material conditions are “appropriate”, the psychological and emotional aggressions to which children
in administrative detention are subjected to entail such negative consequences that they may as such
violate article 3 ECHR. It ruled that “the protection of the child’s best interests involves both keeping
the family together, as far as possible, and considering alternatives so that the detention of minors is
only a measure of last resort.”23
Practice pointer
Some States do not detain children as a matter of policy or clearly state in their national legislation
that the best interest of the child is paramount. Alternatives to detention of children were successfully
identified in states such as Estonia.
Participants stressed that age determination also represents a challenge; the widespread use of XRays to determine bone age is not scientifically correct and the more complex and trusted
multidisciplinary means, sometimes foreseen in law, are often not applied in practice. A case of age
identification was shared where children were photographed naked. The NPM successfully
intervened to stop this practice, which amounted to degrading treatment. Other observations
included that age determination can be lengthy and result in the detention of children with adults.
Participants also mentioned that they observed cases where children chose not to identify
themselves as such because they feared to be separated from their parents.
It became clear during the discussions that monitoring bodies face challenges related to data
collection concerning children in immigration detention. To obtain data regarding the procedure
of identification of age and the number of children detained, when children are often scattered
throughout different facilities, seems to be a key challenge of immigration detention monitoring.
Several organizations, in particular from civil society, have advocated for ending immigration
detention of children, calling for alternatives to detention.24 Positive examples of such alternatives
have been reported, including by NPMs of the OSCE region.25 Ways to reduce children’s trauma
involve community-based care arrangements, ensuring access to education and healthcare,
providing age-tailored information regarding rights and procedures, and appointing a guardian and
a lawyer as soon as possible in cases of unaccompanied minors.26
D. Monitoring the detention of migrants
Participants agreed that it is key for NPMs, national civil society and other relevant bodies,
including international mechanisms, to keep monitoring the legality and conditions of any detention
of migrants.
ECtHR, Popov v. France, §§ 140-141; European Court of Human Rights, Factsheet on “Accompanied migrant
minors in detention”, April 2018:
https://www.echr.coe.int/Documents/FS_Accompanied_migrant_minors_detention_ENG.pdf.
24
See https://endchilddetention.org/.
25
See, for example, Monitoring places of detention - Eighth Annual Report of the United Kingdom’s National
Preventive Mechanism, February 2018, https://s3-eu-west-2.amazonaws.com/npm-prod-storage19n0nag2nk8xk/uploads/2018/02/6.4122_NPM_AR2016-17_v4_web.pdf.
26
Report on access to justice for migrant persons, General Assembly, United Nations Special Rapporteur on
Human Rights of Migrants, 25 September 2018, A/73/178/Rev.1, http://undocs.org/A/73/178/Rev.1.
23
13
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