CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IRO: UNACCOMPANIED CHILDREN AND THEIR INTERESTS Negative jurisdictional conflicts arose when no state considered itself competent to conduct the non-contentious proceedings. The 1950 Convention on the Declaration of Death of Missing Persons failed to completely prevent the jurisdictional conflicts from reoccurring. This source of international law came into force in 1952; it was too late and only bound a narrow circle of parties. 36 The instrument did not pursue the normative purpose of unification. The 1950 Convention established an ad hoc international legal regime for the declaration of death for only a brief period. 37 Moreover, the unaccompanied child, although having an obvious legal interest in having the disappeared parent declared dead, did not acquire the requisite legal standing for petition under national law. Only a child’s guardian, custodian, or representative could file the petition on behalf of the child. In addition to natural persons, child welfare authorities could also assume such competences. As expected, the group of persons with locus standi also included close or distant relatives of the disappeared parents. According to the 1950 Convention, proceedings could be also initiated by third-country nationals who applied for the intercountry adoption of an unaccompanied child. 3.2 Abandonment and unattainable parents Parents would usually abandon their children in tumultuous and unpredictable circumstances, i.e., due to social and other distress or under the pressure of external threats such as war. Children were abandoned by their parents both voluntarily and involuntarily. Neither of the two forms affected the international legal status of the unaccompanied child; the mere fact of abandonment was decisive. From a legal perspective, by abandoning their child, the parents relinquished their parental responsibilities characterized as a set of duties, powers, and rights. From a narrower, more formalistic perspective, the parents permanently disowned the child, discontinued any mutual social intercourse, and ceased to care for the child’s emotional, moral, and material welfare. They irrevocably and perpetually surrendered the child. Thus, their parental responsibility was considered ipso facto terminated. From a social perspective, abandonment of a child conveyed an unrelenting failure of the parents in matters of care, education, religion, representation, and upbringing and, especially, as regards providing their child with a proper home. An abandoned child, not unlike an orphan or a child of unattainable parents 38 had lost their home as well as the social, economic, and, particularly, emotional aegis ordinarily afforded by parents. In contrast to the permanence of relinquishing a child, in the event of parental unattainability, an eventual restoration of familial relationships and return to the original status quo still appeared possible. 3.3 Absence of a legal guardian The definition of an unaccompanied child located in Annex I of the CIRO omitted the specific requirement that, in order to qualify as such, a child must not have been looked after by a guardian. The IRO’s official interpretation, on the other hand, explicitly articulated 36 Convention on the Declaration of Death of Missing Persons (adopted 6 April 1950, entered into force 24 January 1952) 119 UNTS 99. 37 FAWCETT, J. E. S. ‘Convention on Declaration of Death of Missing Persons’ [1950] 3 ILQ 3, 448. 38 ECOSOC Report 49: “(c) orphans, or children whose parents have disappeared, or whose parents are unattainable, or who have been abandoned…”

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