Rights & Law
Article 37(b) of the Convention on the Rights of the Child: Mandating Detention as a Last Resort
The Convention on the Rights of the Child (CRC) is one of the most ratified treaties in history, reflecting near-universal recognition of the need to guarantee basic rights to the world's most vulnerable people [C1]. It includes groundbreaking provisions such as Article 37, which mandates that no child shall be deprived of his or her liberty unlawfully or arbitrarily[C1].
What this piece covers
- The Origin of the “Last Resort, Shortest Appropriate Period” Rule
- How UN Interpreters Say It Should Work in Child Justice
- Non-Custodial Measures: The Alternatives That Are Supposed to Come First
- Beyond Criminal Courts: Immigration and Other Settings
- Why the Principle Is So Often Broken in Practice
- Conclusion
This article goes further, stipulating that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time[C1]. In plain language, if children require the most extreme deprivation of their liberty - imprisonment - then such an action must occur only after all other legal measures have been exhausted and the imprisonment is the only way to keep the child or the public safe. Moreover, the detention/imprisonment must end as quickly as legally feasible. This is an extremely high bar to clear for juvenile detention - one that is commonly referenced but not well-understood in the international legal community.
This principle - that the state may only detain a child in the most extreme of circumstances, and then only for the minimum necessary period - is of central importance in the CRC. It is one of the most frequently cited provisions in international child rights law
The Origin of the “Last Resort, Shortest Appropriate Period” Rule
Article 37(b) traces its origins to the CRC, adopted by the UN General Assembly in 1989 [C1] [C2]. The CRC is considered a milestone in global child rights, providing a comprehensive framework for promoting and protecting children's rights worldwide and today it is ratified by 196 states [C3]. As of 2023, it is the most widely ratified convention in the world.
Article 37 goes directly to heart of one of the most existential threats a child can face - the state using its power to deprive a child of liberty. The article makes clear that there must be no arbitrary deprivations of a child's liberty [C1]. But where this line is crossed, it offers an even stronger rule of law over juvenile detention: a child may only be deprived of liberty in conformity with the law - and only as a last resort, for the shortest appropriate period[C1].
The principle has been restated and elaborated on by the Committee on the Rights of the Child (CRC) in its authoritative guidance. In its 2007 General Comment No. 10, for instance, the Committee explains that deprivation of liberty - including arrest, detention and imprisonment - is only lawful if used solely as a last resort measure, for the shortest appropriate period of time, so as to fully respect the child's right to development[C2]. The General Comment also applies this principle to both the pre-trial stage and the sentencing phase of child justice proceedings [C2].
How UN Interpreters Say It Should Work in Child Justice
The Committee has also expanded upon Article 37(b) in its 2019 General Comment No. 24, which sets out the core elements of child justice policy [C3]. This document stresses that laws must contain a variety of non-custodial measures and prioritise their use, to ensure deprivation of liberty is used only as a last resort and for the shortest appropriate period[C3]. When detention is justified as a last resort, the Committee advises, it should be strictly time-limited, mainly used for older children, and subject to regular review with opportunities for early release [C3].
Scholars have underscored that Article 37(b) has two distinct components: a "last resort" requirement governing the decision to arrest, detain or imprison a child, and a "shortest appropriate period of time" requirement governing the duration of detention once imposed [C7]. Both elements must be satisfied to be in compliance with the Convention [C7].
The Committee has in its reports and guidance also placed particular emphasis on ensuring detention regimes, including for families with minor children, are strictly time-limited and non-arbitrary[C8] when putting Article 37(b) domestic law into practice [C8].
Non-Custodial Measures: The Alternatives That Are Supposed to Come First
A core component of the principle under Article 37(b) is the priority to be given to non-custodial measures. The CRC framework and its authoritative interpretations classify deprivation of liberty of children as an exceptional measure of last resort [C12][C13].
This means that the decision to arrest, detain or imprison a child must be lawful, non-arbitrary, and reserved for the very few situations where it is genuinely impossible to maintain the child's welfare, well-being, and/or public safety without it [12][C12]. Even then, the most favourable outcome possible in the circumstances is what should guide the disposition. This outcome must reduce the child's deprivation of liberty to the bare minimum required to maintain their safety and/or maintain public safety.
The child's development and best interests must also be a primary consideration in these decisions, emphasising that the child's circumstances are significantly unique from even other adults facing arrest, detainment, or imprisonment
Multiple official documents lay this out, describing a child justice system where deprivation of liberty is only used where absolutely necessary, while also being minimised in duration and built within a broader set of measures that prioritise children's development [12]
In plain terms, international norms are clear, and clear-cut: send a child to a facility and imprison them only if it is impossible to keep the child or the public safe any other way - and freed from that facility as soon as it is legally possible to be certain of the child's or public's safety- and EVERYTHING else must be tried first.
Beyond Criminal Courts: Immigration and Other Settings
The principle applies beyond the context of criminal justice. For instance, a background paper for the Australian National Inquiry into Children in Immigration Detention explains that because detention is very harmful to refugee children, any detention must be in conformity with law, used only as a measure of last resort and for the shortest appropriate period of time[C6]. The report explicitly applies Article 37(b) CRC to immigration detention practice [C6].
Similarly, migrant children scholarship notes that where detention is exceptionally justified, it must comply with Article 37(b) CRC, meaning detention shall be a matter of last resort and for the shortest appropriate period [C7][C10]. The Committee on the Rights of the Child has also directed attention to ensuring that detention regimes (including for families with minor children) are strictly time-limited and non-arbitrary when implementing Article 37 CRC domestically [C11].
Why the Principle Is So Often Broken in Practice
The principle is routinely ignoredin practice, commonly because the necessary measures that would enable it are nonexistent, unavailable, or inaccessible. Lack of spaces for children to be examined, assessed, or maintained prior to any session at jail, nonexistent diversion programs, and lack of hostels, bail locations, or other institutions separate from adults result in children being maintained in imprisonment in violation of the CRC.
This is supported by generalised evidence on the gap between Article 37(b)'s requirements and the reality of child detention systems. There is a lack of adequate facilities, assessments, and non-custodial measures worldwide. Children are often held in police cells or adult facilities due to insufficient child-friendly places of safety, transport and assessment mechanisms [C9].
Similarly, there are documented problems with children being kept in detention for longer than the "shortest appropriate period" because required assessments (psychosocial, risk, welfare) cannot be completed in a timely manner [C11].
Conclusion
The "last resort, shortest appropriate period" rule set out in Article 37(b) of the CRC is a bright-line as to when a state may deprive a child of their liberty: children should only be detained and only as long as is necessary - if that is required to keep the child or the public safe - and only when all other lawful alternatives are unavailable or already attempted and not effective.Notably, international law allows no hard time limits, assessing each case individually to determine if any length of continued detention is justifiable [C5].
In practice, though, systemic gaps in non-custodial alternatives and resources mean this strict principle is routinely breached. The lack of concrete data on the extent of this problem is a glaring gap. It is essential that countries systematically analyse whether they have the non-custodial measures and review mechanisms the Committee assumed are there. International bodies like the UN should more closely monitor deprivation of liberty practices that violate the CRC. Ultimately, compliance with Article 37(b) requires a fundamental shift away from the default of incarceration that pervades most criminal justice and immigrant detention systems worldwide.