States need to think of alternatives instead of locking up children on the move.
Children represent around a quarter of all migrants worldwide. While in June 2015, one in ten migrants reaching the Macedonian border from Greece was a child, in October 2015 it was one in three.
Without regular status and the protection that comes with it, children on the move are particularly vulnerable to exploitation, violence and abuse. The unknown social and cultural environment, as well as their age and level of development, often make it impossible for them to be aware of and assert their rights.
Rather than opening regular, safe and cheap channels for migration, states continue to erect walls, use barbed wire fences and systemically detain migrants, including children. For too many children, their experience is all too often linked to their status as immigrants, rather than their age. While there is little reliable data on how many migrant children are being detained, there is evidence that it is happening around the world.
Detention is rarely justified
The Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights proclaim the right to the liberty and security of persons. This applies to everyone subject to the jurisdiction of a state and to all forms of detention, including for immigration purposes.
States use a wide range of reasons to justify detention of migrants: health and security screening, identity checks, preventing absconding and facilitating removal. But freedom should be the default position for these migrants, as it is for citizens and legal residents. Detention should only occur when a person represents a demonstrated individualised risk to public security or may abscond from mandatory proceedings. In most cases, such a risk cannot be individually demonstrated and detention cannot be justified as necessary, reasonable or proportionate.
Children are also entitled to the protection afforded to them by the Convention on the Rights of the Child (CRC), which is the most ratified UN human rights treaty, lacking only one ratification in the whole of UN membership – the US. The CRC proclaims that “no child shall be deprived of his liberty arbitrarily” and asserts that all institutions should ensure that “the best interests of the child shall be a primary consideration”.
Detention for administrative purposes can never ever be in the best interests of a child. It harms their physical and psychological well-being and has adverse effects on their development. It might aggravate trauma experienced before arriving in the transit or destination country. The constant control and surveillance may be very disturbing for a child, increasing already high levels of mental distress. Children deprived of their liberty often have difficulties understanding why they are being “punished” despite having committed no crime.
Separation from community and from the outside world can make a child feel isolated and decrease their confidence. The often poor hygienic conditions and unbalanced diet will have negative consequences on physical well-being and development. Often children and adults are detained together, which puts children at further risk. Housing migrant children and adults in the same detention structure can lead to physical and sexual violence and abuse, while disrespectful staff may further exacerbate a child’s feelings of humiliation and so further impact their development.
How to protect lone children
Children can make migratory journeys on their own, sometimes having been separated from their parents or other adult relatives en route. These unaccompanied minors or separated children are vulnerable to becoming victims of human rights violations, such as sexual and economic exploitation and trafficking, and their situation requires special attention.
Unaccompanied children should never be detained purely on the basis of their migratory or residence status, or lack thereof, nor should they be criminalised solely for reasons of irregular entry or presence in the country. They should be treated as children first and placed in the alternative care system, either with a family or under institutional care. Under no circumstances should they be left on their own, as this leaves them vulnerable to violence.
States should systematically appoint an independent and competent guardian as soon as the unaccompanied or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the jurisdiction of the state. The guardian must not only take care of administrative processes related to the immigration status, but ensure that he or she advocates for the child’s rights and best interests.
The guardian should be independent of the immigration authorities and should have the authority and means to appoint a lawyer to represent the child in all proceedings affecting their rights. States should undertake every effort to quickly reunite children with other family members, if considered in their best interests, taking into account their own opinion and how they see their future.
The detention of children with their parents is often justified by states using Article 9 of the CRC, which affirms that children shall not be separated from their parents against their will. Yet, Article 2 of the CRC provides that “children [shall] not to be punished for the acts of their parents, legal guardians or family members”. Absurdly, I have personally observed families detained in the same detention centre, but separated in three groups (women, girls and infants, male teenagers, adult males), with only one daily hour of common family time.
A decision to detain migrants who are accompanied by their children should therefore only be taken in very exceptional circumstances: the vast majority of families with children should be offered alternatives to detention. Such non-custodial measures may include registration or reporting requirements, deposit of documents, a reasonable bond or a guarantor, and supervised release.
When applying alternatives to detention, states need to make sure they respect children’s rights, including to education, to the enjoyment of the highest possible standard of health, to an adequate standard of living, to rest, leisure and play, to practice their own religion and to use their own language.
Detaining children because they or their parents are migrants can never be in their best interests. Irregular migration is not a crime and very few of those children present any danger to society. Children should be treated as children first and non-custodial alternatives to detention should be offered to all such unaccompanied children and to families with children.
A longer version of this article was co-published with Unicef as part of the Children on the Move research watch project.
François Crépeau is full professor director at the Centre for Human Rights and Legal Pluralism, Hans & Tamar Oppenheimer Chair in Public International Law, McGill University