considerations to be made when a child is being
detained together with his or her parent, as well as
detention of a child as part of the juvenile justice
process. Because detention of children for reasons
related to the migration status of them or their parents is prohibited under international law.374
7.1 International Law and Standards
7.1.1 Key Principles and Standards Concerning
Deprivation of Liberty of Children
Right to personal liberty
185.
Under international law, every person has the right to liberty.375 In relation to children who are in contact with law, the Convention
on the Rights of the Child requires that children be detained only as a last resort and for
the shortest amount of time.376 As noted earlier, the Security Council has also urged Member
States to consider non-judicial measures as
alternatives to prosecution and detention for children formerly associated with armed groups.377
detainees are not violated. The Convention on
the Rights of the Child prohibits the arbitrary or
unlawful deprivation of liberty of a child.378 The
Security Council has echoed the principle that
no child should be deprived of his or her liberty
unlawfully or arbitrarily and has called on all
parties to conflict to cease unlawful or arbitrary
detention.379
187.
“Arbitrariness” should be interpreted
broadly
“to
include
elements
of
inappropriateness, injustice, lack of predictability and due process of law, as well as elements of
reasonableness, necessity and proportionality”.380
Any decision to deprive a child of his or her liberty
must take into account his or her best interests as
a primary consideration, including with regard to
the duration and conditions of detention.381 Detention must be based on grounds previously established by law. These grounds for detention cannot
be assumed, particularly on blanket assumptions
relating to the age of the child and must be determined on a case-by-case basis.
Prohibition of arbitrary detention of children
186.
International human rights law and
standards set out minimum requirements to
ensure that individuals are not deprived arbitrarily
or unlawfully of their liberty and that rights of
374 Joint general comment No. 4 (2017) of the Committee
on the Protection of the Rights of All Migrant Workers and
Members of Their Families No. 23 (2017) of the Committee on
the Rights of the Child, paras. 5-13.
375 International Covenant on Civil and Political Rights
(1966), art. 9; Convention on the Rights of Persons with Disabilities (2006), art. 14, International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families (1990), art. 16.
378 Convention on the Rights of the Child (1989), art 37(b).
379 Security Council resolution 2225 (2015), para. 17; Security Council resolution 2427 (2018), para. 13.
376 Convention on the Rights of the Child (1989), art. 37.
380 Human Rights Committee, general comment No. 35
(2014) on article 9 (liberty and security of person), para. 13.
377 Security Council resolution 2427 (2018), para. 21.
381 Ibid., para. 18.
84.
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