When the Family First Prevention Services Act (H.R.253) was passed, it recognized that the best placement for children is in the least restrictive setting. This is also true for undocumented children in the custody of the Office of Refugee Resettlement (ORR).

In that regard, since 1997, the Flores Settlement Agreement has defined the rights of these children. In essence, it obligates the government to keep the children in the least restrictive setting and sets standards for their care.  Recently, however, the Departments of Homeland Security (DHS) and Health and Human Services (HHS) have put forth a proposal to withdraw the agreement.

The agreement was never meant to be a de facto law so much as a framework, and in the original agreement there was a sunset clause expiring the agreement after 5 years provided the government implemented the terms of the settlement as federal regulation or Congress superseded it. Neither has happened. In fact, in 2015 the settlement was expanded to include all minors who come across the border without legal authorization (not just the unaccompanied ones who become custody of the federal government).

Despite the absence of the required federal regulation or congressional action, DHS and HHS have begun the process to withdraw the agreement. In doing so, families could be detained and placed in less regulated facilities, broadening the allowances for emergency loopholes for not meeting standards of care, and making it easier for government to revoke legal protections for unaccompanied minors.

This proposed rule change includes a comment period that ends November 6th, 2018 after which Judge Dolly Gee will determine whether the regulations are eligible to supersede the Flores Settlement Agreement. COA is urging interested parties to provide comments which put forth recommendations that emphasize the well-being of a child, and which ensure that migrant children receive trauma-informed and evidence-based care in the least restrictive setting.

The best practice of care for these children was established by the Flores Settlement Agreement and is contained in COA’s UC standards. It includes wraparound services to support their integration into society and placing them with kin or resource families in the most home-like settings. It has been two decades since the Adverse Childhood Experience (ACE) Study was conducted and the lessons learned have been indelible to the field: childhood trauma has long lasting effects. We cannot discuss the needs of this population without discussing the need for trauma-informed care.

So what can we do as human service professionals? Well, there are a few options: