6. Detention of children 6. Detention of children International law strongly discourages the deprivation of liberty of children for whatever reason. Article 37 of the United Nations Convention on the Rights of the Child allows detention only as a measure of last resort and for the shortest appropriate period of time. Alternatives to institutional care should be used in order to ensure that children alleged as, accused of, or recognised as having infringed the penal law are dealt with in a manner appropriate to their well-being.305 Minimum rules for the administration of juvenile justice306 and non-custodial measures307 have been developed in the context of the United Nations to promote the creation of adequate juvenile justice systems. This chapter deals with detention of children to facilitate removal. It will first deal with the detention of children in general, including the detention of children accompanied by their parents or primary caregiver, and subsequently with the situation of separated children. Children are defined as any person below the age of 18 years, in line with Article 1 of the Convention of the Rights of the Child. Issues relating to age assessment and the detention of children whose age is disputed are not covered by this report.308 6.1. Measure of last resort Convention on the Rights of the Child Article 37 (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; […]. It follows from Article 37 of the Convention on the Rights of the Child that pre-removal detention of children cannot be lawful when no safeguards are in place to ensure that it is used only as a measure of last resort. In addition, Article 3 of the same Convention requires that a primary consideration be given to the best interests of 305 See Article 40.3 of the Convention on the Rights of the Child as well as General Comment No.10 of the Committee on the Rights of the Child on Children’s rights in juvenile justice, CRC/C/GC/10, 2007. 306 UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), adopted by General Assembly resolution 40/33 of 29 November 1985. 307 UN Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) adopted by General Assembly resolution 45/110 of 14 December 1990. 308 See, however, on this issue, FRA (2010) Separated, asylum-seeking children in European Union Member States, Summary Report, Luxembourg: Publications Office, pp. 35-37. the child, when determining if and how a child should be deprived of his or her liberty. The use of pre-removal detention for children has to be viewed in light of the more general overall commitment to use deprivation of liberty for children in conflict with the law only as a measure of last resort. Given that the Convention strongly discourages deprivation of liberty for children alleged as, accused of, or recognized as having infringed penal legislation, the question arises whether detention of children who are not in conflict with criminal law can be justified at all, unless the deprivation of liberty is used as a measure to protect children from harm in accordance with the best interests principle. Against this background, the UN Working Group on Arbitrary Detention stressed that additional justification beyond the mere status as irregular migrant is required when resorting to the detention of minors.309 Provided all substantial and procedural safeguards are applied, the European human rights system does in principle not prohibit the detention of children to prevent unauthorised entry or facilitate their removal. Although specific grounds for the detention of children are foreseen in Article 5.1(d) of the ECHR, such a list is according to the European Court of Human Rights not exhaustive as children can also be deprived of liberty on other grounds foreseen in Article 5.1 of the ECHR.310 The European Court of Human Rights requires, however, a relationship between the ground of deprivation of liberty and the place and conditions of detention. As regards preremoval detention, it held that a closed centre intended for adult irregular immigrants was not appropriate to cater for the specific needs of children.311 The Council of Europe Twenty Guidelines on Forced Return provide that children should be deprived of liberty only as a measure of last resort and for the shortest appropriate period of time and that a primary consideration should be given to the best interests of the child. If deprived of liberty, children must have access to education and leisure, and be held in institutions that can cater for their specific needs.312 Having observed the impact that deprivation of liberty can have on the child’s development, the European Committee for the Prevention of Torture and Inhuman 309 See A/HRC/13/30 at paragraph 60. 310 ECtHR, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, No. 13178/03, 12 October 2006, paragraphs 100-101. 311 Ibid at 102, which concerned an unaccompanied girl from the Democratic Republic of Congo. See also ECtHR, Muskhadyhiyeva and others v Belgium, No. 41442/07, 19 January 2010 (also quoted in Footnote 55), concerning four young girls, detained with their mother, one of whom had documented signs of trauma. 312 See Guideline 11. 55