CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ permanent state interest in public order, state security and the effective capacity to control and combat illegal immigration. 157 A stay of the child in a detention facility may breach (or breaches) his or her right to health as well. A stay of this kind conflicts with the child’s interests with regard to healthy development in a healthy environment. The principle of the best interests of the child is a crucial guarantee of its all-round development. 158 This principle acts as a decisive standpoint. 159 Hand in hand with the rule guaranteeing the right of the child to health, this principle eliminates the option of a disruptive encroachment on the interests of the child. The Convention principle as a standpoint for decision-making and control acts both within the field of legislative power and executive and judicial power. This principle both directly and indirectly affects the political field and must also operate both procedurally and substantively in legal practice. If the Convention is incorporated into internal law, it becomes part of this legal system and even a part of the constitutional order. 160 In any decision on a child or on children, the legislator, official or judge as authoritative bodies must examine its consequences or anticipated influence in case the interests of the child are breached by a detention measure. The principle anticipates conflicts of interests and norms. The English phrase primary consideration used in Article 3 (1) of the Convention makes it clear that the interests of the child are not the only ones. The linguistic explanation of the previous phrase entails a teleological interpretation, which certainly means that the interests of the child are neither the highest nor superordinate to other interests. The interests of a child are not detached from social conflicts like all interests and they may conflict with the interests of other children or those of parents, relatives, foster parents, teachers, municipalities or the state. Under Article 3 (1) of the Convention, the interests of the child are a qualifying, decisive and controlling standpoint in administrative deliberations over the detention of a child in an immigration situation. The legislator, official and judge must consider the interests of the child as a priority, without this anticipating any result in decision-making. However, in the event of the administrative detention of a child in an immigration situation, the specific right of the child is breached, in some cases irremediably. The risk of harm is increased by the vulnerability of the child. Vulnerability is not bound exclusively to the age or the individual ability of the child to resist the influence of the social environment and the personal situation. An immigration situation is a risk prone situation where the child finds itself in an unknown, often isolated environment and in social and legal uncertainty. 161 Hence vulnerability characterizes the exceptional 157 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium , judgment of 12 October 2006, paragraph 81. 158 Neulinger and Shuruk v. Switzerland , judgment of 6 July 2010, paragraph 136. 159 ZERMATTEN, J., op. cit. 82, p. 493. 160 See the decision of the Czech Constitutional Court, I.ÚS 238/05,17.01.2006, p. 3. 161 Srov. AYNSLEY-GREEN, A., The arrest and detention of children subject to immigration control: A report following the Children’s Commissioner for England’s visit to Yarl’s Immigration Removal

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