Detention of third-country nationals in return procedures This research could not document any good practices on type and methodology of the assessment required in order to determine in each individual case whether detention with the parents or separation is in the best interests of the child. FRA Opinion When determining whether families with children should be detained with their parents or primary caregiver, paramount importance has to be given to the child’s best interests and alternatives to detention actively considered. Where, exceptionally, alternatives are not sufficient and it is considered necessary to detain the parent(s), children should only be detained with their parents, if – after a careful assessment of all individual circumstances and having given due weight to the views of the child in accordance with his/ her age and maturity – keeping the child with them is considered to be in the child’s best interests. This should be clarified in national legislation. 6.3. Detention of separated children Committee on the Rights of the Child, General Comment No. 6 Paragraph 61 Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof. This section relates to children who are separated from their parents or primary caregiver (but not necessarily from other family members).335 Pre-removal detention of separated children is controversial under international law. According to Article 20 of the Convention on the Rights of the Child, children deprived of their family environment are entitled to special protection and assistance to be provided by the State. A joint reading of the restrictions to resort to detention included in Article 37, the protection provision of Article 20, and the best interests principle enshrined in Article 3, can lead to the conclusion that in principle separated children should not be deprived of their liberty for the purpose of facilitating their removal, unless this is considered to be in the child’s best interests (for example, to prevent harm to the child). 26 October 2009 at 62.0.5, as well as for Denmark, Danish Institute for Human Rights, Afviste asylansøgere og andre udlændinge i udsendelsesposition i Danmark [Rejected asylum seekers and other aliens in return positions in Denmark], 2009. 335 See on the detention of separated asylum seeking children, FRA, Separated, asylum-seeking children in European Union Member States, Summary Report, April 2010, pp. 45-47. 58 In this sense, as highlighted in the box above, the Committee on the Rights of the Child rejects detention of unaccompanied or separated children, if based only on the lack of residence status.336 The UN Working Group on Arbitrary Detention takes the same approach, albeit using a more cautious language. It indicated that “[g] iven the availability of alternatives to detention, it is difficult to conceive of a situation in which the detention of an unaccompanied minor would comply with the requirements stipulated in Article 37 (b), clause 2, of the Convention on the Rights of the Child”.337 While not excluding the possibility of resorting to deprivation of liberty, the Council of Europe Twenty Guidelines on Forced Return recommend that separated children be accommodated in institutions equipped with “personnel and facilities which take into account the needs of persons of their age”.338 In Mitunga v. Belgium, the ECtHR concluded that the closed centre in which the applicant was detained was not suitable for the extreme vulnerability of an unaccompanied foreign minor, thus attaching particular importance to the fact that the facility used to accommodate separated children must cater for the specific needs of the child.339 The recent EU Action Plan on Unaccompanied Minors envisages that where detention is exceptionally justified, it is to be used only as a measure of last resort, for the shortest appropriate period of time, and taking into account the best interests of the child as a primary consideration.340 In addition, Article 17.3 of the Return Directive reaffirms the duty to accommodate separated children in institutions equipped with personnel and facilities which take into account the needs of persons of their age. Such duty is however qualified by ‘as far as possible’. Regarding state practice, in one third of the EU Member States, separated children cannot be kept in pre-removal detention.341 These include the three countries which prohibit the detention of children in general,342 as well as an additional six countries that allow the detention 336 Committee on the Rights of the Child, General Comment No. 6, Treatment of unaccompanied and separated children outside their country of origin, CRC/GC/2005/6 at 61. 337 See Report of the Working Group on Arbitrary Detention, paragraph 64 (Human Rights Council, 13th session UN General Assembly, A/HRC/13/30, 18 January 2010), paragraph 60. 338 See Guideline 11.3 339 See Footnote 55. 340 Communication by the Commission to the European Council and the Parliament, Action Plan on Unaccompanied Minors (2010–2014), COM(2010)213 final, Brussels, 6 May 2010, p. 9. 341 More detailed information on detention of separated children can be found in the recent study undertaken by the European Migration Network, which covered most European Union countries, see country reports as well as synthesis report on Policies on Reception, Return and Integration arrangements for, and numbers of, Unaccompanied Minors – an EU comparative study, 2009-2010. 342 This is the case of Hungary, Italy and Ireland (see Footnote 320).