Fundamental to preventing the detention ofchildren who are refugees, asylum seekers andirregular migrants is a prohibition, in law, against theirincarceration. Laws, policies and practices oughtto be based on the assumption that detention isnot necessary when resolving an individual child’smigration status. According to the CAP, ‘Such a“presumption against detention” establishes eachindividual’s right to freedom of movement and helpsto prevent immigration ofﬁcials from resorting toconﬁnement when other options may sufﬁce.’
The expectation of liberty has a strong foundationin international law. The presumption against detentionis consistent with this body of law, and in particular,the particular abhorrence in international law for thedetention of children. International law’s predilectionagainst detaining children reﬂects an understandingof the dire consequences associated with denyingchildren their liberty. The presumption againstdetention is strengthened by the principle of treatingminors as minors, prior to viewing them as migrants.Further, the ends to which states detain children– for political, policy and practical reasons – are notachieved by their detention. Detention is expensiveand ineffective, meaning that a presumption againstdetention is not only consistent with international law,in the interests of children themselves, but also morerational from a state’s perspective.A number of states around the world, includingHungary, the Czech Republic, Ireland, Venezuela, Italyand Portugal have legislated to prohibit the detentionof refugee, asylum seeker and irregular migrantchildren.
OF CHILD SENSITIVE CAP MODEL