29
September
2023

The Russian aggression against Ukraine – Displaced children finding protection in the EU - Bulletin 3

Russia’s invasion of Ukraine posed new challenges for the EU. Millions were forced to flee the war. As a result of the scale of people’s displacement, the EU activated for the first time the Temporary Protection Directive (TPD). More than 1.3 million children sought international protection in the EU. This bulletin explores the respect, protection and fulfilment of the fundamental rights of displaced children and ways to safeguard their rights. The third in a series, this bulletin builds on the evidence in FRA’s Bulletin #1 and #2 on the experiences of displaced people seeking safety in the EU.

The urgent need to protect huge numbers of displaced children from Ukraine following Russia’s invasion in 2022 created many new challenges for Member States.

Several international and European legal instruments on child rights and international protection are applicable. All EU Member States and Ukraine have ratified the United Nations (UN) Convention on the Rights of the Child (CRC) and are obliged to protect all children in their territory, regardless of their nationality, place of residence or other status. The CRC provides children with the right to access education, health and child protection services, as well as the right to be protected from violence or abuse, and to seek refugee status. Furthermore, all EU Member States, Ukraine and the EU itself have acceded to the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD establishes that parties shall ensure the protection and safety of persons with disabilities in situations of risk, ensure the best interests of children is a primary consideration, and ensure the respect of children with disabilities’ right to family life and care within the community in a family setting.

Beyond the general applicability of the CRC and the CRPD, and regarding refugees specifically, the following are relevant:

The EU Charter of Fundamental Rights applies when Member States apply EU law, including the Temporary Protection Directive

The various supranational legal instruments protecting children displaced from Ukraine can be grouped into four categories: general child protection, protection of refugees, cross-border cooperation and protection of victims (see Figure 2).

Figure 2 – Legal framework protecting children displaced from Ukraine

A graphic outlines the main legal framework protecting children displaced from Ukraine in the EU. The different legal instruments are grouped in four categories: general child protection, protection of refugees, cross border cooperation, and protection of victims.

Source: FRA, 2023

Notes: See the European Union Fundamental Rights Information System (EFRIS) on human rights commitments and compliance of the 27 EU Member States; and the UN interactive dashboard.

The EU Temporary Protection Directive (TPD) (2001/55/EC), the central legal instrument in this context, was adopted in 2001 but activated by the EU Council (2022/382/EU) for the first time in EU’s history in 2022. It establishes the right of displaced persons from Ukraine, including children, to stay lawfully in the EU and to benefit from education, healthcare, housing and social assistance.[2]
 
It also provides for the appointment of a legal guardian (Article 16.1) and assistance to persons with special needs, including unaccompanied children (Article 13.4).

For the first time, two private law instruments on cross-border cooperation influenced EU authorities’ response: the Brussels IIb Regulation and the 1996 Hague Convention on Child Protection.

Each instrument establishes a framework for recognition of judicial or administrative decisions across borders regarding parental responsibility, including measures for the protection of the child. Those decisions cover issues such as rights of custody, guardianship, placement and foster care. All EU Member States and Ukraine are parties to the 1996 Hague Convention on Child protection.

EU Member States must apply the rules established in the Brussels IIb Regulation regarding a child whose habitual residence is in an EU Member State, while the 1996 Hague Convention on Child protection is applicable if Ukraine is still considered the habitual residence of the child. According to guidance provided by the European Judicial Network, the Ukrainian courts continue to retain jurisdiction if the child was habitually resident in Ukraine before the displacement to the EU. This means parental responsibility decisions are governed by Ukrainian law and any measure taken by Ukrainian authorities is automatically recognised in the EU Member States. The change of habitual residence would require the child living in Europe for some time and a court or authority would need to make sure that certain requirements are fulfilled.

The question regarding jurisdiction has raised practical challenges and Member States have sometimes followed different approaches. This is particularly apparent in the recognition of legal guardianship of children evacuated from Ukrainian institutions (see Chapter 6.1).

Other EU instruments applicable to situation of children displaced from Ukraine may include the EU Victims' Rights Directive (2012/29/EU), the EU Directive on combating child sexual abuse (2011/93/EU) and the EU Directive on preventing and combating trafficking in human beings (2011/36/EU).

The EU recently acceded to the Council of Europe Convention on violence against women (Istanbul Convention) which is relevant to preventing violence against girls.

The legal complexity is further accentuated by the need to coordinate within the EU and between Member States as well as with Ukrainian national authorities. This has led to the creation of several coordination mechanisms at EU level. The European Commission created the Solidarity Platform, a coordination network where Member States share information on the reception of persons fleeing the Ukraine to address practical challenges. The Council of Europe has also created a cooperation mechanism with the sole purpose of coordinating actions for the protection of children fleeing Ukraine.

The Temporary Protection Directive applies to all EU Member States, except Denmark[3] For Ireland, see Council Implementing Decision (EU) 2022/382 of 4 March 2022 having the effect of introducing temporary protection; Recital 25: ‘Ireland is bound by Directive 2001/55/EC and is therefore taking part in the adoption of this Decision.’ It was adopted into Irish law by Section 60 of the International Protection Act 2015.
. Denmark is not bound by the TPD but has introduced a national protection scheme which offers similar protection.

Following the Council Implementation Decision (EU) 2022/382, Member States provided temporary protection for displaced persons from Ukraine at the national level through various legal acts. For example, government or ministerial decisions (executive acts), legislative acts and or decisions of a competent administrative authority.[4] European Union Agency for Asylum (EUAA) (2023), Providing Temporary Protection to Displaced Persons from Ukraine. A Year in Review, Chapter 3.1., March 2023.
FRA has also published information on some aspects of national legislation implementing the TPD.

Some Member States adopted or amended national legislation addressing specific issues related to children displaced from Ukraine. Some address specific processes, such as registration for temporary protection and respective competences of national or provincial/regional authorities. Others focus on children’s access to social rights, such as access to social welfare and access to education (see Chapter 4).

Some Member States strengthened protections for children including those  displaced from Ukraine. Some strengthened integrated child care services (for example, in Hungary, Croatia, Lithuania, Romania), or addressed the situation for unaccompanied children specifically. The Polish Law on assistance to citizens of Ukraine, for example, introduces a specific register of unaccompanied Ukrainian children and regulates the supervision and support of temporary guardians. It also sets a ban on placing Ukrainian children under the age of three in institutional foster care.

Beyond the scope of implementing the TPD, Lithuania and Poland signed specific agreements or a memoranda with the Ukrainian authorities focusing on the protection and care of Ukrainian children (see Chapter 5 and 6.1).

Dedicated strategies and action plans at national level that addressed specific challenges made the implementation of the TPD more effective. This allowed for better coordination between public authorities and different levels of government. Coupled with adequate funding and budgeting structures, policy frameworks that translate laws and policies into activities made a comprehensive national response possible.

National policy approaches differed. Some developed action plans addressing displaced persons from Ukraine generally, including measures related to children, for example, Czechia and Latvia. Others developed policies in specific areas, for example addressing children’s access to education or healthcare (see Chapter 4). In other Member States, relevant measures were integrated through general instruments, such as national child rights strategies, for example, in Luxembourg.

Another means of facilitating coordination of measures adopted by some Member States was the creation of coordination frameworks. For example, in Romania, in addition to a high-level task force that monitors activities of the ministries involved in the management of the influx of refugees, the government also established a working group on children and youth. Similar coordination mechanisms were also established in Austria, Belgium (Flemish region), Croatia, Ireland, and the Netherlands.

Efforts at the national level compliment initiatives on the regional and city level. The Land of Hessen in Germany, for example, developed an action plan to integrate children displaced from Ukraine into the education system.

Several cities developed apps and established dedicated websites providing for centralised access to assistance and information. The municipality of Copenhagen, for instance, established a hotline for information to displaced Ukrainians, while the municipality of Aarhus created a counselling centre for newly arrived Ukrainians.

FRA activity – Fleeing Ukraine: implementing temporary protection at local levels

The sudden, high and unpredictable arrivals of numbers of persons fleeing Russia’s invasion of Ukraine thrust cities and local governments to the forefront of the EU and its Member States’ relief work.

FRA’s forthcoming report on the implementation of the TPD at the local level describes the key measures that local authorities in 26 locations took in ensuring access to housing, education, employment and healthcare.

In relation to funding, FRA’s research found examples of targeted budget allocations or assigned increased expenditures related to the reception and inclusion of people displaced from Ukraine in less than half of the EU Member States.

Increased budget allocations supported and expanded reception needs (in Finland, the Netherlands, Sweden). In the majority of countries, budgets supported children’s inclusion in national education systems. Common measures included increased staffing and funding for  national language courses. For example, the Austrian Minister of Education announced an increase of funds for German classes by one third to 40 million EUR from autumn 2023 and the number of staff from 442 to 577.

Some Member States provided additional resources to national guardianship systems. In Belgium, an extra 700,000 EUR was allocated in June 2023 to the Guardianship Service for the registration and follow up of newly arriving unaccompanied children. In the Netherlands,  additional expenditures related to the reception of displaced persons earmarked 5 million EUR for the guardianship organisation Nidos.

In Ireland, the Child and Family Agency (Tusla) was allocated a funding of €31 million for the provision of services in 2023.Access to welfare and allocations linked to accessing social rights and guaranteed by the TPD is discussed in Chapter 4.

The European Child Guarantee is one of the main social policy initiatives established by the EU. Adopted in 2021, it aims to guarantee children at-risk-of poverty their effective and free access to basic rights such as healthcare, quality education, childcare (particularly early education and childcare), healthy nutrition and adequate housing. The Child Guarantee cannot be seen in isolation from the European Semester that regulates European economies and coordinates social policy, including policies related to child poverty. Civil society has recommended that the European Semester pay more attention to the Child Guarantee to enhance social inclusion for vulnerable groups.

The Child Guarantee applies to all children, but it is recommended that Member States consider children who experience specific disadvantages, such as children with a migrant background (including refugee children) or children with disabilities. Article 11 of the Council Recommendation establishing the European Child Guarantee recommends Member States to develop national action plans (NAPs) until 2030, setting targets and defining measures and sources of funding. The deadline for submission of the national action plans was just a few weeks after the Russian invasion of Ukraine impacting Member States’ ability to develop and include targeted measures. This leads to a mixed picture across the EU (see Figure 3).

Figure 3 – Children displaced from Ukraine covered by national action plans for the implementation of the European Child Guarantee

A map of EU Member States shows if and how children displaced from Ukraine are covered by national action plans for the implementation of the European Child Guarantee.

Notes: For the NAPs see European Commission’s website on the European Child Guarantee and the national Franet reports.

Source: FRA, June 2023.

A year after the deadline for Member States to submit NAPs, pursuant the Council Recommendation establishing the European Child Guarantee, Austria, Latvia and Romania had still not submitted. Austria has submitted a draft and the Latvian NAP is in consultation with the European Commission.

About one third of EU Member States’ NAPs make no reference to children fleeing Ukraine and contain no measures to manage the increased pressure to deliver support, ensure children’s safety or access to basic rights and services. The lack of specific references, however, does not mean that children displaced from Ukraine are not benefiting from measures intended for all children in need. Some Member States have followed the Commission’s Recommendation and identified children with migrant background, asylum seekers or unaccompanied children as a group in vulnerable situation. The NAPs of Cyprus, Lithuania and Sweden, for example, recognise children with migrant background as ‘children in need’ and either set out specific measures or stress that children in these situations need to be taken into account in the measures set out in the NAP.

Furthermore a UNICEF project providing support to develop NAPs suggests that most of the countries are adapting their plans to include measures addressing displaced children from Ukraine.

In seven EU Member States, the NAPs acknowledge the challenge posed by the displacement from Ukraine and commit to support children displaced in the EU but do not contain concrete measures or indicators. The Estonian NAP acknowledges that “the war in Ukraine has brought children and young people to Estonia as war refugees, which is why there is a possibility that the target groups […] and measures, will change in the coming years.” The NAP of Greece mentions separated children fleeing Ukraine as a specific category of children in need under the title: “Homeless children or children experiencing severe housing deprivation”.

The NAPs of eight EU Member States set out specific measures for children displaced from Ukraine. Some identify specific challenges, while others focus on the planned measures. In Spain, for example, the State Action Plan for the Child Guarantee, expressly mentions children displaced from Ukraine under the specific category of vulnerable children setting a number of concrete measures, including the implementation of a collaboration programme for Ukrainian language assistants for Spanish schools, and access to free health care. The Slovak NAP identifies particular risks for children displaced from Ukraine, including unavailability of childcare facilities; lack of systemic coverage of psychological care and financial coverage for medical care required by children with disabilities; lack of guidance in addressing war trauma; and the overload associated with parallel education in the Slovak and Ukrainian system.

A European Parliament study on the Child Guarantee NAPs focusing on support for refugees found that measures contained in the NAPs focus on access to early childhood education or care and access to education, funding school and out-of-school-based activities, access to healthcare and adequate housing and access to healthy nutrition including at least one healthy meal for each school day.

Reflecting the importance of the local level implementation of the actions contained in the NAPs, the European Committee of the Regions and UNICEF signed an agreement to support regional and local administrations in the European Union in their work on child protection and promote the European Child Guarantee with a focus on children displaced from Ukraine.

Adequate funding of relevant policies and measures is necessary for protecting fundamental rights in Member States. The Council Implementing Decision (EU) 2022/382 which activated the TPD sets out in recital 22 of the Preamble that “all efforts of Member States to comply with the obligations deriving from this Decision will be supported financially by the Union Funds. Emergency and flexibility mechanisms within the Multiannual Financial Framework 2021-2027 may also mobilise funds [and] the Union Civil Protection Mechanism has been activated.”

The European Commission facilitated the mobilisation of EU funding mechanisms to support national demands. It introduced a flexible use of funding available from the 2014-2020 cohesion policy funds and created the Recovery Assistance for Cohesion and the Territories of Europe (REACT-EU) to meet emergency support needs. The Cohesion's Action for Refugees in Europe (CARE) enabled reallocation of resources for support to people fleeing Ukraine. Emergency funding for integration and psychosocial support financing was provided to Member States who had the most pressing needs.

“The European Union reiterates its commitment to reinforce support of displaced persons, both in Ukraine and in the European Union, including through adequate and flexible financial assistance to the Member States who carry the largest burden of medical, education and living costs of refugees.”

European Council conclusions of 9 February 2023, para. 13.

An existing dedicated toolkit on the use of EU funds for the 2021–2027 programming period provides ongoing practical support to stakeholders at national, regional and local levels in designing and implementing policies targeted at people with a migrant background.

 

FRA activity box – The EU funding cycle 2021-2027: putting the fundamental rights safeguards into practice

The new regulatory framework for EU funds found in the Common Provisions Regulation (CPR) puts fundamental rights front and centre, by requiring compliance with the entirety of the Charter and full inclusion of CSOs and national bodies for the promotion of fundamental rights at each stage of the funding cycle.

An upcoming FRA report, to be published in December 2023 will provide a set of proposals on how to ensure the fundamental rights-related provisions contained in the CPR at the national level are put into practice.

On 20 June 2023, the Commission announced a new Ukraine Facility with a budget of 50 billion EUR. It aims to meet short-term recovery needs and support Ukraine’s reconstruction and modernisation and provide reliable financial support for Ukraine from 2024 to 2027. The facility will assist Ukraine in addressing the social, economic and environmental consequences of the war, consistent with and complementary to the respect for fundamental rights and the protection and promotion of human rights. Furthermore, “in line with the European Pillar of Social Rights, the Facility should support solidarity, integration, and social justice […] ensuring equality of, and access to, opportunities and social protection, protecting vulnerable groups and improving living standards.”[5]  European Commission (2023), Proposal for a Regulation of the European Parliament and of the Council on establishing the Ukraine Facility, COM (2023) 338 final, 20 June 2023, p. 16.