Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

190 | PRACTITIONERS GUIDE No. 6
tion centre had a special wing for the accommodation of families, the
children’s particular situation was not examined and the authorities did
not verify that the placement in administrative detention was a measure
of last resort for which no alternative was available. The Court thus
[found] that the [. . .] system did not sufficiently protect their right to
liberty”. 704 In the case Yoh-Ekale Mwanje v. Belgium, the Court found
that the detention of a woman affected by AIDS that did not present
particular risks of flight was arbitrary because the authorities had not
contemplated the resort to less intrusive alternatives to detention, such
as a temporary residence permit. 705
a) Justification of detention of children
Detention of children raises particular considerations under the CRC, as
well as under international refugee law and international human rights
law generally.
The CRC provides in Article 37(b) that detention of a child should be only
as a last resort and for the shortest appropriate period of time. Article 37
should be read in light of other provisions of the CRC which affect decision-making
regarding migrant children. Of significance in all cases where
detention of child migrants is considered is Article 3.1 CRC which requires
that the best interests of the child should be a primary consideration in
all actions concerning children. Under Article 22.1 CRC, States must take
all appropriate measures to ensure that a child refugee or asylum seeker
shall receive appropriate protection and humanitarian assistance, a provision
which could have consequences for decisions on whether to detain
a child. For child migrants who accompany their parents or other adults,
and who may risk imprisonment as a result, Article 2.2 CRC is relevant.
It provides: “States Parties shall take all appropriate measures to ensure
that the child is protected against all forms of discrimination or punishment
on the basis of the status, activities, expressed opinions, or beliefs
of the child’s parents, legal guardians, or family members.” Similar provision
is made in Article 24 ICCPR, and Article 19 ACHR. Also of potential
significance is Article 39 CRC, which requires States to take measures to
ensure the physical and psychological recovery and social reintegration
of child victims of armed conflict, torture or inhuman or degrading treatment,
neglect, exploitation or abuse.
The Committee on the Rights of the Child, in General Comment
No. 6 (2005) 706 has provided guidance on the application of Article 37(b)
CRC to migrant children.
704 Popov v. France, ECtHR, Applications Nos. 39472/07 and 39474/07, Judgment of 19 January
2012, para. 91.
705 Yoh-Ekale Mwanje v. Belgium, ECtHR, op. cit., fn. 412, para. 124.
706 CRC, General Comment No. 6, op. cit., fn. 138, para. 61.