–6–
97.
The CPT considers that every effort should be made to avoid resorting to the deprivation of
liberty of an irregular migrant who is a minor.6 Following the principle of the “best interests of the
child”, as formulated in Article 3 of the United Nations Convention on the Rights of the Child,
detention of children, including unaccompanied and separated children,7 is rarely justified and, in
the Committee’s view, can certainly not be motivated solely by the absence of residence status.
When, exceptionally, a child is detained, the deprivation of liberty should be for the shortest
possible period of time; all efforts should be made to allow the immediate release of
unaccompanied or separated children from a detention facility and their placement in more
appropriate care. Further, owing to the vulnerable nature of a child, additional safeguards should
apply whenever a child is detained, particularly in those cases where the children are separated from
their parents or other carers, or are unaccompanied, without parents, carers or relatives.
98.
As soon as possible after the presence of a child becomes known to the authorities, a
professionally qualified person should conduct an initial interview, in a language the child
understands. An assessment should be made of the child’s particular vulnerabilities, including from
the standpoints of age, health, psychosocial factors and other protection needs, including those
deriving from violence, trafficking or trauma. Unaccompanied or separated children deprived of
their liberty should be provided with prompt and free access to legal and other appropriate
assistance, including the assignment of a guardian or legal representative. Review mechanisms
should also be introduced to monitor the ongoing quality of the guardianship.
99.
Steps should be taken to ensure a regular presence of, and individual contact with, a social
worker and a psychologist in establishments holding children in detention. Mixed-gender staffing is
another safeguard against ill-treatment; the presence of both male and female staff can have a
beneficial effect in terms of the custodial ethos and foster a degree of normality in a place of
detention. Children deprived of their liberty should also be offered a range of constructive activities
(with particular emphasis on enabling a child to continue his or her education).
100. In order to limit the risk of exploitation, special arrangements should be made for living
quarters that are suitable for children, for example, by separating them from adults, unless it is
considered in the child’s best interests not to do so. This would, for instance, be the case when
children are in the company of their parents or other close relatives. In that case, every effort should
be made to avoid splitting up the family.
6
In case of uncertainty about whether a particular irregular migrant is a minor (i.e. under 18 years of age), the
person in question should be treated as if he or she is a minor until the contrary is proven.
7
“Unaccompanied children” (also called unaccompanied minors) are children who have been separated from
both parents and other relatives and who are not being cared for by an adult who, by law or custom, is responsible for
doing so. “Separated children” are children who have been separated from both parents, or from their previous legal or
customary primary carer, but not necessarily from other relatives. These may, therefore, include children accompanied
by other adult family members.