CRC/GC/2005/6
page 19
63.
In the exceptional case of detention, conditions of detention must be governed by the best
interests of the child and pay full respect to article 37 (a) and (c) of the Convention and other
international obligations. Special arrangements must be made for living quarters that are suitable
for children and that separate them from adults, unless it is considered in the child’s best interests
not to do so. Indeed, the underlying approach to such a programme should be “care” and not
“detention”. Facilities should not be located in isolated areas where culturally appropriate
community resources and access to legal aid are unavailable. Children should have the
opportunity to make regular contact and receive visits from friends, relatives, religious, social
and legal counsel and their guardian. They should also be provided with the opportunity to
receive all basic necessities as well as appropriate medical treatment and psychological
counselling where necessary. During their period in detention, children have the right to
education which ought, ideally, to take place outside the detention premises in order to facilitate
the continuance of their education upon release. They also have the right to recreation and play
as provided for in article 31 of the Convention. In order to effectively secure the rights provided
by article 37 (d) of the Convention, unaccompanied or separated children deprived of their
liberty shall be provided with prompt and free access to legal and other appropriate assistance,
including the assignment of a legal representative.
VI.
(a)
ACCESS TO THE ASYLUM PROCEDURE, LEGAL SAFEGUARDS
AND RIGHTS IN ASYLUM
General
64.
The obligation stemming from article 22 of the Convention to take “appropriate
measures” to ensure that a child, whether unaccompanied or accompanied, who is seeking
refugee status receives appropriate protection entails, inter alia, the responsibility to set up a
functioning asylum system and, in particular, to enact legislation addressing the particular
treatment of unaccompanied and separated children and to build capacities necessary to realize
this treatment in accordance with applicable rights codified in the Convention and in other
international human rights, refugee protection or humanitarian instruments to which the State is a
party. States facing resource constraints in staging such capacity-building efforts are strongly
encouraged to seek international assistance, including that provided by UNHCR.
65.
Taking into account the complementary nature of the obligations under article 22 and
those deriving from international refugee law, as well as the desirability of consolidated
standards, States should apply international standards relating to refugees as they progressively
evolve when implementing article 22 of the Convention.
(b)
Access to asylum procedures, regardless of age
66.
Asylum-seeking children, including those who are unaccompanied or separated,
shall enjoy access to asylum procedures and other complementary mechanisms providing
international protection, irrespective of their age. In the case that facts become known during the
identification and registration process which indicate that the child may have a well-founded fear
or, even if unable to explicitly articulate a concrete fear, the child may objectively be at risk of
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents