CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IRO: UNACCOMPANIED CHILDREN AND THEIR INTERESTS on the children’s bonds with their parents and other close blood relatives or on the analogous relationships with foster parents and other caregivers. Other factors concerned their legal, political, and economic ties to a specific place or state, but also to the local community. Unaccompanied children were engaged in relationships largely defined by dependency; they were either orphans or in a transitional state with missing or unattainable parents. Thus, before a final decision over their future could have been made, the unaccompanied children temporarily, but significantly, depended on international institutional assistance and protection. The aforementioned factors were intended to guide the decision-makers so as to find permanent, beneficial solutions in the absence of the child’s family and kin. The factors also took notice of foster parents and other persons caring for the unaccompanied children. Factors of a personal nature served as guidelines for assessing the depth and beneficial effects of the relationships between the children and their various caregivers. Unlike the guarantees of the individual IRO plans, the factors according to Article 14 of the HICOG Law excluded from the assessment relationships between children and their guardians or custodians. The factors did not envisage any future custodial or institutional care for unaccompanied children. Although, a number of refugee children stayed after the war for undisclosed periods of time in collective child welfare facilities organized on the basis of ethnic affiliation. One of the factors pointedly referred to the importance of the home environment. Family members were supposed to live a good life together. From an axiological perspective, the factors listed in Article 14 of the HICOG Law have constituted a group of values. The second factor pertained to the education of unaccompanied children. Considerations about education were immediately shaped by the harrowing, worldwide experiences of war. The travaux préparatoires of the Universal Declaration of Human Rights exposed a dispute over the roles of parents, state, and church in regards to the education of children. This factor was associated with a degree of uncertainty; it appeared unclear who should have borne the main responsibility for a child’s education. Parents were the primary subjects of the inalienable right to decide on the education of their children. However, were they to die in the war, would the “prior right” 79 of theirs have passed ipso facto to the foster parents or other caregivers? Or would the receiving state, having assumed the care of and responsibilities towards the child in lieu of the parents, also get to decide on the matter of education in their stead? Although the Easterman clause, contained in the first sentence of Article 26(2) of the Universal Declaration of Human Rights, 80 imposed a positive obligation on states to provide education as a means for “ the full development of the human personality ”. 81 The second factor listed in the HICOG Law, however, primarily emphasized the potential to secure an adequate education for the unaccompanied child; focusing the assessment on adequacy and quality of the education rather than its metaphysical attributes. Child welfare consolidated the needs and interests of unaccompanied children into one coherent framework. Article 14 of the HICOG Law, conditioned by the post-war circumstances, explicitly emphasized physical and moral well-being of the children as an objective to be realized. A number of states suffered severe economic destruction and hardships as a consequence of World War II, including those in which unaccompanied 79 See ibid fn. 28 UDHR art 26(3). 80 Ibid. 81 Cf ‘Summary Record of the Eight Meeting of the Working Group on the Declaration of Human Rights’ (10 December 1947) UN Doc E/CN.4/AC.2/SR.8.

123