Assessing necessity and proportionality
separated from non-related adults192 is also covered in
several recommendations by the Parliamentary Assembly of the Council of Europe (PACE).
In some Member States – for example Latvia,193
Lithuania,194 or Poland 195 – when a child is detained
together with their parents, detention is ordered only
for the parents. No detention decision is issued to the
child, who is considered to be “hosted” in the detention
facilities (and not detained) to preserve the family unity.
This poses challenges to appealing against the decision
to place a child in a closed facility. The ECtHR highlighted
that in these cases the child is in a legal vacuum that
does not allow them to challenge the detention; only
their parents can.196
Ø Immigration detention of children with
their families should not entail lower child
protection standards than when the parents
are detained under criminal law. In both cases,
the best interests of the child and the right of
the child not to be separated from its parents
require that states carefully examine the
possibility of applying less coercive measures,
such as house arrest, to avoid separating the
child from the parents, for example when
a mother is breastfeeding.
In the field of criminal detention, under certain
conditions, younger children are allowed to stay with
the imprisoned parent, particularly with the mother.
The European Prison Rules, designed for children in conflict with the law, recommend that infants (meaning
children up to three years) should be allowed to stay
in prison with a parent only when this is in their best
interests.197 A decision to keep a child with their parents
in prison must be always based on the best interests
of the child.198 The UN Special Rapporteur on Torture
and Other Cruel, Inhuman or Degrading Treatment or
192 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. 9.4.4.
193 Latvia, Immigration Law (Imigrācijas likums), Article 59(5)
adopted on 31 October 2010, in force from 1 May 2003.
194 Lithuania, State Border Guard Service, 19 February 2016.
195 Poland, Headquarters of Border Guard (Komenda Główna
Straży Granicznej), 17 February 2016.
196 ECtHR, Popov v. France, Nos. 39472/07 and 39474/07,
19 January 2012, para. 124. ECtHR, A.B. and Others v. France,
No. 11593/12, 12 July 2016, para. 134.
197 Council of Europe, Committee of Ministers, European Prison
Rules, Recommendation Rec(2006)2, adopted by the
Committee of Ministers on 11 January 2006 at 36.1.
198 UN, General Assembly, Resolution 70/175, United Nations
Standard Minimum Rules for the Treatment of Prisoners
(the Nelson Mandela Rules), 8 January 2016, A/RES/70/175,
Rule 29.
Punishment states that “the need to keep the family
together is a not sufficient reason to legitimize or justify
the deprivation of liberty of a child, given the prejudicial effects that such measures have on the emotional development and physical well-being of children.
The Special Rapporteur shares the view of the InterAmerican Court of Human Rights that, when the child’s
best interests require keeping the family together, the
imperative requirement not to deprive the child of liberty extends to the child’s parents, and requires the
authorities to choose alternative measures to detention
for the entire family”.199
Many EU Member States also require that national
authorities seek alternatives to detention and apply
less coercive measures when deciding on the imprisonment of parents for criminal purposes, especially mothers. In Italy, for example, national law provides that,
unless condemned for violent crimes, mothers whose
children are aged under six years may have their imprisonment suspended and may be held under alternative
forms of detention, such as in correctional institutions
or home detention. The possibility of accessing alternative detention measures is extended to the father
if the mother has died or is unable to take care of the
child.200 Similarly, in Romania, national law provides that
a mother may ask for the postponement or suspension
of the prison sentence.201
Only when alternatives to imprisonment are not
possible, for example because the crime is so serious
or for national security reasons, may states allow the
child to stay with their mother (or, in some Member
States, father) in prison. This is based on the consideration that developing an emotional relationship with the
mother and/or father is essential for development and,
therefore, in the child’s best interests. Under criminal
detention, the option to stay in prison with the mother
is mainly limited to babies and infants (Table 7).
199 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. 80.
200 Italy, Law No. 354 of 26 July 1975, Norms governing the
prison system and the enforcement of measures involving
deprivation of, and limitation to liberty (Legge 26 luglio
1975, n. 354, Norme sull’ordinamento penitenziario e sulla
esecuzione delle misure privative e limitative della libertà),
as reformed by Law No. 62 of 21 April 2011, Modifications
to the Criminal Procedure Code and to Law No. 354 of
26 July 1975 (Legge 21 aprile 2011, n. 62, Modifiche al codice
di procedura penale e alla legge 26 luglio 1975, n. 354,
e altre disposizioni a tutela del rapporto tra detenute madri
e figli minori, Article 1(1), 3.
201 Romania, Law 286/2009 regarding the Criminal Code (Legea
nr.286 din 24 iulie 2009 privind Codul penal), Articles 83
and 91.
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