Back Speech at the 11th European Forum on the rights of the child

Children deprived of their liberty and alternatives to detention
Brussels 7 November 2017
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Colleagues, Ladies and Gentlemen,

I will not start with a surprising statement, but just by saying the obvious - Detention is stressful and sometimes dangerous. It is synonym to physical, emotional and intellectual isolation. It is difficult for adults and even more so for children. With the current migration flows towards Europe, public opinion has been very concerned with child immigration detention. My presence here today, in the capacity of Council of Europe’s Special Representative on migration and refugees, is just another confirmation. Nevertheless, it is imperative to keep in sight all children deprived of liberty or with imprisoned parents. In this sense, I commend the choice of topic for this year’s Forum on the rights of the child.

In this context, and again with the risk of stating the obvious, it is beyond any doubt that detention is almost never in the best interest of the child and if applied it should be only as a measure of last resort and for the shortest possible time. Just as obvious is that alternatives to detention are safer, less-expensive and effective measures to implement state criminal, immigration and social policies.

Let me share with you today what we do in the Council of Europe and what we think should be done to reach these objectives in the areas covered by this forum. It is of course encouragaing to notice that standards and the action of the Council of Europe have been mentioned several times during the preparatory event as relevant and up to help improving the situation. The starting point of our reflection and our work are the regular findings by our monitoring bodies that children, including juveniles, are at particular risk of violence, sexual exploitation and abuse, trafficking, and ill-treatment when they are deprived of their liberty. This is confirmed every time we go on fact-finding or monitoring visits in police stations, prisons, immigration detention centres, psychiatric hospitals or social care homes.

When it is a question of children in conflict with the law, the Council of Europe works towards preventing deprivation of liberty. The European Court of Human Rights has repeatedly emphasized that the standards for demonstrating the need for detention in accordance with Article 5 of the Convention (right to liberty and security) are higher than when adults are concerned. The Court has confirmed that pre-trial detention of minors should only be used as a measure of last resort and be as short as possible. 

The Strasbourg Court and the CPT, have long advocated that all detained juveniles who are accused or convicted of a criminal offence should be held in detention centres designed for people of this age, offering a non-prison like environment and regimes tailored to their specific needs and staffed by professionals trained in dealing with the young. Even so, the CPT continues to receive allegations of police ill-treatment of juveniles: slaps, punches, kicks or blows with batons at the time of apprehension and subsequent questioning in police stations. In this connection, the CPT called for a maximum of 24 hours a juvenile can stay in police custody.

The 2010 Council of Europe Guidelines on child-friendly justice and the 2017 HELP e-learning course of Child-friendly justice have been instrumental in promoting the understanding that

1. detention, in whatever form, needs to be avoided as much as possible and should be restricted to serious cases only and

2. alternatives to judicial proceedings such as mediation, diversion (of judicial mechanisms) and alternative dispute resolution should be encouraged whenever these may best serve the child’s best interests.

Now let me say a few words on immigration detention.

I am pleased to report the significant work undertaken by the Council of Europe concerning child immigration detention since my presentation last year before this Forum. 

Within the Council of Europe, there is a concerted effort to promote effective alternatives to detention and to identify standards for immigration detention. The inter-governmental working groups have not yet completed their work. But we expect that the resulting documents will provide member states with

- guidance in using alternatives

- standards for material conditions of detention and

- procedures which should help assess the proportionality of the detention measure.

This work seeks to put in practice the findings of the Strasbourg Court, which, among others, has called for a “necessity test” for children’s immigration detention. According to this test, if the same aim can be achieved by other means, then detention would be incompatible with the Convention.

In May 2017 the 47 member states of the Council of Europe pledged support for the Action Plan on Protecting Refugee and Migrant Children in Europe (2017-2019). Reducing resort to detention of children solely on the basis of their immigration status and encouraging implementation of alternatives to detention are two objectives at the heart of the Action Plan.

Over a month ago I attended the conference organised in Prague by the Czech chairmanship of the Committee of Ministers of the Council of Europe on ending immigration detention of children. The conference discussed, on one hand, the negative effects of immigration detention on children and, on the other hand, alternatives to detention. One of the conclusions of the conference was that we need an alliance of actors that will push for change. I believe that the EU Forum on the rights of the child is instrumental in fostering such an alliance for all areas involving child deprivation of liberty. I call on everyone here to join this alliance and to make change possible.

There has been some progress in recent years in ensuring that children are held in separate, juvenile-only units in ordinary prisons or detention centers. Many states have passed legislation on alternatives to penal or administrative detention. However, more should and must be done. What more?

In Prague we discussed the availability of different procedures that are linked to the decision to deprive children of their liberty: child-friendly procedures, availability of protection safeguards (age-assessment, guardianship), alternative measures. If these other procedures work, many migrant and refugee children will not have to be detained at all.

States should not stop at enacting laws on alternatives. They should be encouraged and assisted to put in place processes for the selection of the most appropriate alternative or combination of alternatives for each case, criminal or administrative. This requires concerted efforts from different categories of professionals: lawyers, social workers, psychologists, probation and mediation officers. It requires a coordinated approach and sharing of good practices. It cannot happen without engagement and trust.

Ladies and Gentlemen,

A special category of children deprived of their liberty includes those placed in institutions as a consequence of disability, mental health or drug abuse or for education or rehabilitation purposes. The Council of Europe Human Rights Commissioner expressed serious concern at the continuing existence of large, segregated facilities for children with disabilities throughout Europe and called on Council of Europe member states to move from institutions to arrangements relying on community-based services.

The Council of Europe standards in this field promote deinstitutionalization and community living of children with disabilities. We also provide standards on child-friendly social care and on the rights of children in residential care. In addition, we promote alternative forms of care. So standards are in place but they need to be applied more thoroughly.

It is common ground for Council of Europe member states that the existence of a disability as ground for involuntary confinement amounts to arbitrary deprivation of liberty and constitutes discrimination. The Strasbourg Court has repeatedly revealed deficiencies in the legal framework, in the medical and social care of children and young people, in residential institutions. We are currently assisting member states in improving these deficiencies, by supporting appropriate legal reforms and better access to remedies.

Ladies and Gentlemen,

Let me add a final comment on the situation of children with imprisoned parents or infants staying in prison with their parent. These children are entitled to the same rights as all other children, the right to a family and maintaining contact with a parent being the most important one. Nevertheless today very few countries in Europe are taking steps to thwart the negative effects of parental imprisonment on children.

The total number of children in the 47 Council of Europe members states who have one or more parents in prison is estimated at more than two million on any given date. If no adequate measures are taken to counter the trauma parental imprisonment causes, states will ultimately have to attend to the serious health, educational and integration problems these children may have to face later in life.

Respecting the rights of these children by adjusting the prison system to them is not enough. What is needed is reconsidering national penal policies in order to allow for a more efficient use of alternatives to custody, multi-disciplinary and multi-agency approach when offering support and assistance to prisoners and their families. You may be aware that the Council of Europe is currently finalizing work on a recommendation addressing the situation of these children. The document sets principles and standards at European level and urges national authorities to take measures to support these children and to improve their prospects for positive development and for successful social inclusion. We believe it has a potential to become a tool which will further help to better the chance of a positive childhood for these children.

Ladies and Gentlemen,

I provided you with a snapshot of what the Council of Europe does. Our work reflects a determined shift towards finding effective alternatives to deprivation of liberty for children, alternative forms of care, and, when detention or institutionalization is really unavoidable, to ensure that the best interest of the child is at the core of each and every effort.

We are all aware that the road will be long. And we are all aware that, as important as it is to have good laws and common standards, ending children’s detention depends also on other factors: awareness-raising, working with media, capacity building, resources and training. And, above all, on the political will and on an alliance of like-minded actors that are willing to invest in long-term solutions. The Council of Europe standards along with EU and international standards should be our guide and we shall not fail.

In fact, we cannot afford to fail. Let us never forget that it is easier to build a strong future today than to try repair a broken present tomorrow.

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