CYIL 2012

THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … may indeed arise and does arise for children in the immigration situation. 152 Adherence to or application of the rule expressed in Article 37 b) of the Convention may result in breach of the rule protecting the best interests of the child, as well as the rule guaranteeing the child’s right to health (Article 24). If the state authority acts in accordance with Article 37 b) of the Convention or an internal norm that corresponds to it, it may be in breach of the obligation arising out of Article 3 of the Convention. In order to avoid a unilateral conflict of Convention norms, an internal regulation may be amended, normally the Aliens Act, and positive permission enabling the competent state authority to detain an unaccompanied child or a separated child or a child together with other or just some members of its family may be repealed. Several European states no longer have positive permission in the form of a law to detain a child without a family or together with its family. 153 Another way to avoid a conflict of norms is to revive the practical policy of not detaining such children once they find themselves on the territory of the state regardless of the presence or absence of members of their nuclear or extended family. This political measure will precede an amendment to the internal law, bringing legal certainty and legitimate expectations into sensitive legal relations. The administrative detention of children in an immigration situation may be (or is) contrary to their best interests. 154 As has been demonstrated by the experts, detained children suffer damage to their mental and physical health as a result of administrative detention in an immigration situation. 155 In some cases the damage to their health is serious. Under detention numerous children undergo fresh traumatic experience, suffer post-traumatic stress and clinical depression and have suicidal behaviour. 156 Children also suffer physically and lose considerable weight. A stay in a detention facility may be to their permanent harm. Yet state decision-making in immigration matters of a non-criminal nature must not be to the harm of the child, even if the child’s interests are opposed by the 152 VRANES, E., op. cit. 87, p. 414. 153 European Commission Directorate-General Home, ECRE in strategic partnership with Save the Children (EU Office), Comparative Study on Practices in the Field of Return of Minors, final report, December 2011, Home/2009/RFXX/PR/1002, p. 150. 154 Report of the Special Rapporteur on the human rights of migrants, Jorge Bustamante, Promotion and protection of all human Rights, civil, political, economic, social and cultural rights, including the right to development, A/HRC/11/7, 14 May 2009, paragraph 63. 155 FAZEL, M., STEIN, A., UK Immigration Law Disregards the Best Interests of Children. Lancet , 2004, Vol. 363, May 29, pp. 1749-1750; ROBJANT, K., HASSAN, R., KATONA, C., Mental Health Implications of Detaining Asylum Seekers: Systematic Review. The British Journal of Psychiatry , 2009, Vol. 194, pp. 309-311. 156 MARES, S., NEWMAN, L., DUDLEY M., GALE, F., Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention. Australian Psychiatry , June 2002, Vol. 10, No. 2, pp. 91-96; Intercollegiate Briefing Paper: Significant Harm – the effects of administrative detention on the health of children, young people and their families, December 2009, p. 2; GOWER, M., Ending Child Immigration Detention. Home Affairs Section, House of Common, SN/HA/5591, 3 November 2011, p. 4.

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