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Migration and Home Affairs

guardian

Definition(s)

In the migration context, an independent person appointed to act on behalf of a child, in the absence of (both) parents or the adult responsible for the child by law or by practice, who safeguards the best interests of the child (BIC) and general well-being, and to this effect complements the limited legal capacity of the child, when necessary, in the same way that parents do.

Source(s)

Derived by EMN from Fundamental Rights Agency (FRA): Guardianship systems for children deprived of parental care in the European Union, Summary, 2018, and UN Committee on the Rights of the Child: General Comment No. 6 (2005): Treatment of unaccompanied and separated children outside their country of origin and IATE entry for smuggler.

Translations

  • BG: попечител или настойник
  • CS: opatrovník
  • DE: Vormund; Obsorgeberechtigter (AT)
  • EL: Επίτροπος (EL) Κηδεμόνας (CY)
  • EN: guardian
  • ES: n/a
  • ET: eestkostja
  • FI: huoltaja
  • FR: tuteur; représentant légal (LU)
  • GA: caomhnóir
  • HU: gyám
  • IT: tutore
  • LT: globėjas
  • LV: aizbildnis
  • MT: Kustodju / Tutur(-triċi)
  • NL: voogd
  • PL: opiekun
  • PT: tutor
  • RO: n/a
  • SK: poručník
  • SL: skrbnik
  • SV: god man
  • NO: verge, representant (b); verje, representant (n)

Synonym(s)

  • recognised responsible adult
  • responsible adult

Broader Term(s)

Narrower Term(s)

Note(s)

  1. Neither in the international context nor at EU or national level is there a uniform definition and use of the terms guardian and (legal) representative. Sometimes both terms are understood as synonyms. An overview of different terms used in international and EU context can be found in: Fundamental Rights Agency: Guardianship for children deprived of parental care, 2015.
  2. The EMN Glossary puts the emphasis on the functions of the appointed person, rather than on the terminology. The term 'guardian' reflects the broader concept and goes beyond the responsibility of a (legal) representative. While a guardian has parental authority over a child, is in charge of all day-to-day life matters and acts as a link between the child and existing specialist agencies/individuals, a representative has a narrower mandate and is responsible for the legal representation of the child within particular legal or administrative proceedings. A guardian and a representative can be the same person, but do not necessarily have to be. The guardian differs also from a social worker or other caregivers responsible for the material needs of the child. For more information see Fundamental Rights Agency (FRA): Guardianship systems for children deprived of parental care in the European Union, Summary, 2018.
  3. In the migration context, international and EU legislation recognise the importance of guardianship and legal representation to safeguard the child's best interests and well-being. States should appoint a guardian as soon as an unaccompanied minor or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the territory and/or jurisdiction of the State or has been entrusted to the person exercising parental authority or guardianship. The guardian should be consulted and informed regarding all actions taken in relation to the child and have the authority to be present in all planning and decision-making processes, including immigration and appeal hearings, care arrangements and all efforts to search for a durable solution. The guardian should have the necessary expertise in the field of child care, so as to ensure that the interests of the child are safeguarded and that the child's legal, social, health, psychological, material and educational needs are appropriately covered. If a guardian is unable to adequately represent the child's best interests in all spheres and at all levels of the child's life, supplementary measures (such as the appointment of a legal representative) must be secured.
  4. In some EU Member States private organisations, state institutions or municipalities can be appointed as a guardian.
  5. The inconsistent use of both terms in EU legislation can be seen e.g. in Art. 4(2f) of Amended Proposal for a Regulation establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EUCOM/2020/611 as it uses the term 'guardian' with the previous definition of 'representative' in Art. 2(n) of Directive 2013/32/EU (Recast Asylum Procedures Directive).