24 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION 2.6 CHILDREN, FAMILIES AND VULNERABLE GROUPS As this Toolkit has put forward, arbitrary and disproportionately lengthy detention can ensue when the particular vulnerabilities of stateless persons are not understood and addressed. Thus, the stateless are a vulnerable group that deserve special attention and protection. There are various other experiences, characteristics and circumstances which also make people vulnerable in different ways, and which consequently also demand special consideration and protection. Such vulnerable groups include children, women, the elderly, disabled persons, ethnic minorities, religious minorities, asylum seekers, victims of human trafficking, and victims of torture. Multiple vulnerabilities (for example, a stateless ethnic-minority girl who has been tortured and trafficked) demand particular protection and care. This section focuses its attention on stateless persons or those at risk of statelessness who have an added vulnerability, which serves as a further reason to not detain, but to protect instead. With children for example, all efforts should be made to avoid detention. Alternative measures should be sought and detention should only be the absolute last resort. In case detention is the only option, care should be taken to protect all of the rights of the minor. Cases in which minors are involved should be a priority. A key principle is that the child should never be held in detention together with adults, unless they belong to the same family. Stateless children, should be subject to the same measures and have access to the same procedural guarantees as nationals, should be able to communicate with family and should have access to legal counsel. Finally, families should be kept together and should not be separated by for example, detaining the parents and not the children. If the detention of the child is not necessary, the parents should not be detained either. The elderly should, like children, be detained only as a last resort, and should be treated with special care. Special attention and care should be provided for any health and medical issues they may have. Their cases should also be prioritised, and they should not be kept in isolation and prevented from contacting family and other close relations. It is essential that asylum seekers obtain the necessary assistance in order to receive protection as refugees. The principle of non-refoulement should be taken into consideration in any decision regarding their repatriation. An individual’s position as an asylum seeker should under no circumstances be used as justification for holding the asylum seeker in detention. Likewise, victims of human trafficking must be protected in accordance with international, regional and national laws. It is crucial that such victims have a safe place to be able to get away from traffickers. It is equally important that they are not removed back to the place they were trafficked from, if this places them at danger of being re-trafficked or harmed in any other way. Given the often traumatic experiences endured by victims of trafficking, they should never be detained. The same would apply to victims of torture, who should also not be refouled. When an individual belonging to a vulnerable group is detained, it is necessary for all precautions to be taken to ensure their mental and physical well-being and to avoid any further victimisation or trauma. United Nations Children and families Article 10(2)(b) ICCPR states that children must be separated from adults when held in detention. In its General Comment number 21, the Committee expressed concern that not all states pay the necessary attention to this obligation. Article 10(3) ICCPR states that children must be “accorded treatment appropriate to their age and legal status.” Article 37(b) CRC states that no child may be deprived of his/her liberty unlawfully or arbitrarily; therefore, if a child is detained, this shall be “in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. Article 37(c) CRC states that any detained child must be “treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age” which includes being separated from other detained adults, and allowing the child to be in contact with his/her family through correspondence and visits. Article 37(d) CRC states that detained children “shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty” and any decisions on such an action must be taken as soon as possible. Additionally, the principle of the best interest of the child (art 3 CRC) must be taken into consideration at all times. In Bakhtiyari v Australia, the HRC found that the lengthy detention of a mother (Bakhtiyari) and her children had not been properly justified by Australia, and had not demonstrated that other “less intrusive, measures could not have achieved … in compliance with the State party’s immigration policies.”106 Therefore, the Committee found that the detention of the family had been arbitrary and in violation of Article 9(1) ICCPR. Furthermore, the Committee found that separating a spouse and children who