Spain: Migrant minors at risk, by Peio Aierbe
01 January 2010
The Spanish government’s promotion of a multicultural society is being undermined by their treatment of unaccompanied migrant children. Far from meeting their legal obligation to care for these children it frequently sets them up to fail and abandons them.
In recent years, Spain has faced the challenge of transforming its view of itself from that of a white, Catholic society with specific western cultural features, to an ethnically mixed one with multiple cultural, religious and even linguistic components. This transition, which is difficult in any society, predictably gives rise to opposition from reactionary forces, but also to legitimate complaints about the way in which bureaucrats are managing the process.
This can be observed in the treatment of minors who arrive in Spain unaccompanied by a responsible adult, for whom government departments have a legal duty of care. Their presence tests the official discourse on “interculturality” and the consensus concerning the treatment of minors. The results are not flattering for Spanish government or society.
The government’s notorious lack of foresight in tackling new social demands can be seen in how it has reacted to the arrival of the - mainly Moroccan - minors and the means established for their protection. It has created procedures which sanctioned institutional mistreatment and plans for repatriation and/or expulsion. It has also painted a portrait of this group that is weighted against their normalised insertion into the community.
A respectful but threatened legal framework
The United Nations Convention on the Rights of the Child, adopted in 1989 and ratified by Spain in 1990, is the frame of reference that lays out the basic rights that must be protected. It confirms that the child’s best interest is the priority. At a national level, the following laws should be highlighted: the
Ley Orgánica 1/1996 de Protección Jurídica del Menor (LOPJM, Organic Law for the Legal Protection of Minors), the
Ley Orgánica 5/2000 reguladora de la Responsabilidad Penal del Menor (LORPM, Organic Law that regulates the Penal Responsibility of Minors) and, within the context of the Basque Autonomous Community, the
Ley 3/2005 de Atención y Protección a la Infancia y la Adolescencia (LVAPIA, Law for the Care and Protection of Childhood and Adolescence). The LVAPIA was the basis for the development of Decree 131/2008 that regulates housing reception facilities for children and adolescents in situations in which they lack social protection.
Within this legal framework, there has been a key change in how children are viewed: from the objects of protection to the subjects of rights. The LVAPIA sets this out in article 4, when it states that:
the best interest of the boys, girls and adolescents, and the protection of their rights in order to guarantee their development, must be the principle that inspires the decisions and the actions undertaken...To determine this interest, in the first place, the needs and rights of under-age people will be attended to, their opinions and wishes expressed with adequate judgement will be taken into account, and their individuality in a family and social framework will be considered... The superior interest of the boys, girls and adolescents and the protection of their rights in order to guarantee their development must take precedence over any other concurrent lawful interest.
What has been detailed so far suggests that the normative resources are sufficiently wide-ranging. However, there is a restriction that crucially affects the application of this framework to migrant minors: the requirement to take into account their foreignness above their condition as minors.
Treatment under the Ley de extranjería (Foreigners’ Law)
The
Ley de Extranjería and its Regulation are aimed at guaranteeing that sanction mechanisms for foreigners who do not reside legally in Spain are not applied to minors. This means that it becomes obligatory for them to be placed in the care of the services for the protection of minors and for the public prosecutors’ authority to be informed of this. In addition to this, the authorities activate a procedure for their repatriation to their country of origin, or one in which their family is residing, or for them to be entrusted to the child protection services of their country of origin. However, art. 92.4 of the Regulation for Foreigners says:
The minor’s repatriation to their country of origin or to the one in which their family members are, will only be decided if the conditions exist for the minor’s effective family reunion or for adequate protection by the country of origin’s protection services for minors, and only if it is verified that this reflects the minor’s best interest.
Moreover, art. 92.5 states:
once repatriation with their family or to the country of origin has been attempted, if it were found not to have been possible, they will proceed to issue them a residence permit.
For several years the Spanish government has been working to rid itself of these minors. This is not an easy task because the current laws, and especially the
Ley del Menor (Minors’ Law), do not allow it. Moreover, social workers, institutions and professionals involved in this field prevent flagrant or large-scale violations of the law.
The Spanish government has responded in two ways: bilateral agreements with the countries from which minors originated and modifications to the law. The bilateral agreements seek to portray the expulsion of minors as similar to family reunion as envisaged in the law, or to entry into a reception system in their place of origin. This, the government argues, is compatible with the “minors’ best interest” enshrined in the law.
The government has been making the greatest effort in this area with Morocco (although an agreement has also been reached with Senegal). The agreement between the two governments is wide-ranging in scope and received backing from the Spanish parliament in September 2007 [1]. But Morocco has not rounded off its involvement in an operation to return 1,000 children in Andalusia despite committing to do so at a meeting in Toledo in July 2007,
The reception system in Morocco makes it impossible to claim that minors transferred there will be received in a system that meets even the lowest standards of care. The Spanish government is attempting to resolve this by creating centres in Morocco, but this is proving extremely slow and costly, and has been widely criticised by NGOs that work in this field.
In the legislative field, the government has taken advantage of the “social alarm” it artificially created to introduce amendments in the recently approved
Ley de Extranjería. Its new text recognises the minor’s repatriation as a general criterion, rather than the guarantee of the minor’s best interest as is required by international norms for the protection of minors. As drafted, it envisages international agreements whose sole purpose is to return the minors to their families without overseeing and verifying what is in their best interest.
Control
In law, the public prosecutors’ authority is responsible for monitoring the government’s compliance with its duties. Over the last few years, its failure to do has been noteworthy. The regional [autonomous community]
Defensorías del Pueblo (ombudsmen’s authorities) have paid the most attention to violations of minors’ rights in the work reports, complaints, visits to reception centres and recommendations it has published. Although they only have the power to issue recommendations, the accuracy of their work has turned their reports into the main guarantor of minors’ rights. The unlawful repatriation of minors have been a theme for complaints by the Ombudsman. In February 2009, the Ombudsman published a
Report on Centres for the Protection of Minors with behaviour problems and in situations of social difficulty in which he was highly critical of the available facilities in this field.
On the quality of reception and the rights of minors
It is unquestionable that over the last ten years, and particularly since 2004, the increase in minors who are liable to be placed in administrative care has led to the establishment of a significant number of reception facilities at a substantial economic cost. This fulfils the requirement of Spanish law, but cannot be used as an argument to avoid analysing the quality of these facilities, whether they comply with existing legislation and whether they respect the rights of their users.
The report,
Minors at risk. Exceptional practices by the Administrations [2], published in February 2010 by
SOS Racismo Gipuzkoa, looks at Gipuzkoa. This is significant because Gipuzkoa has a full range of reception facilities in which, it can be argued, a normal form of care is provided. There are other examples of good practice like the existance of a significant number of consolidated educational teams. But alongside these facilities is an emergency reception service that, despite complaints by institutions and social bodies, continues to violate the rights of the minors held there.
In Gipuzkoa at the end of 2008, 54% of the youths were in emergency reception and 46% were in flats or halls of residence. In 26% of cases, no action was taken or they left the centre.
In his
Report to the Basque Parliament for 2008, the
Ararteko (ombudsman in the Basque Country), details the findings of the visit carried out on 5.11.08 to the Tolosa
Centro de Acogida de Urgencia (Centre for Emergency Reception). He says:
On the day of the visit, the number of minors lodged, in spite of information from the district council that only 15 places were available, was 49... Overall, 26 of the minors currently sleep in bunk beds, whereas the rest sleep on mattresses on the floor... Only 14 of them are recorded in the residents’ register (the city council does not allow a higher number to be recorded)...Of the minors interviewed some were recent arrivals but others had spent a long time in reception (six months, although the official maximum length of stay is only two months)...None of those interviewed (except for one) had personal documents or was recorded in the municipal register, in spite of the time spent in reception...During day shifts, the educational staff comprised four or five people...Overall, the professional team lacked stability. There were only two educators from the previous year left...the team deemed that it was not possible to carry out any educational work whatsoever.
The Ararteko reached the following conclusion:
From everything it has seen and observed, this institution deems that, considering the number of minors, the conditions in the centre and of the work team, did not make it possible to respond adequately to the minors’ needs, to fulfil the centre’s educational purpose, nor to guarantee the task of protecting the minors, thus ensuring the exercise of their rights. All of this caused, as it has in the past year, a situation that was hardly sustainable and entailed evident risk.
The severity of the report speaks volumes about the quality of the facilities for emergency reception that take in the majority (67%) of minors.
An image of conflict and delinquency
It is the failure of the policies pursued by the very institution that is responsible for caring for minors that is the cause of their reputation for delinquency. It has become clear over the last few years that the facilities set up to look after them were not only inadequate but had a negative impact (i.e. overcrowding in emergency reception, the routine use of lodging houses, the absence of substance abuse treatment, the use of security firms to undertake educational functions, among other issues). In addition, legal requirements were not met (i.e. providing the minors with timely documentation, respecting their right to be heard and taking their views into account).
Failing to intervene in a reasonable time, and in the correct manner, has contributed to these problems becoming entrenched, making many of the minors more vulnerable. These failures strengthen the dynamics of antisocial behaviour in some because they feel abandoned to their fate. This helps to generate a negative public image of this group, but it is important not to lose sight of the root cause of these problems.
I will now consider the situation in which minors in care who have been involved in conflict and sometimes crime, find themselves. Published figures indicate that this group makes up 10% of all minors, while the other 90% are reported to be making satisfactory progress in standard facilities. If these figures are accurate, the majority can be said to hold strong values and are resourceful, enabling individuals to make progress in spite of highly unstable family and environmental conditions in their countries of origin. They have overcome the difficulties of the migratory experience, the extreme conditions of perhaps travelling under a lorry or in a dinghy. Why are these positive characteristics not extolled and why are the images presented to society the exact opposite of this?
What should we do with the 10%? The local authority has a clear idea - apply exceptional treatment aimed at getting rid of them. Public opinion is primed to strengthen pre-existing trends to set up legislative and executive mechanisms to enable Spain to “return” of a sizeable number of these youths to their countries of origin: those who commit offences (because they are a “lost cause”) and the remainder because they are an excessive economic burden.
This exceptional treatment includes the establishment of facilities to tackle these kinds of behaviour. It is an approach that might be positive if the facilities actually tried to address the problem, because it would prevent disruption and enable specific work to address the needs of these minors, allowing them to progress. Published reports show that these facilities do not even begin to address these issues.
In some facilities minors are stripped of basic rights and no educational work is undertaken. Centres are placed in isolated locations that lack communications that would enable prompt access to training and other facilities in urban centres. There is also a failure to provide teams with the specialised training or technical equipment that is required by law. It is also made clear to those sent to the centres that they have no prospects, as they will not be able to continue participating in training programmes, nor will they receive documentation. They are then invited to leave for other territories, with their bus or train ticket paid for.
The aforementioned report [2] documents a series of rights violations: the right to education; to documentation; to dignified treatment (and not suffering physical ill-treatment); to be heard and express their views; to health (in view of the lack of therapeutic interventions for those who have substance abuse problems); to leisure activities and free time; to specific requirements for girls in mixed centres, placing them in vulnerable situations. This list of human rights violations explains the systematic escape attempts from centres by a sizeable portion of the minors who are diverted there, boys and girls alike. The erection of a security fence to enclose the “open” centre reveals fully the government’s desire to criminalise these boys and girls. This measure does not improve citizens’ security in any way.
As a result, a considerable number of these minors see their situation deteriorate. Their use of addictive substances worsens and they become involved in crime, collecting police and judicial records, which lead to their serving time in reformatories. Others, following the advice of the people to whom their care is entrusted, will leave seeking a new escape route. Moreover, this will lead the public to criticise the youths and even carry out discriminatory acts against them.
In short, it is a government policy which neglects its legal obligations towards vulnerable minors by abandoning them.
Peio M. Aierbe, Mugak/SOS Racismo
1. “Acuerdo entre el Reino de España y el Reino de Marruecos sobre cooperación en el ámbito de la prevención de la emigración ilegal de menores no acompañados, su protección y su retorno concertado, hecho en Rabat el 6 de marzo de 2007”, Boletín Oficial de la Cortes Generales, no. 429, 14 September 2007.
2. Consult the full-text document at: www.mugak.eu