The right to a representative. Once the child has decided to be heard, according to the Committee, he or she will have to decide whether to be heard directly or through a representat- ive. In this regard, the Committee recommends that ‘whenever possible, the child must be given the opportunity to be directly heard in any proceedings.’38 In the case of an accompanied minor, the most obvious representative is the child’s parent. The representation of a child by his/her parent is consistent with Article 5 CRC which requires states to respect the right and responsibility of parents to provide direction and guidance to the child in the exercise of his/her Convention rights in accordance with the evolving capacities of the child. However, the Committee draws attention to potential conflicts between the child and his/her most obvious representative and underscores the need in such circumstances for an independent representative. In the case of an unaccompanied minor, the role of the representative should be acquitted by a guardian or adviser, which presupposes the formal appointment of such person. In this regard, it is worth quoting at some length from the Committee RC’s General Comment No. 6 on the Treatment of un- accompanied and separated children outside their country of origin: […] States should appoint a guardian or adviser as soon as the unaccompanied or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the territory and/or the jurisdiction of the state […] The guardian should have the authority to be present in all planning and decision-making processes, including immigration and appeal hearings […]. The guardian or adviser should have the necessary expertise in the field of childcare […]. Agencies or individuals whose interests could potentially be in conflict with those of the child’s should not be eligible for guard- ianship.39 It should be pointed out, because it is not always well understood, that the representative (qua guardian or adviser) is distinct from a legal representative.
The right to a representative. The APD establishes the right of an unaccompanied minor to a representative in Article 17. However, the definition and role of the representative is vague, leading to considerable divergence in State practice. Moreover, the obligation 145 Article 25(6). Furthermore, a new article on applicants in need of special procedure guar- antees establishes that where it is considered that an applicant has been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, the accelerated procedure is not applicable (Article 24(2)). 146 There are two exceptions. First, Article 23(4)(g) APD, which establishes that making ‘in- sufficient representations’ is a manifestly unfounded ground, is amended: proposed recast Article 31(6)(e) no longer refers to ‘insufficient representations’. Second, Article 33 APD on failure to appear is deleted. All the other provisions establishing or implying negative procedural consequences for failing to appear at or engage with the interview subsist in the proposed recast. to appoint a representative can be derogated from on three grounds and a stand-still clause permits Member States to retain a further derogation existing in national law at the time of the adoption of the directive. To what extent is this situation improved in the proposed recast?
