Ending the Detention of Migrant and Refugee Children:
Best Interest Determination and
Alternatives to Detention
UN Headquarters Conference Room 12
1:15-2:30 • February 21, 2018
Background: Currently, the number of migrants on the move internationally is estimated at 258 million. Around the world, nearly 50 million children have moved across borders. More than half of these girls and boys – 28 million in total – were forcibly displaced, fleeing violence and insecurity. Often forced to flee conflict or poverty in search of peace, security and a dignified future, children are among the world’s most vulnerable. Even when they are accompanied by their families, children are at high risk of being trafficked or otherwise exploited. En route and upon arrival to their countries of destination, they often face deportation and are often forcibly detained. Unaccompanied or separated children are confronted with even more precarious situations. In the words of Pope Francis, “They are invisible and voiceless: their precarious situation deprives them of documentation, hiding them from the world’s eyes; the absence of adults to accompany them prevents their voices from being raised and heard.”
Detention is sometimes presented as a necessary tool to manage migration. Over one hundred countries continue to detain children based on their or their families’ migration status. This happens despite solid evidence of how harmful this practice is for children and their development, and despite a growing international consensus – reinforced by international and regional jurisprudence – that immigration detention of children is never in their best interests – and neither is it in the best interests of States, as it is expensive, burdensome, and rarely acts as deterrent to would-be migrants.
There are reasons for hope, however. At the normative level, in the New York Declaration, States recognized these vulnerabilities and attempted to directly address the specific practice of detaining refugee and migrant children, first, by reaffirming their commitment to “comply with our obligations under the Convention on the Rights of the Child” and, second, by calling for simultaneous efforts to work “towards the ending of this practice” in full respect for their human rights and fundamental freedoms and giving primary consideration at all times to the best interests of the child. At the practical level, effective alternatives to detention do exist and are being used successfully in very different contexts. These solutions can be scaled up and replicated in other countries.
While States are thus required to consider the best interests of children as a primary consideration in all decisions and to uphold their rights and fundamental freedoms without discrimination, regardless of their legal or migratory status, the measures taken do not always include “best interest determinations”. These demand a “formal process with strict procedural safeguards designed to determine the child’s best interests for particularly important decisions affecting the child,” as recommended by the United Nations High Commissioner for Refugees, the United Nations Children’s Fund and several other multi-lateral and professional child welfare and child rights organizations. Such comprehensive reviews include an examination of the necessary pre-conditions for assuring the dignity and wellbeing of such children, including proper identification; an adequate registration process, including documentation; the opening of an individual case file; tracing; the appointment of a guardian; and the provision and monitoring of temporary care arrangements.
Purpose: As we enter into the intergovernmental negotiation on the Global Compact for Migration, with formal consultations for the Global Compact on Refugees also taking place in Geneva, it is incumbent on States to discuss best practices for migrant and refugee children as they strive to find alternatives to child detention, with the goal of ending the practice of detention entirely. In other words, they must translate their commitments in the New York Declaration into concrete roadmaps supported by investments and policy change.
The Global Compacts could call on all Member States to develop National Action Plans with time-bound milestones to phase out immigration detention of children in law, policy and practice, showing how concretely they will move from using detention – even as a measure of last resort – to using alternatives and prohibiting child immigration detention. In this respect, the language proposed by the Co-Facilitators in the zero draft of the Global Compact for Migration is an encouraging sign that confirms that the above proposals are doable – the text calls for “ending the practice of child detention in the context of international migration” and providing alternatives “that include access to education, healthcare, and allow children to remain with their family members or guardians in non-custodial contexts, including community-based arrangements.” As Pope Francis reminds us, “The right of states to control migratory movement and to protect the common good of the nation, must be seen in conjunction with the duty to resolve and regularize the situation of child migrants”.
This panel discussion will highlight the experience of States and civil society in the dignified reception of migrant and refugee children in the field and on the borders. To do so, it will identify best practices and alternatives to detention that have been successful in ending this practice.
- H.E. Archbishop Bernardito Auza, Permanent Representative of the Holy See Observer Mission to the United Nations
- Fr. Michael Czerny, Under-Secretary for the Migrants & Refugees Section of the Dicastery for Promoting Integral Human Development (Moderator)
- Mr. Ted Chaiban, UNICEF Director of Programmes
- Donald M. Kerwin Jr., Executive Director Center for Migration Studies
- Ashley Feasley, Director of Policy for United States Conference of Catholic Bishops Migration and Refugee Services
- Msgr. Robert J. Vitillo, Secretary General of International Catholic Migration Commission
- Video on best interest determinations
- Permanent Mission of Brazil (invited)
- Permanent Mission of Uganda (invited)
- Delegation of the European Union (invited)
- IOM (invited)
- OHCHR (invited)
- UNHCR (invited)
- Fr. Michael Czerny, Under-Secretary for the Migrants & Refugees Section of the Dicastery for Promoting Integral Human Development
Those interested in attending are asked to inscribe at www.holyseemission.org/rsvp21February2018 by February 18.
For more information or questions, please call the Permanent Observer Mission of the Holy See at 212.370.7885 or email Timothy Herrmann at email@example.com.
1. Utilizing the definition given by the Department of Economic and Social Affairs of the United Nations Secretariat. See Department of Economic and Social Affairs, Population Division, “Trends in International Migrant Stock: The 2017 Revision”
2. Uprooted: The growing crisis for refugee and migrant children, United Nations Children’s Fund, 2016, see here.
3. Pope Francis, Message for the World Day of Migrants and Refugees, 2017, http://w2.vatican.va/content/francesco/en/messages/migration/documents/papa-francesco_20160908_world-migrants-day-2017.html
4. A Joint General Comment issued in 2017 by the Committee on the Rights of the Child and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families states unequivocally that “child and family immigration should be prohibited by law and its abolishment ensured in policy and practice”, see here (paragraph 12). The CRC Committee’s strong position against immigration detention of children has since 2012 been echoed by numerous international and regional human bodies, including the Inter-American Court of Human Rights.
5. See paragraphs 32 and 33 of the New York Declaration (A/RES/71/1)
6. “Best Interests Determination Children - Protection and Care Information Sheet”, United Nations High Commissioner for Refugees, 2008.
7. Safe and Sound. What States Can Do to Ensure Respect for the Best Interests of Unaccompanied and Separated Children in Europe, United Nations High Commissioner for Refugees and United Nations Children’s Fund, 2014, see here.
9. See here, paragraph 27.
10. Pope Francis, Message for World Day of Migrants and Refugees, 2017, op.cit.