The right to liberty and security For unaccompanied children detained pending removal, the Return Directive provides the same guarantees as for children detained together with families.66 Article 17 (4) of the Return Directive requires that unaccompanied children be placed in institutions with staff and facilities that respond to the needs of persons of their age. This is, however, qualified by “as far as possible” (see further in Chapter 6). 2.2.2. Council of Europe The ECHR does not contain specific provisions for the detention of children, but as described in Chapters 2-6, the ECtHR applies a very strict test when examining cases of children detained for immigration-related reasons, whether accompanied by their families or detained alone. The ECtHR recurrently emphasises the extreme vulnerability of children and the inherently intimidating nature of detention, which would cause them stress and anxiety.67 Children in detention are extremely vulnerable as a result of the feelings of suffering and inferiority in such situations, which may endanger their development.68 Building on the case law of the ECtHR, a few years ago the Parliamentary Assembly of the Council of Europe called upon Member States to end immigration detention of children who are unaccompanied.69 In March 2015, the Committee on Migration, Refugees and Displaced Persons of the Parliamentary Assembly extended its call to end immigration detention of all children; it started a campaign to this end, appointing a General Rapporteur.70 The Council of Europe Commissioner for Human Rights is of the view that, as a principle, migrant children should not be subjected to immigration detention.71 The Commissioner has also stressed that “[t]he fact of having 66 Return Directive, Article 17 (1). 67 See, for example, ECtHR, Abdullahi Elmi and Aweys Abubakar v. Malta, Nos. 25794/13 and 28151/13, 22 November 2016, para. 104; Tarakhel v. Switzerland [GC], No. 29217/12, 4 November 2014, para. 99. 68 ECtHR, Kanagaratnam and Others v. Belgium, No. 15297/09, 13 December 2011, para. 67–69. 69 PACE, Resolution 1810 (2011), Unaccompanied children in Europe: issues of arrival, stay and return, para. 5.9; PACE, Recommendation 1985 (2011), Undocumented migrant children in an irregular situation: a real cause for concern, para. 9.4.5; PACE, Resolution 1707 (2010), Detention of asylum seekers and irregular migrants in Europe, para. 9.1.9. 70 Council of Europe, PACE, ‘The Parliamentary Campaign to End Immigration Detention of Children’, web page. 71 See the Commissioner’s Positions on the Rights of Minor Migrants in an Irregular Situation, 2010. See also the Commissioner’s Recommendation concerning the rights of aliens wishing to enter a Council of Europe member state and the enforcement of expulsion orders, 2001, section II and Letter from the Council of Europe Commissioner for Human Rights, Nils Muižnieks, to the Secretary of State for Migration and Asylum of Belgium, Theo Francken, concerning the detention of migrant children, 19 December 2016, CommDH (2016)43. a dependent child must be ground[s] for an adult not to be detained except in accordance with the lawful order of a criminal court.”72 Finally, the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) also considers that every effort should be made to avoid resorting to the deprivation of liberty of a migrant in an irregular situation who is a child.73 Following the principle of the best interests of the child as formulated in Article 3 of the UN Convention on the Rights of the Child, detention of children cannot be justified solely on the basis of the children being unaccompanied or separated, or on their migratory or residence status, or lack thereof. This applies to accompanied as well as unaccompanied children.74 2.2.3. International law Article 37 of the CRC provides that no child shall be deprived of liberty unlawfully or arbitrarily and sets strict conditions underlining 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”. The purpose is to ensure that the child’s right to development is fully respected.75 As the Committee on the Rights of the Child affirms, the underlying approach should be to provide ‘care’ and not ‘detention’.76 Following this, the UN Member States – in the New York Declaration for Refugees and Migrants (2016) – recognise that “detention for the purposes of determining migration status is seldom, if ever, in the best interests of the child”, and have committed themselves to “work towards the ending of this practice”.77 This commitment follows the Inter-American Court of Human Rights (IACtHR) advisory opinion concluding that states should never deprive children of their liberty solely on the basis of their or their parents’ or guardians’ irregular immigration status. Rather, in response to situations of 72 See the Commissioner’s Issue Paper, Criminalisation of Migration in Europe – Human Rights Implications, 2010. See also, inter alia, the Commissioner’s Report following his visit to Denmark, 2014, and his Report following his visit to The Netherlands, 2014. 73 Council of Europe, CPT (2009), Safeguards for irregular migrants deprived of their liberty, Extract from the 19th General Report of the CPT CPT/Inf(2009)27-part, para. 97. 74 Council of Europe, CPT, Factsheet on Immigration detention, CPT/Inf(2017)3, March 2017. 75 Committee on the Rights of the Child, General Comment No. 10 (2007): Children’s rights in juvenile justice, 25 April 2007, CRC/C/GC/10, para. 11. 76 UN, Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 1 September 2005, CRC/GC/2005/6, para. 63. 77 UN, General Assembly, Resolution 71/1, New York Declaration for Refugees and Migrants, 3 October 2016, A/RES/71/1, para. 33. 29