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unaccompanied children should not be detained because of migration-related conditions; States
should therefore include alternative measures to detention and express the priority of these
measures in their legislation. Subsequently, States should develop public policies which ensure
the effective enforcement of these alternative measures by competent authorities, both
administrative and judicial.
61. Any detention order should justify the reasons for not applying alternative measures, and
the place of detention should be chosen for the child’s integral protection; they should not be
detained in prisons or with adults. Child protection approaches should be at the core of the goals
and functions of detention institutions/centres, and include the realization of such rights as
education, health care, recreation, consular assistance, guardian protection and legal
representation, among others. Furthermore, detention centres should be managed by childhood
protection officers who have received training on children’s rights.
62. Migration-related detention of children should not be justified on the basis of maintaining
the family unit (for example, detention of children with their parents when all are irregular
migrants). As UNICEF and other experts have stressed, detention of children will never be in
their best interests.39 Hence, the ideal utilization of a rights-based approach would imply
adopting alternative measures for the entire family; States should therefore develop policies for
placing the entire family in alternative locations to closed detention centres.
63. Some countries make distinctions among children (for instance, children above 12 years of
age) with regard to detention policy. In such cases, children over 12 years of age are detained
in detention centres, while those under 12 are placed in protection centres for
children. Such a practice should be considered an unlawful interpretation of article 1 of
the Convention on the Rights of the Child. Furthermore, adolescents should not be treated as
adults.
64. A number of countries still consider the breach of migration law a criminal offence (for
example, in cases of irregular entry, lack of residence permit, using an expired residence
authorization or unauthorized re-entry after a deportation and re-entry prohibition decision).
Furthermore, since in most countries migration laws lack a children’s rights perspective, the
criminalization of irregular migration applies also to children.
65. For this reason, it is important to stress that the criminalization of irregular migration leads
to human rights violations and to recall the recommendations made by several human rights
39
See UNICEF Australia, Submission to the National Inquiry into Children in Immigration
Detention, written submission to the Human Rights and Equal Opportunity Commission, 2003,
Summary of Recommendations; STEPS consulting social study for the European Parliament,
“The conditions in centres for third country national (detention camps, open centres as well as
transit centres and transit zones), with a particular focus on provisions and facilities for persons
with special needs in the 25 EU member states.”