European legal and policy framework on immigration detention of children FRA opinions Ensuring children’s right to protection and care FRA opinion 2 The right of children to protection and care and the principle of the best interests of the child as set out in Article 24 of the EU Charter of Fundamental Rights are the starting points when examining deprivation of liberty of children. As noted by the European Commission in its 2017 Communication on the protection of children in migration, in some instances, children have been accommodated in closed facilities due to a shortage of suitable alternative reception facilities. To protect the right to liberty and security (Article  6 of the Charter), EU  Member States are encouraged to introduce more favourable provisions in national laws – as envisaged in Article 4 (3) of the Return Directive and Article 4 of the Reception Conditions Directive – either prohibiting or further restricting the possibility to detain children for immigration purposes. This would significantly contribute to avoiding the risk of arbitrary detention of children. Prompt identification of children is needed to trigger the special protection to which children are entitled. Concerning asylum detention, the current reform of the asylum acquis is an opportunity for EU  legislators to take a  stronger stand against child detention. FRA opinion 1 To promote children’s right to protection and care, the EU  and its Member States should develop credible and effective systems that would make it unnecessary to detain children for asylum or return purposes, regardless of whether they are in the EU  alone or with their families. This could include building on, for example, case management, alternative housing, counselling and coaching. EU  Member States should use age assessments only where there are grounds for serious doubt about an individual’s age. Age assessment procedures should take into account children’s rights. Independent experts, familiar with the respective child’s cultural background and fully respecting the child’s dignity, should undertake in a  gender-appropriate manner age assessments. Recognising that age assessments cannot be precise, in cases of doubt, authorities should treat the person as a  child. They should also permit appeals against age assessment decisions. The forthcoming European Asylum Support Office (EASO) guidance should provide further advice to EU  Member States on how to apply these considerations in practice. Fully respecting children’s right to liberty and security A person’s right to liberty and security, as enshrined in EU, Council of Europe and UN instruments, is a fundamental right. Any restriction of this right must respect the requirements established by international, European and national law, which are particularly strict for children. Neither EU law nor the ECHR prohibit immigration detention of children. The stringent requirements flowing from the Charter and the case law of the European Court of Human Rights (ECtHR) mean, however, that only 8 in exceptional cases depriving children of liberty will be in line with EU law. EU  Member States should systematically collect disaggregate data on children in immigration detention, while the European Commission should encourage the comparability of such data through Eurostat. Establishing clear legal basis for detention in national law For detention to be lawful, it is essential under EU law, the ECHR and international law that national law provides for the possibility to detain non-nationals for immigration or asylum purposes. In the absence of a clear domestic legal basis, no detention whatsoever can be deemed lawful. Several EU  Member States manage their asylum and return policies without resorting to deprivation of liberty. FRA opinion 3 The European Commission should disseminate information about and promote EU  Member States’ positive experiences with managing their asylum and return policies without resorting to child detention or resorting to it in very exceptional cases only. The forthcoming 2017 European Forum on the Rights of the Child could be an ideal venue for taking the first step regarding this. Adhering strictly to the exhaustive list of detention grounds The ECHR and EU law list exhaustive but not identical permissible grounds for detention, which apply to everyone regardless of age. EU Member States must strictly adhere to these detention grounds, which have to be