6. Detention of children 6.4. Separation of children from unrelated adults systematically reflected throughout Europe. Cases of separated children placed together with adults have been documented, for instance, in Malta and Greece.366 Convention on the Rights of the Child Article 37 (c) […] In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so. The requirement to separate children from adults other than their parents ‘unless it is considered in the child’s best interest not to do so’ is a well-established rule under international law. Prior to the adoption of Article 37(c) of the Convention of the Rights of the Child quoted in the box above, already in 1966 the ICCPR recognized the need to separate children from adults in the criminal justice context.360 The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) stress that “juveniles in institutions shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults”.361 Similarly, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty which apply to any form of deprivation of liberty take a very strict approach in this regard.362 The 2006 European Prison Rules also indicate the need to separate children from adults, unless it is considered that the separation is against the best interests of the child.363 The European CPT Standards similarly call for special arrangements for children, including the separation from adults, unless otherwise required by the ‘best interests’ principle, for example, when children are in the company of their parents or other close relatives.364 A number of the European countries have provisions within their national legislations requiring that unaccompanied children shall be separated from adults while in detention.365 However, such safeguard is not 360 Article 10.2(b). See also UN Human Rights Committee, General Comment No. 9: Humane treatment of persons deprived of liberty (Art. 10), 30/07/1982 which states that deviations from this obligation cannot be justified by any consideration whatsoever. 361 At paragraph 26.3. 362 Paragraph 29 requires that in all detention facilities juveniles be separated from adults, unless they are members of the same family. Under controlled conditions, juveniles may be brought together with carefully selected adults as part of a special programme that has been shown to be beneficial for the juveniles concerned. See United Nations Rules for the Protection of Juveniles Deprived of their Liberty, UNGA, A/RES/45/113 of 14 December 1990. 363 Council of Europe, Committee of Ministers, Recommendation Rec(2006)2, adopted by the Committee of Ministers on 11 January 2006 at paragraphs 18.8 and 35.4. 364 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), The CPT Standards, CPT/Inf/E (2002) 1 - Rev. 2009, at paragraph 100. 365 See, for example, Austria, Sec. 79 (3) Aliens Police Act and Sec. 4 (3) of the FRA Opinion Under no circumstances should separated children be deprived of their liberty if it is not possible to ensure that they are kept in appropriate facilities where separate accommodation from adults can be guaranteed. 6.5. Legal representation for children detained alone 19th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 1 August 200831 July 2009 Paragraph 98 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. The procedural guarantees set forth in Chapter 4 of this report, such as the right to judicial review, the right to submit an application for asylum, and access to legal assistance, also apply to children, when they are exceptionally held in pre-removal detention. Due to their age and maturity, separated children are usually in a less favourable position compared to adults to access such rights, as procedures may not be child-friendly. In addition, if below a certain age, children may not have the legal capacity to initiate or act in specific procedures. Building on the duty set forth in Article 20.1 of the Convention on the Rights of the Child to provide special protection and assistance to separated children, the Committee proposed that where children are involved Detention Regulation (Ahhalteordnung); Bulgaria, Article 44 (9) of the Law on Foreigners; Estonia, Sec. 265 (4) OLPEA; Poland, Article 115.3 Act on Aliens; UK, Sec. 55.9.3 Operational Enforcement Instructions and Guidance. 366 See for Malta, Médecins Sans Frontières, “Not Criminals” Medecins Sans Frontières Exposes Conditions for Undocumented Migrants and Asylum Seeks in Maltese Detention Centres, April 2009, p. 27; UN High Commissioner for Refugees, The Detention of Refugees and AsylumSeekers by Reason of Their Unauthorised Entry or Presence, July 2007, p. 5 http://www.unhcr.org/refworld/docid/4950f39f2.html. For Greece, see Human Rights Watch Report Left to Survive, Systematic Failure to Protect Unaccompanied Migrant Children in Greece, 2008, p. 60. 61