Working Group 4: Ending detention of children As stated by the UN Special Rapporteur on torture, “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.”45 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 report cannot apply in immigration proceedings. This applies whether the child is accompanied or unaccompanied or separated, and irrespective of his/her legal/migratory status or that of his/her parents. 46 If exceptionally detained, the requirement is that States shall promptly ensure that children are released and accommodated in a childcare arrangement, which may include residential homes and foster arrangements. 47 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 the detention. The Court also found that, even when the material conditions are “appropriate”, the psychological and emotional aggressions to which children in administrative detention are subjected to, entail such negative consequences that it may as such violate art 3 ECHR. It ruled that “the protection of the child’s best interests involves both keeping the family together, as far as possible, and considering alternatives so that the detention of minors is only a measure of last resort.”48 In reality, migrant children are being increasingly detained within the growing use of detention by States to manage migration flows. Several organizations, in particular from civil society, have advocated for ending immigration detention of children, calling for alternatives to detention.49 Positive examples of such alternatives have been reported, including by NPMs of the OSCE region.50 Ways to reduce children’s trauma involve community-based care arrangements, ensuring access to education and healthcare, providing age-tailored information regarding rights and procedures and appointing a guardian and a lawyer as soon as possible in case of unaccompanied minors.51 Questions for discussion: 1) What are the main challenges and lessons learned regarding the monitoring of immigration detention of children? 2) What are good practices and alternatives to detention of migrant children observed by NPMs and CSOs? 3) What have NPMs and CSOs recommended to state authorities with regard to the detention of migrant children? 4) What are successful examples of joint advocacy efforts between NPMs and CSOs to end children immigration detention? 45 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”. 46 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. 47 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. 48 ECtHR, Popov v. France, §§ 140-141; European Court of Human Rights, Factsheet on “Accompanied migrant minors in detention”, April 2018: https://www.echr.coe.int/Documents/FS_Accompanied_migrant_minors_detention_ENG.pdf. 49 See https://endchilddetention.org/. 50 See, for example, Monitoring places of detention - Eighth Annual Report of the United Kingdom’s National Preventive Mechanism, February 2018, https://s3-eu-west-2.amazonaws.com/npm-prod-storage19n0nag2nk8xk/uploads/2018/02/6.4122_NPM_AR2016-17_v4_web.pdf. 51 Report on access to justice for migrant persons, General Assembly, United Nations Special Rapporteur on Human Rights of Migrants, 25 September 2018, A/73/178/Rev.1, http://undocs.org/A/73/178/Rev.1. 22