5
Assessing necessity
and proportionality
EU law prohibits mandatory detention. Therefore, an
individual examination is needed when ordering detention. Such examination must assess if deprivation of
liberty is necessary and proportionate in the individual
case. This test applies to everyone, regardless of age.
The difference for children is the parameters used when
assessing if deprivation of liberty is arbitrary, in light of
the particular vulnerability of children.
Protecting the rights of the child requires that the best
interests of the child and the impact of detention on
the right to respect for family life be carefully assessed
before considering depriving a child or their parents of
liberty. The assessment must consider the short- and
long-term impact of deprivation of liberty on the child,
including its possible detrimental effects. This chapter
focuses on the third condition illustrated in Figure 8 that
must be fulfilled to prevent arbitrary detention.
This chapter takes the general framework of assessing necessity and proportionality as a starting point. It
first examines the requirement that detention must be
a last resort, giving primary consideration to the best
interests of the child. The second section is devoted to
the right to family life, when children are together with
their parents. The third section examines the requirement that detention last only as long as necessary,
which is worded more strongly for children, requiring
that deprivation of liberty be for the shortest appropriate time.
Vulnerable people include children. An additional factor
in assessing the proportionality and necessity of detaining them is if the conditions in the detention facility
are suitable for the specific needs of the individual and
adequate to protect the child from abuse and violence,
including from other detainees. Detention of children
is arbitrary when conditions are not appropriate. This
factor is analysed in more detail in Chapter 6. The best
interests of the child play a central role in assessing
necessity and proportionality, as illustrated in Figure 9.
Figure 8: Five conditions deprivation of liberty must meet to not be unlawful and arbitrary
Fundamental rights
safeguards
Clear legal basis
in national law
Based on
allowed grounds
NECESSARY AND
PROPORTIONATE
Respects procedural
safeguards
Conditions are
humane and dignified
Source: FRA, 2017
47
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