6. Detention of children Finally, legislative provisions may require that children be held only in specially designated areas or places which are properly equipped to host children.327 Such approach may help in securing children’s enjoyment of their rights under the Convention on the Rights of the Child whilst deprived of liberty. FRA Opinion EU Member States are encouraged to include in their national legislation a strong presumption against detention and in favour of alternatives to detention for families with children, giving a primary consideration to the best interests of the child. Children should not be deprived of their liberty if they cannot be held in facilities that can cater for their specific needs. Safeguards should also be considered to ensure that when children are deprived of their liberty, detention is not unduly prolonged. These could include lower maximum time limits or more frequent reviews. 6.2. Guarantees against separation from parents Convention on the Rights of the Child Article 9.1 States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. This section refers to the situation in which the deprivation of liberty of a family with children is considered. The right to family unity is a basic human right set forth in a number of international instruments, including among others the ICCPR (Article 17), the ECHR (Article 8) and the EU Charter on Fundamental Rights (Article 7). Although this right can be subject to certain restrictions, the Convention on the Rights of the Child allows the separation from parents only under very strict conditions and exclusively if it is in the best interests of the child. Similarly, in light of the right to family life and the existing bond between siblings, their separation should normally be avoided, unless in their best interests. 327 See, for example, Austria, but only for children under the age of 16 years of age which can only be detained if ‘accommodation and care adequate to age and stage of development’ of the minors can be guaranteed (Sec 79 (2) Aliens’ Police Act); Bulgaria, Law on Foreigners, Article 44, paragraph 11; Czech Republic, FORA at 138.2 (which requires for the conditions to be laid down in internal rules); Finland, 2002 Act on the Treatment of Aliens Placed in Detention and Detention Units, Chapter 3, Article 11; Luxembourg, Immigration Law at Article 120; Spain, Law 4/2000, Article 62bis.1(i). According to information available to the FRA, it appears that Sweden is the only country which explicitly prohibits the separation of a child from both its parents in its aliens act.328 Examples from other countries indicate that separation from the child’s parents may not be subject to the strict conditions imposed by the Convention of the Rights of the Child. In the Czech Republic, for instance, the law allows for the separation of a family if one family member is placed in the ‘specially guarded’ part of the facility. The law does not exclude that this may also be undertaken if it would result in a child remaining alone.329 The wording of the Polish Act on Aliens stipulates that children and parents will ‘if possible’ be kept together.330 When parents are detained, the presumption against separating a child from his or her parents is in conflict with the duty to ensure that a child should only be deprived of liberty as a measure of last resort. While this conflict can be easily resolved by avoiding the use of detention for families in favour of alternatives to detention, there may be cases where the detention of the parents to secure their removal is considered necessary by the authorities. The reference to the best interests of the child principle in Article 17 of the Return Directive would suggest that in case parents are detained, the fate of the child should be determined on the basis of what is in the child’s best interests (i.e. detention together with the parents or alternative care). This conclusion is also supported by the European Prison Rules, which require that infants (meaning children up to three years) should be allowed to stay in prison with a parent only when this is in their best interests.331 A review of state practice suggests that different approaches are taken. Some countries, such as France, Portugal or Latvia332 normally presume that it is better for the child to remain with the family, provided they can be hosted in facilities which can cater for their specific needs. By contrast, those countries that ban the placement of children in pre-removal detention would usually separate the child in those cases where the parent(s) are detained, although exceptions may be envisaged.333 Finally, it is not infrequent that only the father is detained, whereas the rest of the family is accommodated elsewhere.334 328 Chapter 10, Section 3, Aliens Act 2006. 329 FORA, Section 139. 330 Article 115.2 Aliens Act of 2003. 331 European Prison Rules, Council of Europe, Committee of Ministers, Recommendation Rec(2006)2, adopted by the Committee of Ministers on 11 January 2006 at 36.1. 332 Latvian Immigration Law at Section 59, paragraph 5. 333 In Italy, children may exceptionally be allowed to stay with their mothers in identification centers, see Article 19.2, LD 286/1998. See also, for Ireland, the provision relating to children under the age of 12 month set forth in Article 17(1), Prison Rules 2007. 334 See Germany, General Administrative Regulations to the Residence Act [Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz], 57