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Guilty of Adulthood Until Proven a Child

JURIST Guest Columnist Alice Farmer, a Children's Rights Researcher at Human Rights Watch, says that in many cases of asylum, children are presumed to be adults and are detained as such in countries such as Malta...

A typical child wants to be seen as an adult. Unfortunately, some children who seek asylum in the European Union (EU) through the tiny island nation of Malta find themselves with the opposite problem: needing to prove they are children. Children who arrive without an adult caregiver, all too often following a perilous sea journey, may find themselves detained and treated as adults until administrative proceedings show otherwise. Often detained with actual adults, these children have no access to education or other necessary services.

I have spent months investigating what happens to children who arrive in Malta, the Mediterranean country south of Italy, which often serves unintentionally as a gateway to the EU. Malta presumes that anyone who is not visibly a child, meaning anyone who looks older than about 12, is an adult. Migrants claiming to be children must go through a prolonged age determination process and are locked up in an adult jail for weeks or months while the proceedings unfold.

In March 2012, while in Malta, I met Stéphane K., an orphan who left Cote d'Ivoire when he was sixteen and traveled north by himself. Stéphane made his way overland to Libya and onto a smuggler's boat for the treacherous Mediterranean crossing. When he reached Malta, without papers to prove his age, Maltese authorities took him straight to detention.

Stéphane spent seven months detained in an adult facility, waiting for the Maltese authorities to process his claim that he was a child. "For someone at 17 to be in detention, it's not normal," he said. "Shut in, I can't go out ... I was detained with sub-Saharan Africans, mostly west Africans, and one Egyptian. We were all in one room, with 200-300 people. My problem was the freedom."

According to best estimates, about 12,000 unaccompanied migrant children enter the EU each year, about 60 or 70 of who come through Malta. Unaccompanied migrant children typically leave conflict-ridden countries like Afghanistan and Somalia, often after the loss of one or both parents. When they arrive in the EU they face the laborious process of proving their childhood in the first country they reach, such as Malta or Greece. Virtually all of these children travel without birth certificates or passports — documents they may never have been able to obtain in their home countries.

Many EU countries that receive high numbers of unaccompanied migrant children have instituted age determination proceedings. But the practices vary greatly. There are no clear-cut medical tests that can pinpoint a child's age accurately, an issue exacerbated by the lack of proper nutrition in many children's countries of origin. Best practices suggest relying on multi-disciplinary assessments from professionals such as psychologists, social workers and pediatricians to gauge a child's age.

Even if medical tests can't provide clear-cut answers, our legal standards can. The UN Children's Fund (UNICEF), the Office of the UN High Commissioner for Refugees (UNHCR) and Save the Children all endorse standards stating that migrants who enter age determination proceedings should be presumed children until shown otherwise. Especially since Malta's age determination process can take weeks or months, children end up imprisoned as and with adults. Among the children I interviewed who had been detained between 2008 and 2012, the average time in detention was 3.4 months. Stéphane was detained for 7 months.

Making the presumption of age default to adult has a significant impact on child welfare. In detention facilities, children may be exposed to periodic violence and those I interviewed in Malta related instances of exploitation. Abdi M., a Somali boy who was 17 when he was detained, told me: "Every day a big man from Mali came and said, 'Give me your food.' And one day I said no, and he hit me. I was out on the floor [unconscious] for half an hour. I told the soldiers but they said, 'We don't care.' No one helped me, I just cried and went to sleep."

Children detained for prolonged periods can miss out on school and suffer mental illness. Respected medical journals have reported [PDF] that lengthy immigration detention correlates with higher rates of post-traumatic stress disorder, anxiety and depression. Detention also exacerbates pre-existing symptoms, including mental trauma sustained while fleeing torture or persecution. Children and young people who are detained for extended periods are likely to experience feelings of isolation and detachment.

In one detention facility, I met Kelile T., an Ethiopian boy who said he was 17 when he arrived in Malta. He was detained for nine months, then hospitalized for 15 days for mental health treatment, but then returned to detention. He described his experience: "I take medicine now, for sleep. No medicine, I can't sleep ... my mind is no good, it is very hard ... I can't, I can't ... this is a hard place. I need a free place."

Kelile, Stéphane, Abdi and migrant children like them should be presumed to be children and treated as such. Treating them as adults until the end of long administrative proceedings imposes far too high a cost.

Alice Farmer is a children's rights researcher for Human Rights Watch based in Geneva and author of a new report, "Boat Ride to Detention: Adult and Child Migrants in Malta."

Suggested citation: Alice Farmer, Guilty Until Proven Innocent: Asylum Seeking Children, JURIST - Hotline, Aug. 11, 2012, http://jurist.org/hotline/2012/08/alice-farmer-malta-children.php.

This article was prepared for publication by Leah Kathryn Sell, an associate editor of JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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