This information deficit, which reflects the low political priority accorded the problem, is compounded by two other serious gaps: the lack of adequate mechanisms for determining a child's age where this is disputed and the absence of clear protocols for identifying children who, while not traveling alone, are separated from parents or guardians. Neither of these shortcomings is “merely” procedural. Like so many grave issues in human rights protection, their apparent banality masks compelling and potentially harmful risks, and indeed, both shortcomings have had serious impacts on the treatment of child asylum-seekers. They result in children being incarcerated without charge or trial in adult detention facilities in violation of international legal norms; and they result, despite the plethora of international anti-trafficking measures and laws, in large numbers of trafficked or otherwise vulnerable children slipping through states’ safety nets and into danger.

In many asylum destination states, age disputes have resulted in children being wrongly detained with adults, sometimes for lengthy periods. This is a particularly striking problem in the UK, where according to the British Refugee Council, six out of the nine children interviewed in depth about their experiences of the asylum determination process had initially been age disputed. Between 2002 and 2005, the percentage of unaccompanied or separated children granted asylum was consistently a percentage point lower than the comparable percentage of adults.

A second serious shortcoming in the handling of child asylum cases is the absence of clear definitions and procedures for identifying separated children traveling with non-parental adults, including smugglers or traffickers. Where immigration or border patrol officers are confused or vague about how to investigate the bona fides of an adult claiming to “accompany” a non-related child, the protection deficit easily occurs. For example, Border Patrol agents in the United States lack clear instructions on how to check relationships, probe situations which appear unconvincing, and when to call in child welfare experts with professional competence to make these difficult decisions. This administrative sloppiness continues to hamper the detection of trafficked children and to reduce the number of children who receive appropriate protection from exploitative smugglers or traffickers. The measures introduced to provide protection to child victims of trafficking are scarcely used, and the vocal political condemnations of the evils of trafficking do not translate into deliverables for the most vulnerable victims on the ground.

It is not just the initial classification system that is deficient. Reception procedures and access to legal protection, guardianship, and mentoring before, during, and after the complex asylum process are all inadequate. As a result, many children fall between the cracks and miss the opportunity to claim asylum altogether, either by being screened out of protection systems or by being pressured into “voluntarily” accepting return to their country. In the absence of clear and competent advice and faced with enforcement-minded and untrained government officials, it is not surprising that most unaccompanied and separated asylum seeking children do not know what they are applying for or what process they are entering.

In sharp contrast to what the framers of the Refugee Convention or the Children’s Rights Convention aspired to, the process of seeking asylum is generally mysterious at best, often provoking deep anxiety and trauma. In the United States, unaccompanied or separated children are placed in the care of the immigration enforcement authorities without any access to child welfare services, legal advice, or representation for the first 72 hours. Recent research shows that within these first three days, many children agree to "voluntary departure" without the benefit of legal advice, because they find the prospect of prolonged detention alarming and they lack legal advice about their options. In the case of Mexican children, they may simply be returned across the US-Mexico border without formality or any record of their arrival. Even those who get through this hurdle have problems securing adequate assistance. Surprisingly perhaps, they have no entitlement to free legal representation.

Even when child migrants do manage to penetrate through to the asylum adjudication procedures, children confront serious legal difficulties in translating the promise of protection into reality. Researchers and practitioners concur that a pervasive "culture of disbelief" characterizes official attitudes to unaccompanied or separated children, and that this outlook undermines confidence in the proceedings. Often, the official presumption, on the part of decision makers at all levels of the system, is that a child’s testimony and/or documents are false and that inconsistencies in the relaying of personal information are indications of deceit rather than anxiety, ignorance, or faulty memory. A traumatized, unaccompanied child should not be interviewed about the flag of his country nor be asked to draw a map of his voyage in order to gain asylum, as is actually practiced.

Necessary Reforms

Several fundamental reforms would radically improve the fairness of the current asylum system for children and remove at least part of their triple burden. First, access to trained specialist legal representatives at all stages of the asylum system is essential. Without this guarantee of professional assistance, improvements in legislation and official procedures will fail to yield substantial results. Second, all unaccompanied and separated children should have access to a trained guardian throughout the asylum process, from the time of their entry into the destination state until the final resolution of their case has been decided. This consistent, parent-like mentoring, supervision, and support is crucial to the welfare of the child, to the avoidance of re-traumatizing children, and to the equitable and transparent working of the asylum system.

Aside from these procedural changes, decision makers, both within the government administrative system and within the courts, must make adequate use of the legal framework available for the protection of asylum-seeking children. Children, like women, may face persecutory harms that are comparable to those facing adult men. But – and this is the key and neglected point – they may face novel and distinctive harms which are specific to their demographic and social status. A decision-making system that relies on an adult-centered metric will wrongly exclude child asylum-seekers with valid claims. Many children suffer persecution for child-specific reasons, such as the risk of conscription as a child soldier, the threat of a forced marriage, the dangers arising from rejecting gang membership, and the threat of child abuse and incest.