fact as well as in law.284 A lack of agency is often made worse by the absence of a parent or legal guardian who is able to act in the child’s best interests. Such absence is typical in trafficking cases, since the deliberate separation of children from parents or guardians is a common strategy for facilitating exploitation. In some cases, parents or carers are or have been complicit in the trafficking of the child. As children are more vulnerable than adults, the obligation to protect from further harm will have different implications where they are concerned. The premature release of a child from a shelter or other secure place of care, without an individual case assessment (including risk assessment), could greatly endanger the child and expose him or her to further harm, including retrafficking. It is for these reasons that the relevant laws, principles and guidelines emphasize the importance of ensuring that the child is appointed a legal guardian who is able to act in that child’s best interests throughout the entire process, until a durable solution is identified and implemented.285 Typical tasks of a guardian would include ensuring that the child’s best This is acknowledged in the International Covenant on Civil and Political Rights which stipulates the right of the child to “such measures of protection as are required by his status as a minor” (art. 24). 284 Trafficking Principles and Guidelines; UNICEF Guidelines, especially section 4.1. While the Trafficking Protocol is silent on this point, the Commentary to the Protocol encourages States parties to consider “appointing, as soon as the child victim is identified, a guardian to accompany the child throughout the entire process until a durable solution in the best interest of the child has been identified and implemented. To the extent possible, the same person should be assigned to the child victim throughout the entire process”: Legislative Guides to the Organized Crime Convention and its Protocols, Part 2, para. 65 (a). The European Trafficking Convention at article 10 (4)(a) requires States parties to provide for the representation of a child identified as a victim of trafficking by a “legal guardian, organisation or authority, which shall act in the best interests of that child” (emphasis added). The Committee on the Rights of the Child, in its general comment No. 6, stated that “the appointment of a 285 interests remain the paramount consideration in all actions or decisions taken in respect of the child;286 ensuring the provision of all necessary assistance, support and protection; being present during any engagement with criminal justice authorities; facilitating referral to appropriate services; and assisting in the identification and implementation of a durable solution.287 These additional considerations do not take away from the fact that children who are placed in safe and secure accommodation are to be regarded as “detained” for the purposes of ascertaining their rights and the obligations of the State towards them. International legal rules on the detention of children are very exacting and are governed by the overriding principle of respect for the child’s best interests. The strictness of the rules on juvenile detention reflects an acknowledgement of the fact that detained children are highly vulnerable to abuse, victimization and the violation of their rights. Under the provisions of the Convention on the Rights of the Child, no child is to be deprived of his or her liberty unlawfully or arbitrarily (art. 37 (b)). This prohibition extends beyond penal detention to include deprivation of liberty on the basis of the child’s welfare, health or protection. It is therefore directly relevant to the situation of child victims of trafficking who are detained in shelters.288 International law requires any form of juvenile detention to be in conformity with the law, competent guardian… serves as a procedural safeguard to ensure respect for the best interests of an unaccompanied or separated child” and recommended that States appoint a guardian as soon as an unaccompanied or separated child is identified (para. 21). The principle of “best interests of the child” is a legal doctrine accepted in many countries that has been enshrined in international law through art. 3 (1) of the Convention on the Rights of the Child. 286 UNICEF Guidelines, section 4.2; see also Committee on the Rights of the Child, general comment No. 6, para. 33. 287 The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, General Assembly resolution 288 (Continued on next page) COMMENTARY 137