CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ In the procedural sense, decision-making over the option of depriving a child of liberty includes an assessment of all applicable measures that impinge less on the child’s liberty in order to achieve the anticipated objective (the principle of proportionality). 131 The last resort condition centers around alternative measures. In the case of an unaccompanied child or separated child in the immigration situation it is possible to consider foster care arrangements or residential measures. The first form of temporary care takes precedence over the second. 132 In contrast, families with children in an immigration situation may be placed in residential repatriation centers. 133 Decision-making on more lenient measures makes up part of the administrative proceedings governed by general principles. If this more lenient interference in a child’s liberty is not enshrined in law or cannot be implemented, the last resort condition becomes unrealizable even though it has a sine qua non nature. If more lenient measures prove to be insufficient to protect the child itself and public interests then under Article 37 b) of the Convention it is possible to use arrest, detention and imprisonment as the last unavoidable resort. Decision-making on the deprivation of a child’s liberty anticipates the automatic use of a child’s well-being as the primary consideration, as required by the Beijing Rules. 134 The principle of the child’s well-being should not be confused with the principle of the child’s best interests. 135 In domestic practice the infringement of the last resort condition does occur, both in criminal and in administrative cases. The Committee on the Rights of the Child held a critical view of illegal conduct attributed to the competent authorities of several states. The Committee expressed deep concern , e.g. that detention pending trial is not used as a last resort option on children. 136 4.2.2 Condition of the shortest appropriate period of time The second condition involves a time imperative for interference in a child’s liberty. Article 37 of the Convention requires the deprivation of a child’s liberty to last the shortest appropriate period of time . Of course this condition is dependent and a relative quantity. The time condition depends on the circumstances of the case, the age of the child and the type and purpose of the deprivation of personal liberty. Hence it may be assessed exclusively on an ad hoc basis. 131 Parliamentary Assembly, The detention of asylum seekers and irregular migrants in Europe, report, 11 January 2010, Doc. 12105, p. 21. 132 UN High Commissioner for Refugees, UNHCR Guidelines on Determining the Best Interests of the Child, May 2008, s. 14-15, available at: http://www.unhcr.org/refworld/docid/48480c342.html. 133 GOWER, M., Ending Child Immigration Detention. Home Affairs Section, House of Common, SN/ HA/5591, 3 November 2001, pp. 5 a 9-12. 134 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA resolution 40/33 of 29 November 1985, paragraph 17.1 (d). 135 UN High Commissioner for Refugees, UNHCR Guidelines on Determining the Best Interests of the Child, May 2008, p. 73, available at: http://www.unhcr.org/refworld/docid/48480c342.html. 136 The Concluding Observations of the United Nations Committee on the Rights of the Child, Turkey, 09/07/2001 (CRC/C/15/Add.152).

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