UNHCR has published the Agency''s official Position on Voluntary Return to Ukraine of refugee children without parental care, including unaccompanied children and children evacuated from care institutions in Ukraine.
 

This position sets out that voluntary return of children without parental care to Ukraine, including children evacuated from institutions, should only be pursued when:

1. The refugee child and their parent(s) or, where relevant, their legal guardian or customary caregiver, voluntarily seek(s) the return; and
2. The return of the child can be carried out in safety and dignity; and
3. An individual determination has been made by the competent authorities in the country of asylum that it is in the best interests of the child to return.

The best interests determination to be conducted prior to return includes consideration of:

1. The rights/wishes of the child and their parents and/or caregivers;
2. The security situation in the proposed area of return;
3. Any specific needs of the child;
4. The services/support available to the child in the area of return (including care arrangements).

UNHCR’s position is that the determination should be made by the relevant child protection authorities in the country of asylum, pursuant to the Convention on the Rights of the Child (Article 22) and the Hague Convention of 1996 (Article 6). This procedure depends on close cooperation with Ukrainian authorities, however, particularly in terms of providing information on certain elements relevant to determining the child’s best interests, including around the security situation in the proposed area of return and services/support available.

This position is a crucial step towards ensuring a higher protection standard for Ukrainian refugee children without parental care, currently staying in Poland. Although Poland undertakes no active legal nor practical efforts towards organizing said returns, and the legal protection status for all Ukrainian citizens in Poland has been extended to March 2024 (and further to August and September 2024 in some cases), the humanitarian sector has been recently concerned with the case of rushed returns of Ukrainian children placed in Polish care institutions, back into war-torn Ukraine.

Though these returns were executed based on decisions of Ukrainian authorities and Polish state had no part in their preparation or facilitation, some serious doubts have arisen as to the application of international law and the Hague convention in such cases. One of the main issues of dispute was the question whether and on such basis Poland can exercise jurisdition over such children and whether Polish courts could or should step in and carry out a best interest of a child assessment to make sure that the return is not exposing them to imminent danger and that in each and every such case the return is in fact voluntary and in line with applicable international standards. 

Full text of this UNHCR position is available here.

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