A/HRC/28/68
77.
An important safeguard against torture and other forms of ill-treatment is the
support given to children in detention to maintain contact with parents and family
through telephone, electronic or other correspondence, and regular visits at all times.
Children should be placed in a facility that is as close as possible to the place of
residence of their family. Any exceptions to this requirement should be clearly
described in the law and not be left to the discretion of the competent authorities.
Moreover, children should be given permission to leave detention facilities for a visit
to their home and family, and for educational, vocational or other important reasons.
The child’s contact with the outside world is an integral part of the human right to
humane treatment, and should never be denied as a disciplinary measure.
78.
Children in detention should be provided throughout the day with a full
programme of education, sport, vocational training, recreation and other purposeful
out-of-cell activities. This includes physical exercise for at least two hours every day in
the open air, and preferably for a considerably longer time. Girls should under no
circumstances receive less care, protection, assistance and training, including equal
access to sport and recreation.
79.
The Special Rapporteur recalls that detention and forced labour programmes
for children who use drugs are not a legitimate substitute for evidence-based
measures, such as substitution therapy, psychological intervention and other forms of
treatment given with full, informed consent (A/65/255, para. 31). Drug dependence as
a “multi-factoral health disorder” requires a health response rather than recourse to
detention.
80.
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. Following the advisory opinion of the Inter-American
Court of Human Rights on the rights and guarantees of children in the context of
migration and/or in need of international protection in 2014, the Special Rapporteur
recalls the different procedural purposes between immigration and criminal
proceedings, and that, in the words of the Court, “the offenses concerning the entry or
stay in one country may not, under any circumstances, have the same or similar
consequences to those derived from the commission of a crime.” The Special
Rapporteur therefore concludes that the principle of ultima ratio that applies to
juvenile criminal justice is not applicable to immigration proceedings. The
deprivation of liberty of children based exclusively on immigration-related reasons
exceeds the requirement of necessity because the measure is not absolutely essential to
ensure the appearance of children at immigration proceedings or to implement a
deportation order. Deprivation of liberty in this context can never be construed as a
measure that complies with the child`s best interests. Immigration detention practices
across the globe, whether de jure or de facto, put children at risk of cruel, inhuman or
degrading treatment or punishment. Furthermore, the detention of children who
migrate to escape exploitation and abuse contravenes the duty of the State to promote
the physical and psychological recovery of child victims in an appropriate
environment. 24 Therefore, States should, expeditiously and completely, cease the
detention of children, with or without their parents, on the basis of their immigration
status. States should make clear in their legislation, policies and practices that the
principle of the best interests of the child takes priority over migration policy and
24
Convention on the Rights of the Child, arts. 34 and 39.
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