Assessing necessity and proportionality imposition of reporting obligations, sureties or other conditions).175 Also, the Committee on the Rights of the Child and the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment have called on all states to establish alternatives to detention, in accordance with the best interests of the child and the right to liberty.176 In this spirit the UN Working Group on Arbitrary Detention concluded that, given the availability of alternatives to detention, it is difficult to conceive of a situation in which the detention of an unaccompanied child would comply with the requirements stipulated in Article 37 (b) of the CRC, according to which detention can be used only as a last resort.177 In relation to using detention as a last resort, most Member States have not established alternatives to detention specially designed for children in law, although Finland introduced designated residence as an alternative to detention for children aged 15 – 17 years against whom the authorities have issued an enforceable expulsion order in 2017.178 However, even if not limited to families and children, in practice, alternatives to detention are often provided to families and children. For example, in Spain children stay with their relatives in the community while their status is being determined.179 Concerning children with families, alternatives may be imposed on the family as a whole. For example, in Estonia the alternative to detention applied to the adult will also be applied to the child.180 These alternative measures can include living in a specified place, appearing for registration at the Police and Border Guard Board, or surrendering a travel or identity document.181 175 UN, Human Rights Committee, Communication No. 900/1999, C. v. Australia, 13 November 2002, para. 8.2; Saed Shams and Others v. Australia, Communications Nos. 1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004, 11 September 2007, para. 7.2. 176 UN, Committee on the Rights of the Child, Report of the 2012 Day of General Discussion: The Rights of all Children in the Context of International Migration, paras. 79 and 84; UN, Human Rights Council, Report of the Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment, 5 March 2015, A/HRC/28/68, para. 85. 177 UN, Report of the Working Group on Arbitrary Detention, 15 January 2010, A/HRC/13/30, para. 60. See also Report of the Working Group on Arbitrary Detention, 10 January 2008, A/HRC/7/4, para. 80. 178 Finland, Aliens Act (ulkomaalaislaki/utlänningslag) (301/2004), Chapter 7, Section 120(b). 179 International Detention Coalition, NGO monitoring of immigration detention: Tips, examples and positive practices. 180 Estonia, Section 12(1) Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja issesõidukeelu seadus), January 2016. 181 Ibid. Promising practice Accommodating families with children in open facilities Belgium has set up an option to accommodate families with children in open facilities with caseworker support, such as from a  social worker, after several rulings from the ECtHR against the country. If a  family receives a  repatriation order because its application to stay in the territory has been rejected or is no longer valid, the family is transferred to a  return house with support from a  case worker or stays in its own residence, providing the dwelling meets the basic requirements of safety and human dignity. This alternative, introduced in practice in 2014, allows families with children to stay in their own houses when preparing to return to their country of origin. Whether they stay in their own dwellings or are placed in return houses, families must comply with certain conditions. The conditions imposed vary on the type of arrangement and may include the reimbursement of costs incurred for damage caused to the Belgian State or the need to pay a deposit, being able to support the family needs, permitting the case worker to access the house at the requested time, and reporting or other obligations. Sources: Legal source for the return houses: Belgium, Royal Decree fixing the regime and the determining rules applying to the accommodation provided under Article 74/8, (1) of the Law of 15 December 1980 on access to the territory, stay, settlement and removal of foreigners 14 May 2009. Legal source for the stay at the own residence with return support: Belgium, Law of 15 December 1980 on access to the territory, stay, settlement and removal of foreigners (Loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers/Wet van 15 december 1980 betreffende de toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van vreemdelingen), 15 December 1980, Article 74/9, (3); Belgium, Royal Decree of 17 September 2014 determining the content of the agreement and the sanctions which may be taken pursuant to Article 74/9 (3) of the Law of 15 December 1980 on access to the territory, stay, settlement and removal of foreigners 17 September 2014 (also legal source on the condition to fulfil) Judgments by the ECtHR can make a  difference in promoting the application of alternatives to detention, as shown by initiatives taken in France following the Popov ruling.182 After a recommendation by the General Controller of Prisons, the Ministry of the Interior issued a circular stressing that alternatives to detention, namely designated residence, should be the norm for families,183 although civil society reports that this 182 ECtHR, Popov v. France, No. 39472/07 and 39474/07, 19 January 2012. 183 France, Ministry of Interior (Ministère de l’Intérieur), Circular (Circulaire), 6 July 2012. 51

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents