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An International Human Right to Free Legal Counsel for Unaccompanied and Separated Children in U.S. Immigration Proceedings

D. FREE LEGAL COUNSEL FOR CHILDREN DEPRIVED OF LIBERTY

In Article 37(d), the CRC explicitly addresses the right to counsel for all children, including UASC, who are deprived of liberty.

Article 37(d): Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

The Committee elaborates that the right to “prompt access to legal and other appropriate assistance” is a right to prompt and free access, and that children should have the opportunity to make regular contact with, and receive visits from, legal counsel.

GC6: Paragraph 63: …In order to effectively secure the rights provided by article 37(d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.

GC6: Paragraph 63: …Children should have the opportunity to make regular contact and receive visits from… legal counsel and their guardian….

 As to the definition of “deprivation of liberty” the Committee notes “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children in conflict with the law, and to children placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[1]

 

 


[1] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41,  at 55, footnote a.