The UK reservation to the UN Convention on the Rights of the Child: the passage for Detention of asylum seeking children
The UN Convention on the rights of the child 1989 is the most widely ratified convention except for the USA and Somalia. It states some basic principles such as the best interest of the child and the protection against discrimination.
This instrument makes a potentially powerful protection for the refugee child and even the child whose asylum claim has been rejected. However the power of that protection is diluted in the UK context because of the UK reservation to the United Nations Convention on the Rights of the Child, 1989. The UK does not agree to follow article 22 and 9 of the Convention and retains the right to apply its own National Immigration legislation. This would not be a concern if national law protected children more than the convention but this is not the case in the UK, on the contrary the reservation has severely limited children’s rights particularly for asylum seeking children.
Article 22 of the UNCRC 1989 provides:” State parties shall take appropriate measures to ensure that a child who is seeking refugee status … receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present convention and in other international human rights or humanitarian instruments to which the said states are parties ... the child shall be accorded the same protection as any other child”
Article 9 states “Stated parties shall ensure that a child shall not be separated from his or her parents against their will…”
The reservation of these articles has been criticised severely, firstly because it is extremely broad, and secondly because it has an unspecific nature that impact on the most vulnerable groups in society. The reservation in reality means that the AS children for example, are not covered by the same legislation as other children and young people in UK or in other words, can be discriminated against.
According to a Document titled; Cold Comfort: Young Separated Refugees in England by Saved the Children:
“Many asylum seeking and refugee children do not receive the level of care and protection that they need. This is despite the fact that by law, unaccompanied asylum seeking and refugee children in England have the same legal entitlements as citizen children (right to education and healthcare) rights enshrined in the children Act (1989) and Human Rights Act (1998)
Accompanied asylum-seeking children have lesser rights than citizen children; they do not ordinarily have access to financial support or accommodation through the children Act or access to other child welfare benefits, although they do have the right to education and healthcare”
The most important consequence of the reservation is that children of asylum seekers and migrants can be held in immigration detention with their parents under Immigration Act powers. Thus children can be detained in a system that has no time limit for immigration detention, and families can be detained at any stage of their case. The decision to detain rests with an immigration officer and is not subject to automatic independent review. There are no official figures about the number of children detained.
When a child is detained, his/her right to freedom is ignored when withdraw from mainstream education to be detained, his right to education is affected. His/her mental health is also disturbed as children are exposed in detention to suicide attempts, violence and riots, procedures that stigmatise them (as calling them through numbers), a depressive environment and an unhealthy environment (adults have diseases).
All these circumstances mentioned can harm the child sense of identity, security and sense of stability and cause depression, stress anxiety and suicidal ideation. The psychiatric treatment within the detention centre is not appropriate because it is the environment itself that is the cause of the problem.
Children do not have recreation as such, as they can not access appropriate play facilities either because these are absent or because the child is too distressed or preoccupied that they not able to participate. Boredom is also a consequence of detention
Generally children feel depressed, fearful and angry after the detention. Loss of appetite, insomnia, withdrawal or hunger strikes are signs that the right to have a normal development has been damaged.
The reservation goes against the purpose of the Convention and basically against the principle of best interest of the child and non discrimination, so the first and most important challenge is to remove it.
The reservation is the “pass” for the UK authorities to detain children and detention destroys children's trust in goodness. Detention of children is not in their best interest for the violation of several of their rights. If children are detained, it is because the primary consideration of the UK Government instead of being in the interest of the child, is the detention of the parents.
Until the reservation is removed, there is an urgent need for alternatives to detention.