CMW/C/GC/4-CRC/C/GC/23
of a crime. 11 Therefore, the possibility of detaining children as a measure of last resort,
which may apply in other contexts such as juvenile criminal justice, is not applicable in
immigration proceedings as it would conflict with the principle of the best interests of the
child and the right to development.
11.
Instead, States should adopt solutions that fulfil the best interests of the child, along
with their rights to liberty and family life, through legislation, policy and practices that
allow children to remain with their family members and/or guardians in non-custodial,
community-based contexts while their immigration status is being resolved and the
children’s best interests are assessed, 12 as well as before return. When children are
unaccompanied, they are entitled to special protection and assistance by the State in the
form of alternative care and accommodation in accordance with the Guidelines for the
Alternative Care of Children13 When children are accompanied, the need to keep the family
together is not a valid reason to justify the deprivation of liberty of a child. When the
child’s best interests require keeping the family together, the imperative requirement not to
deprive the child of liberty extends to the child’s parents and requires the authorities to
choose non-custodial solutions for the entire family. 14
12.
Consequently, child and family immigration detention should be prohibited by law
and its abolishment ensured in policy and practice. Resources dedicated to detention should
be diverted to non-custodial solutions carried out by competent child protection actors
engaging with the child and, where applicable, his or her family. The measures offered to
the child and the family should not imply any kind of child or family deprivation of liberty
and should be based on an ethic of care and protection, not enforcement. 15 They should
focus on case resolution in the best interests of the child and provide all the material, social
and emotional conditions necessary to ensure the comprehensive protection of the rights of
the child, allowing for children’s holistic development. Independent public bodies, as well
as civil society organizations, should be able to regularly monitor these facilities or
measures. Children and families should have access to effective remedies in case any kind
of immigration detention is enforced.
13.
In the view of the Committees, child protection and welfare actors should take
primary responsibility for children in the context of international migration. When a
migrant child is first detected by immigration authorities, child protection or welfare
officials should immediately be informed and be in charge of screening the child for
protection, shelter and other needs. Unaccompanied and separated children should be
placed in the national/local alternative care system, preferably in family-type care with their
own family when available, or otherwise in community care when family is not available.
These decisions have to be taken within a child-sensitive due process framework, including
the child’s rights to be heard, to have access to justice and to challenge before a judge any
decision that could deprive him or her of liberty, 16 and should take into account the
vulnerabilities and needs of the child, including those based on their gender, disability, age,
mental health, pregnancy or other conditions.
11
12
13
14
15
16
4
See Committee on the Protection of the Rights of All Migrant Workers and Members of Their
Families, general comment No. 2, para. 24. See also Committee on the Rights of the Child, report of
the 2012 day of general discussion, para. 78. Along the same lines, see the report of the Working
Group on Arbitrary Detention (A/HRC/13/30), para. 58; and the report of the Special Rapporteur on
the human rights of migrants (A/HRC/20/24), paras. 31 and 38.
See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 79.
See Committee on the Rights of the Child, general comment No. 6, paras. 39-40.
See A/HRC/20/24, para. 40; Rights and Guarantees of Children in the Context of Migration and/or in
Need of International Protection, Advisory Opinion OC−21/14 of 19 August 2014, Inter-American
Court of Human Rights, para. 159; and A/HRC/28/68, para. 80.
See the Guidelines for the Alternative Care of Children.
See United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, in particular guideline 18
(see A/HRC/30/37, para. 100).