CYIL 2012

THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … personal position of the child and the exceptional social environment and their possible synergistic harmfulness. The child suffers a dehumanizing experience. 162 4.3 Choice Choice as the internal aspect of liberty remains preserved during the deprivation of a child’s liberty, just as the other rights of the child have to remain preserved. However, the child cannot make decisions as to whether or not it wishes to be placed in an educational or detention facility, when such measures are imposed by the competent authority as the last resort. And this is choice of a basic nature. The right of the child to liberty under Article 37 b) of the Convention justifies the extent of the obligation and the division of responsibility between the authorities in the contracting state. If we accept a line of argument in favour of a prohibition on the administrative detention of the child in an immigration situation we must logically consider the exercise of the other rights of the child and the fulfilment of correlative obligations on the part of the responsible state. Article 12 (2) of the Convention provides for the right to be heard in any administrative or court proceedings whose beneficiaries are children. The right to be heard is a condition for procedural justice. 163 The right to a hearing applies in all parts of criminal and administrative procedure and is binding equally on the police, the prosecutor and the judge. The provision also regulates an alternative option: either the child is heard directly or through its legal representative or the competent childcare authority. In the second case a conflict of interests may arise between the child and its legal representatives, or the competent authority might not act in its favour or interest or for its well-being. Article 12 (1) of the Convention authorizes the child to freely express views in all matters relating to such child. A child that is able to express its own interests, to make choices and to understand the consequences of its own decisions is, above all, to comment on alternative measures that might be set out for that child. 164 An unaccompanied child that finds itself in an immigration situation may take a view on its particular guardian. 165 It may disagree with the appointment of a specific individual. 166 A child in an immigration situation might also comment on other issues. A child may be placed either in foster care or in a residential facility. The child has the right to express views on these basic measures and to basically exercise its choice, which the competent authorities have to take into consideration. Under Article 13 (1) of the Convention, the child in the immigration situation, particularly when unaccompanied or separated from its nuclear or extended family, Centre, 16 May 2008, pp. 4-6. 162 MARES, S., NEWMAN, L., DUDLEY M., GALE, F., op. cit. 156, p. 95. 163 Committee on the Rights of the Child, General Comment No. 10 (2007), Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, p. 14.

164 Ibid. 165 Ibid. 166 See Section 124 (4) of the Czech Aliens Act, No. 326/1999.

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