Executive summary and FRA opinions A significant number of children are detained in the European Union (EU) during their asylum and return procedures or to secure their removal. Detention undeniably affects children, including their immediate and long-term mental health, experts report – and it can affect them long after their release. Immigration detention of children remains a  major fundamental rights challenge in the EU. A  person’s right to liberty and security is a fundamental right, as enshrined in Article 6 of the EU Charter of Fundamental Rights (the Charter), Article 5 of the European Convention on Human Rights (ECHR) and in several UN treaty instruments. Any restriction of this right must respect the requirements established by international, European and domestic law, which are particularly strict for children. Although EU law does not prohibit immigration detention of children, the stringent requirements flowing from the Charter and the ECHR mean that deprivation of liberty will only be in line with EU law in exceptional cases. Children’s right to protection and care and the principle of the best interests of the child are the starting points when examining deprivation of liberty of children. To be lawful, national law must provide for the possibility of detention. It must also be closely connected to one of the exhaustive grounds listed in EU law and in Article 5 of the ECHR. To avoid being deemed arbitrary, detention must be for the shortest period of time that is reasonably required to fulfil the purpose of detention, namely “to prevent [a person] effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition” (Article 5 (1) (f)). EU and human rights law prohibit automatic detention. An individual examination is always needed before ordering or extending detention. Such examination must assess if deprivation of liberty is necessary and proportionate in the individual case. When it concerns children, a primary consideration must be given to the best interests of the child, taking into account that immigration detention is not in the child’s best interests. Respecting the right to liberty and security requires states to adopt less intrusive alternatives to detention. Where the authorities fail to examine all alternatives – including placement in an open facility without restrictions to the child’s fundamental rights – the detention of a child will be considered arbitrary and a violation of their right to liberty and security. Strict procedural safeguards – such as the right to judicial review, access to free legal aid and linguistic assistance – protect all individuals from arbitrary deprivation of liberty. For children, these general safeguards are complemented by the duty to conduct procedures and provide information in a child-friendly manner. Moreover, a legal guardian must be assigned to unaccompanied children. When EU  Member States exceptionally resort to deprivation of liberty, people must be held in a place and under conditions that are appropriate. Most EU  Member States that allow for the possibility of detaining children have established specialised facilities, either separately or as distinct parts of existing detention facilities. Conditions in these facilities vary significantly and change over time. One of the characteristics of detention facilities adapted to host children is the presence of child-friendly spaces. However, many facilities are like prisons: officers wear fatigues; there is barbed wire; and handcuffs are used for transport. Very few of the specialised facilities employ staff who have received specific training on child protection. Short-term holding facilities are often not equipped for holding children and are usually not subject to the same level of independent monitoring as immigration detention facilities. The quality of services and treatment is particularly difficult to uphold when arrivals increase and authorities have to use facilities not intended for detention. National Human Rights Institutions, particularly National Preventive Mechanisms set up by EU Member States under the Optional Protocol to the UN  Convention Against Torture, are important in preventing unlawful or arbitrary detention. They complement the work done by international monitoring bodies, principally the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). National child protection authorities could play an important role in safeguarding children’s right to liberty and in promoting the well-being of detained children. They could help assess the child’s best interests when authorities consider detaining children together with their parents, oversee child detention standards and run complaint mechanisms smoothly. However, in many Member States, child protection authorities do not actively take part in deciding whether or not a child should be detained, or in monitoring detention facilities. 7