Unaccompanied Refugee Children in South Africa

Refugee children in South Africa flee unaccompanied from their country of origin due to an imminent threat or fear of persecution caused by conflict, war, forced recruitment or harmful cultural practices. Because of the lack of a coordinated mechanism the majority of separated and unaccompanied minors are never identified or access any types of services

«My name is Tresor I am 13 years old. I come from Bukavu in South Kivu, in the Eastern Democratic Republic of Congo (DRC). Men in dressed in military attire came to the school I used to attend and took twelve boys, I am one of the twelve boys.

We were driven out into the mountains to a forested area where we were forcibly trained. We were told that we going to be trained to fight in the army for Democratic Republic of Congo (DRC). I do not know which army or rebel group my captors belonged to. Three of us managed to escape the encampment during meal time. I do not know what happened to the others we left behind…We ran and walked for miles until we found cargo trucks which transported us out of the area.

I lost contact with the other boys I had escaped with and jumped onto a truck that was headed for Zimbabwe, It crossed into South Africa and travelled straight to Cape Town. I had never travelled to these countries before…. all I knew was that I had to find safety from the soldiers who recruited me. I do not know where my mother and brother are. I am alone here and I do not have any family here in this country».

Tresor’s story captures the reality and journey that many unaccompanied refugee children in South Africa experience. Children such as Tresor flee unaccompanied from their country of origin due to an imminent threat or fear of persecution caused by; conflict, war, forced recruitment or harmful cultural practices (e.g child marriages).

For children like Tresor the journey made is alone is risky and often dangerous where they are often exposed to further abuse or exploitation such as trafficking and smuggling and in some instances physical or sexual violence, leaving them traumatised and socially or linguistically isolated on arrival into South Africa.

What are South Africa’s obligations towards protecting Refugee children?

South Africa is a signatory to various International Conventions which protect and preserve the rights of the child both the United Nations Convention on the Rights of the Child 1989 (CRC) and the African Charter on the Rights and Welfare of the Child 1990 (ACREWC) have obligated South Africa to establish protective measures to all children in South Africa irrespective of nationality or documentation status.

The Constitution of South Africa (Bill of Rights) applies to all in South Africa without favour or discrimination. The rights of the child are enshrined in Section 28 (chapter 2) of the Constitution, this serves as a basis for other national legislation which is applicable to children in South Africa.

Section 28 in the Constitution is specific regarding the rights of all children, it stipulates some fundamental rights for children, such as parental care, or the right to alternative care when removed from the family environment, Protection from abuse and neglect or use in armed conflict as well as access to the basic needs such as food, shelter ,health care and social services. At the core of this a child’s best interests are of paramount importance in every matter concerning the child.

The Children’s Act No.38 of 2005 and the Refugees Act No. 120 of 1998 provide a legal framework which extends and entrenches the rights of unaccompanied and separated refugee children.

What is separated and unaccompanied minor?

An Unaccompanied minor is a child that has been separated from both parents and relatives and is not being cared for by an adult who is the legal or customary caregiver. Whilst a separated minor is a child that had been accompanied by an adult relative other than a legal caregiver.

To further support the abovementioned legislation; guidelines and standard operating procedures have been established to deal with cases of separated and unaccompanied minors. These guidelines set a framework for designated child protection officials to assist with the provision of services for children found in the South Africa like Tresor who require immediate safety and security. Children with refugee claims have children’s rights as well as refugee rights. Even if a child does not have a refugee claim the government of South Africa is obliged to protect the migrant child.

What then is the fate of children such as Tresor when they find themselves unaccompanied in South Africa?

As an unaccompanied minor, the child protection framework in South Africa asserts that once an unaccompanied child is identified the state becomes the custodian of the child and in doing so would be responsible for the primary needs of safety and security. All decisions or actions made behalf of the child should have the best interests of the child at the fore of protection.

Children in this position would be deemed to be in need of care and protection and Chapter 9 of the Children Act No.38 of 2005 clearly outlines the procedures for protection whereby a social worker would assess and submit a report on the child’s situation. A determination would be made by the court for temporary safe care or alternative care.

Once the child’s safety and security have been determined, documentation ought to be obtained for the purposes of identification and regularizing the child’s stay in South Africa. In instances where children have a Refugee claim an Asylum application can be lodged with the help of a social worker as well as intervention from a children’s court. All in accordance with the requirements prescribed in S32 of the Refugees Act No. 120 of 1998.

According to research conducted by the Scalabrini Centre of Cape Town (2015), 109 migrant children were accommodated in Child and Youth care centres in the Western Cape in 2015. 56% were accompanied by a parent whilst only 7% of the 109 children in care centres were unaccompanied. Only 8% of these children in the study had an independent refugee claim. The profile of the children highlighted that the majority of separated and unaccompanied minors were males and ranged between 2- 22 years with a median age of 11 and 17 years of age.

With regards to nationality, the study revealed that in the Western Cape alone, the majority of foreign minors come from DRC, followed by Burundi, Rwanda and Zimbabwe. Whilst this study reflects the profile of separated and unaccompanied minors in Child and Youth Care Centres(CYCCs) in the Western Cape South Africa, there lacks a centralised and coordinated mechanism to identify this group of vulnerable children and further gauge the extent to which separated and unaccompanied minors move from their countries of origin into South Africa.

The lack of a coordinated mechanism means that the majority of separated and unaccompanied minors are never identified or access any types of services. Without the necessary formal care and protection these children remain “invisible” with 14.3% living on the streets of South Africa and the remainder living in informal dwellings. The lack of safety and security for unaccompanied children whilst they reside in South Africa, unidentified and undocumented perpetuates further vulnerabilities to physical and sexual violence and even arrest by the police.

South Africa’s legal frameworks to protect children can be considered to be generous and considerate of the rights of all children. However, there remain challenges in the realization of these rights. Administrative and capacity challenges to accessing full protection create blockages and impacts on the extent to which refugee children can enjoy their rights. Currently in South Africa filing an application for Asylum is challenging as the process is fraught with corruption and currently only three Refugee Reception Offices in the country are open to accept and process new applications for Asylum.

The finalization of refugee claims is often a protracted process and where claims are not finalized, it makes it difficult for children to access social welfare services. To contribute to these challenges social service professionals and Refugee status determination officers (RSDOs) often lack knowledge or familiarity with refugee matters particularly with regards on how to assist a child refugee, resulting in claims being rejected. Language limitations, cultural barriers and trauma experienced (especially by children who have fled conflict) are all factors which further contribute to the timely finalization of refugee applications and rendering of services to children with refugee claims.

South Africa is often viewed as a corridor for protection and safety, where opportunities can be actualized and rights upheld where they were previously denied… Whilst challenges do exist in reality for unaccompanied and separated children in South Africa, It should be acknowledged that the foundation upon which the child protection framework is predicated upon is one of inclusivity, in that irrespective of nationality or documentation status a child is a child and every child deserves a chance to have those rights realised.

Matipa Ndoro

Advocacy Officer, Scalabrini Centre of Cape Town