CYIL vol. 13 (2022)

DALIBOR JÍLEK – JANA BALIŠOVÁ CYIL 13 ȍ2022Ȏ of voluntary repatriation of refugee children to the country of origin. In this context, forced repatriation completely disregarded the opinions and wishes of an individual child. This attitude was, however, entirely unsurprising on account of children having been perceived by the opposing countries as mere objects of legal and political protection. In their judicial practice, the HICOG courts have determined and established the best interests of unaccompanied children based on a set of factors. These factors were adapted to the post-war situation of unaccompanied children within the occupied territories. They were by no means meant for general application. Having reflected the unaccompanied children’s adverse circumstances, in a sense, predicated a retrospective orientation of the factors. Yet, their primary purpose had been to shape the children’s future. The factors chiefly depended on the components of the Annex I definition of “unaccompanied children”, while also having adhered to the term’s official interpretation by the IRO. With regard to non-repatriable unaccompanied children, a striking resemblance was observed in factors underlying both Article 14 of the HICOG Law and the individual plans proposed by the IRO. The similarities could have been explained by virtue of institutional cooperation: the documentation for the individual plans was assembled and submitted by the IRO case workers who also participated in the proceedings before the courts. The initial cases adjudicated within the US occupation zone were deliberately heard in open court under the watchful eye of the German public. Later, however, the children’s interest in the protection of their mental health and psychological integrity prevailed. Afterwards, the hearings were held in chambers with the sole participation of IRO case workers and representatives of the local Jugendamt . 76 In the British occupation zone, the future of unaccompanied children was decided out of-court. Central to the process was the Child Welfare Board consisting of representatives of both the British occupation authorities and the IRO. The body did not, however, directly decide on the repatriation or resettlement of unaccompanied children, but rather proposed permanent individual solutions conducive to the children’s welfare and prosperity. The acceptance of a recommended proposal as well as the final decision was conferred onto the Chief of the Prisoners of War/Displaced Persons division established under the British Military Government authority. 77 Article 14 of the HICOG Law, just as the ECOSOC report, contained six factors that could have been analyzed from various perspectives. 78 Each factor pertained, in a sense, to the past, present, and future relationships of the unaccompanied children. Some factors focused 76 Youth welfare office – German agency promoting child welfare. 77 Holborn, fn. 74 op cit. 502; see Control Office for Germany and Austria and Foreign Office, Control Commission for Germany (British Element), Prisoners of War/Displaced Persons Division. 78 HICOG Law art 14 explicitly states the following factors: (a) the existence or absence of a wholesome relationship between child and its foster-parents or other persons; (b) the likelihood that the child would secure adequate education, (c) the physical and moral welfare of the child including the probability of its obtaining adequate food, clothing, medical care, and a desirable home atmosphere, (d) the legal and economic protection of the child in the relation to rights of citizenship, rights to future public care and maintenance including medical and nursing care, opportunity to earn a livelihood, and the likelihood of discrimination or bias, (e) the wishes of the child if it had sufficient maturity and had formed its wishes without coercion, (f ) the desires of a natural parent, foster-parent, or other near relative by consanguinity.

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