In May 2021, UNHCR published updated guidelines on the \u201cBest Interest Procedure \u2013 BIP\u201d.<\/p>\n
This version replaces both the 2008 guidelines regarding the determination of the best interests of the child and the manual published in 2011 regarding the implementation of the same guidelines. In addition, this update adds elements developed through the implemented practices of national child welfare systems.<\/p>\n
The guidelines are designed to be used, as a priority, in the context of the procedure for the recognition of international protection<\/strong>, either directly by UNHCR or by partners.<\/p>\n The same guidelines indicate the possibility of being used and adapted in other procedural contexts where, however, it is necessary to implement a procedure for determining the best interests of the child, especially about children at risk<\/strong> (including unaccompanied foreign children involved in criminal proceedings)\u00a0[1]<\/span>.<\/p>\n The Best Interest Determination Procedure is designed to provide quality procedural standards for children at risk who require structured, systematic, and coordinated support<\/strong>. All decisions must be made with a holistic, multidisciplinary approach.<\/p>\n The Guidelines are UNHCR\u2019s standards for establishing and implementing the assessment procedure. Procedures should be child-friendly and child-centred.<\/p>\n The procedure for determining the best interests of the child includes comprehensive case management through 6 actions:<\/p>\n There are two key procedural elements to decision-making throughout the various stages of case management: the best interest assessment (BIA) and the best interest determination (BID).<\/p>\n [\/vc_column_text][\/vc_column_inner][\/vc_row_inner][vc_row_inner][vc_column_inner width=”1\/2″][vc_column_text]<\/p>\n Best Interest Assessment of the Child (BIA).<\/strong>\u00a0A BIA procedure is an assessment conducted individually on a child; it is designed to ensure that the best interest of the child remains the primary consideration. This procedure should be conducted by staff with appropriate training and with the participation of the child throughout the process. It should be possible to begin as soon as the first indicators of an at-risk condition emerge. A BIA can be reviewed and updated regularly until the program is fully implemented. A BIA should already be in place, for example, before reunification occurs or foster care is found. Activating a procedure to assess best interests should be considered the first action that plays an essential role in child protection case management\u00a0[2]<\/span>.<\/p>\n [\/vc_column_text][\/vc_column_inner][vc_column_inner width=”1\/2″][vc_column_text]<\/p>\n Child\u2019s Best Interest Determination (BID).<\/strong>\u00a0The BID procedure is a formal process that takes place through rigorous procedural safeguards, and through it, the best interests of the child are determined, especially in the case of particularly important decisions that affect the child\u2019s very life. A BID process should allow the child to participate, should be conducted by decision-makers with relevant expertise, and should balance all relevant factors to determine the best option. A BID procedure should be formalized using specific documents that identify the responsibilities of those involved\u00a0[3]<\/span>.<\/p>\n [\/vc_column_text][\/vc_column_inner][\/vc_row_inner][vc_row_inner][vc_column_inner][vc_column_text]<\/p>\n Case Management<\/strong> In 2012, participants in the Child Protection Working Group, released the \u201cInteragency guidelines for case management and child protection\u201d guidelines. These guidelines were created to reinforce the concept of a coordinated approach to child protection case management. They aim to offer a general framework of principles, considerations and procedures oriented to an effective child protection case management in line with the minimum standards for child protection in humanitarian action already provided in 2012 and updated in 2019 \u2013 CPMS Minimum Standards for Child Protection in Humanitarian Action, Child Protection Working Group, 2012 [4]<\/span>.<\/p>\n The guidelines were developed primarily to support professionals working in humanitarian fields, but they can also be adapted to develop work in other settings as the criminal justice system.<\/p>\n What is the meaning of \u201ccase management\u201d?<\/p>\n By case management we mean that activity oriented to provide support and answers to the protection needs that a child may encounter in a situation of exposure to risk.<\/p>\n More generally, case management involves that network of individuals who, with different roles, provide services for child. A further objective of the guidelines is to provide practical tools related to the different phases of case management but, above all, to lay the foundations for the structuring of referral processes among the actors involved.<\/p>\n Key elements of case management [5]<\/span>:<\/p>\n The system operates in a circular mechanism with different phases [6]<\/span>:<\/p>\n The international institutions and agencies that use the guidelines in the management of juvenile cases adhere to several principles.<\/p>\n Do not cause further harm to the child, which means that at any time during the procedure, all actions that may expose the child to further risk of suffering further harm should be avoided.<\/p>\n Always consider the priority of the\u00a0best interests of the child, which means bearing in mind that it is not always a matter of choosing the ideal response in the handling of the case but is likely to involve a considered assessment of the different options.<\/p>\n The principle of\u00a0non-discrimination against children. This principle is expressed through a series of actions that ensure that the child is not discriminated against because of his\/her condition or because of race, gender, disability, etc.).<\/p>\n All the professionals that use the guidelines and apply them, have a duty to adhere to the standards and principles enunciated above.<\/p>\n Seek informed consent, which should be given by the child, his\/her family members, and possibly the guardian, and assumes participation and understanding on the part of the child. The Child Friendly approach to be used with child becomes relevant.<\/p>\n Respect for privacy and information sharing, all information should be managed and shared based on a very individual approach and closely linked to the individual need and in due regards of confidentiality.<\/p>\n [\/vc_column_text][\/vc_column_inner][\/vc_row_inner][vc_row_inner][vc_column_inner][vc_column_text css=”.vc_custom_1653651073060{padding-top: 1% !important;padding-right: 1% !important;padding-bottom: 1% !important;padding-left: 1% !important;background-color: #f7f7f7 !important;}”]<\/p>\n Italian legislation While explicit legislative measures have been adopted to transpose Directive 2012\/29\/EU, which provided for vulnerability assessments at different stages of ordinary criminal proceedings, no measures have been adopted to transpose Directive 2016\/800\/EU on procedural safeguards for child suspected or accused in criminal proceedings.<\/p>\n Moreover, it must be considered that the condition of unaccompanied migrant child increases the exposure to vulnerability and social exclusion.<\/p>\n In Italy, child victims and children suspected or accused of having committed a crime are involved in different criminal proceedings. Juvenile victims of crime are involved before the Ordinary Court in the ordinary criminal process, which is regulated by the Italian Code of Criminal Procedure and criminal law, referring to complementary or special laws. Children suspected or accused of having committed a crime, on the other hand, are involved before the Juvenile Court in the juvenile criminal trial, which is regulated by the\u00a0Juvenile Criminal Procedure Code (Presidential Decree No. 448 of 1988)<\/strong>\u00a0[7].<\/p>\n Depending on the status of the child, the rights, guarantees, support and protection are recognised differently. For\u00a0victims of crime<\/strong>, there is a legislative framework of\u00a0support<\/strong>,\u00a0assistance<\/strong>, and\u00a0protection<\/strong>\u00a0specifically for unaccompanied children that promotes their integration, access to public services, integration, and appointment of guardians. This framework of norms has been made organic within the so-called\u00a0\u201cZampa Law\u201d<\/strong>.<\/p>\n In addition, the law regulating the support, assistance, and protection of victims of human trafficking, which also covers unaccompanied children (Decree Law No. 212\/2015), also applies. The decree includes specific rules for the individual identification and assessment of victims of human trafficking and has led to the creation of referral mechanisms and a specialized network of coordination and the adoption of a multidisciplinary approach to be implemented, between reception centers, Juvenile Courts and criminal authorities with a specific mandate on human trafficking. These procedures and reporting mechanisms are already activated upon the arrival of the child in the Italian territory.<\/p>\n With the introduction of\u00a0Decree Law No. 212\/2015<\/strong>\u00a0[8]\u00a0professionals must assess whether a victim is in a\u00a0\u201cparticular condition of vulnerability\u201d\u00a0<\/strong>(Article 90). The elements attributable to situations of vulnerability should emerge from the first hearing of the child, with the assistance of a psychologist (Article 362 CPP comma 1-bis). Even if the article does not consider all the circumstances listed in the Directive 2012\/29\/UE, it takes into consideration a number of subjective and objective elements possibly related to vulnerability: age, infirmity, mental disabilities, the type of crime pursued, and the circumstances of the act pursued, emotional, psychological or even economic dependence on the offender. The paragraph lists various offenses such as trafficking, labor exploitation, etc.<\/p>\n In regards of\u00a0child suspects or accused of committing a crime<\/strong>, as mentioned above, the Directive 800\/2016 has not been followed, in Italy, by transposition interventions, although the \u201cCodice del processo penale minorile\u201d\u00a0D.P.R., 22\/09\/1988 n\u00b0 448<\/strong>\u00a0[9]\u00a0had already provided numerous guarantees, to protect the reintegration of the child into society. One among the others is the delicate task carried out by the\u00a0USSM<\/strong>\u00a0(Ufficio di Servizio Sociale per i Minorenni), an office that assists the Juvenile Court, as stated in art. 6 of the Decree, responsible for taking charge of the child under investigation, on behalf of the judicial authority, at different stages of the proceedings, depending on whether the case is pending before the judge of preliminary investigations, the judge of the preliminary hearing or the judge of the trial. This office, in synergy with other actors such as operators of shelters and other territorial services, has the role of ascertaining during juvenile criminal proceedings the personal characteristics of the child, the psychophysical maturity and other elements such as those relating to \u201cpersonal, family, social and environmental conditions and resources of the child in order to ascertain the degree of criminal responsibility, assess the social relevance of the fact as well as to take the appropriate criminal measures and adopt any civil measures\u201d (Article 9 D.P.R. n. 448 of 1988).<\/p>\n Considering the legislative framework of reference outlined, it emerges that the Italian system has developed individual assessment procedures but there is still work to be done to improve individual assessments in criminal proceedings to harmonize them, where possible, especially when it comes to unaccompanied children.<\/p>\n [\/vc_column_text][vc_column_text css=”.vc_custom_1653651086411{padding-top: 1% !important;padding-right: 1% !important;padding-bottom: 1% !important;padding-left: 1% !important;background-color: #f7f7f7 !important;}”]<\/p>\n European legislation Both Directive 2012\/29\/EU and Directive 2016\/800\/EU respectively regulate the treatment to be given to children involved in criminal proceedings, as victims of crime or perpetrators. Both emphasize the importance in guaranteeing the\u00a0right to an individual assessment<\/strong>, in the name of the best interests of the child.<\/p>\n While not directly regulating the individual assessment procedure, both outline the minimum standards and guidelines that states should adopt in conducting individual assessment procedures; in this regard,\u00a0Art. 22 of EU Directive 29\/2012<\/strong>\u00a0and\u00a0Art. 7 of EU Directive 800\/2016<\/strong>\u00a0make explicit the need to adopt a multidisciplinary approach; this means that, several professionals with appropriate expertise must contribute to the assessment process in order to make it as complete and exhaustive as possible according to the needs of the child (for example, think of the intervention of a psychologist or a neuropsychiatrist to deal with any trauma suffered, or a cultural mediator when the child has problems with communication or cultural understanding of the host context).<\/p>\n It must be emphasized that, the directives, although drawing guidelines that may have several elements in common in terms of individual assessment, respond to two different needs: on one side, art. 7 of EU Directive 800\/16 aims to support the reintegration of the offender and, on the other side, art. 22 of EU Directive 29\/12 operates to avoid the second victimization of victims.<\/p>\n [\/vc_column_text][\/vc_column_inner][\/vc_row_inner][vc_row_inner][vc_column_inner][vc_empty_space][\/vc_column_inner][\/vc_row_inner][vc_tta_tabs][vc_tta_section title=”The EU Directive 800\/2016″ tab_id=”2016″][vc_column_text]<\/p>\n Art.7 Directive 800\/2016, in fully guaranteeing the right to an individual assessment, requires considering the\u00a0\u201cspecific needs of the child with regard to protection, education, training and social reintegration\u2026 in particular, the child\u2019s personality and maturity, his or her economic, social and family situation, as well as any specific vulnerabilities of the child\u2026\u201d<\/em>. The need to consider the individual characteristics of the child, the circumstances of the case and specific needs, leaves room for those conducting the assessment to make different assessments from time to time. The assessment can be made both in the pre-trial and in the trial phase, and, once made, must be updated.<\/p>\n In this regard, it seems appropriate to cite the subparagraphs indicated in Article 7 with Recital 1 of the Directive, which described that its legal framework should ensure the exercise of the right to fair trial and understanding of the criminal proceedings\u00a0[10]:<\/p>\n [\/vc_column_text][\/vc_tta_section][vc_tta_section title=”The EU Directive 29\/2012″ tab_id=”2012″][vc_column_text]<\/p>\n Article 22 of Directive 29\/2012 recognizes the right to individual assessment of victims to identify specific protection needs. The assessment serves to adopt a series of precautions to avoid the risk of secondary or repeated victimization or at the same time personal retaliation or intimidation or towards the victim\u2019s family. It again takes into account the\u00a0\u201cpersonal characteristics of the victim, the type or nature of the crime, and the circumstances of the crime\u201d<\/em>\u00a0. The timeliness of the assessment is crucial for the emergence of cases of risk and for the adoption of precautionary measures suitable for reducing the damage suffered and, in the presence of further circumstances, the assessment must always be updated.<\/p>\n It seems useful, also in this case, to recall the provisions of art. 22 of the Directive\u00a0[11]:<\/p>\n [\/vc_column_text][\/vc_tta_section][\/vc_tta_tabs][vc_separator align=”align_left”][vc_column_text]1. UN High Commissioner for Refugees (UNHCR), 2021 UNHCR Best Interests Procedure Guidelines: Assessing and Determining the Best Interests of the Child, May 2021, available at: https:\/\/www.refworld.org\/docid\/5c18d7254.html<\/span>\n
\nGuidelines for case management and child protection: \u201cInteragency guidelines for case management and child protection\u201d _Child Protection Working Group<\/em><\/p>\n\n
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\n<\/strong>Individual assessment and reference standards in the Italian procedure<\/em><\/p>\n
\n<\/strong>The European legislative context<\/em><\/p>\n\n
\na) determine the need to adopt any specific measures for the benefit of the child;<\/em>
\nb) assess the adequacy and effectiveness of any precautionary measures in relation to the child;<\/em>
\nc) take decisions or courses of action in criminal proceedings, including when pronouncing sentence.<\/em><\/li>\n\n
\n2. BIA template available at: https:\/\/www.unhcr.org\/handbooks\/biptoolbox\/forms.html<\/span>
\n3. BID review form available at: https:\/\/www.unhcr.org\/handbooks\/biptoolbox\/forms.html
\n4. https:\/\/alliancecpha.org\/en\/system\/tdf\/library\/attachments\/cpms_2019_final_en.pdf?file=1&type=node&id=35094<\/a>, developed in 2012 and reviewed in 2019 by the Child Protection Working Group (CPWG)
\n5. \u201cInteragency guidelines for case management and child protection\u201d guidelines p. 10- 15 available http:\/\/www.cpcnetwork.org\/wp-content\/uploads\/2014\/08\/CM_guidelines_ENG_.pdf<\/a>
\n6. Idem
\n<\/span>7. Decreto Del Presidente Della Repubblica 22 Settembre 1988, N. 448 – Approvazione Delle Disposizioni Sul Processo Penale A Carico Di Imputati minorenni (Gu Serie Generale N.250 Del 24-10-1988 – Suppl. Ordinario N. 92)<\/span>
\n8. DECRETO LEGISLATIVO 15 dicembre 2015, n. 212 Attuazione della direttiva 2012\/29\/UE del Parlamento europeo e del Consiglio, del 25 ottobre 2012, che istituisce norme minime in materia di diritti, assistenza e protezione delle vittime di reato e che sostituisce la decisione quadro 2001\/220\/GAI. (15G00221) (GU Serie Generale n.3 del 05-01-2016)<\/span>
\n9. Code of Juvenile Criminal Proceeding – D.P.R., 22\/09\/1988 n\u00b0 448<\/span>
\n10. Directive 2012\/29\/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001\/220\/JHA<\/span>
\n11. Directive (EU) 2016\/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings<\/span>[\/vc_column_text][vc_empty_space][\/vc_column][vc_column width=”1\/4″][\/vc_column][\/vc_row][vc_row full_width=”stretch_row_content_no_spaces” css=”.vc_custom_1632073635681{background-color: #afc600 !important;}”][vc_column][vc_empty_space height=”3px”][\/vc_column][\/vc_row][vc_row][vc_column][vc_empty_space][\/vc_column][\/vc_row][vc_row][vc_column width=”1\/2″][vc_column_text]<\/p>\n![\"\"](\"https:\/\/www.prismonline.eu\/wp-content\/uploads\/2020\/07\/flag_yellow_high-300x200.jpg\")
This project is co-funded by the European Union\u2019s Rights, Equality and Citizenship Programme (2014-2020).<\/p>\n
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