Author
Ukrainian legislation foresees the appointment of a legal representative to an unaccompanied child. The appointment of a legal representative does not differ depending on the procedure.[1] The legislation establishes the following list of institutions and persons who might be appointed as a legal representative: foster parents, foster carers, the administration of a healthcare facility, and educational or other children’s institutions.[2] Considering the relatively low number of arriving unaccompanied children, the sufficiency of legal representatives should not be an issue.
A legal representative shall be appointed by the guardianship authority without delay.[3] In case an unaccompanied child crosses the border and claims the intention to be recognised as a refugee or person in need of complementary protection, the SBGS should immediately notify the SMS and the guardianship authority.[4]
The representative of an unaccompanied child, upon receipt of a communication about the identification of an unaccompanied minor, immediately proceeds to the place of identification of the child.[5]
Ukrainian laws specify two options in the case of a legal representative:
- the guardianship authority appoints as representative of an unaccompanied minor a civil servant of the Service for Children;
- a foster carer, head of a healthcare, educational or other children’s institution in which an unaccompanied child is temporarily placed.[6]
Ukrainian legislation sets forth the following duties for a legal representative of an unaccompanied minor:
- making an application in the interest of the unaccompanied child;
- participate in all proceedings held by the SMS during the consideration of the application;
- represent the child before public authorities and courts;
- appeal in the interest of the child.[7]
In the 2024 Communication of Ukraine to the Committee of Ministries, the Government assured that in the course of the asylum procedure, unaccompanied minors were ensured all their rights in accordance with the law, that the SMS took measures to identify parents or other legal representatives of the minors, and that the participation of a legal representative and lawyer was ensured.[8]
While specific training for guardians is not required by law, there are mandatory requirements regarding their physical and mental health, as well as the conditions necessary for fulfilling their responsibilities. When appointing a guardian, their ability to fulfil the guardian’s duties is assessed, along with the relationship between the guardian and the ward. To appoint a guardian, several documents must be provided, including:
- A medical certificate regarding the future guardian’s (or caregiver’s) health.
- An inspection report on the living conditions of the future guardian.
- A conclusion from the guardianship and custody authorities at the guardian’s place of residence regarding their ability to fulfil the duties.
- A certificate from a medical institution confirming the absence of any diseases in the guardian’s family that could hinder the placement of a person in need of care.[9]
Ukrainian legislation does not establish specific limits on the maximum number of unaccompanied children a single representative can be responsible for.
There is no official data on the average number of children under the care of one representative. However, given the relatively low number of unaccompanied children arriving in Ukraine, ensuring a sufficient number of legal representatives has not posed a significant challenge.[10]
In Ukraine, there are no specific complaint mechanisms established by law that are exclusively available for unaccompanied children to file complaints against their representatives.
[1] Section II(2.3) Rules for the Consideration of Applications.
[2] Article 1(6) Law on Refugee.
[3] Section II(2.3.1) Rules for the Consideration of Applications.
[4] Section II(2.3.1) Rules for the Consideration of Applications.
[5] Para.13(1) Procedure of Interaction between State Bodies in Age Assessment of Unaccompanied Children.
[6] Para.12 Procedure of Interaction between State Bodies in Age Assessment of Unaccompanied Children.
[7] Para.13(1-11) Procedure of Interaction between State Bodies in Age Assessment of Unaccompanied Children.
[8] Committee of Ministers, 1507th meeting (September 2024) (DH) – Action plan (02/07/2024) – Communication from Ukraine concerning the group of cases of Kebe and Others v. Ukraine, 11 July 2024, DH-DD(2024)779, available here.
[9] Rules on Guardianship.
[10] R2P observations.