European legal and policy framework on immigration detention of children
office agrees and if the accommodation guarantees
family unity and privacy,204 as required by Article 11 (2)
of the Reception Conditions Directive.205 In Italy, children
are not detained with their parents, but it is possible
when at least one of the parents submits a request or
if the juvenile court decides that it is in the best interests of the child.206 In Slovakia, the Supreme Court has
ordered release from detention and annulled the judgement of the regional court in Kosice that confirmed the
decision of the police ordering detention of a female
Afghan asylum seeker and her three minor children who
claimed asylum in Slovakia. The family was placed in
a detention facility of a closed type, regardless of the
fact that the applicant was able to provide cash bail.
The Supreme Court in its judgement said that due to
the fact that detention poses serious restriction of liberty, it needs to be assessed in each individual case and
the measure chosen must be the least intrusive and
restrictive one, whereby the options for alternatives
to detention need to be considered first as well as the
best interests of the child. The Supreme Court has in
its ruling made several references to the judgements
of the European Court of Human Rights.
When authorities decide on a possible detention of the
child with their family, or separation of family members
as a matter of law or practice, FRA has found no evidence
that a best-interests assessment is conducted in each
individual case or that the competent child protection
authorities are involved (see also Section 7.2), as would
normally be the case under criminal detention. Without
such an assessment, depriving children of liberty to keep
the family together would not respect the requirements
deriving from Article 24 of the Charter (rights of the child).
Promising practice
Seeking the advice of specialised bodies
At least two EU Member States have established special committees to advise authorities on the child’s best
interests, when detention of parents is considered. These bodies have helped reduce instances of arbitrary child
detention.
In Cyprus, families with children are not detained. When the authorities consider the necessity to detain parents,
they seek the views of a special committee. The special committee convenes to decide whether the mother of
a child can be detained, while the child is placed in alternative care, or not.
In 2012, the United Kingdom appointed 11 child welfare experts as full members of a panel advising the
government on the removal of families. The Independent Family Returns Panel makes recommendations to
Home Office workers on the best method of returning individual families to their home country, ensuring that
the specific welfare needs of children are met. The panel recommends avoiding the separation of families for
removal purposes unless as a last resort. Overall, the process is effective in avoiding unnecessary detention,
according to statistics in its 2014–16 report. In 2014–16, of the 1,470 families who left the country, 1,323 did so
voluntarily, 89 families left with assisted voluntary return and 14 families left with other support. Thus 97 %
of families who left the country did so without the need for an ensured return, which can include detention.
This compares favourably with previous reporting periods, when the figures were 51 % (2011–12) and 76 %
(2012–14). The data also reflect a positive trend of smaller numbers of families being arrested as part of the
returns process, as well as a significantly greater proportion of families returning voluntarily or with assistance.
Sources: UK Visas and Immigration, Report on the family returns process by the Independent Family Returns Panel for 2014 to 2016,
19 January 2017; Home Office (2012), UK government webpage on the issue; Independent Families Return Panel (2012), Annual Report
2011/2012
204 Spain, Article 62.bis (1) of the Organic Law 4/2000 (Aliens
Act).
205 Reception Conditions Directive, Article 11(2).
206 Italy, The Ministry of the Interior’s General Directive on
Detention Centres and assistance pursuant to Article 22
(Ministero dell’Interno - Direzione generale dei servizi
civili Circolare del 30 agosto 2000), para. 1 of Decree of
the President of the Republic No. 394 of 31 August 1999,
adopted on 30 August 2000, Article 2 (f).
56
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