J U R I D I C U M
Deprivation of Liberty in Light of the Best Interests of the Child
Alexandra Nordlund
VT 2020
RV600G Rättsvetenskaplig kandidatkurs med examensarbete, 15 högskolepoäng
Examinator: Adam Croon Handledare: Jessica Jonsson
Preface
I would like to take the opportunity to thank the people who have inspired and helped me along the way to write this thesis. The idea for the thesis came during my exchange semester in Austria. Therefore, I would like to thank my professors at Karl-Franzens-Universität in Graz. Thank you Bernadette Knauder for your course in children’s rights which inspired me to chose this topic. Thank you Reinmar Nindler for your passion for teaching the law and your belief in my future. Thank you Elisabeth Steiner for sharing your invaluable knowledge of human rights after 14 years as a judge of the European Court of Human Rights and for your encouragement and belief in my ability throughout the course.
I would like to thank my fellow students for their input. I would further like to thank my friends and family for support and inspiration during these weeks. Finally, a big thank you to my tutor Jessica Jonsson who contributed with expertise and guidance throughout the whole writing process.
Summary
Children Deprived of liberty continues to be a global issue around the world. Statistics show that deprivation of liberty in the context of juvenile justice is being widely overused and violating international legal standards. Deprivation of liberty has been proven to be detrimental to the physical and psychological development of children and may cause irreversible damage which is difficult to reconcile with the principle of the best interests of the child under the United Nations Convention on the Rights of the Child. Thus, the purpose of the thesis has been to account for the legal framework concerning the use of deprivation of liberty under the Convention on the Rights of the Child and further examine how these rules correspond to the principle of the best interests of the child. After examining the United Conventions on the Rights of the Child and interpretations provided in other legal sources it is apparent that children may only be lawfully deprived of liberty as a measure of last resort and for the shortest appropriate period of time. This reflects the principle of the best interests of the child since it can not be considered in the best interests of the child to be deprived of liberty. However, the principle of depriving children as a last resort allows for an exception to the child’s best interests if the deprivation of liberty is proportionate to serve a legitimate aim such as public safety and no lesser restriction on the child’s liberty can achieve this aim. However, the threshold for such exceptions is considerably high to prevent a strictly punitive approach of children and promote restorative justice.
List of Abbreviations
CMW Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families
CRC United Nations Convention on the Rights of the Child CRC Committee Committee on the Rights of the Child
Fundamental freedoms)
Geneva Declaration 1924 Declaration on the Rights of the Child
Havana Rules United Nations Rules for the Protection of Juveniles Deprived of their Liberty
HR Committee Human Rights Committee
ICCPR International Covenant on Civil and Political Rights
OPIC Optional Protocol to the Convention on the Rights of the Child on a communications procedure
The Beijing Rules United Nations Standard Minimum Rules for the Administration of Juvenile Justice
UN United Nations UNGA United Nations General Assembly
Table of Content
1. Introduction... 1
1.1 Background... 1
1.2 Purpose and Research Questions... 2
1.3 Delimitations... 2
1.4 Method and Material... 3
1.5 Use of Terms... 4
2. The Best Interests of the Child... 5
2.1 Legal Framework... 6
2.2 Scope... 8
2.2.1 Definition of a Child... 8
2.2.2 ‘In All Actions Concerning Children’... 8
2.2.3 Primary Consideration... 9
2.3 State Obligations... 10
2.4 Assessment of the Child’s Best Interests... 11
3. Deprivation of Liberty... 13
3.1 Legal Framework... 13
3.2 Scope... 14
3.2.1 Definition of Deprivation of Liberty... 14
3.2.2 Unlawful or Arbitrary Deprivation of Liberty... 14
3.2.3 Measure of Last Resort and for the Shortest Appropriate Period of Time... 16
3.3 State Obligations... 18
3.3.1 General Obligations... 18
3.3.2 Obligations under Article 40 of the CRC... 19
4. The Best Interests of the Child in the Context of Deprivation of Liberty... 22
4.1 Is Deprivation of Liberty in the Best Interests of the Child?... 22
4.2 Actions Contrary to the Best Interest of the Child... 23
5. Conclusion... 25
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1. Introduction
1.1 Background
It has been estimated that a minimum of between 1.3 and 1.5 million children are being deprived of their liberty each year. This estimation was presented in the United Nations Global Study on Children Deprived of Liberty released in 2019. The global study demonstrated how children deprived of liberty are often neglected and not accounted for which leaves them invisible and forgotten.1 Out of the provided statistics, it is estimated that around 410,000
children are being deprived of their liberty in the context of juvenile justice. It is further estimated that an additional 1 million children are being deprived of their liberty in police custody every year.2
Deprivation of liberty has been proven to have harmful consequences on children’s psychological and physical development. The detention often takes place in unsanitary conditions not optimal for health. Furthermore, Restriction on movement affects the child’s physical development negatively. Children may even suffer irreversible damage such as anxiety, depression or post-traumatic stress syndrome.3
The global study reveals that deprivation of liberty in the context of juvenile justice is being widely overused by states. Thus, violating international legal standards.4 The phenomenon has become a topical issue with international efforts to promote restorative justice and minimize the punitive approach of children in the juvenile justice system.5
The foregoing raises questions about the legality of depriving children of liberty in the context of juvenile justice under international law. Mainly, if the deprivation of a child’s liberty can be justified and what basis is required for such justification. Furthermore, what obligations are imposed upon states to protect children from unlawful deprivation of liberty which is clearly taking place widely across the world. Finally, how the legal standards and use of deprivation of liberty can be reconciled with the principle of the best interests of the child.
1 UN Secretary-General; UN. Independent Expert for the Global Study on Children Deprived of Liberty ‘Global
Study on Children Deprived of Liberty’ (2019) UN Doc A/74/136, para 86.
2 ibid, para 40. 3 ibid, para 26-29. 4 ibid, para 41. 5 ibid, para 113.
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1.2 Purpose and Research Questions
The purpose of the thesis is to examine the international legal framework around the use of deprivation of liberty in the context of juvenile justice under the United Nations Convention on the Rights of the Child and to examine how these rules correspond to the principle of the best interests of the child found in the same Convention. The purpose raises the following research questions:
● Under what circumstances may children be lawfully deprived of liberty and what obligations exist for states to protect children from unlawful deprivation of liberty? ● How should the principle of the best interests of the child be defined and applied in
the context of deprivation of liberty?
1.3 Delimitations
The thesis deals exclusively with the legal framework around the use of deprivation of liberty under the United Nations Convention on the Rights of the Child (CRC). Hence, other international or regional human rights treaties are left outside the scope of the thesis. This delimitation has been made due to the CRC’s specialized nature on children’s rights which encompasses many of the rights other international regulations give children. EU law and domestic law have also been excluded from the scope of the thesis. This is because the purpose of the thesis is not to examine the implementation of the CRC.
Furthermore, any deprivation of liberty that does not fall within the context of juvenile justice is not being treated in the thesis. Hence, the deprivation of liberty related to migration or any other purposes is excluded due to the format of the thesis. Although highly interesting, it would have required an extensive examination that will not fit within the thesis.
It must also be noted that the thesis is limited to children’s rights and obligations of states regarding the use of deprivation of liberty. Thus, any other rights within the juvenile justice system is excluded. For example, procedural rights such as the right to a fair trial is not being treated. Neither is the treatment of children or the conditions of the detention. This exclusion has been made to maintain the focus on the lawful use of deprivation of liberty in order to examine how the use as such relates to the principle of the best interests of the child. Deprivation of liberty may interfere with other rights enshrined in the CRC. However, the nature of the best interests of the child encompasses many of these rights in itself. Other rights may be discussed in through a lens of the principle of best interests of the child. However, they are not being examined on their own.
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1.4 Method and Material
The purpose of the thesis requires an attempt to ascertain applicable law concerning the use of deprivation of children’s liberty and the principle of the best interests of the child under CRC. In other words, the thesis attempts to account for de lege lata. Having regard to the purpose, the legal dogmatic method is thus most suitable when answering the formulated research questions. The legal dogmatic method can be described as identifying applicable law by systemizing and interpreting established legal sources.6 Claes Sandgren asserts that these characteristics describe the usual perception of the legal dogmatic method, and the disputes concerning the method are debates insofar that the method goes beyond de lege lata to include critical analysis of the law and de lege ferenda reasoning.7 However, Nils Jareborg argues that the usual association of the method with the reconstruction or ascertainment of applicable law does not itself create an obstacle to include ideal solutions in the argumentation.8 Ideal solutions
being equivalent to de lege ferenda. Thus, arguments for what the law should be. Furthermore, Aleksander Peczenik is of the opinion that the legal dogmatic method does not necessarily have to be purely descriptive in nature when accounting for de lege lata, on the contrary, it can include normative argumentation such as criticism or justification of applicable law.9
The chosen research questions are thus examined and answered based on the legal dogmatic method which in light of the reasoning presented above allows for normative argumentation. The thesis include certain reasoning of this nature which goes beyond a purely description of the applicable law. However, it does not go so far as to contain pure de lege ferenda reasoning. The thesis does not follow a strict legal dogmatic method in the sense that it is limited to the traditional legal sources being legislation, case-law, preparatory works and legal doctrine.10
The CRC falls under international human rights law which essentially is a branch of public international law where treaties are considered to be the main sources of law. Other legal sources of international human rights law include various UN publications such as resolutions and decisions of various human rights bodies.11 However, there is no court on the international
level with jurisdiction to deal with potential violations of these treaties. Instead, each UN human rights treaty has a monitoring body which monitors compliance by states through reports or complaint procedures. The considerations provided by these monitoring bodies provide, although not legally binding, authoritative statements with regard to the compatibility between domestic measures and the treaty obligations and guidance how to improve the domestic implementation.12
6 Aleksander Peczenik, ‘Juridikens Allmänna Läror’ [2005] SvJT 249, 249. 7 Claes Sandgren ‘Är Rättsdogmatiken Dogmatisk’ (2005) 118 TfR 648, 650. 8 Nils Jareborg ‘Rättsdogmatik som vetenskap’ [2004] SvJT 1,4.
9 Peczenik ‘Juridikens Allmänna Läror’ (n 6) 250.
10 Maria Nääv, Mauro Zamboni Juridisk Metodlära ( 2nd edn Studentlitteratur AB 2018) 21.
11 Marci Hoffman and Mary Rumsey,International and Foreign legal Research: A Coursebook, (2nd edn, Brill
2012) 231.
12 Gerald Staberock ‘Human Rights, Domestic Implementation’, Max Planck Encyclopedias of International
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In light of the features of international human rights law, the thesis does not rely upon case-law to account for applicable case-law. Instead, the thesis is based on the CRC and secondary sources which serve as interpretation tools. These secondary sources include The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (‘Havana Rules’) and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘Beijing Rules’) which together with the CRC provide for International standards on the use of deprivation of liberty. Although not legally binding, they are endorsed by the Committee on the Rights of the Child (CRC Committee) which is the monitoring body of the CRC. States are encouraged to implement its rules as a complement the legal framework provided in the CRC.13 Furthermore, the general comments issued by the CRC Committee is given extensive space in the thesis as they provide considerations and interpretation of the articles of the CRC. General Comments by the Human Rights Committee (HR Committee) which is the monitoring body of the International Covenant on Civil and Political Rights (ICCPR) serves as interpretation where the CRC Committee has not provided any considerations since the rules regulating deprivation of liberty in the CRC is partially deriving from the equivalent provision in the ICCPR. Finally, doctrine and other secondary sources have been used in order to fill out gaps in the applicable law and for interpretation of the relevant articles. Thus, these sources of law have been analysed in order to conduct de lege lata analysis of the applicable law concerning deprivation of liberty and the principle of the best interests of the child.
1.5 Use of Terms
For clarification purposes, certain terms used in the thesis must be further explained. The term ‘Juvenile Justice’ is being used throughout the thesis for ‘the legislation, norms and standards, procedures, mechanisms and provisions specifically applicable to, and institutions and bodies set up to deal with, children considered as offenders’.14 The CRC replaced this term with ‘child justice’ in its last general comment on the topic. However, for the sake of simplicity, the term ‘juvenile justice’ is used throughout the thesis because the majority of the cited sources use this term. Furthermore, it should be clarified that the term ‘states’ is being used instead of ‘state parties’.
1.6 Outline
The thesis is divided in four chapters following this introductory chapter. The first chapter describes the principle of the best interests of the child and its general application. The second
13 John Tobin, Harry Hobbs ‘Art.37 Protection against Torture, Capital Punishment, and Arbitrary Deprivation
of Liberty’ in John Tobin (ed), The UN Convention on the Rights of the Child: A Commentary (OSAIL 2019).
14 United Nations Committee on the Rights of the Child ‘General Comment 24’ in ‘Note by the Secretariat,
Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (18 September 2019) UN Doc CRC/C/GC/24, para 8.
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chapter accounts for the legal framework around the use of deprivation of liberty by examining the lawful use of deprivation of liberty and state obligations to protect children from unlawful deprivation of liberty. The third chapter is dedicated to examine the application of the principle of the best interests of the child in the context of deprivation of liberty. Finally, the last chapter of the thesis presents the findings in a conclusion.
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2. The Best Interests of the Child
2.1 Legal Framework
The general application of the principle of the best interests of the child is described in this upcoming chapter in order to further examine how the principle is applied in the context of deprivation of liberty at a later stage of the thesis. The principle of the best interests of the child is regulated in Article 3 of the CRC which provides the following:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.15
The first paragraph of Article 3 has been identified by the CRC Committee as one out of four general principles of the CRC.16 The other three general principles are non-discrimination17,
the right to life, survival and development18 and the right to be heard19.20 These core principles should permeate the interpretation and implementation of all the other rights enshrined in the Convention.21
The principle of the child’s best interests is not exclusively mentioned in the CRC. It can also be found in other legal instruments that pre-dates the adoption of the Convention. In fact, the principle was already included in the 1959 Declaration on the Rights of the Child.22 This Declaration and the earlier 1924 Declaration on the Rights of the Child (Geneva Declaration)
15 United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2
September 1990) 1577 UNTS 3 (CRC) art 3 (1).
16 United Nations Committee on the Rights of Child ‘General Comment 14’ in ‘Note by the Secretariat,
Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (29 May 2013) UN Doc CRC/C/GC/14, para 1.
17 CRC, art 2. 18 ibid, art 6. 19 ibid, art 12. 20 CRC Committee ‘GC 14’, para 41- 43. 21 ibid, para 1. 22 CRC Committee ‘GC 14’, para 2.
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can be considered as the predecessors to the CRC. The declarations, although not legally binding have contributed to the development of children's rights and traces can be found in the CRC.23 Initially, the Geneva Declaration emerged out of a need to protect children after the
first world war. The focus of the declaration was to protect and assist children and did not necessarily see children as bearer of rights or that children had their own voice. This approach was somewhat developed later with the adoption of the 1959 declaration on the rights of the child. However, this declaration also emphasized protection of children rather than the rights of children similarly to the prior.24
Approximately 20 years after the adoption of the last declaration, United Nations General Assembly (UNGA) expressed the need to strengthen the care and well-being of children across the world.25 It was recognized that a Convention on the rights of the child would have
significant importance in protecting children’s rights and improve their situation.26
Furthermore, UNGA stressed that mankind owes the child the best it has to give.27 These kind
of standpoints were continuously reaffirmed by UNGA throughout the drafting process of the CRC.28
With time, the focus have shifted from simply protecting children and a so called ‘need-based’ approach to a ‘rights-based’ approach. The latter focusing on promoting and protecting Human Rights.29 The importance of a right-based approach with regards to the realisation of the principle of the child’s best interests was specifically stressed by the CRC Committee which stated that ‘The full application of the concept of the child's best interests requires the development of rights-based approach, engaging all actors, to secure the holistic physical, psychological, moral and spiritual integrity of the child and promote his or her human dignity’.30
23 John Tobin, ‘ Introduction: The Foundation for Children’s Rights’ in John Tobin (ed), The UN Convention on
the Rights of the Child: A Commentary (OSAIL 2019).
24 ibid.
25 United Nations General Assembly Resolution 33/166 (20 December 1978) UN Doc A/RES/33/166, 154-155. 26 UNGA Res 36/57 (25 November 1981) UN Doc A/RES/36/57, 173-174.
27 UNGA Res 38/114 (16 December 1983) UN Doc A/RES/38/114, 212-213.
28 UNGA Res 35/131 (11 December 1980) UN Doc A/RES/35/131, 187; UNGA Res 37/190 (18 December
1982) UN Doc A/RES/37/190, 208; UNGA Res 39/135 (14 December 1984) UN Doc A/RES/39/135, 224; UNGA Res 40/113 (13 December 1985) UN Doc A/RES/40/113, 229; UNGA Res 41/116 (4 December 1986) UN Doc A/RES/41/116, 175-176,; UNGA Res 42/101 (7 December 1987) UN Doc A/RES/42/101, 201, UNGA Res 43/112 (8 December 1988) UN Doc A/RES/43/112, 188; UNGA res 44/25 (20 November 1989) UN Doc A/RES/44/25, 166.
See also Tobin, ‘ Introduction: The Foundation for Children’s Rights’ (n 24).
29 Olga Byrne, 'Promoting a Child Rights-Based Approach to Immigration in the United States' (2017) 32 Geo
Immigr Lj 59,72.
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2.2 Scope
2.2.1 Definition of a Child
Article 3 (1) states that the best interests of the child shall be a primary consideration in all actions concerning children. Firstly, some attention must be given to the definition of a child. According to the CRC Committee the term ‘children’ as prescribed for in article 3 (1) refers to persons under 18 years of age who are under the jurisdiction of a state party to the CRC.31 This is supported by the definition of a child provided for in the first article of the CRC which states that ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.’32 Thus, article 1 draws the line between childhood and adulthood at 18 years of age. However, the article states that the end of childhood can be set earlier than 18 years if the law applicable to the child prescribes that majority is attained earlier. Hence, states may have different definition of a child.
Furthermore, there is no indication in the article of what determines the exact beginning of childhood. It can be interpreted from the article that childhood is considered to start at the latest from birth since the article states that every person under 18 is considered to be a child. However, nothing in the article prohibits or obliges states from extending the beginning of childhood prior to birth. This has been left to states discretion due to different positions and legislation on abortion.33
Hence, the article implies that a state's own laws must be taken into consideration when it comes to the determination of who the rights in the CRC accrue regarding both the beginning and the end of childhood. However, any possible limitations to this discretion will not be discussed in greater detail. For the sake of this thesis, any reference to a child is made from the assumption that any person below the age of 18 is a child unless stated otherwise and with the reservation for the states that have other legitimate laws.
2.2.2 ‘In All Actions Concerning Children’
The terms ‘action’ and ‘concerning’ refers to any decision, proposal, service, procedure, act or other measure that affects children directly or indirectly. A failure to take action which affects a child also falls under the term ‘action’ within the meaning of Article 3 (1). The term ‘concerning’ is thus interpreted in a broad sense by the CRC Committee to include both actions that direct or indirect affects a child, children in a group or children in general. The direct effect is attributed to measures where a child, children in a group or children in general are the target of the measure, while the indirect effect aims at measures where children are affected without
31 CRC Committee ‘GC 14’, para 21. 32 CRC, art 1.
33 David Archard, John Tobin, ‘Art 1. The Definition of a Child’ in John Tobin (ed), The UN Convention on the
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being the target as such.34 However, the CRC Committee notes that many measures can have effect on children and specifies that states must not assess the best interests of the child in every measure taken, only where there is a major impact on a child, group of children or children in general.35
The obligation to take the best interests of the child into a primary consideration in all actions concerning children extends to both public and private welfare institutions, courts of law, administrative authorities or legislative bodies according to art 3 (1). These terms should be understood beyond the ordinary meaning of the word and applied in a broad sense.36 The CRC Committee asserts that the term welfare institutions extends beyond social institutions related to children's economic, social and cultural rights such as healthcare and education to include civil rights and freedoms such as places for birth registration as well as relevant private organizations for example. Thus, including any institution that may affect children and their rights. Further, courts of law must be understood to include all relevant judicial procedures concerning children.37 Similarly, administrative authorities must be understood to cover all decisions taken relating to children such a their health or education.38 Finally, the legislative bodies refers to the adoption of laws, regulations or collective agreements which affects children.39 Ultimately, the main point derived from the interpretation by the CRC Committee
is that neither of these terms should be interpreted in a narrow sense.
2.2.3 Primary Consideration
Art 3 (1) obliges states to take the best interests of the child into account as a primary consideration. However, nothing in the present article indicates what a child’s best interests are. According to the CRC Committee, the best interests of a child must be determined for every specific case since circumstances always varietes. The specific situation of a child or children must be taken into account in order to determine what the best interests of a particular child is in a given situation. Hence, making it impossible to generalise since children are individuals with different best interests.40 There might be situations where the best interests of the child conflicts with other interests, rights or rights of other persons. This forces states to balance the rights and interests of all parties involved to reach a solution. This potential conflict must be resolved on a case-by- case basis according to the CRC Committee. Notwithstanding, the best interests of the child has to be taken into primary consideration. Thus, meaning that the principle of the child’s best interests has a high priority in contrast with other considerations.41 34 CRC Committee ‘GC 14’, para 19. 35 ibid, para 20. 36 ibid, para 25. 37 ibid, para 27. 38 ibid, para 30. 39 ibid, para 31. 40 ibid, para 32. 41 CRC Committee ‘GC 14’, para 39.
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2.3 State Obligations
Article 3 (1) imposes obligations upon states to ‘...take all necessary, deliberate and concrete measures for the full implementation of this right.42 The following three obligations are expressed in the general comment by the CRC Committee:
(a)The obligation to ensure that the child's best interests are appropriately integrated and consistently applied in every action taken by a public institution, especially in full implementation measures, administrative and judicial proceedings which directly or indirectly impact on children;
(b)The obligation to ensure that all judicial and administrative decisions as well as policies and legislation concerning children demonstrate that the child's best interests have been a primary consideration. This includes describing how the best interests have been examined and assessed, and what weight has been ascribed to them in the decision. (c)The obligation to ensure that the interests of the child have been assessed and taken as a primary consideration in decisions and actions taken by the private sector, including those providing services, or any other private entity or institution making decisions that concern or impact on a child.43
In addition to these three obligations, states are obliged to take appropriate legislative, administrative or any other measures for the implementation of the rights enshrined in the CRC in accordance with article 4.44 Furthermore, states are obligated to make the provisions in the
CRC and the principles thereof widely known to adults and children in accordance with article 41.45 Finally, Article 44 (6) requires transparency in the sense that states must make their reports available to the public in the state in questions.46 The CRC Committee urges states to adopt measures in line with these articles in order to ensure the implementation of the best interests of the child. This includes, for example, reviewing laws and policies, monitoring, education in children’s rights for staff and implementing complaint procedures.
The CRC Committee describes the principle of the best interests of the child as a ‘threefold concept’, which means that the principle essentially has three different dimensions with significant consequences. The committee recognizes the best interests of the child as a substantive rights, a fundamental interpretative legal principle and a rule of procedure. The principle as a substantive right means that the child’s right to have his or her best interests taken into account as a primary consideration in any decision concerning the child in question. The
42 ibid, para 13. 43 ibid, para 14. 44 CRC, art 4. 45 ibid, art 41. 46 ibid, art 46 (6).
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procedural aspect requires that a justification must be provided in any decision concerning a child as prescribed for in paragraph b above. Finally, the best interests of the child as a interpretative legal principle entails that the interpretation of a legal provision which most effectively serves a child's best interests shall be chosen over other interpretations.47
2.4 Assessment of the Child’s Best Interests
The CRC Committee has provided a procedure on how to determine a child’s best interests or a group of children’s best interests in a particular case. Firstly, an assessment of the circumstances and characteristics that are unique to a child must be carried out. Examples provided by the CRC Committee as to these characteristics includes level of maturity, experience, age, sex, any form of disabilities, if the child belongs to a minority group and the social and cultural context. The latter aiming at, inter alia, family situation, environment, safety and quality of life. 48
These elements will differentiate between individual children, which means that the assessment is strongly dependent on the situation as a whole. Thus, it proves rather difficult to generalise or provide concrete measures that are in the best interests of a child. The CRC Committees however provided a list of elements that may need consideration when assessing the best interest of the child. It is however stressed that the list in no way is exhaustive nor indicating any hierarchy as to which elements must be prioritized.49 However, any elements that are contrary to the provisions in the CRC are not considered valid in the assessment of the child’s best interests.50 The list of elements includes examples such as children’s right to education, right to health, preservation of family, protection, safety and vulnerability such as children with disabilities, children belonging to a minority group, children seeking asylum or children that are victims of abuse.51
The procedure provided by the CRC Committee constitutes a guidance for decision-makers which preferably consists of a team stemming from multiple disciplines. Furthermore, the child should participate in a decision which concerns him or her in line with article 12 of the CRC which provides for the right for a child to be heard.52 In fact, the CRC Committee has expressed that the failure to take a child’s views into account or give them due weight according to their age and maturity constitutes a failure to respect the child’s possibility to influence the determination of his or her best interests.53
47 CRC Committee ‘GC 14’, para 6. 48 ibid, para 48. 49 ibid, para 50. 50 ibid, para 51. 51 ibid, para 58-79. 52 CRC Committee ‘GC 14’, para 47. 53 ibid, para 53.
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However, the method and concept for the determination of the child’s best interests have received its fair share of critics. Most of the criticism stems from the principle being vague and not well defined. As previously stated, the assessment of the best interests of the child involves the assessment of various elements weighed against each other. However, it is not certain that this weight given to all the relevant elements will generate a correct or clear answer as to what the best interests of the child is in a given situation. It has been argued that the considerations which decision makers have to take into account are abstract and leave much room for decision makers to defeat the purposes of the principle and further other agendas and considerations. Certain aspects are not addressed with regards to the assessment. For example, how much weight a child’s view should be given or to what extent cultural standpoints should affect the assessment are left rather unanswered. Thus, the lack of concrete guidance may prove to be complicated for the decision makers.54
There are however reasonable arguments why the meaning of the principle seems ambiguous. As previously stated, the meaning of the principle is not to provide what the best interests of the child are. Rather, to provide a procedure for such determination to be conducted by decision makers. This is due to the fact that a generic or concrete guidance would hardly serve the best interests of all children. The assessment must therefore function independently in each case. It has been argued that an assessment of empirical evidence would decrease the risk of eventual routine application or generalized rules as well as the possibility for subjective preferences on behalf of the decision makers. These empirical evidence include the views of a child, relevant rights enshrined in the CRC or other International treaties, the views of parents or others involved in the child’s care, the individual circumstances of a child which mentioned above includes among other elements the social and developmental needs as well as religious or cultural practices and finally any other relevant empirical evidence. The argument is made that these elements forms the key considerations in order to identify the child’s best interests under a rights-based approach.55 Thus, states have discretion in determining what the best interests
of the child are in a given situation and what action best serves these interests. The application of the principle will, however, be further discussed after examining the legal framework concerning the use of deprivation of liberty.
54John Eekelaar, John Tobin, ‘Art 3. The Best Interests of the Child’
in John Tobin (ed), The UN Convention
on the Rights of the Child: A Commentary (OSAIL 2019).
55John Eekelaar, John Tobin, ‘Art 3. The Best Interests of the Child’
in John Tobin (ed), The UN Convention on
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3. Deprivation of Liberty
3.1 Legal Framework
This chapter deals with the international legal framework around the use of deprivation of liberty of children under the CRC by demonstrating under which circumstances children may be lawfully deprived of liberty and what obligations states have to prevent unlawful deprivation of liberty from occurring. Article 37 of the CRC prescribes the rules concerning deprivation of liberty. The article reads as follows:
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.56
Article 37 includes a wide range of rules on deprivation of liberty such as prohibition of harmful treatment, the use of deprivation of liberty, conditions and treatment of children who have been deprived of liberty as well as procedural rights. However, only paragraph b containing the legal rules with regards to the use of deprivation of liberty will be further discussed in the thesis.
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3.2 Scope
3.2.1 Definition of Deprivation of Liberty
Article 37 (b) does not explicitly define deprivation of liberty. However, according to the Havana Rules deprivation of liberty is defined as ‘...any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority’.57
This definition has later been referred to by the CRC Committee.58 Although not legally
binding, states are encouraged by the CRC Committee to comply with the Havana Rules.59 It
is thus suggested that the deprivation of liberty within the meaning of Art 37 (b) extends beyond a purely criminal context.60
It further includes other situations in which children may be deprived of liberty such as refugee children placed in detention for the purpose of immigration control, children placed in closed institutions or any other purposes which a child is confined to a limited space where he or she cannot leave at free will by order of a state authority.61 Emphasis must be added to the fact that the article covers any deprivation of liberty by order of a state authority. Hence, deprivation of liberty carried out private actors does not fall within the scope of article 37 (b). Thus, abductions for purposes such as human trafficking or any other purposes is not captured by the article. However, this does not mean that states are free from responsibility to protect children from such deprivation of liberty. This responsibility will be further discussed at a later stage of the thesis.62 Given this broad definition which captures various forms of deprivation of liberty, it is important to clarify that this thesis only deals with deprivation of liberty in the context of juvenile justice. The term liberty refers to physical liberty within the meaning of Art 37 of the CRC. Thus, leaving other perceptions of liberty outside its scope.63
3.2.2 Unlawful or Arbitrary Deprivation of Liberty
The circumstances in which children may be lawfully deprived of their liberty under the CRC is as previously stated regulated in the second paragraph of Article 37. The article can be read in two parts where the first part stipulates that no child shall be deprived of his or her liberty in
57UNGA Res 45/113 ‘United Nations Rules for the Protection of Juveniles Deprived
of their Liberty’(14 December 1990) UN Doc A/RES/45/113 Annex, rule 11.
58 United Nations Committee on the Rights of the Child ‘General Comment 24’ in ‘Note by the Secretariat,
Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (18 September 2019) UN Doc CRC/C/GC/24, para 8.
59 John Tobin, Harry Hobbs ‘Art.37 Protection against Torture, Capital Punishment, and Arbitrary Deprivation
of Liberty’ in John Tobin (ed), The UN Convention on the Rights of the Child: A Commentary (OSAIL 2019).
60 ibid.
61 William Schabas, Helmut Sax , A Commentary on the United Nations Convention on the Rights of the Child,
Article 37: Prohibition of Torture, Death Penalty, Life Imprisonment and Deprivation of Liberty (Brill 2006),
para 87.
62 ibid, para 90.
63 Tobin, Hobbs ‘Art.37 Protection against Torture, Capital Punishment, and Arbitrary Deprivation of Liberty’
15
a unlawful or arbitrary manner. The second part contains the three following cumulative conditions; the arrest, detention or imprisonment of a child shall be in conformity with the law, it shall only be used as a measure of last resort and used for the shortest appropriate period of time. These conditions must be satisfied in order for any deprivation of liberty to be in accordance with the CRC. 64
Regarding the first part, there is a clear prohibition against unlawful and arbitrary deprivation of liberty. What exactly these terms entail is however left unanswered by the wording of the provision. The CRC Committee has not provided any detailed interpretation of these terms in the context of deprivation of liberty.65 The HR Committee, on the other hand, has defined the requirement of lawfulness in connection to article 9 (1) of the ICCPR to mean that the deprivation of liberty must have a basis prescribed by law and be carried out in accordance with a procedure prescribed by law.66 It is further specified that the law must be compatible
with both domestic law and the ICCPR as a whole.67 Compliance with domestic law thus refers
to both procedural law and the substantive law.68 Hence, the term lawfulness within the meaning of article 9 (1) of the ICCPR follows the same interpretation.
The HR Committee has stated that arbitrariness must be distinguished from something being against the law per se. Instead, arbitrary deprivation of liberty may include, inter alia, injustice, lack of predictability or inappropriateness.69 Thus, arbitrary deprivation of liberty targets the quality of the law as well as its enforcement. Deprivation of liberty which is considered lawful must also be proportionate, necessary and predictable in order not to be arbitrary.70
As previously stated, the Committee on the rights of the child has not interpreted the meaning of these terms in relation to deprivation of liberty. Thus, the interpretation of the requirement of lawfulness and non-arbitrariness under article 9 (1) of the ICCPR seemingly have the closest correlation to art 37 (b). Accordingly, this understanding of the terms would entail that deprivation of liberty in conformity with art 37(b) must comply with domestic law and the CRC as a whole. Furthermore, non-arbitrariness entails that the deprivation when carried out in accordance with domestic law also fulfills requirements of proportionality, necessity and predictability.
64 CRC, art 37 (b).
65 Tobin, Hobbs ‘Art.37 Protection against Torture, Capital Punishment, and Arbitrary Deprivation of Liberty’
(n 59).
66 United Nations Human Rights Committee ‘General Comment 35’, ‘Note by the Secretariat, Compilation of
General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (23 October 2014) UN Doc CCPR/C/GC/35, para 11; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 Mars 1976) 999 UNTS 171.
67 ibid, para 44. 68
Eva Manco ‘Detention of the Child in the Light of International Law-A Commentary on Article 37 of the United Nation Convention on the Rights of the Child’ (2015) vol. 7 Amsterdam law Forum 55, 61.
69 HR Committee ‘GC 35’, para 12. 70
Schabas, Sax, A Commentary on the United Nations Convention on the Rights of the Child, Article 37:
16 3.2.3 Measure of Last Resort and for the Shortest Appropriate Period of Time
The second part of article 37 (b) requires that the deprivation of a child’s liberty is carried out in conformity with the law, only used as a measure of last resort, and for the shortest appropriate period of time.71 Regarding the first condition, there is nothing that suggests that it implies something in addition to the consequences that the prohibition against unlawful deprivation in the first part of Art 37 (b) entail.72 The second and third conditions states that the arrest, detention or imprisonment of a child only should be used as a measure of last resort, and if used only for the shortest appropriate period of time. However, nothing in the provision clarifies under what circumstances deprivation of liberty can legitimately be considered as a measure of last resort nor what constitutes an appropriate period of time.
The CRC Committee has stated that deprivation of liberty only can be deemed necessary in a minority of cases and states should take measures to minimize its use.73 The CRC Committee
does not explicitly provide for grounds that would justify the use of deprivation of liberty as a last resort. However it is acknowledged that preservation of public safety constitutes a legitimate aim both in the justice system and the juvenile justice system. Nonetheless, the same paragraph further stipulates that State parties should serve this aim with the reservation for their obligation to respect and implement the principles of juvenile justice as prescribed for in the CRC.74 This indicates that public safety can be considered to constitute a legitimate aim for
depriving a child of his or her liberty if there is no other way to reach this aim. These considerations provided by the CRC Committee indicate a high threshold for when deprivation of liberty can be lawfully used as a measure of last resort.
The Beijing Rules further include certain rules in line with only depriving children of liberty as a measure of last resort and for the shortest appropriate period of time. Rule 17 (1) states that:
17.1 The disposition of the competent authority shall be guided by the following principles:
( a ) The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society;
( b ) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;
71 CRC, art 37 (b).
72Tobin, Hobbs ‘Art.37 Protection against Torture, Capital Punishment, and Arbitrary Deprivation of Liberty’ (n
59).
73 CRC Committee ‘GC 24’, para 83- 84. 74 ibid, para 3.
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( c ) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response; ( d ) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case. 75
The Commentary to this rule further asserts that an approach that is strictly punitive is not appropriate when dealing with child offenders. Hence, the use of alternatives to deprivation of liberty is encouraged in order to avoid incarceration unless no other alternative will achieve the aim of protecting public safety.76 These principles have later been reaffirmed by the CRC Committee. 77 Thus, the use of deprivation of liberty as a last resort seems to be justified only
if no other measure can achieve the legitimate aim of protecting public safety.
The Beijing Rules further refers especially to pre-trial detention in Rule 13 which states that pre-trial detention only should be used as a measure of last resort and for the shortest possible period of time, and that it should be replaced by alternative measures whenever possible.78Specific attention has also been given to pre-trial detention by the CRC Committee
since it continues to be a widespread problem where children are being held for an extensive period of time pending trial contrary to Art 37 (b).79 The Committee has stated that pre-trial detention should only be used after community placement has been considered, and only in the most serious cases. Its primary use should be limited to children which poses an immediate danger to others or if it is considered necessary to ensure a child’s appearance at court proceedings. It is further stipulated that clear obligations for law enforcement with regard to the application of art 37 (b) in the context of the arrest and pre-trial detention must be provided by domestic law. Cases concerning children in pre-trial should also be prioritized by actors within the juvenile justice system. 80
It is not surprisingly that there is no specific time-frame provided for what constitutes the shortest appropriate amount of time in the article itself. The absence of such a clause may be conceivably be based on the difficulty of foreseeing and generalising different cases. In other words, to set time frames in abstract cases. However, the time frame should only last for the shortest time necessary to achieve the legitimate aim provided by the authorities.81 The CRC Committee has expressly stated in connection to the procedural rights under art 37 (d) that
75 UNGA ‘Standard Minimum Rules for the Administration of Juvenile Justice’ Res 40/33 ‘(29 November
1985) UN Doc A/40/33 Annex , rule 11.
76 UNGA ‘Standard Minimum Rules for the Administration of Juvenile Justice’, rule 13 Commentary. 77 CRC Committee ‘GC 24’, para 76.
78 UNGA ‘Standard Minimum Rules for the Administration of Juvenile Justice’, rule 13. 79 CRC Committee ‘GC 24’, para 86.
80 ibid, para 85-87.
81 Manco, ‘Detention of the Child in the Light of International Law-A Commentary on Article 37 of the United
18
states are urged to not keep a child in police custody for more than 24 hours. Furthermore, that pretrial detention should not last longer than 30 days.82
3.3 State Obligations
3.3.1 General Obligations
The specific obligations imposed upon states with regard to the use of deprivation of liberty can be obtained for the general obligations imposed upon states from other articles in the CRC. The first sentence in article 2 states that ‘States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction’83, which can be
understood as to have further implications than merely refraining from depriving children of their liberty in an unlawful manner.84 A similar provision can be found in the ICCPR article 2
(1) which states that ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’.85 According to the HR Committee, states have both negative and
positive obligations under art 2 (1) of the ICCPR. The negative obligation flow from the obligation to respect and essentially means that states have to refrain from interfering with the right of individuals, and any restrictions of those rights must be permissible under the Covenant.86 The obligation to respect applied to article 37 (b) entail that states are obligated to
refrain from unlawful deprivation of liberty.87
Furthermore, the obligation to ensure can be divided into two positive obligations. Namely the obligation to protect and the obligation to fulfill. The former aim at states obligation to protect individuals from interference by private actors.88 Thus, with regard to the use of deprivation of
liberty this means that states must take positive actions to ensure children’s protection against deprivation of liberty by private actors.89 Lastly, the obligation to fulfill can be understood as the obligation to take measures to facilitate the effective enjoyment of individuals rights.90 In the context of article 37, this obligation can be understood as the promotion and fulfillment of children’s rights with regards to the use of deprivation of liberty, which can include reviews of law, monitoring mechanism and registration for all detained children. However, the obligation
82 CRC Committee ‘GC 24’, para 91. 83 CRC, art 2 (1).
84 Samantha Besson, Eleonor Kleber ‘Art.2 The Right to Non-Discrimination’ in John tobin (ed), The UN
Convention on the Rights of the Child: A Commentary (OSAIL 2019).
85 ICCPR, art 2 (1).
86 United Nations Human Rights Committee ‘General Comment 31’, ‘Note by the Secretariat, Compilation of
General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add.13, para 6.
87 Besson, Kleber ‘Art.2 The Right to Non-Discrimination’, (n 84). 88 HR Committee ‘GC 31’, para 7-8.
89 Bession, Kleber ‘Art.2 The Right to Non-Discrimination’, (n 84).
90 Tobin, Hobbs ‘Art.37 Protection against Torture, Capital Punishment, and Arbitrary Deprivation of Liberty’
19
to fulfil mainly aims at the fulfilment of safeguards in article 37 (c) and (d).91 Finally, article 4 as previously discussed in the second chapter imposes the obligation upon states to undertake all appropriate measures, including legislative and administrative to ensure the implementation of the rights recognized in the present Convention.92 Thus, states are have both negative and positive obligations to protect children from unlawful deprivation of liberty. However, the exact nature of the measures these obligations require is not clear from the articles as states enjoy certain dscreation in fulfilling its obligation under the Convention.
3.3.2 Obligations under Article 40 of the CRC
Article 40 of the CRC regulates the rights of children in the juvenile justice system and imposes certain obligations upon states with regard to the use of deprivation of liberty. The first paragraph of the article read as follows:
1. States Parties recognize the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.93
The CRC Committee has expressed that a punitive approach in the juvenile justice system contradicts the principles found in this article.94 This standpoint reflects the principle of only
depriving children of their liberty as a last resort. The paragraph emphasizes that the responsibility of a child’s actions is of importance, and potential victims’ rights are relevant. Hence, the approach to not deprive children of their liberty as a punishment does not mean that the child in question is free from accountability. Instead, the article obliges states to assist the child to develop an understanding of the consequences of his or her actions in order to prevent the child from causing further harm to others in the future.95
The second paragraph of article 40 provides rights which aim at ensuring a fair trial and treatment of children in the context of juvenile justice.96 However, these rights will not be discussed further since it falls outside the scope of the thesis. The third paragraph, however imposes certain obligations upon states with regard to the use of deprivation of liberty The article provide that:
91 Schabas, Sax, A Commentary on the United Nations Convention on the Rights of the Child, Article 37:
Prohibition of Torture, Death Penalty, Life Imprisonment and Deprivation of Liberty (n 61) para 92-102.
92 CRC, art 4. 93 CRC, art 40 (1).
94 CRC Committee ‘GC .24’, para 76.
95 John Tobin, Cate Read ‘Art.40 The Rights of the Child in the Juvenile Justice System’ in John Tobin (ed),
The UN Convention on the Rights of the Child: A Commentary (OSAIL 2019).
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3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.97
The paragraph first obliges states to promote the establishment of laws, procedures, authorities and institutions specifically to children. This sentence does not entail an immediate obligation like the other paragraphs of article 40. Instead, states are obligated to take immediate steps to promote the establishment of such laws and procedures.98
Firstly, The article specifically draws attention to the establishment of a minimum age of criminal responsibility. However, the paragraph itself does not provide for what age should be the minimum for criminal responsibility. The CRC Committee has noted that the most common minimum age of criminal responsibility among states is set at 14 years. Some states even have a lower age than that.99 However, the CRC Committee encourages states to set the minimum age of criminal responsibility to at least 14 years due to research which indicates that a child’s brain cannot grasp the impact of his or her actions to its full extent or comprehend any criminal proceedings before that age.100 Thus, 14 should constitute the minimum age although states are urged to set the age of criminal responsibility even higher to 15 or 16 years since the brain continues to develop and mature beyond the teenage years.101 Thus, in light of the Committee’s view, nobody below the age of 14 should have criminal responsibility. Hence, any deprivation of liberty of a child should be unlawful if carried out before the minimum age of criminal responsibility in the juvenile justice system.
Secondly, states are required to promote the establishment of measures which deal with children without restoring to judicial proceedings. The CRC Committee divides these two measures into two kinds of interventions. The first one is called diversion which by definition means ‘measures for dealing with children in conflict with the law, taken by designated authorities, without resorting to judicial proceedings;’102 and the second one involves measures used in the context of judicial proceedings.103 Diversion measures can include various
97 CRC, art 40 (3).
98 Tobin, Read ‘ Art.40 The Rights of the Child in the Juvenile Justice System’ (n 95). 99 CRC Committee ‘GC 24’, para 21.
100 ibid, para 22. 101 ibid, para 23. 102 ibid, para 8. 103 ibid, para 22.
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community-based programmes such as community service, supervision and guidance, family conferencing or compensation of victims. Some examples are provided in article 40 (4).104
However, the CRC Committee states that it is left to a state’s discretion to decide the exact content of a diversion measure.105 These diversion programs should be preferred in the majority of cases, even in serious offenses if it is deemed appropriate.106 The CRC Committee further states that a similar approach should be undertaken in the context of judicial proceedings in order to limit the use of deprivation of liberty. For example, measures such as probation, community monitoring, day report centers or guidance and supervision should be preferred over pretrial detention.107 Community placement must be carefully considered before resorting to pretrial detention which should only be used in the most serious cases. This approach can also be found in The Beijing Rules where rule 11 also prescribes for the preference of diversion measures.108 Hence, the principles which derive from article 40 (1) and (3), mainly that
alternatives to deprivation of liberty are preferred and that the juvenile justice should not focus on punishing children for crimes, instead to hold them accountable through alternative measures which ultimately assist the child in understanding the consequences of his or her actions.
104 CRC, art 40 (4).
105 CRC Committee ‘GC 24’, para 17. 106 ibid, para 16.
107 ibid, para 19.
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4. The Best Interests of the Child in the Context of Deprivation of
Liberty
4.1 Is Deprivation of Liberty in the Best Interests of the Child?
This chapter treats the principle of the best interests of the child in the context of deprivation of liberty by examining how the rules governing the use of deprivation of liberty corresponds to the principle.
Article 37 (b) does not explicitly refer to the principle of the best interests of the child.109However, article 3 (1) itself prescribes that the best interests of the child shall be a primary consideration in all actions concerning children if undertaken by courts of law, administrative authorities, legislative bodies, or social welfare institutions concerning children.110 The scope of this principle has been addressed in the second chapter of the thesis
which revealed that it extends to any action undertaken by one of the listed bodies which directly or indirectly affects the child.111 Deprivation of liberty in the context of juvenile justice is an action undertaken by a court of law or administrative authority that directly affects the child. Hence, the best interests of the child must be a primary consideration in the use of deprivation of liberty under article 37 (b).
Scientific research has shown that deprivation of liberty has a negative impact on a children. The psychological development is hampered by the exclusion from schools, family, relationships, and society. Furthermore, the physical development of a child can also suffer due to the often poor conditions and lack of healthcare. Not to mention, psychological damage or trauma.112 In addition, the CRC Committee has stated that exposure to the criminal justice system and its harm limits the chances of children growing up to become responsible adults.113 Research has further shown that deprivation of liberty may have negative consequences on the society as well due to the tendency of a convicted criminal to reoffend.114
The principle of only using deprivation of liberty as a last resort and for the shortest appropriate amount of time essentially originated from this kind of research.115 The inclusion of the principle in art 37 (b) reflects what seems to be a general consensus among the international
109
CRC, art 37 (b).
110 CRC, art 3(1). 111 Text to n 31- 40.
112 Eva Manco ‘Detention of the Child in the Light of International Law-A Commentary on Article 37 of the
United Nation Convention on the Rights of the Child’ (2015) vol. 7 Amsterdam law Forum 55, 57.
113 United Nations Committee on the Rights of the Child ‘General Comment 24’ in ‘Note by the Secretariat,
Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (18 September 2019) UN Doc CRC/C/GC/24, para 2.
114 Manco,‘Detention of the Child in the Light of International Law-A Commentary on Article 37 of the United
Nation Convention on the Rights of the Child’ (n 112) 62.
115 Manco,‘Detention of the Child in the Light of International Law-A Commentary on Article 37 of the United
23
community, that deprivation of liberty seldom if not never can be considered to be in the best interests of the child and should, therefore be kept to a minority of cases and for the shortest amount of time in order to minimize the negative effects and protect the best interests of children.116
It has been explicitly stated by the CRC Committee and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) that detention of any child because of their or their parents’ migration status infringes the principle of the best interests of the child, and that states should completely stop this practice and prohibit it by law.117 Thus, according to the CRC and CMW to deprive children of liberty in the context of immigration proceedings can never be justified as a measure of last resort.118 This standpoint has yet not seen the light of day with regard to juvenile justice where there still exists a possibility for states to deprive children of their liberty as a measure of last resort even though it is likely to conflict with the best interests of the child. The CRC Committee has however made certain statements with regard to the principle of the best interest of the child and deprivation of liberty in the context of juvenile justice. It has been stated that the traditional objectives of criminal justice including a somewhat punitive approach must be set aside when dealing with children. Instead, the focus must be on rehabilitation and restorative justice. Furthermore, the CRC Committee asserts that the best interests of the child must be a primary consideration in the context of juvenile justice. Thus, involving less culpability than when dealing with adults in order to accompany the needs of children.119
4.2 Actions Contrary to the Best Interest of the Child
It is clear from Art 1 (3) that the principle of the best interests of the child shall be a primary consideration in all actions concerning children. This includes art 37 (b) and the use of deprivation of liberty. However, nothing in the article prescribes if the possibility exists, after assessing a child’s best interests, to go against the best interests of the child in order to prioritize another objective?
The CRC Committee has stated that the best interests of the child shall have a high priority as a consideration.120 However, it has been noted that the wording of article 3 (1) which states that the best interests of the child must be ‘a primary consideration’ and not ‘the primary
116 ibid, 57.
117 United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of Their
Families, United Nations Committee on the Rights of the Child ‘Joint General Comment 4’‘Note by the Secretariat, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (16 November 2017) UN Doc CRC/C/GC/23, para 5.
118 ibid, para 10.
119 United Nations Committee on the Rights of the Child ‘General Comment no 10’ (25 April 2007) UN Doc
CRC/C/GC/10, para 10; CRC Committee ‘GC 24’, para 2.
120 United Nations Committee on the Rights of Child ‘General Comment 14’ in ‘Note by the Secretariat,
Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (29 May 2013) UN Doc CRC/C/GC/14, para 39.
