February 11, 2022
by Germain Haumont
The historic position of the European Court of Human Rights (hereafter: “the Court” or “the ECtHR”) on the immigration detention of children is that such detention is compatible with the Convention where it is strictly necessary and adapted to children’s specific needs (see L. Cools, “L’enfermement d’enfants migrants à la lumière de la jurisprudence belge et strasbourgeoise”, in S. Saroléa and A. Sinon (eds), 20 ans après l’affaire Tabitha. De nouvelles plumes pour analyser la détention d’enfants migrants à la lumière des droits humains, pp. 265-283). This leads to a case-based scrutiny each time a child is detained for migratory reasons.
However, over the years, the immigration detention of children has systematically been found unlawful under the Convention, either because of the length of the detention, often combined with the age of the child detained, or because of the material conditions of the detention that are deemed inappropriate for children. In this context, the question of a principled ban remains unsettled: if no immigration detention of children finds favour in the eyes of the ECtHR, why does the Court persist in affirming that such detention may, in theory, be reconciled with human rights?
This case note will attempt to demonstrate, based on M.D. and A.D. v. France, that the above issue is becoming prevalent in the reasoning of the Court, which is however still reluctant to tackle it head on. This observation prompts one to imagine how the Court’s case law could, legally speaking, take the plunge from the principle that the immigration detention of children is irreconcilable with their human dignity, as protected by Article 3 of the ECHR.
The judgment under review concerns a mother, of Malian origin, and her child, four months old. In 2018, the mother fled Mali, where she had suffered genital mutilation and a forced marriage, to seek refuge in France after having transited through Italy. When she arrived in Europe, she was pregnant with a baby girl.
Her story, from the moment she arrived in France, deserves to be detailed since it illustrates the crude and punitive rationality of many family detentions in Europe in a migratory context.
Pursuant to the European Union’s “Dublin III” Regulation, the applicant was subject to a transfer order to the Italian authorities, due to her registration in that country. This order was issued on 14 June 2018. However, she remained in France throughout the summer and gave birth to her daughter in France. In October 2018, she was placed under house arrest. As part of the enforcement monitoring of this measure she attended a police hearing during which the following exchange took place:
“Question: What would you do if the prefecture forced you to go to Italy?
Answer: I don’t want to go now; I don’t want to go. The Italians wanted me to leave there because I didn’t speak Italian and they threatened to take my baby away. And I don’t know what the Italians will do with my baby once I’m there.
Question: Will you board a plane to Italy?
Answer: No, I won’t get on the plane” (para. 11, free translation from French)
Forty-four minutes after this interview, an administrative detention order was issued for the interviewee and her child, “considering that there was a non-negligible risk of escape” (para. 12), with a view to their transfer to Italy. The duration of this detention was initially planned for 48 hours. However, the mother refused, as announced during her hearing, to board the plane to Italy. Her detention, as well as that of her baby, was then extended for another 28 days (para. 88). However, once the case was referred to the ECtHR, the latter immediately ordered the French government to suspend the detention, which had already lasted 11 days (para. 1).
In its judgment, the Court found three violations of the Convention by the French authorities.
Firstly, it found that the duration and material conditions of detention were contrary to the human dignity of both the child and her mother, “having regard to the inseparable bonds between a mother and her four-month-old baby” (para. 71). This resulted in a violation of Article 3 of the Convention, which prohibits inhuman and degrading treatment.
The Court then found that alternatives to detention existed in the instant case, so that detention was not necessary and was ordered and prolonged in violation of Article 5(1) of the Convention, protecting the right to liberty.
Finally, the Court judged that the detention was not subjected to effective judicial review within the meaning of Article 5(4) of the Convention, insofar as none of the national jurisdictions “took sufficient account of the presence of the second applicant and her status as a minor, before assessing the legality of the initial placement and ordering the extension of the administrative detention for a period of twenty-eight days within the framework of the jurisdictional control that it was their responsibility to exercise” (para. 102). This interpretation of the notion of effective judicial review echoes the Guidelines of the Committee of Ministers of the Council of Europe of 17 November 2010 on Child-Friendly Justice, which state, inter alia, that “Member States should guarantee the effective implementation of the right of children to have their best interests be a primary consideration in all matters involving or affecting them” (p. 18).
The Court’s reasoning includes several occurrences of the idea of a principled prohibition on the immigration detention of children, at least of youngest children.
Firstly, the Court adds several documents to the usual bundle of “international law and practice” which it says to consider when interpreting the Convention. Especially, it newly refers to the 2017 Principles and Guidelines on the human rights protection of migrants in vulnerable situations (see principle 10). The Court, rather than quoting directly from this report as usual (see for instance: G.B. and Others v. Turkey, para. 63-82), states here in its own words that the UN High Commissioner “advocates the adoption of the principle that children should never be deprived of their liberty on the basis of their migration status or that of their parents” (para. 46, emphasis added). According to the Court’s search engine, this is the first occurrence of such a “principle” in its case law. Optimists will read in it the emergence – albeit embryonic – of a new lexical field in a case law that has historically been reluctant to any principled statement of this kind.
Secondly, the Court considers that in the present case the detention constituted inhuman and degrading treatment, above all because of the child’s age: “even if age is only one of the three criteria that must be combined, [the Court] recalls that in the A.M. and Others v. France judgment (…) it found a violation of Article 3 in respect of minors aged two and a half years and four months respectively. The same was true in R.M. and Others v. France (…) in the case of a seven-month-old child” (para. 66). The opening words “even if” suggest that, while the Court is reaffirming the existence of three interrelated factors, low age is intended as the determining factor. Conversely, the conditions and duration of detention become secondary factors of assessment, as noticed by Judge Mourou-Vikstöm in her dissenting opinion. The Court’s reasoning thus seems to revolve around the idea that the harmful effects of detention on a young child are (almost) immediate. Hence, it contrasts with the Court’s reasoning in A.M. and Others v. France, where it considered that the material conditions of detention “although necessarily a significant source of stress and anxiety for a young child, are not sufficient, in the case of short-term detention and in the circumstances of the case, to reach the threshold of seriousness required to fall within the scope of Article 3” (para. 51). Such a relativist tone is no longer to be found in M.D. and A.D. v. France; to the contrary, low age now seems of self-standing importance, regardless the lapse of time.
However, the Court does not see fit to conclude anything (?) regarding this point in connection with the case at hand; it rather moves to a short analysis of material conditions and duration of the detention at issue. Yet it was only one step further for the Court to state, for instance, that in view of the extreme vulnerability and special needs of young children, their detention for migratory reasons constitutes per se inhuman treatment contrary to Article 3 of the Convention. I will elaborate on this shortcoming in the Court’s reasoning in the next section.
Thirdly, the lexical field of State sovereignty, systematically present in the ECtHR’s earlier case law on the detention of migrant children, is largely absent from this judgment. The reader will find no reference indeed to the “undeniable sovereign right to control aliens’ entry into and residence in their territory” (see e.g., G.B. and Others v. Turkey, para. 146; Popov v. France, para. 117; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, para. 96), or to the duty of Contracting States “to maintain public order, in particular by exercising their right, as a matter of well-established international law, to control the entry and residence of aliens” (Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, para. 81). It is a further indication that the interest of the child is gaining momentum in the Court’s reasoning over migration considerations.
These three developments suggest a legal route that could allow the Court to take the plunge, by affirming once and for all that the detention of migrant children is contrary to their fundamental rights, no matter how it materializes on the ground.
Two provisions of the Convention are likely to support the assertion of such a principle. The first is Article 5 of the Convention. This provision sets out the grounds on which a State may deprive a person of his or her liberty. These grounds include “the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority” (Article 5(1)(d) ECHR), on the one hand; and “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition” (Article 5(1)(f) ECHR), on the other hand. It has been argued that since only the first hypothesis expressly refers to the detention of minors, the notion of “person” in the second hypothesis should be understood as only referring to adults. The detention of a child would therefore be systematically contrary to his or her right to liberty when it is motivated by migration considerations. However, this argument was rejected by the Court in 2006 (Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, para. 100).
The other route is Article 3 of the Convention. In Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, the Court stated that “in order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim” (para. 48, emphasis added). It is this relativist position that stands in the way of the emergence of a principled prohibition on the detention of migrant children under Article 3.
However, it is not entirely true that the finding of inhuman treatment always depends on a detailed factual examination by the Court. On the contrary, some treatments are analysed as systematically inhuman, particularly in light of the extreme vulnerability of the victims. For instance, the Court has long held that “in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3” (Labita v. Italy (Gde ch.), para. 120, emphasis added; see also: Selmouni v. France (Gde ch.), para. 99; Bouyid v. Belgium (Gde ch.), para. 88-89). In a recent judgment, the Court further “stresses that the words ‘in principle’ cannot be interpreted as meaning that there may be situations in which such a violation would not be found, because the above-mentioned threshold of gravity would not be reached. Any interference with human dignity goes to the very heart of the Convention” (Stevan Petrovic v. Serbia, para. 118). This case law thus demonstrates that there are conducts that the Court describes as incompatible per se with human dignity, notwithstanding the intensity of their materialization in each case.
On this premise, it seems possible to affirm that, just as a “simple slap” is sufficient to qualify a police officer’s behaviour towards a detainee as inhuman, so does the detention of a child for mere migratory reasons violate his or her human dignity, regardless of the duration and material conditions of this detention. The systematic suffering of children placed under migration detention is indeed now well-documented, as demonstrated by the UN Global Study on Children Deprived of Liberty, revised in 2020 (see p. 467).
Again, this assertion can be supported by three sets of elements from the Court’s recent case law on the detention of migrant children, which echo the three observations made in the previous sectionon M.D. and A.D. v. France.
The first element is the growing emphasis on the age of the child detained. The limit of this element is that it suggests a distinction between infants and “older young people”, which is in tension with the prevailing definition of children in international law, encompassing “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier” (Article 1 of the Convention on the Rights of the Child). Nevertheless, this emphasis on age highlights the Court’s propensity to turn its attention away from the peculiar circumstances of concrete detention to the general effects of detention on migrant children. In this way, it comes close to a principled statement.
The second element is what the Court coins as a “broad consensus in international law against the administrative detention of minors in the context of immigration controls” (G.B. and Others v. Turkey, para. 167). In this respect, it has been noted that in M.D. and A.D. v. France the Court further extends the list of documents on which this international consensus is based, which already included the very explicit Joint General Comment No. 4 of the Committee on the Rights of the Child and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (see para. 12, quoted in G.B. and Others v. Turkey, para. 70, referred to in M.D. and A.D. v. France, para. 41). It is now clear from this international documentation that the detention of migrant children is, in principle, contrary to their human dignity. The conditions are therefore met for the Court to use this documentation and interpret the words “inhuman and degrading” in Article 3 of the Convention as prohibiting immigration detention of children.
The final element that can be mobilized in support of the proposed argument is the loss of importance of purely migratory considerations in the Court’s reasoning, which rather focuses on the fact that migrant children “are particularly vulnerable and require specific care in view of their age and lack of autonomy” (M.D. and A.D. v. France, para. 63). In the same vein, the Court stated in another case that one should not be oblivious to “the fact that detention measures apply to foreign nationals who have committed no offences other than those related to residence” (Bilalova and Others v. Poland, para. 75, free translation). Based on the extreme vulnerability of migrant children, a logic of protection thus dampens the repressive logic of border control regulation. Traditionally, this competing logic was expressed in the statement that the child’s situation of extreme vulnerability “is the decisive factor and it takes precedence over considerations relating to the second applicant’s status as an illegal immigrant” (see e.g., Muskhadzhiyeva and Others v. Belgium, para. 55). In M.D. and A.D. v. France, this illegal status is no longer even mentioned, nor is the “well-established international law” from which flows that Contracting States may sovereignly control their borders (Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, para. 81). This newly empty box might indicate that the space is now free for the assertion of a principled prohibition on the immigration detention of children under Article 3 ECHR.
In this case note, I have attempted to show how the hovering developments that can be identified between the lines of M.D. and A.D. v. France are likely to support an interpretation of Article 3 of the ECHR that effectively protects the dignity of migrant children. These developments are: (1) the preponderance of the criterion of the age of children over the material conditions and duration of detention, which become secondary factors of assessment; (2) the strengthening of the international consensus against the detention of migrant children; and (3) the loss of importance of migratory considerations in its reasoning.
Moreover, against the backdrop of broader case law, it may be argued that from both legal and empirical points of view, conditions are met to find, under Article 3 of the Convention, a principled prohibition on the immigration detention of children.
Such a ban would force Contracting States to leave out the crude and punitive rationality that currently governs the detention of illegal migrants – and of which the facts of the M.D. and A.D. v. France caseprovide a striking example. They should resort instead to more humane ways of caring for migrant families with children. Yet alternatives to detention are emerging in some Contracting States to better reconcile, in practice, the need to protect children with the objective of combating illegal migration, and should serve as inspiration (see A. Rolin, “Les alternatives à la détention”, in S. Saroléa and A. Sinon (eds), 20 ans après l’affaire Tabitha. De nouvelles plumes pour analyser la détention d’enfants migrants à la lumière des droits humains, pp. 131-153).
A principled ban on the immigration detention of children is therefore feasible. In this context, however, it is likely that the Court’s case-based analysis on the detention of migrant children will be followed by a casuistry aimed at verifying whether the said alternatives to detention are designed in a view of effective rather than theoretical protection of children’s fundamental rights.
This case note is translated and shortened from an upcoming publication in the Belgian Journal des droits des jeunes.