another. This 
handbook,  a  joint  publication  of  the  European  Commission  and  the  European  Union  Agency  for 
Fundamental Rights, is designed to help standardise guardianship practice, ensuring also that it is 
better equipped to deal with the specific needs of child victims of trafficking. It provides guidance 
and recommendations to EU Member States on strengthening their guardianship systems, setting 
forth the core principles, fundamental design and management of such systems. By promoting a 
shared understanding of the main features of a guardianship system, it aims to improve conditions 
for children under guardianship and promote respect for their fundamental rights.

FRA – EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS
Schwarzenbergplatz 11 – 1040 Vienna – Austria
Tel. + 43 (1) 580 30-0 – Fax + 43 (1) 580 30-699
fra.europa.eu – info@fra.europa.eu
facebook.com/fundamentalrights
linkedin.com/company/eu-fundamental-rights-agency
twitter.com/EURightsAgency

ISBN 978-92-9239-959-7