EU support for protecting Ukrainian children

Michael O’Flaherty
FRA Director Michael O'Flaherty delivers an impact statement on 2 June 2023 in Stockholm during a high-level meeting on EU support for reform of Ukraine's child protection system. The meeting was organised under the Swedish Presidency of the Council of the EU.

Minister Malag, Minister Navickiené, Minister Riisalo, Minister Caubel, Special Representative M’Jid, dear colleagues and friends,

We are here today because children come first; because children are our present and our future. As a war of aggression rages once again on European soil, we must do whatever it takes to protect children’s lives and dignity – it is their right and it is our duty.

The full scale of the impact of Russia’s invasion on the rights and wellbeing of the children of Ukraine is impossible to assess at this stage but the numbers we already have are shocking:

  • One third of the nearly 4 million people who are receiving temporary protection in the European Union are children.
  • More than 30,000 children displaced from Ukraine are on their own. Many have registered as unaccompanied, others are separated from parents or kin. Thousands have come from institutions, including children with disabilities and additional needs.
  • Thousands of children have been abducted to Russian territory . The exact numbers are disputed very fact that we do not have definite numbers on this critical issue signals a catastrophic failing in child protection.

The evidence gathered by the Fundamental Rights Agency about these children, through its surveys, field work and engagement with sources, speaks to an experience of immense stress and trauma. For example:

  • FRA’s survey conducted between August and September 2022, which gathered information about the experiences of persons fleeing Ukraine and arriving into EU Member States, found that three quarters of children aged 16 to 17 years had experienced the threat of shooting, bombing or missile attacks.  
  • Four in ten younger children (aged between 12 and 15) said that they continue to experience depression, anxiety or panic attacks. 
  • Almost half of these young people said that they found it difficult to sleep and concentrate. 

The EU’s response to the need to protect these children has been resolute, attesting to the enduring solidarity of the EU Member States and their citizens. Of central importance to structuring an effective and coordinated response has been the triggering of the 2001 Temporary Protection Directive. This has spurred national and local efforts and has been effectively implemented across the Union to enable Ukrainian families to access three elements key to the welfare of children: housing, education and healthcare. At FRA, we have invested heavily in supporting and highlighting all efforts, be they at local, national or EU levels, to ensure the protection of Ukrainian children. In September, we will publish our third Ukraine bulletin which will focus exclusively on child protection services provided to the children fleeing Ukraine.

Let me turn now to some of the key concerns we have already identified in the plight of Ukrainian children:

A first challenge has been to identify where legal responsibility for Ukrainian children lies. Some children fled with a relative, sometimes distant or a friend of the family, but the legal responsibility remains with their parents in Ukraine. An overarching legal question is therefore “who has legal responsibility for these children while they remain outside of Ukraine?” The approach followed by Member States has varied substantially and the EU could assist in providing more legal clarity and a more coordinated approach. A similar challenge but one with an additional layer of complexity is  that of children who were living in Ukrainian institutions prior to the Russian invasion, and who subsequently fled with their Ukrainian carers. Some EU Member States have appointed additional legal guardians and are closely monitoring the situation of these children. Other Member States have not appointed separate guardians, instead recognizing the authority of guardians assigned by the Ukrainian authorities, as required under the Hague Convention.  Again, the EU could facilitate a more coordinated approach, and provide good practice on how to place the child’s best interest at the heart of whichever method is chosen.

A second challenge is that of the widening chasm in the education of Ukrainian children. These children went from the disruption of Covid, the struggle of remote learning and the cancellation of exams and assessments, to fleeing their classrooms and arriving in schools across the EU where they faced language and cultural barriers. Apart from classic educational benefits, these children have also been deprived of social engagement. The provision of online learning by teachers in Ukraine presupposes that children have access to the tools necessary to learn in that way; we do not know how successful this has been, because there is a lack of legal tools to monitor online attendance. If children encounter insuperable barriers to learning, dropping out will become more and more prevalent, which may in turn lead to social exclusion, juvenile crime and mental health difficulties.

The third issue I wish to highlight is one that relates indirectly to children but the outcomes of which affect them directly. The employment activation of parents must be recognised as a critical component of child protection. It is crucial to enable parents who have fled – in most cases, single mothers – to take up employment in order to mitigate the risk of poverty and decrease their situation of vulnerability and dependency. Employment activation cannot happen on its own; it must be supported by a network of childcare facilities, language classes, and the legal recognition of Ukrainian qualifications. When all of these combine, the result is an environment of stability, which benefits the parent and, above all, the child.

Finally, an overarching issue which relates to all of the challenges I have outlined above, and which is already high on the EU’s agenda is the lack of an integrated approach to child protection. Against the backdrop of varied Member State practice, it is unclear how child protection systems are dealing with referrals and how they monitor the situation of children from Ukraine. Nor is it clear whether local or national child protection systems have a say in the short- and long-term protection plans of these children. 

The way forward must be one anchored in existing EU and international law, as it is binding and it is the clearest and most reliable roadmap we have.  Both the Convention on the Rights of the Child and the Hague Convention, are ratified by all Member States and Ukraine.  Moreover Article 24 of the EU Charter of Fundamental Rights protects the rights of the child, providing that “ Children shall have the right to such protection and care as is necessary for their well-being.” 

Here, as in all contexts involving children, the primordial importance of the best interests of the child govern. As confirmed by the Committee on the Rights of the Child in General Comment No 14, the right of the child to have his or her interests taken as a primary consideration is enshrined as a principle and a rule of procedure.   An ancillary, but critical principle enshrined in Article 12 of the Convention is that children be heard in decisions affecting them.   Article 15.4 of the EU Temporary Protection Directive requires Member States to take into consideration the best interests of the child when applying the Directive.

What does the law require in concrete terms for Ukrainian children in the EU?

First, it is well established in law and practice that the best place for a child to grow and develop is within the family. When this is not possible, alternative care solutions must be found that are as close to a family as possible, such as foster parents, or small family-care settings. The institutionalization of children in large facilities is not an appropriate solution. EU Members States supported by the European Commission have developed significant experience in the de-institutionalization of children without parental care. It is important that all actors work to map the appropriate locus of legal responsibility for each child and continue to collaborate in the de-institutionalization of children here in the European Union, and, as far as possible, in Ukraine.  

Second, Member States must monitor the well-being of children from Ukraine, particularly those coming from institutions. This should be done at both local and national levels, involve cross-Member State collaboration and include short and long-term care planning for these children with their active involvement, as required by the CRC.

Finally, in light of the trauma experienced by these children, Member States need to accelerate efforts to ensure children can access mental health support in their own language. We know that there are efforts underway on the part of Member States and Ukraine authorities in this regard, including providing online psychological support: these efforts should be sustained and increased.

Our Agency is closely watching the evolving situation within the EU, and working hard to gather data and lived experience which can be turned into advice and good practice for Member States. However, we are hamstrung by the limitations of our mandate, which does not allow us to  expand our work to cover the territory of Ukraine. So, let me close with an invitation to Ukraine to consider progressing with its application for observer status to the Fundamental Rights Agency. This would enable us to deepen our engagement, collect data and conduct research in the territory of Ukraine. This would also facilitate our technical assistance to Ukraine and allow us to plan our work more strategically and for the longer term. In the meantime, you can be assured of the steadfast commitment of my  Agency to continue to work within its mandate towards the respect, protection and fulfilment of the fundamental rights of all Ukrainians, particularly those of Ukrainian children.


See also