Time to end the detention of children
The beginning of last week witnessed the signing ceremony of the Memorandum of Understanding (MoU) on the Determination of Measures and Approaches Alternative to Detention of Children in Immigration Detention Centres by seven key agencies in Thailand, namely: the Ministry of Foreign Affairs, the Ministry of Social Development, the Ministry of Interior, the Ministry of Education, the Ministry of Health, the Ministry of Labour and the national police (which deals with immigration).
The much-awaited message is to end the detention of children who are in Thailand in breach of the national immigration law. Regrettably on many continents, children, whether accompanied by their families or not, find themselves in situations where they have crossed borders without the relevant travel documents, visas and or permission to enter another country. They are then classified directly or indirectly as "illegal immigrants" and land up in immigration detention. The MoU has been gestating for the past two years and there is now an improved text. On the positive front, the MoU now covers persons under 18 years of age and this is now more consistent with international standards.
There are now six overriding principles guiding inter-agency cooperation. First, children are not to be detained, except as a measure of last resort and for the shortest possible time. Second, the best interests of the child are to prevail. Third, children in these situations are entitled to basic livelihood standards in keeping with their development.
Fourth, priority is accorded to family-based care, while shelters run by the Social Development Ministry, complemented by privately run reception centres, can be resorted to as a last resort. Fifth, the child's physical and mental development should be taken into account, oriented to sustainable solutions. Sixth, the key agencies involved are to take appropriate measures to help the child.
The status of the child is to be determined by an individualised screening process with multi-disciplinary teams, collecting personal records, ascertaining and providing appropriate care and services, and ensuring coordination between key agencies, aiming at return of the child to the family and society.
The Thai setting invites connectivity with international trends and responses. At the Leaders' Summit hosted by the Obama administration in 2016 , the country pledged to end the detention of children in immigration situations. This was paralleled by the summit held in New York in the same year which adopted a global declaration, highlighting that "migration should be a choice and not a necessity".
These were followed up in 2018 by the almost universal adoption of the Global Compact on Refugees and the Global Compact for Safe, Orderly and Regular Migration (The Migration Compact). The former is particularly linked with the role of the UN High Commissioner for Refugees, while the latter interlinks closely with the International Organisation for Migration.
The commitment particularly in the Migration Compact under its Objective 13 headed "Use immigration detention only as a measure of last resort and work towards alternatives" spearheads action " working to end the practice of child detention in the context of international migration".
From the angle of child rights, that premise is a basic minimum and the global community should strive to end the detention of children in such situation altogether -- preferably not leaving the door open to detention as a last resort. The more advanced position is now offered under the Convention on the Rights of the Child, particularly through various stipulations from its monitoring body, the Committee on the Rights of the Child.
In 2017, that committee, in cooperation with another UN Committee, issued two General Comments to guide the global community, namely the Joint Comment No 4 and General Comment No 23 on State Obligations regarding the Human Rights of Children in the Context of International Migration, stating that "any kind of child immigration detention should be forbidden by law" and that " children should not be criminalised or subjected to punitive measures, such as detention, because of their or their parents' migration status". There is the additional stipulation that "criminalising irregular entry and stay exceeds the legitimate interest of States parties to control and regulate migration, and leads to arbitrary detention".
Thus the preferred orientation is to advance the position of the new MoU by implementing the guidance from the Committee of the Rights of the Child to end the detention of children in immigration situations absolutely and without exceptions.
Other challenges invite more concrete responses from the national authorities as follows: First, the rationale of immigration law and policy needs to be reassessed. Immigration related breaches should not be seen as criminal offences, but they should be treated as administrative breaches, not leading to criminal sanctions such as detention.
Second, the issue of family reunion should be underlined. The tendency in recent years was to shift young children and mothers to social development shelters but to keep the fathers and adolescent male children in immigration detention. The adoption of the "whole-of-the-family" approach would help to keep all the family together rather than dividing them.
Third, there is the danger that when young male children reach the age of 18, they might be treated as adults and then returned to immigration detention. The preferred position is not to (re-) detain them but to enable them to continue in shelters as part of sustainable solutions.
Fourth, currently bail is at times imposed as a condition (particularly for the release of adults) and the sums required are high. The sums required for bail should be reduced, and in the case of children, no bail should be required at all, since they should be considered innocents not subjected to crime-related sureties and sanctions.
Fifth, while the MoU provides clearer guidance for inter-agency cooperation, the standard operating procedures of what to do, when, how and with whom and/or for whom are also critically important to step up action for child sensitive and effective implementation. The adoption of the MoU should thus be viewed as an initial stepping stone which needs to be enhanced and reinforced with other measures, bearing in mind the new avenues advocated by the international law of child rights and the shared responsibility of stakeholders.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He has helped the UN in number of positions, including as UN Independent Expert and UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography.
Professor of law at Chulalongkorn University
Professor Vitit Muntarbhorn teaches at Chulalongkorn University, Bangkok. He has helped the UN in a variety of positions and is currently a member of a UN Human Rights Commission of Inquiry. This article is derived from his speech at the recent Conference on Asean Traversing 2015: Challenges of Development, Democratisation, Human Rights and Peace, organised by Mahidol University, Bangkok.