Child-specific procedural safeguards
to decisions related to detention of child applicants for
international protection. Similarly, the Return Directive
stipulates that Member States must take due account
of the best interests of the child.252 This applies to the
implementation of the Return Directive as a whole,
including any decisions related to detention. The European Commission clarified that the child’s right to be
heard is an integral part of any best interests assessment and must include respecting the child’s rights to
express their own views freely and have these views
taken duly into account in all matters affecting the
child.253
In general terms, Member States have incorporated
the provisions of relevant EU law (particularly the
Return Directive and the Reception Conditions Directive) into national law without expressly requiring that
the child be heard. The 2015 amendments to the Finnish Aliens Act indicate that stronger national law provisions are possible: the Act now expressly stipulates
that a child can be placed in detention only after they
and the responsible municipal social worker have had
the opportunity to be heard by the judge.254
6.1.2. Child-friendly information
The Dublin Regulation also recognises the need for
child-specific information. 257 It does not, however,
include a duty to provide information in a child-friendly
manner. Such a safeguard would be particularly important for unaccompanied children, as they typically face
significant difficulties in understanding the purpose and
requirements of legal procedures and what their duty to
cooperate with the authorities entails, as FRA emphasises in its opinion on the proposal for a revised Dublin
Regulation.258
In international law, Article 12 of the CRC underlines the
right of the child to be heard in any judicial and administrative proceedings, and have their views given due
weight in accordance with their age and maturity.259
This requires that any communication with the child
be appropriate to the child, also taking into account the
requirement that information must be in a language that
the detained person understands, under Article 5 (2)
of the ECHR.
Ø According to Article 5 (2) of the ECHR, Member
States must promptly inform everyone who is
arrested of the reasons for their arrest and of
any charge against them. ‘Everyone’ includes
children. However, only some Member States
specify in legislation the duty to communicate
immigration-related
decisions,
including
detention decisions, in a child-friendly manner.
Relevant EU law requires that persons subject to asylum
or return procedures be informed of their rights and
the decisions concerning them in a language that they
understand or are reasonably supposed to understand.
The Reception Conditions Directive specifically stipulates that detained applicants be immediately informed
of the reasons for their detention, procedures to challenge the detention order and the option to request free
legal assistance and interpretation.255 The primacy of the
best interests of the child implies that this information
must also be communicated in a manner appropriate
to the age and maturity of the child. The Asylum Procedures Directive obliges Member States to ensure that
personnel of detention facilities have sufficient information and training to be able to inform applicants
where and how applications for international protection may be lodged; Member States should interpret it
in a similar way.256
When accompanied children are detained with their
parents and/or legal guardians, it is assumed that the
parents/guardians will inform their children. Therefore,
no specific provisions or practices are in place for communicating such decisions in a child-friendly manner.
Sometimes, the appointed legal advisers or other counsellors who support all individuals involved in a given
procedure inform them. Legal-aid providers and civil
society organisations that provide services in detention
facilities also play key roles in providing information,
such as Save the Children in the migration hotspots in
Italy.260 Children can benefit from these general measures, but it remains unclear how child-friendly they are.
252 Return Directive, Article 5 (a).
253 European Commission, Commission Recommendation
(EU) 2017/432 on making returns more effective when
implementing the Directive 2008/115/EC, C/2017/1600,
Brussels, 7 March 2017, at recital 19 and para. 13 (d).
European Commission, The protection of children in
migration, COM/2017/0211 final, 12 April 2014 at point
5. See also European Commision (2015), Commission
Recommendation establishing a common “Return
Handbook” to be used by Member States’ competent
authorities when carrying out return related tasks,
C/2017/1600, Brussels, 1 October 2015, p. 51.
254 Finland, Finnish Aliens Act, Section 122 in conjunction with
Sections 117a and 121.
255 Reception Conditions Directive, Article 9 (4).
256 Asylum Procedures Directive, Article 6 (1).
257 Dublin Regulation, Recital (34) and Article 4 (3).
258 FRA (2016), Opinion on the impact of children, of the
proposal for a revised Dublin Regulation (COM(2016)270
final; 2016/0133 COD), Luxembourg, Publications Office,
p. 37.
259 See also Committee on the Rights of the Child (2009),
General Comment No. 12, paras. 21, 123-124.
260 FRA (2016), Opinion on fundamental rights in the ‘hotspots’
set up in Italy and Greece, Luxembourg, Publications Office,
p. 21.
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