Legal Representation of Unaccompanied Minors: An Assessment in Terms of Türkiye and Selected European Countries
Hümeyra Zeynep Nalçacıoğlu ErdenThe legal representation of unaccompanied minors who are not being cared for by their parents or any other adult stands out as one of the main global problems. These children are under no one’s custody and need representatives who will represent them in all legal proceedings, especially during the asylum process, who will take primary responsibility for their shelter, education, and development, and who will ensure that decisions regarding the child are applied in accordance with the child’s best interests. In line with states’ obligations arising from the Convention on the Rights of the Child, they are responsible for resolving the legal representation of unaccompanied children either by helping children adapt to the current national legislation or by enacting new regulations specific to unaccompanied minors. The legal representation of unaccompanied minors, whose number is also increasing in Türkiye, is mainly carried out within the framework of the Turkish Civil Code and the Child Protection Law. This study will examine the legal representation of unaccompanied minors in Türkiye through examples given from current legislation and practice, including those in selected European countries, and will present recommended solutions.
Refakatsiz Çocukların Hukukî Temsili: Seçilmiş Avrupa Ülkeleri ve Türkiye Açısından Bir Değerlendirme
Hümeyra Zeynep Nalçacıoğlu ErdenEbeveynlerinin ya da diğer herhangi bir yetişkinin sorumluluğunda olmayan refakatsiz çocukların hukukî temsili, tüm dünyada küresel bir problem olarak başat rolde öne çıkmaktadır. Velâyet altında olmayan bu çocukların başta sığınma sürecine dair işlemleri olmak üzere, onu tüm yasal işlemlerinde temsil edecek, barınması, eğitimi ve gelişiminden öncelikli sorumlu olacak, çocuğa dair kararlarda çocuğun üstün yararına göre hareket edilmesini sağlayacak temsilcilere ihtiyacı vardır. Ülkeler, Birleşmiş Milletler Çocuk Haklarına Dair Sözleşme’den doğan yükümlülüklerine paralel olarak refakatsiz çocukların hukukî temsilini ya kendi ulusal düzenlemelerine uyarlayarak ya da onlara özel yeni düzenlemeler yaparak tanzim etmeyi tercih etmektedir. Türkiye’de de sayıları giderek artan refakatsiz çocukların hukukî temsilinde esas itibarıyla Türk Medenî Kanunu ve Çocuk Koruma Kanunu hükümleri uygulanmaktadır. İşbu çalışmada Türkiye’deki refakatsiz çocukların hukukî temsili, mevzuat ve uygulamadan verilen örnekler üzerinden, seçilmiş Avrupa ülkelerindeki uygulamalara da yer verilerek incelenecek ve çözüm önerileri sunulacaktır.
According to the United Nations High Commissioner for Refugees (UNHCR), an unaccompanied child is a person under the age of 18 who has been separated from her/ his parents and is not being cared for by an adult who has undertaken the responsibility of care by law or custom. A similar definition can also be found in Türkiye’s Law on Foreigners and International Protection (Art 3/1/m).
According to the UN Convention on the Rights of the Child, to which Türkiye is a party, every contracting party must treat every child under its jurisdiction like a national child without any discrimination (Art 2) and is also obliged to recognize the child who does not have parents or any other family member the protection granted in the Convention to a child who has been permanently or temporarily separated from her/his family environment for any reason (Art 22/2). This protection to be granted to the child also includes the legal representation of the child in processes concerning her/his interests.
Provisions governing the legal representation of unaccompanied children in Turkish legislation involve the regulation in the Child Protection Law that gives the court the discretionary authority to decide on the guardian and curatorship if deemed necessary while presenting an injunction decision (Art 7/7); the provisions of the Turkish Civil Code regarding the guardianship law (Art 396 et al.) and the Regulation on Child Support Centers also stipulate that a guardian or a curatorship will be appointed primarily for those who have no legal representative (Art 9/2). The design of the relevant regulations has not been tailored specifically for unaccompanied children.
Juvenile courts grant the protective and supportive injunctions necessary for the care and upbringing of unaccompanied children who are in need of protection regarding social service institutions until the minor reaches the age of maturity. If the child in care is not under custody, the guardianship authority appoints the director of the institution or another person as guardian.
According to the Regulation on Child Support Centers, a consultant is appointed to the unaccompanied child (Art 7/1/d). The duty of the consultant includes not only planning the child’s accommodations in the center and educational and social activities and/or informing the child about daily functions in the center but also covers the procedures regarding the protective and supportive measures from the juvenile court; carrying out the child’s basic needs such as clothing and stationery; covering the child’s expenditures; and following the child’s asylum process. These are in fact the duties that should be under the guardian’s authority. However, due to the absence of a court decision, the consultant is clearly not the guardian and does not have guardian powers and responsibilities. However, when examining consultants’ duties and responsibilities in this regulation, they are easily seen to actually be working as an assistant guardian.
During a meeting with officials from the General Directorate of Child Services, they stated that the primary target for unaccompanied children in Türkiye is not the appointment of a guardian or a curatorship. The person with whom the child meets every day or whom the court deems appropriate may only be appointed as the guardian in cases of necessity, such as family reunification. Avoiding appointing a guardian to an unaccompanied child has been justified as a requirement for the court decision, and time has elapsed to take and remove the relevant decisions. Meanwhile, even if the plaintiff in lawsuits filed with the request of guardianship is one of the child’s relatives, the person upon having their request be found appropriate is appointed not as a guardian but as a curatorship, due to the possibility of abuse.
Because unaccompanied children are obliged to stay in Türkiye, the law applying to the appointment of a guardian and curatorship will be recognized as Turkish law. In this sense, the management of the institution of guardianship with regard to Turkish substantive law and its suitability for unaccompanied children should be addressed.
In Turkish law, guardianship is regulated as a public institution. The guardianship authority belongs to the civil courts of peace, while the supervisory authority belongs to the civil court of first instance. Guardians and curatorships are the main authorities who carry out the affairs of guardianship; guardianship offices are the guardianship bodies that make decisions, check-up on situations, and give permission when necessary. The rule in Turkish law is that any minor who is not under custody is to be placed under guardianship. Without prejudice to the provisions regarding the powers of the guardianship offices, the guardian essentially represents the minor under guardianship in all legal proceedings. A curatorship may also be appointed by the court for a specific task. In addition, unaccompanied children for whom a care injunction decision has been taken can also benefit from foster family services.
As a result, when taking the regulations regarding unaccompanied children into account as a whole, one can easily conclude that these regulations are general and scattered. In this article’s opinion, the need exists for a new legal regulation that brings together and improves the provisions of the current legislation for unaccompanied children, inclusive of their legal representation. This regulation should also establish autonomous public legal entity guardianship institutions as well as regulate an institutional system. Guardian pools should be established within the legal person guardianship system. A guardian must be immediately appointed to the unaccompanied child before any asylum application is made. The time the court takes to decide upon the guardian appointment can be reduced by imposing an upper limit in terms of time. The appointment of a lawyer by the guardian to represent the child would also be appropriate.
