I: Topic Background
“Children in conflict with the law” is a common expression used for detention children. Across the world more the one million children have to be hold in some kind of jail form. Those kids are usually under the age of 18, which means by the low that they are still dependence on adults for resources. Since 1989, when the CRC was created, most adults start viewing children as vulnerable individuals. Primarily, they start creating rights and protection laws only for children on a global level. One of them (created laws) was against child detention, especially when there are cases of mistreatment of children. For over hundreds of years, millions of children suffered their life in confinement and brutality behind the bars. There are many cases showing evidence of brutal environments of child detention, where they were beating them and using other extreme forms of violence. This confirmed from professional psychologists that kids suffering this kind of traumatic events are damaging their physical and mental health for the rest of their life.
Furthermore, the facilities where the minors are held or captured are often located far away from families and communities; the conditions are inhumane such as inadequate health care, malnutrition, bad sanitation and no education. Those detention facilities where the children are held are all against the children’s rights, which CRC stated. The statement says that every child has rights to ”a standard of living adequate for their physical, mental, spiritual, moral and social development”.
However, the issue from ending the child detention is due to lack of effective monitoring and records keeping systems form all the institutions. This creates difficulties for the CRC organisation to prevent the widespread child detention around the world. Additionally, detaining children occurs in various forms like:
· Treatment or care for drugs dependence
· Misguided way of managing disabilities
· Immigration control/national security
In some countries child detention forms are for petty acts or small crimes like:
· Disobeying their parents
· Skipping school
· Running away from home
· Seeking or having an abortion
· Having consensual sex
With the increase of the today’s immigration rates especially in Europe, it’s affecting as well Portugal with immigration detention, which becomes one of the most prevalent forms of child detention. The statistic are showing that since 2016, more then 60 million people displaced due to war, civil unrest, economic dislocation or climate change and natural disasters. Around 8,000 of asylum seekers are ilegally entering European countries and around half of them are locked up in immigration detention. In Portugal the statistics are showing that around 2,444 refuges are detainees each year including kids.
II: Country Policy
In Portugal, the non-EU (European Union) citizens are constantly forced to leave the country, which creates minor migratory pressures. As the number of asylum seekers loading application at port of entry is massively increasing, Portugal starts implanting more strict immigration control policy to prevent it. According to the article 146A(3) of the Immigration Act, takes into consideration kids that are in detention, every foreign person has the rights on the medical facilities and urgent medical care. Particular attention should be taken on minors and their families which are also people who have been either physically or sexually abused in the past. Moreover, minors with families must be provided with separate temporary place of residence. However according to Portuguese spokesperson for civil rights, this law can not be applied in the most places of detention, as the places usually have got no spaces and facilities adequate for families and kids.
Looking towards children and under aged young adults, the immigration acts and country policies are different. Following by act. 26(2) and act. 35B (6, 7 and 8) states that detention of under aged refugees for unaccompanied minors must be given facilities of separate temporary place of residence or orphanage for youngsters, also as support and assistance for vulnerable children.
In 2014 the UN CRC (United Nation Committee on the Rights of the Child) announced that the new law, exempts applicants for young refuges with their family from detention at the border crossing point.
Furthermore in the case of refugee childers who had asylum at the border point, had the law that states by the SEF (Swap Execution Facility) minors must be immediately exerted and sent to the CACR. Before that they had to stay at the border point for specific period of time to encourage the identity and related issues. But however in 2016 SEF (Swap Execution Facility) released another statement for the immediate release of kids from the border point, which was noted by CPR (Committee on the Rights of Child) that the waiting period of time requested for asylum is more than one week.
Act. 146A(3):”The foreign citizen detained in a detentions facility or equated facility has the right to emergency health care and essential treatment of illness. Special attention shall be paid to vulnerable persons, particularly minors, unaccompanied minors, disable people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serous forms of psychologist, physical or sexual violence.”
Act. 26(2):”Temporary accommodation of unaccompanied or separated minors complies with special conditions, according to international recommendations, namely of UNHCR, UNICEF and International Committee of the Red Cross.”
Act. 35B :”The person who acting on behalf of an organization represents an unaccompanied minor, in the capacity of his legal tutor, the person who acts on behalf of a national organization which, according to the law, is responsible for the minors’ assistance and welfare, or any other suitable representative appointed, according to the law, to defend the unaccompanied minors’ interests”
III: Proposed Solutions
In order to end child detention, this will require the acts from all over the world and mainly most of the countries, to make ammendments to the practice of detention of kids in the base of migration status.
To start with, the UN CRC (United Nation Committee on the Rights of the Child) should recommend to all countries a law which proclaims, “Expeditiously and completely cease the immigration detention of children”.
Successfully there is a solution that exists for this problem and its called Child Detention Alternatives (CDA). It is important for all the governments and states to adopt these child-sensitive alternatives as a law because it helps in protecting children rights based on their best interests. This means that while the minors immigration status is being discussed on their best interest for freedom and family life, they are allowed to remain with their families or guardians.
Following by the international law, every country having any contact with detaining the foreigner with children, should consider alternative solution for vulnerable persons. It will allow children at risk of immigration arrest to live in non-custodial and environmental conditions, while their immigration status will be resolved. The benefits coming form countries following the alternatives solutions are being more effective, cheaper and respectful for human rights.
As the UN CRC (United National Committee on the Rights of the Child) states “To the greatest extent possible, and always using the least restrictive means necessary, States should adopt alternatives to detention that fulfil the best interests of the child, along with their rights to liberty and family life through legislation, policy and practices that allow children to remain with family members and/or guardians if they are present in the transit and/or destination countries and be accommodated as a family in non-custodial, community-based contexts while their immigration status is being resolved.” it should be proclaims as the main international law against immigrations child detention.
The CRC proposes to all the member of states to focus their efforts on improving the protection of migrant children by respecting the rule such as:
· Adequate reception conditions for children: the needs of each child should be assessed as soon as possible after their arrival and all children, regardless of their status, must have access to legal aid, health care, psychological support and education.
· Unaccompanied minors: care should be provided in form of foster care or family care
· Rapid status determination and effective care: the role of the person responible for the unaccompanied minors should be strengthened.
· Sustainable solutions and actions for early integration: in case of keeping the children in the country the government must continue to promote the integration of children by providing funding and exchanging good practices.
All the countries who have explored, developed or implemented any alternatives to the immigration detention of children and encourage others states to follow their example. In this way it would help the UN partners and civil society to cooperate with all the countries in the world in order to end the widespread child detention.