In September 2012 The Campaign supported 6 formerly detained children to speak during the United Nations General Day of Discussion for the Committee on the Rights of the Child, leading to the strongest recommendation seen from the Committee to date,
“Children should not be criminalized or subject to punitive measures because of their or their parents’ migration status. The detention of a child because of their or their parent’s migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child. In this light, States should expeditiously and completely cease the detention of children on the basis of their immigration status.”
REPORT FROM THE GENERAL DAY OF DISCUSSION
The report from the General Day of Discussion can be found here.
The report, entitled The Rights of All Children in the Context of International Migration, contains 36 recommendations to States regarding the rights of children, regardless of their, or their parents’ migration status. “The detention of a child because of their or their parents’ migration status constitutes a child rights violation and always contravenes with the best interest of the child”, says the Committee.
In another recommendation, the report mentions the Child-Sensitive Community Assessment & Placement (CCAP) model, which describes a community-based alternative to detention. This model was developed by the International Detention Coalition and is in line with the principles of the Convention on the Rights of the Child.
Best interests of the child
72. States should conduct individual assessments and evaluations of the best interests of the child at all stages of and decisions on any migration process affecting children, and with the involvement of child protection professionals, the judiciary as well as children themselves. In particular, primary consideration should be given to the best interests of the child in any proceeding resulting in the child’s or their parents’ detention, return or deportation.
Right to liberty and alternatives to detention
78. Children should not be criminalized or subject to punitive measures because of their or their parents’ migration status. The detention of a child because of their or their parent’s migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child. In this light, States should expeditiously and completely cease the detention of children on the basis of their immigration status.
79. To the greatest extent possible, and always using the least restrictive means necessary, States should adopt alternatives to detention that fulfil the best interests of the child, along with their rights to liberty and family life through legislation, policy and practices that allow children to remain with family members and/or guardians if they are present in the transit and/or destination countries and be accommodated as a family in non-custodial, community-based contexts while their immigration status is being resolved. Highlighting General Comment No. 10 (CRC/C/GC/10, 2007) of the Committee, it is reiterated that States have the legal obligation to comply with international standards on detention conditions, including the Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules) which apply to all forms of detention including administrative or non-criminal detention. Such placements should be carefully designed and also be developed in line with the United Nations Guidelines for the Alternative Care of Children and other human rights standards. States should ensure support measures and appropriate alternative care is available for children released from detention centres.
80. In any instance where a child is nevertheless deprived of liberty, States are urged to impose such measure for the shortest time and in conditions that meet, at least, the minimum standards of detention as set out in human rights law. This includes ensuring a child-friendly environment; separation from adults who are not the child’s parent or guardian (even if the child is above the age of 16 years); child protection safeguards; and, independent monitoring.
Right to family life
84. States should refrain from detaining and/or deporting parents if their children are nationals of the destination country. Instead, their regularisation should be considered. Children should be granted the right to be heard in proceedings concerning their parents’ admission, residence, or expulsion, and have access to administrative and judicial remedies against their parents’ detention and/or deportation order, to ensure that decisions do not negate their best interests. Alternatives to detention and deportation in accordance with the child’s best interests, including regularisation, should be established by law and through practice.