Detention of third-country nationals in return procedures or Degrading Treatment or Punishment took a stricter approach in its 19th General Report issued in 2009. The Committee considers that deprivation of liberty of an irregular migrant who is a child is “rarely justified and, in the Committee’s view, can certainly not be motivated solely by the absence of residence status”. The Committee also recommended that when a child is exceptionally detained, all efforts should be made to allow immediate release. Additional safeguards should be put in place to cater for the specific needs of children.313 European Union law does not exclude the possibility to detain children to facilitate removal, though this should not be the rule. Article 17 of the Return Directive which is devoted to the detention of minors and families reaffirms that children shall only be detained as a measure of last resort and for the shortest appropriate period of time. Reference is also made to the need to give a primary consideration to the best interests of the child. At national level most European Union countries314 allow the detention of children on immigration grounds, although in some there is a prohibition to detain unaccompanied children (see next section). Only three countries have a provision within their aliens or immigration legislation explicitly prohibiting keeping children in pre-removal detention.315 Although the official policy in Belgium,316 Cyprus317 as well as Malta318 is that children under the age of 18 years should not be kept in detention, this policy is not specifically reflected in national legislation. The practice shows further that 313 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 20 years of combating torture, 19th General Report, 1 August 2008-31 July 2009, paragraph 97. 314 Austria, Aliens Police Act (Fremdenpolizeigesetz, Article 79 (2); Bulgaria, Law on Foreigners, Article 44 (9); Czech Republic, FORA, Section 124(1); Denmark Aliens Act, Article 36 and the Administrative Act of Justice, Ch. 75(b) paragraph 821(a); Estonia, OLPEA Article 265 (4); Finland, Aliens Act 301/2004, Article 121 and 122; France, CESEDA, L 221-1 – L224-4 and L 511-4; Latvia, Immigration Law, Ch. VII, Art. 51; Lithuania, Aliens Act, Article 114 (3); Luxemburg, Immigration Law, Article 120; The Netherlands, Vreemdelingencirculaire 2000 (Vc 2000) A6/1.5. a-c (the Implementation Guidelines); Poland, The Aliens Act, Articles 101 and 102; Portugal, Act 23/2007, Article 146; Romania, Emergency Ordinance, Article 97; Sweden, Aliens Act, Ch. 10, Sec. 2; Spain, Law No. 4/2000, Article 35.3; Slovakia, Aliens Act, Article 62 (7); UK, Operational Enforcement Instructions and Guidance (OEIG), Ch. 55.9.3. Legislation in Belgium, Germany, Greece, Malta and Slovenia does not make a specific reference to detention of children, although the Slovenian Aliens Act does contain a provision relating to unaccompanied children, who be temporarily accommodated at the special department responsible for minors at the Aliens Centre. 315 Hungary, TCN Act, Section 56 Act; Italy, Article 26(6) LD 25/2008; Ireland, Section 5 (2) (b) Immigration Act 2003. 316 See statement by the Belgian Federal Minister of Asylum and Migration, available online at: http://annemieturtelboom.be/NL/asielbeleid/08/22.htm. 317 Interview with the Cyprus immigration police on 24 June 2009. 318 The Maltese government Policy Paper on Irregular Immigrants, Refugees and Integration states that “Irregular immigrants who, by virtue of their age […] are considered to be vulnerable are exempt from detention and are accommodated in alternative centres”; see Ministry of Justice and Home Affairs and Ministry for the Family and Social Solidarity (2005) Irregular Immigrants, Refugees and Integration: Policy Document, p. 11. 56 detention of children does take place in Malta while waiting for the age verification and health assessment to be finalized.319 Similarly, cases of children detained to prepare their removal were documented also in Cyprus.320 Different safeguards have however been introduced at a national level to protect children from arbitrary detention. These can aim at allowing detention only in exceptional cases, at reducing the length of child detention or at ensuring that children are only held in facilities which are properly equipped to host families with children. Explicit provisions in national law may require that detention of children be resorted to only if it is in the best interests of the child. A good example in this regard is Lithuania, where children can only be detained in extreme cases when it is in their best interests.321 A tool to promote that detention is only used as a measure of last resort is the duty to actively consider alternatives to detention, which in some countries is formulated with stronger wording when it concerns children (as compared to adults). As an illustration, in Austria, the discretion by the authorities is much more limited in relation to children, as the law requires that they ‘must apply more lenient measures to minors, unless they have reasons to assume that the purpose of detention cannot be reached in this way’.322 Similar duties can be also found in Hungary,323 or the UK.324. In Belgium, since the introduction of alternatives to detention, families with children are placed in open housing units. In other countries shorter time limits have been established for the detention of children. In Sweden, a child can only be detained for a maximum of six days (72 hours which can further be extended for an additional 72 hours), whereas no upper time limit exists for pre-removal detention of adults.325 In Bulgaria,326 children can only be detained up to three months, which is shorter if compared to the maximum length of detention foreseen for adults. 319 See UN Working Group on Arbitrary Detention, UNDOC A/HRC/13/30/ Add.2, Human Rights Council, 13th session, Report of the Working Group on Arbitrary Detention, Mission to Malta 19 to 23 January 2009, paragraph 78. 320 Ombudsman Annual Report 2006, p.63, available online at: http:// www.ombudsman.gov.cy/Ombudsman/ombudsman.nsf/All/32C49D 97734F1624C22575B20045BB24/$file/ΕΤΗΣΙΑ%20ΕΚΘΕΣΗ%202006. pdf?OpenElement. 321 Lithuania, Aliens Act, at 114.3. 322 Aliens Police Act, at 77.1. A similar duty exists in the Netherlands, however only for children aged 16 years or less, see Vc 2000 A6/5.1.5. 323 TCN Act at Section 62.1. 324 UKBA (2009) Code of Practice for Keeping Children Safe from Harm while in the UK, p.10. 325 Aliens Act, Chapter 10, Section 5. 326 See Article 44.9 of the Law on Foreigners.