CHAPTER 4 RIGHT TO PERSONAL LIBERTY In the context of immigration control, the UN Committees on the Rights of the Child and on the Rights of Migrant Workers and their Families, in a recent joint General Comment, have taken the strong position that children shall never be deprived of liberty solely on the basis of their or their parents’ migration status. They held that ‘the possibility of detaining children as a measure of last resort, which may apply in other contexts such as child criminal justice, is not applicable in immigration proceedings as it would conflict with the principle of the best interests of the child and the right to development’.24 The Committees, therefore, concluded that ‘child and family immigration detention should be prohibited by law and its abolishment ensured in policy and practice. Resources dedicated to detention should be diverted to non-custodial solutions carried out by competent child protection actors engaging with the child and, where applicable, his or her family’.25 From a legal point of view, this joint General Comment seems to indicate that the principle of last resort in Article 37(b) CRC is considered too low a standard and therefore ‘not applicable in immigration proceedings’. This would contradict the legal interpretation of this provision as developed above, namely that Article 37(b) CRC applies to all forms of deprivation of liberty. The position of the two UN treaty bodies reflected in their joint General Comment seems to suggest that there is an international trend to move beyond the Article 37(b) standard as far as immigration detention of children is concerned. However, the legal status of this position is still unclear. In our opinion, the principle of the best interests of the child in Article 3 CRC is not in conflict with the principle of last resort in Article 37(b), but both principles reinforce each other.26 Similarly difficult legal questions arise when indigenous children, orphans, children living in the streets, children with disabilities, behavioural difficulties, addictions, for ‘anti-social behaviour’ or for any other reasons are placed in institutions.27 As the Human Rights Committee has stressed, children placed in institutions are de facto deprived of liberty, as they are not allowed to leave these institutions at their free will.28 With respect to children 24 Cf. Joint General Comment No. 4 of the Committee on the Protection of the Rights of all Migrant Workers and their Families and No. 23 of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return, CMW/C/GC/4-CRC/CGC/23, 16 November 2017, para. 10. 25 Ibid., para. 12. 26 Cf. Chapter 9 on the Administration of Justice; See also Liefaard (2018), op. cit., p. 332: here Liefaard comments the above referenced joint General Comment as follows: ‘One could indeed question whether deprivation of liberty is in the best interests of the child. However, neither the CRC nor the other standards of international human rights law prohibit immigration detention’. See also the critical analysis of Ciara M. Smyth, ‘Toward a complete prohibition on the immigration detention of children’, Human Rights Law Review, Vol. 19, 2019, pp. 1-36. 27 Cf. Schabas & Sax (2006), op. cit., pp. 81 ff.; Manco (2015), op. cit., pp. 62 ff.; Van Bueren (1995), op. cit.; Liefaard (2018), op. cit., pp. 329 ff. 28 Human Rights Committee, General Comment 35 of 2014, CCPR/C/GC/35, para.62, according to which any ‘placement of a child in institutional care amounts to deprivation of liberty within the meaning of article 9’. 70