Abstract
The (in) visibility of unaccompanied minors migrants and refugees makes this topic particularly relevant in the European context. The specificities of this topic require a historical-social understanding of parenthood, the rights of the children, refugees and migrants, reflected in various international, European and national legal instruments, as well as the guiding principles of safeguarding the best interests of the child, currently an invisible victim to contemporary society. In this context, the United Nations Agenda 2030 seeks to affirm a balance between the various dimensions of Sustainable Development Goals (SDGs), integrating 17 objectives such as, for example: eradicating poverty and hunger and/or maintaining peace, justice and effective institutions. Similarly, the Global Pact on Migration calls on the International Community to imperatively safeguard children in transit and reinforces the right of migrants to be treated with dignity and justice, due to the unquestionable gains they bring to host societies. However, many of these instruments have been to draw inspiration from the sociology of childhood where children are not seen as objects of adult socialization but rather as subjects of the socialization process, so the living conditions and sociability that member states offer to children strongly influence their future as Men.
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Notes
- 1.
The quotation given by António Torrada da Silva, a paediatrician of recognised merit in Portugal and abroad. He was a pioneer in the promotion of humanization in hospital services, in the articulation between them, primary health care and the community. He was a great promoter of team work, in the defence of a comprehensive health concept, often referring that the twenty-first century would be the century of the happiest child.
- 2.
Neglect is understood as the inability to provide the child or young person with the basic care needs of hygiene, nutrition, affection and health that are indispensable for normal growth and development. This type of maltreatment, which is generally continued over time, can manifest itself in an “active” way, where there is an intention to cause harm to the victim, or “passive”, when it originates from the incompetence or incapacity of the parents or other responsible persons to fulfil this wish. Neglect can take various forms: physical, psycho-affective, educational and school, temporary or permanent abandonment, begging, etc.
- 3.
Physical abuse results from any action, not accidental, isolated or repeated, taken by parents, caregivers or others responsible for the child or young person, which causes (or may cause) physical harm. This type of abuse, the most common expression of which is in the form of “beaten child”, encompasses a number of traumatic situations, such as shaken (shaken or rattled) child syndrome, burns, fractures, traumatic brain injury, abdominal injuries, suffocation, drowning, intoxications caused and others.
- 4.
Sexual abuse is the involvement of a child or adolescent in activities aimed at the sexual satisfaction of an adult or another older and stronger person. It is based on a relationship of power or authority and takes the form of practices in which the child or young person, depending on his or her stage of development:—Does not have the capacity to understand that he or she is a victim;—Realizing that he or she is not able to name the sexual abuse;—Is not structurally prepared;—Is not able to give informed consent. This type of abuse can take different forms—from harassing the child or young person, forcing him/her to become aware of or attend conversations, writing and obscene shows, using him/her in photographic sessions and filming, to the practice of coitus, through the manipulation of the sexual organs, among others (…).
- 5.
Psychological mistreatment (emotional abuse) results from the inability to provide the child or young person with an environment of tranquillity, emotional and affective well-being, which is indispensable for balanced growth, development and behaviour. This type of maltreatment encompasses different situations, from the absence or precariousness of care or affection appropriate to the child’s age and personal situation, to complete affective rejection, and permanent depreciation of the child or young person, which can have repercussions, for example, on sleep, sphincter control, behaviour, school performance and other activities of the child or young person.
- 6.
Munchausen’s Syndrome by proxy refers to the attribution to the child, by a member of the family (which, in most cases, presents a credible and seductive speech, but to which sometimes psychiatric pathology is subjacent, not always easy to identify), of various signs and symptoms, in order to convince the clinical team of the existence of an illness, generating frequent hospitalizations, the need for exhaustive diagnostic procedures and the use of invasive techniques. This is a rare form of maltreatment and poses great diagnostic difficulties for professionals.
- 7.
Portugal ratified this Convention on September 21, 1990.
- 8.
As stated “it seems possible to delimit the treatment given to children and adolescents within the Brazilian legal system in three phases: in the first phase, approximately between the sixteenth century and the nineteenth century (1501 to 1900) (…) as a rule, children and adolescents were recognized by adults as “pets”; in the second phase, approximately from the first half of the twentieth century (1901 to 1950), they began to be treated as “objects” of State tutelage; and, finally, in the second half of the twentieth century, until the present time, they began to receive greater protection from both society and the State, becoming the target of full and priority protection.”
- 9.
Indeed, “(…) in ancient societies (Greek or Roman) children and adolescents were not even considered susceptible to legal protection, if not mere objects of state or paternal property, characterized by a state of imperfection that was lost only with the passing of time, and only softened by an ethical-religious duty of piety. Only recently have they begun to look at children and adolescents as a person in the full sense of the term, allowing them to attain rights and freedoms of which they are the beneficiaries as a general condition, even in the period of time during which they are in the process of formation”.
- 10.
Adopted and proclaimed by Resolution 217 A (III) of the UN General Assembly on 10 December 1948.
- 11.
See paragraph 1 of the Preamble to the Universal Declaration of Human Rights.
- 12.
Proclaimed by United Nations General Assembly Resolution 1386 (XIV) of 20 November 1959.
- 13.
Principles 1 and 2 of the 1958 Declaration of the Rights of the Child.
- 14.
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with article 49.
- 15.
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27.
- 16.
See Article 2(1) of the International Pact on Civil and Political Rights.
- 17.
Idem, Article 12(2) and (3).
- 18.
Ibid Article 6(5).
- 19.
Ibid Article 10(2) (b).
- 20.
Ibid Article 10(3).
- 21.
Ibid Article 14(4).
- 22.
Ibid Article 18(4).
- 23.
Ibid Article 24(1).
- 24.
Ibid Article 24(2).
- 25.
Ibid Article 24(3).
- 26.
See Article 10(1) of the International Pact on Economic, Social and Cultural Rights.
- 27.
Idem Article 10(3).
- 28.
Ibid Article 11(1).
- 29.
Ibid Article 12(2)(a).
- 30.
Convened to Geneva by the Governing Body of the International Labour Office, and meeting there on June 6, 1973, at its 58th session, it adopts on June 26, 9173 the Minimum Age Convention, No. 138.
- 31.
See the second and third paragraph of the preamble to the Convention on the Minimum Age, 1973 (No. 138).
- 32.
Idem Article 1.
- 33.
Ibid Article 2 (3).
- 34.
Ibid Article 3 (1).
- 35.
See Article 3 of the Convention on the Elimination of All Forms of Discrimination Against Women.
- 36.
Idem paragraph 12.
- 37.
Ibid Article 1.
- 38.
Ibid Article 16 (1) (d).
- 39.
Ibid Article 16 (2).
- 40.
See paragraphs 1.1 and 1.2 from topic 1 (Fundamental Guidelines) of Resolution 40/33.
- 41.
Idem paragraphs 2.1 and 2.2(a) to (c).
- 42.
Adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, A/CONF.189/12, 8 September 2001.
- 43.
See Articles 23 and 24.
- 44.
See Article 10.
- 45.
See United Nations General Assembly Resolution 41/85 of 3 December 1986.
- 46.
See UN General Assembly Resolution 40/33 of 29 November 1985.
- 47.
See United Nations General Assembly Resolution 3318 (XXIX) of 14 December 1974.
- 48.
OJ C 202, 7.6.2016, pp. 389–405.
- 49.
OJ C 93 de 9.3.2016, p. 165–173.
- 50.
See article 69 (Childhood) “1—Children have the protection of society and the State, with a view to their full development, especially against all forms of abandonment, discrimination and oppression and against the abusive exercise of authority in the family and in other institutions. 2—The State ensures special protection to children who are orphans, abandoned or otherwise deprived of a normal family environment. 3—The work of minors of school age is prohibited under the law”.
- 51.
Idem Article 70 (Youth) “1—Young people shall enjoy special protection for the realization of their economic, social and cultural rights, namely: (a) In education, vocational training and culture; (b) In access to their first job, at work and in social security; (c) In access to housing; (d) In physical education and sport; (e) In the enjoyment of leisure time”.
- 52.
See Portuguese Regional Legislative Decree No. 17/2016/A, September 29.
- 53.
See Portuguese Decree-Law No 48/95, Diário da República No 63/1995, Series I-A of 1995-03-15.
- 54.
See United Nations General Assembly Resolution 44/25 of 20 November 1989.
- 55.
It was signed on 26 January 1990 and entered into force in Portuguese law on 21 October 1990.
- 56.
See Article 2 of the Convention on the Rights of the Child “1. States Parties undertake to respect and to ensure the rights set forth in the present Convention to all children within their jurisdiction without discrimination of any kind, irrespective of the child’s race, colour, sex, language, religion, political or other opinion, parent or legal guardian, national, ethnic or social origin, property, disability, birth or other status. 2. States Parties shall take all appropriate measures to ensure that the child is effectively protected against all forms of discrimination or punishment arising from the legal situation, activities, opinions expressed or beliefs of his or her parents, legal guardians or other members of his or her family.
- 57.
Idem Article 6 (1) States Parties recognize the inherent right to life. (2) States Parties shall ensure to the fullest extent possible the survival and development of the child.
- 58.
Ibid Article 3 (1) In all decisions concerning children taken by public or private social protection institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians or other persons legally responsible for him or her, and to this end shall take all appropriate legislative and administrative measures. (3) States Parties shall ensure that the functioning of institutions, services and facilities that care for and provide for children is in conformity with the standards set by the competent authorities, particularly in the fields of safety and health, with regard to the number and qualifications of their personnel and to the existence of appropriate supervision.
- 59.
Ibid Article 12 (1) States Parties shall guarantee to the child with discretionary judgment the right to express his or her views freely on matters affecting the child, due regard being had to the views of the child in accordance with his or her age and maturity. (2) To this end, the child shall be given the opportunity to be heard in judicial and administrative proceedings affecting him or her, either directly or through a representative or an appropriate body, in the manner provided for by the rules of procedure of national law.
- 60.
Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000, entered into force on 18 January 2002.
- 61.
Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of May 2000, entry into force 12 February 2002.
- 62.
Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/66/138 of 19 December 2011, entered into force on 14 April 2014, and ratified by Portugal on 9 September 2013.
- 63.
The Global Pact for Secure, Ordered and Regular Migration was approved by the United Nations General Assembly on December 19, 2018 (Resolution A/73/L.66).
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Rodrigues, J.N. (2021). Refugees and Migrant Children in Europe. In: Vissing, Y., Leitão, S. (eds) The Rights of Unaccompanied Minors. Clinical Sociology: Research and Practice. Springer, Cham. https://doi.org/10.1007/978-3-030-75594-2_4
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