Children in detention

16 Nov 2009

Many in Canada might be surprised to know that children are routinely held in immigration detention, for weeks and even months at a time. 

– A three-year-old boy was detained for 30 days with his mother when they made refugee claims on arrival in Canada.  He had difficulty sleeping and eating while in detention.

– A 16-year-old boy, also a refugee claimant, spent 25 days in detention.  He suffered a lot in detention, lost weight and had nightmares.

It wasn’t supposed to be like this. 

In 2001, Parliament approved new legislation which said that children are only to be detained as a measure of last resort.  In deciding whether to detain, the best interests of the child must be taken into account.

The CCR has just published a report, Detention and Best interests of the child, which shows that detention of children is NOT limited to exceptional circumstances and that their best interests are not always considered.

Part of the problem lies in gaps in the law:

  • Some decisions are not reviewed. An immigration officer’s decision that a child’s identity is not satisfactorily established is not reviewable by the Immigration and Refugee Board.
  • Some children are “invisible” in the eyes of the law.  There is no mention of the need to consider the best interests of children who are not legally detained, even if they are in detention accompanying their detained parent. 

Part of the problem lies with how the law is being interpreted and applied by the Canada Border Services Agency (which detains people) and the Immigration and Refugee Board (which decides whether to maintain the detention).

Sometimes the Agency detains children even where there is no compelling reason, and then doesn’t follow up quickly to resolve issues so that the children can be released.  For example, in the case of an 11-year-old girl from Iran, the Agency failed to move quickly to resolve the identity question or find an alternative to detention: they delayed interviewing the mother and didn’t contact the girl’s uncle in Canada.

The Board has tended to interpret its mandate narrowly, so that it often feels it has to keep children in detention, even when the Board member is deeply uncomfortable with doing so.

Everyone is uncomfortable with detaining children.  Surely then it is possible to find the will and the means to make changes.  Parliamentarians need to review and amend the law.  The Canada Border Services Agency and the Immigration and Refugee Board need to interpret and apply the law in a way that gives priority to children’s best interests.