Immigration detention never in best interests of the child

  • November 27, 2018

The first rule in the detention of children for immigration purposes is: Don’t detain children for immigration purposes.

There’s been a lot of talk lately about what countries’ international obligations are toward refugees, asylum-seekers and others who cross their borders outside of the official immigration process.

It is in that environment that the government has published draft regulations to the Immigration and Refugee Protection Act on the detention of children. The CBA’s Child and Youth Law Section and Immigration Law Section made a joint submission in response to the proposed regulations.

As a ratifying party to the UN Convention on the Rights of the Child, Canada has committed to ensuring that every action it takes concerning children is in the best interests of those children, and that includes making sure they have the protection and care they need, the Sections say.

“(I)n our view, the detention of children or their separation from parents or primary caregivers for immigration purposes is never in their best interests,” they write. They recommend creating a presumption in the Regulations in favour of releasing children and their families.

At a minimum the Sections recommend expanding the factors that should be taken into consideration when determining “best interests” to better reflect children’s rights under the UNCRC. Children have the right to have their views and preferences given due weight if they’re capable of forming and expressing them. The child’s level of dependence on the person who is being detained should also be a factor, and the regulations should include a paragraph to ensure children have proper legal advice.

In October 2016 the Canadian Bar Association was one of hundreds of signatories to A Statement Against the Immigration Detention of Children, which cited research showing detained children “suffer extreme distress, fear and a deterioration of cognitive, physical and emotional functioning both during and long after detention.”

The statement contends that there are viable alternatives to detaining families with children, something the current submission supports.

“Unaccompanied minors and families with children should be offered non-custodial community-based alternatives to detention,” the Sections say.

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