MINISTERS’ DEPUTIES

CM Documents

CM(2018)119

21 August 2018[1]

1325th meeting, 26 September 2018 4 Human rights   4.4 European Social Charter – Follow-up to the decisions of the European Committee of Social Rights (ECSR) in the context of the collective complaints procedure – European Committee for Home-Based Priority Action for the Child and the Family (EUROCEF) v. France, Complaint No. 114/2015 Item to be considered by the GR-SOC at its meeting on 11 September 2018

Action To examine the draft resolution below, with a view to its adoption.

Draft Resolution CM/ResChS(2018)…

European Committee for Home-Based Priority Action for the Child and the Family (EUROCEF) v. France
Complaint No. 114/2015

(adopted by the Committee of Ministers on … 2018
at the …^th meeting of the Ministers' Deputies)

The Committee of Ministers,^[2]

Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;

Taking into consideration the complaint registered on 27 February 2015 by the European Committee for Home-Based Priority Action for the Child and the Family (EUROCEF) against France;

Having regard to the report by the European Committee of Social Rights containing its decision on the merits, in which it concluded:

             i.        Applicability of Articles 7 § 10, 11, 13, 14, 17, 30, 31 § 2 and E of the Charter to the persons concerned by the complaint

In light of the mandatory, universally recognised requirement to protect all children, paragraph 1 of the Appendix should not be interpreted in such a way as to expose foreign minors unlawfully present in a country to serious impairments of their fundamental rights due to failure to guarantee the social rights enshrined in the Charter.

The risk of impairing fundamental rights is all the more likely where children – a fortiori migrant children unlawfully present in a country – are concerned. This is due to their condition as "children" and to their specific situation as "unlawful" migrants, combining vulnerability and limited autonomy.

Articles 7 § 10, 11, 13, 17, 30, 31 § 2 of the Charter are applicable to the persons concerned by this complaint (See DCI v. Belgium, Complaint No. 69/2011 ; International Federation of Human Rights Leagues v. France, Complaint No. 14/2003; DCI v. the Netherlands, Complaint No. 47/2008). These articles require States Parties to fulfill positive obligations relating to the accommodation, basic care and protection of children and young persons.

Article 14 is not applicable to the instant case, given the general nature of this provision, and having regard to the circumstances of the case.

Article E of the Charter is not applicable to the instant case. The issue is not the principle of equal treatment but whether or not these persons fall within the scope of the Charter and whether their most fundamental rights are actually respected.

            ii.        Application

·         unanimously, that there is a violation of Article 17 § 1 of the Charter due to shortcomings identified in the national shelter, assessment and allocation system of unaccompanied foreign minors;

The circular of 31 May 2013 on the arrangements for the care of unaccompanied foreign minors (shelter, assessment and allocation) states that all young persons declaring themselves to be unaccompanied foreign minors are entitled to provisional accommodation. However, the system is deficient. The Defender of Rights is regularly informed of a lack of care provision for young people waiting for a decision on whether they are entitled to child protection following their assessment or even of refusals to carry out placement decisions ordered by the judicial authorities. These situations are often the result of overcrowded facilities resulting in particular from refusals by departments to receive young people referred to them under the 2013 Circular.

The situation of minors accommodated in hotels for weeks or even months does not make for “appropriate accommodation”, “support provided by properly trained personnel” or even access to “basic services”, as is shown by the statements collected by EUROCEF. Unlike other family-friendly accommodation centres, hotels do not provide any educational or social services. The hotel is a temporary environment, not designed to accommodate children, but an assistance designed as a simple shelter.

Lastly, the latest UNHCR and UNICEF reports show that the arrivals of unaccompanied children are increasing steadily and that the already overcrowded capacities of the current system of child welfare in some areas of the country do not allow for adequate care.

·         the delays in appointing an ad hoc guardian for unaccompanied foreign minors;

and

·         the detention of unaccompanied foreign minors in waiting areas and in hotels;

With regard to the provision of care to unaccompanied foreign minors in waiting areas, the Government acknowledges that at Roissy Charles de Gaulle Airport, minors under the age of 13 are prioritised for places which are intended for minors, which implies that places are not always guaranteed for minors older than 13. Therefore, such minors are accommodated on the “adult floor”. The Government confirms that at Orly Airport, hotel accommodation is indeed used for minors.

Accommodating minors with adults or in hotels is contrary to the European Social Charter. Article 17 of the Charter stipulates that minors must be able to receive protection which is appropriate to their age and the dangers to which they are exposed because of it. These two care arrangements which are offered at Roissy Charles de Gaulle Airport and Orly Airport do not make it possible to cater adequately for minors’ specific needs.

Numerous reports (see latest observations of the Committee on the Rights of the Child and the Commissioner on Human Rights) indicate that appointments of an ad hoc guardian is rarely effective, thereby denying unaccompanied minors their right to be assisted in proceedings concerning them. The Committee points out that the presence of an ad hoc guardian would enable, for example, a lawyer to be appointed, or a case to be referred to the guardianship court and/or, where appropriate, the administrative court or juvenile court.

The Parliamentary Assembly and the Committee for the Prevention against Torture have stated that unaccompanied children should not be detained. Their detention cannot be justified solely on the basis of

the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof. It also refers to the 2016 conclusions of the Committee on the Rights of the Child on the fifth periodic report of France about the situation of unaccompanied migrant children automatically placed in waiting zones of airports or hotels, and other administrative detention facilities (locaux de rétention administrative), sometimes detained with adults, and reports of their removal, even before they speak to an ad hoc guardian, and its recommendation that France “adopt the necessary measures, including those of a legal nature, to avoid the detention of children in waiting zones through increased efforts to find suitable alternatives to deprivation of liberty and place children in appropriate accommodation, and to fully respect non-refoulement obligations”.

Detention of a minor in waiting areas, together with adults, and/or accommodated in hotels, deprived by the assistance of a guardian cannot be in the best interest of the child.

·         the use of bone testing to determine the age of unaccompanied foreign minors considered as inappropriate and unreliable;

Age assessments based on bone examination can have serious consequences for minors. The observations submitted by the Defender of Rights show that practices vary throughout the country, in breach of the requirements laid down by domestic legislation.

Both in France and at international level, the use of such medical tests is highly contested because they are unreliable and undermine children’s dignity and physical integrity.

The National Medical Academy, the National Public Health Board (HCSP) and the medical profession as a whole have noted more specifically that bone testing is prone to error as it does not enable a clear distinction to be made between the ages of 16 and 18. This is especially problematic in view of the fact that most of the unaccompanied foreign minors currently in France are 16 or over.

The National Consultative Commission for Human Rights (CNCDH) has already contested the use of bone testing, taking the view that it is based on outdated morphological criteria established in the 30s and 40s whose scientific worth has been called into question for years, including by the medical profession.

According to the CNCDH, the age assessment has a margin of error of two to three years and, in practice, this makes it possible to regulate the reception of unaccompanied minors according to the number of free places in the ASE’s facilities or the policy adopted in this area by the chair of the department council.

Medical age assessment as currently applied can have serious consequences for minors and that the use of bone testing to determine the age of unaccompanied foreign minors is inappropriate and unreliable. The use of such testing therefore violates Article 17 § 1 of the Charter.

·         a lack of clarity to access an effective remedy for unaccompanied foreign minors;

The Interministerial Circular of 2016 on the mobilisation of state services to assist department councils in relation to minors who have been temporarily or definitively deprived of the protection of their family or of persons acting as such, indicates that the young person must be provided with a document certifying the assessment in the event that he or she is found to be an adult. There is no provision in the text of the circulars about the information that must be provided to them regarding their access to rights. This can amount to a substantive barrier to access legal remedies.

Reference is made to previous findings on delays in appointing a guardian to represent a minor in legal proceedings. Moreover, evidence provided by EUROCEF indicates serious difficulties in accessing available remedies for this group.

Such a lack of clarity with respect to access to a remedy is incompatible with the requirements of Article 17§1 and detrimental to the interests of the child, whose exposure to danger calls for an urgent response. Therefore, the situation amounts to a violation of Article 17§1 of the Charter.

·         by 8 votes to 7, that there is a violation of Article 17 § 2 of the Charter due to lack of access to education for unaccompanied foreign minors aged between 16 and 18 years;

With regard to the schooling of unaccompanied foreign minors, as indicated by the Government, unaccompanied foreign minors aged over 16 are by no means prioritised in terms of access to education. The Government explains that under national law, the obligation to attend school does not extend beyond the age of 16. The majority of unaccompanied foreign minors arriving in France are between 16 and 18 years. Consequently, unaccompanied foreign minors aged over 16 who ask to be enrolled in a school after taking tests to determine their education level may not be assigned to a school.

·         unanimously, that there is a violation of Article 7 § 10 of the Charter due to the inappropriate accommodation of minors and their exposure to life on the street;

The failure to care for unaccompanied foreign minors present in the country therefore shows that the Government has not taken the necessary measures to guarantee these minors the special protection against physical and moral hazards required by Article 7§10, thereby causing a serious threat to their enjoyment of the most basic rights, such as the right to life, to psychological and physical integrity and to respect for human dignity.

Due to overcrowded reception facilities and to the lack of reception homes, a certain number of minors live on the street where their physical and moral integrity is threatened. It exposes young persons in question to very serious physical and moral hazards, resulting from life on the street which may even lead to trafficking, exploitation of begging and sexual exploitation.

·         unanimously, that there is a violation of Article 11 § 1 of the Charter due to lack of access to health of unaccompanied foreign minors;

A certain number of unaccompanied foreign minors, declared to be “adult” by the authorities and not complying with the condition of three months’ residence on the territory, do not have access to either universal healthcare coverage (PUMa), or to State medical assistance (AME). Therefore, it finds that the specific needs in terms of health protection of unaccompanied foreign minors are not taken into account and the legislation currently in force is not effectively implemented.

·         by 14 votes to 1, that there is a violation of Article 13 § 1 of the Charter due to lack of access to social and medical assistance of unaccompanied foreign minors;

Referring to its findings under Article 17, it is recalled that the obligation to provide emergency social and medical assistance is not respected in cases when minors are left in a situation of wandering and living on the streets.

·         by 14 votes to 1, that there is a violation of Article 31 § 2 of the Charter due to lack of provision of shelter to unaccompanied foreign minors;

Article 31§2 requires that homeless persons must be offered shelter as an emergency solution. Moreover, to ensure that the dignity of the persons sheltered is respected, shelters must meet adequate health, safety and hygiene standards.

The arrival of unaccompanied children is steadily increasing and that the current protection system provided by the Circulars of 2013 and 2016 does not allow adequate care, as minors are increasingly left on their own, without shelter and protection. As the specific needs of this vulnerable group are not adequately met, they are prone to be exposed to various risks undermining their human dignity.

The Government does not show how it intends to guarantee the right to shelter for these minors, and in particular by what means it intends to prevent and reduce homelessness of foreign unaccompanied minors with a view to its elimination.

·         by 10 votes to 5, that there is no violation of Article 30 of the Charter;

The Government has adopted several measures to improve the situation of unaccompanied foreign minors’ situation (law on the protection of childhood of 14 March 2016; circulars on national arrangements for the provision of shelter, assessment and guidance of 2013 and 2016). There are elements indicating efforts by France towards a coordinated approach to protect minors from poverty and combat their social exclusion.

·         by 11 votes to 4, that Article E of the Charter is not applicable to the instant case.

Having regard to the information communicated by the French delegation at the meeting of the Rapporteur Group on Social and Health Questions (GR-SOC) of 19 June 2018 (see Appendix to the resolution),

1.            takes note of the commitment of the French Government to bring the situation into conformity with the Charter and the information it has communicated in this regard (see Appendix to this resolution);

2.         recalls that the powers conferred on the ECSR are deeply rooted in the Charter itself and acknowledges that the decision of the ECSR raises complex issues in this regard and with regard to the obligation of the States Parties to respect the Charter;

3.         recalls the limitation of the scope of the European Social Charter (revised), provided for in paragraph 1 of the Appendix to the Charter;

4.         looks forward to France reporting, at the time of the submission of the next report concerning the relevant provisions of the Charter, on any new developments regarding their implementation.

Appendix to the Draft Resolution CM/ResChS(2018)…

Address by the Representative of France at the meeting of the Rapporteur Group on Social and Health Questions (GR-SOC) of 19 June 2018

European Committee for Home-Based Priority Action for the Child and the Family (EUROCEF)

v. France, Complaint No. 114/2015

See document: DD(2018)638

On 24 January 2018, the European Committee of Social Rights (hereafter “ECSR”) sent the French government its report containing the decision on the merits of collective complaint No. 114/2015 lodged on 27 February 2015 by the European Committee for Home-Based Priority Action for the Child and the Family (EUROCEF).

 

In this decision, the ECSR found that there had been a violation of Articles 7 § 10 (right of children and young persons to protection), 11 § 1 (right to protection of health), 13 § 1 (right to social and medical assistance), 17 §§ 1 and 2 (right of children and young persons to social, legal and economic protection) and 31 § 2 (right to housing) of the Revised European Social Charter (hereafter “the Charter”).

The government takes note of the ECSR’s decision and wishes to make the following observations on the ECSR’s report of 24 January 2018.

Firstly, as regards the applicability of the Charter to the persons referred to in EUROCEF’S complaint, the Government wishes to point out that in its observations on the merits of the complaint it emphasised the need to distinguish between foreign nationals who have been recognised as unaccompanied minors, and who are in that case considered to be in the country lawfully and entitled to benefit from the provisions of the Charter, and foreign nationals found to be adults following assessment, who are in the country unlawfully and to whom the Charter does not apply under the first paragraph of the Appendix to the Charter.

The Government notes that, in its decision on the merits (paragraphs 49 to 57), the ECSR rejected this analysis, referring to its interpretation of the first paragraph of the Appendix to the Charter as set out in previous decisions (in particular International Federation of Human Rights Leagues v. France, Complaint No. 14/2003, decision on the merits of 8 September 2004; Defence for Children International (DCI) v. the Netherlands, Complaint No. 47/2008, decision on the merits of 20 October 2009; DCI v. Belgium, Complaint No. 69/2011, decision on the merits of 23 October 2012). 

The Government notes, however, that the personal scope of the provisions of the Charter is circumscribed by the first paragraph of its Appendix, as has been pointed out by the Committee of Ministers, notably in resolutions CM/ResChS(2010)6, CM/ResChS(2015)4 and CM/ResChS(2015)5.

1.     On the age assessment mechanism (§ 87 of the ECSR decision on the merits)

The circular of 31 May 2013 on the arrangements for the care of unaccompanied foreign minors provided that bone X-rays could be carried out if the socio-educational assessment performed beforehand via interviews was not sufficient to make an informed judgment about the person’s age.

It should be noted that under Article 388 of the Civil Code, as amended by Law No. 2016-297 of 14 March 2016 on child protection, recourse to radiological bone examinations is now strictly regulated and is possible only “where no valid identity documents are available and where the age asserted is not credible”. Even then, such examinations“may only be carried out pursuant to a decision by the judicial authorities and with the consent of the person in question”. The same law also states that the conclusions of the radiological bone examination “which must specify the margin of error, may not be used on their own as a basis for determining whether the person in question is a minor. The person in question shall have the benefit of the doubt”. Lastly, the law expressly prohibits examinations of the pubertal development of primary and secondary sexual characteristics.

The need for socio-educational assessments, as provided for in the aforementioned circular of 31 May 2013, is all the greater therefore.

2.     On the right to a legal representative (§§ 88 and 98 of the ECSR decision on the merits)

It should be noted that the ordinary rules contained in the Civil Code on parental authority and guardianship apply to unaccompanied minors. If a minor is recognised as being unaccompanied, it is because it has not been possible to determine who had parental authority in respect of him or her. In that case, the public prosecutor can refer the matter to the children’s judge (who is the urgent applications judge) and/or to the family affairs judge acting as guardianship judge (who hears non-urgent applications).

In practice, some prosecutor’s offices apply directly to the family affairs judge acting as guardianship judge, bypassing the children’s judge. Others refer the matter to the children’s judge who gives a decision and invites the département councils to apply to the family affairs judge acting as guardianship judge within six months via the public prosecutor.

Later on, the family affairs judge, having been asked to give a ruling in his or her capacity as guardianship judge, may consider two types of measures:

- guardianship: if the parents are dead or have been deprived of their parental rights, the family affairs judge will order that the minor be placed under guardianship (Articles 390 et seq. of the Civil Code). The mere fact that the minor has been separated from his or her parents is not sufficient justification for making such an order, however;

- delegation of parental authority is another option open to the family affairs judge, particularly  “in cases where the parents clearly have no interest in exercising or are unable to exercise all or part of the parental authority” (Article 377, paragraph 2, of the Civil Code).

 

3.     On the appointment of an ad hoc guardian (§ 98 of the ECSR decision on the merits)

The procedures for appointing and paying ad hoc guardians are laid down in Law No. 2002-305 of 4 March 2002 on parental authority (Article 17) as regards detention in waiting areas. Such placements are to be used only as a measure of last resort: “If there is no legal representative accompanying the minor, the public prosecutor, having been notified upon the arrival of a minor in the waiting area or of a minor seeking asylum, shall immediately appoint an ad hoc guardian for him or her. The ad hoc guardian shall assist the minor during his or her stay in the waiting area or during his or her asylum application, and shall represent him or her in all administrative and judicial procedures relating to this stay.” The same arrangements can be found in Article L 221-5 of the Code governing the entry and residence of aliens and asylum seekers.

An ad hoc guardian may also be appointed where, in a specific case, the interests of the child conflict with those of his or her legal representatives (Article 388-2 of the Civil Code).

Unaccompanied minors who are in the country without any guardianship order having been issued may likewise need ad hoc guardians to be appointed to complete procedures which they are unable to complete themselves because of their lack of legal capacity.

The French courts have given full effect to the aforementioned provisions of the Code governing the entry and residence of aliens and asylum seekers. For example, in two judgments handed down on 22 May 2007 and 6 May 2009,[3] the Court of Cassation established the principle that placements in waiting areas are to be terminated if an ad hoc guardian was not appointed straightaway.

In a judgment handed down on 25 December 2012,[4] the Paris Court of Appeal drew attention to the fact that the role of the ad hoc guardian is not merely to represent the minor before administrative and judicial bodies, but also to assist the minor during his or her stay in the waiting area.

 

4.     On the role of the national unit operating under the supervision of the Directorate for the Judicial Protection of Young People (§ 91 of the ECSR decision on the merits)

The above-mentioned circular of 31 May 2013 provided that the national unit operating under the supervision of the Directorate for the Judicial Protection of Young People was responsible for updating a placements grid: at any time, it could provide prosecutor’s offices with up-to-date data to help them determine which département the minor should be assigned to and is equipped to take him or her in.  

Law No. 2016-297 of 14 March 2016, mentioned above, enshrined this task in legislation. The prosecutor’s offices must contact the national unit before the interim placement order is issued, which they will send to the children’s judge with a suggestion that the minor be assigned to a particular département.

The order of 28 June 2016 adopted pursuant to decree No. 2016-840 of 24 June 2016 sets out the procedure for calculating the distribution key for allocating minors temporarily or permanently deprived of the protection of their families, in such a way that, when the judicial authorities are making placement decisions, consideration is given first to the interests of the child and second to the key. 

The joint dispatch DACG-DPJJ and DACS of 11 July 2016 concerning the application of the provisions of Article 375-5 of the Civil Code and of Article L. 221-2-2 of the Social Action and Family Code, furthermore, draws the judiciary’s attention to the need to refer cases to the unit.

 

5.     On the right to an effective remedy (§§ 115 and 117 of the ECSR decision on the merits)

The aforementioned circular of 31 May 2013 stated that, in the event that the person’s minority should not be recognised, any decision not to grant educational assistance which may be made by the children’s court could then be challenged by the young person in question (under Article 1191 of the Code of Civil Procedure).

The circular of 25 January 2016 on the mobilisation of state services to assist département councils in relation to minors who have been temporarily or definitively deprived of the protection of their family and persons acting as such indicates that the young person must be provided with a document certifying the assessment, which, in practice, means they receive notification of the decision, stating the reasons on which it is based and the time-limits and procedure for lodging an appeal (Article R. 223-2 of the Social Action and Families Code). The person is thus able to exercise the full range of rights which he or she enjoys. The département council is under no obligation to issue the findings of the assessment but the individual concerned can still access them, under Article L. 311-9 of the Code governing relations between the public and the administration.

The order of 17 November 2016 adopted pursuant to the decree of 24 June 2016 relating to the evaluation of minors who are temporarily or permanently without the protection of their family confirmed this in Article 9: “Where the person is not recognised as a minor temporarily or permanently without the protection of their family, the president of the département council shall send to the person concerned a decision refusing to take him or her into care, stating reasons and the procedures and time-limits for lodging an appeal. He or she shall in that case inform the person about the rights available to adults, in particular with regard to emergency accommodation, medical assistance and applying for asylum or a residence permit.”

6.     On unaccompanied foreign minors’ access to education(§ 124 of the ECSR decision on the merits)

In accordance with Article L. 131-1 of the Education Code, the schooling of unaccompanied minors aged between six and sixteen years and residing in France comes under the provisions of ordinary law and the compulsory-education rule. The enrolment in school of foreign pupils, whatever their age, cannot be made subject to production of a residence permit.

France has introduced a system for protecting unaccompanied minors present in the country, whatever their nationality and legal status. Articles L. 112-3 and L. 221-2-2 of the Social Action and Family Code make it clear that young persons “temporarily or permanently without the protection of their families”, fall within the scope of the child protection laws and as such, are the responsibility of the départements. Unaccompanied minors are thus taken in, according to the ordinary rules governing child protection, by the département councils to which they are assigned by the children’s judge. Anyone claiming to be an unaccompanied minor will be provided with shelter by the département and undergo an assessment to determine their age and unaccompanied status. Unaccompanied minors are looked after in child welfare institutions (children’s homes, maisons d’enfants à caractère social, etc.), or even placed with family assistants, and receive specific support according to their circumstances.

Appendix 6 of the interministerial circular of 25 January 2016 mentioned above also draws attention to the requirement for minors aged between 16 and 18 who are “temporarily or permanently without the protection of their families” to attend school. Different départements have different policies, however, as to when individuals presumed to be unaccompanied minors can start attending school, i.e. before or after the assessment to determine age and unaccompanied status. In the case of the Paris education board, for example, minors claiming to be unaccompanied are enrolled in school straightaway, even if their age and unaccompanied status have yet to be formally established, whereas the education authorities in Meurthe-et-Moselle, in consultation with the département council, take the view that enrolling youngsters whose age and unaccompanied status have not been established risks causing further disruption, should they have to leave school and indeed the child welfare system. This département is thus working to provide an administrative assessment procedure that is as short as possible, so that minors who have been recognised as such can be enrolled in school and looked after under the child protection system. The département takes a similar approach to the procedures for regularising the status of unaccompanied foreign minors approaching adulthood (again in order to avoid any break in care provision).    

In any event, in all the education authorities, French Ministry of Education staff have been fully mobilised to ensure optimum conditions for the schooling of unaccompanied minors, in accordance with the law and the principle of compulsory education.

In the context of the management of the social welfare service for pupils, the issue of support for unaccompanied minors is being closely monitored, with feedback from social service assistants working in the field.

When it comes to schooling, that effectively means making decisions about appropriate ways and means to provide support (school health and welfare office, chief education adviser, etc.) and how to get the unaccompanied minors in question back into school (tailored pathways, bridging scheme, etc.). Knowledge of their background is crucial, therefore, especially as they may have physical and psychological health issues and precarious living arrangements which call for urgent action (access to school meals, transport, school materials, grants, social and health monitoring) in consultation with the child welfare services.

Within schools, there has been a strong show of support from the educational and teaching community. In addition to school-based provision, the social welfare service has been asking associations to help pupils (e.g. meals and clothing provided by the Samu Social, food parcels, assistance in finding accommodation, health care, etc.).