As of 1^st January 2002 all parents who are entitled to family allowance (Familienbeihilfe) are entitled to the Child Care Benefit (Kinderbetreuungsgeld),  a benefit for the newborn child’s mother and/or father, who lives or live together in a household with the child in Austria. Third-country citizens are also eligible, if they have been in dependent employment for at least 3 months or if they have lived in Austria for at least 5 years.

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As of 1^st January 2002 all parents who are entitled to family allowance (Familienbeihilfe) are entitled to the Child Care Benefit (Kinderbetreuungsgeld),  a benefit for the newborn child’s mother and/or father, who lives or live together in a household with the child in Austria. Third-country citizens are also eligible, if they have been in dependent employment for at least 3 months or if they have lived in Austria for at least 5 years.

Matters related to the integration of pupils with immigrant background are governed by the „educational principle“ of intercultural education, giving the provincial governments a high degree of autonomy in implementation. According o the principle, the child’s mother tongue may either be taught as an optional subject in separate classes or integrated into the general timetable by a team of teachers including a native-language teacher. Whereas team teaching is the common model in Vienna, separate classes are given precedence in the other provinces. The number of lessons may vary from two to six per week depending on the province or even school the child attends, so that children of e.g. Turkish immigrants in one case may well be taught in their mother tongue up to a good level of competence, whereas in another case mother tongue teaching might only be an extracurricular and non-compulsory subject.

Schools are provided with counseling services for migrants and several supporting and compensatory measures have been taken: remedial instruction for all students in need of assistance for all compulsory subjects; extra teachers are in charge of children whose mother tongue is not German; separate classes have been set up to deal with refugees; additional mother-tongue instruction has been organized and intercultural learning has been introduced as a principle of instruction.

Episodes of discrimination are unfortunately however reported: in July 2003, for isntance,  a school in Vienna instructed non-Austrian pupils not to speak in their mother-tongue, even during breaks.

Special attention should be paid to the problem of separated refugee children. According to the UNHCR definition a separated child is a person who is under the age of eighteen years, unless, under the law applicable to the child, majority is attained earlier (or later in Austria at 19), is outside of her/his country of origin and who is separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so. Several international laws rule the situation of separated children, some of them specific for unaccompanied children seeking asylum (the Convention relating the Status of Refugees, 1951; the Protocol relating the Status of refugees, 1967; the Convention on the Rights of the Child, 1989),  two main UNHCR Guidelines and two EU resolutions. Article 25 of the Austrian Asylum Act, 1997 as amended in 2002, states that aliens of full age are competent to act in procedures pursuant to it, and that Austrian law is authoritative with respect to the attainment of full age, irrespective of the nationality of the alien (Asylum_Act.art.25).  Article 17 regulates the treatment of persons applying for asylum at the border and it distinguishes between entry via an airport (paragraph 1) and at a frontier crossing point (paragraph 2ff.).

There is no provision for assistance to minors in these forms-based procedures as for example by legal representation through youth welfare agencies.

As a rule, refugees arriving in Austria by land are crossing the border illegally, and an asylum application is filed inside the country. Asylum seekers are often picked up soon after crossing the border: in such a case, adults, children or young people are treated in the same way.

If they are not rejected immediately they are brought to one of several border district points (Grenzbezirkstellen), where their stay is limited to a maximum of 48 hours. Here the asylum seekers undergo the identification procedures provided for in the Aliens Act and may file an application for asylum. During this stage, minors are not able to get into contact with representatives of youth welfare agencies. Aliens between  the age of 14 and 19 without a legal representative are entitled to file application on their own. Upon the initiation of any following procedure the youth welfare agency becomes the legal representative.

In case of separated children arriving via an airport a special procedure is applied to decide on the admissibility of their entry, though the Federal Asylum Office conducts an exploratory interview to decide whether entry is to be permitted without such a procedure. This so-called „airport procedure" was established with the entry into force of the new Asylum Act on 1 January 1998. Both the youth welfare agency and UNHCR are involved from the very beginning.

There is no automatic appointment of a guardian for an unaccompanied minor. If the youth welfare agency concludes that this is necessary it may file an application for an appointment as guardian or curator at the guardianship court. There are considerable differences in practice in each province.

According to a guardianship judge in Linz, the youth welfare agencies have a duty to file such an application but in most cases fail to comply with it. Thus he has initiated guardianship procedures for separated children residing in the area of Linz (his own competence area). His view is that in almost all cases curatorship or guardianship will be transferred to the youth welfare agency. In other provinces there are no such initiatives, but NGOs are currently informing the guardianship courts about separated children in their competence area and is urging the courts to appoint the respective guardians.

The duties transferred to wardens or guardians may include legal representation, care and education. Persons appointed as guardians for separated children are specially qualified welfare officers.

In many cases the youth welfare agency does not assume wardship or guardianship, and the extent of the care duties assumed and the rights of the children and young people are not clear. Furthermore the resources available to youth welfare agencies are not sufficient to ensure accommodation suitable to the child’s age, personal care, access to education, language support and health care for all minors in need.

To give separated children a better minding, medical care, and counseling, time to recover from their flight, therapies, schooling and recreational activities, several non-governmental organizations have developed concepts for such places called "Clearing-points" (Clearingstellen), and in May 2001 an important decision about them was made. The clearing houses will be run by different NGOs  with funding from the European Refugee Fund (EFF), the Ministry of Interior and local authorities. In Vienna one concept has been developed by the Integrationshaus, financed by the Government. The target group of the project are all separated refugee children, no matter whether they were caught or reported voluntarily. The concept is based on three stages: recreation (incl. accommodation, clothes, food and consulting), orientation (incl. psychosocial care, medical care, German language classes, recreational activities, psychotherapy) and moving into other accommodation. The Federal Ministry for Internal Affair has developed another, very different concept with less support and care, and no psychological counselling at all. Financing is a major problem.

The Boltzmann Institut für Menschenrechte, a well known Austrian NGO, has presented a legal opinion on housing and care of separated children. This legal opinion mentions that the responsible authority is the youth welfare authority. This paper should help to end a long term struggle whether the Ministry of Interior or the youth welfare agency is in charge to care for minor refugees. The paper also mentions, that the quality of housing and care must be the same as for Austrian children.

The current Austrian reality is far away from this legal opinion. Most of the minors are hosted in federal care (Bundesbetreuung). This means that there is no child specific support available. The children are mixed together with adults from different countries of origin in refugee camps or in private pensions on the countryside.

Meanwhile the authorities established a high level working group with the central goal to develop a concept for housing and care for separated children.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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