C. Vulnerable groups: the case of children Although this is not regulated under any binding standard, there is a wide international consensus that children under 18 should not be detained based on their or their parents’ migration status, even as a last resort. In a recently adopted General Comment, the UN Committee on the Rights of the Child and the UN Committee on the Rights of All Migrant Workers and their Families stated that detention of children as a measure of last resort cannot apply in any immigration proceedings.19 The UN Special Rapporteur on torture has also stated that “within the context of administrative immigration enforcement, it is now clear that the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children.”20 If children are exceptionally detained, states shall promptly ensure that they are released and accommodated in a childcare arrangement, which may include residential homes and foster arrangements.21 Participants highlighted that in practice, the detention of children is rather common across the OSCE region, within the growing use of detention by states to manage migration flows. The argument of the “best interest of the child” is sometimes used to justify their detention with their families, when this best interest would in fact require that the family is not detained to ensure that the child can benefit from age-appropriate activities, appropriate food and educational possibilities. Concerns were also raised regarding existing pushbacks of children, as they could be returned without consideration of their best interest. According to the European Court for Human Rights, in addition to issues related to the arbitrariness of detention, immigration detention of children and other vulnerable individuals can raise issues under the prohibition of torture and other ill-treatment, with particular attention being paid to the conditions of detention, its duration, the child’s particular vulnerabilities and the impact of the detention on him or her.22 In several judgements, the European Court of Human Rights has set out the general principle that detention of children is prohibited if conditions are incompatible with the child’s needs, irrespective of the duration of detention. The Court also found that, even when the See UNHCR's position regarding the detention of refugee and migrant children in the migration context, January 2017. See also the Joint General comment No. 4 (2017) of the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) and No. 23 (2017) of the Committee on the Rights of the Child (CRC) on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return, 16 November 2017, CMW/C/GC/4-CRC/C/GC/23, paras 5, 9-10; see also ECtHR, Abdullahi Elmi and Aweys Abubakar v Malta, App. nos. 25794/13 and 28151/13. 20 See UN Special Rapporteur on torture, 5 March 2015, A/HRC/68/28, para. 80. See also CPT, Factsheet on Immigration Detention, https://rm.coe.int/16806fbf12: “every effort should be made to avoid resorting to the deprivation of liberty of an irregular migrant who is a child”. 21 UN CRC, Arts 20 (2) and (3); ECtHR, Mohamad v. Greece, 70586/11, §§ 82-86; UNHCR Detention Guidelines, Guideline 9.2, para. 51; Guidelines for the Alternative Care of Children adopted by the UN GA, A/RES/64/142, para. 140. 22 In respect of the detention of accompanied children see Popov v. France and the overview of the European Court of Human Rights’ case-law in S.F. and Others v. Bulgaria; in respect of unaccompanied children see Abdullahi Elmi and Aweys Abubakar v. Malta; Rahimi v. Greece; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, where the Court found a violation of Article 3 in respect of both the detained child and the child’s mother who was in another country. 19 12