The case of E.B. v. Belgium. Views of the Committee on the Rights of the Child dated February 3, 2022. Communication No. 55/2018.
In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Belgium.
The Committee considered that, by failing to consider possible alternatives to the deprivation of liberty of children in resolving the issue of deportation of the author, the State party had not given due consideration to their best interests as a primary consideration.
As follows from the text of the Considerations, the author of the communication was E.B., a citizen of Serbia. She submitted a communication on behalf of her four minor children born in Belgium: E.H., born on February 13, 2012, R.B., born on July 6, 2013, S.B., born on November 16, 2014, and Z.B., born on August 10, 2017. The author claimed that her children, as a result of their deprivation of liberty, were victims of a violation by the State party of article 37 of the Convention on the Rights of the Child, considered separately and in conjunction with articles 3, 24, 28, 29 and 31, and that their deportation to Serbia would violate articles 9 and 27 of the Convention (paragraph 1.1 of the Views).
Legal positions of the Committee: referring to the general comment of the Committee on the Rights of the Child No. 23 (2017) in combination with General comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, which states that the detention of a child on the basis of the migration status of his parents constitutes a violation the rights of the child and contradicts the principle of the best interests of the child, taking into account the harm inherent in any deprivation of liberty and the adverse consequences that immigration-related detention, It may have consequences for the physical and mental health and development of children, and that the possibility of detaining children as a last resort should not be used in immigration procedures. Similarly, the Committee recalls its concluding observations on Belgium's fifth and sixth reports, in which it called on the State party to end the detention of children in closed-type centres and to use non-custodial alternatives (paragraph 13.9 of the Views).
The Committee considers that the author's exercise of the right to judicial review cannot justify the detention of her children (paragraph 13.13 of the Views).
The Committee's assessment of the factual circumstances of the case: it was established that the children were held together with their mother in a family home in a closed-type center for foreigners from August 14 to September 10, 2018, when they were given an alternative to detention, namely, an open-type return home intended for one family. Having escaped from this open-type house on September 13, 2018, the family was detained the next day and then placed back in the family home in the closed-type center; the children and their mother remained there until their repatriation to Serbia on October 9, 2018. Thus, the children were held in a closed-type center for the first time for four weeks (from August 14 to September 10, 2018), and then for the second time for three weeks and four days (from September 14 to October 9, 2018) (paragraphs 13.10, 13.11 of the Considerations).
The Committee noted, firstly, that although this place of detention was called a family home, it was actually a closed-type detention center. In this regard, he considered that the deprivation of liberty of children for reasons related to their migration status or the migration status of their parents was generally disproportionate and therefore arbitrary within the meaning of article 37 (b) of the Convention (paragraph 13.12 of the Views).
A/HRC/28/68, paragraph 80 ("In the context of the application of administrative measures related to immigration, it seems obvious that the deprivation of liberty of children due to the migration status of their or their parents is never in the best interests of the child, exceeds the requirements of necessity, becomes completely disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children"). See also: Manfred Novak, "The United Nations Global Study on the Situation of Children deprived of their liberty", November 2019, p. 467 (where it is stated that studies have repeatedly proved that children detained because of their immigration status are seriously harmed, that immigration detention has always been associated with physical and mental health problems caused either by the fact that children were detained with existing illnesses that were aggravated in detention, especially injuries, or with new conditions arising in conditions of detention, such as anxiety and depression).
The Committee noted that the State party considered that these long periods of detention were due, in particular, to numerous appeals filed by the mother of the children; for example, the author applied for release on the eve of the planned deportation, and then filed a number of appeals, forcing the State party to wait for the decisions of the relevant authorities (paragraph 13.13 of the Views).
The Committee noted that the State party considered that these long periods of detention were due, in particular, to numerous appeals filed by the mother of the children; for example, the author applied for release on the eve of the planned deportation, and then filed a number of appeals, forcing the State party to wait for the decisions of the relevant authorities (paragraph 13.13 of the Views).
The Committee noted that the State party had not considered any alternatives to the deprivation of liberty of children. The Committee found that the children had previously lived with their paternal grandmother, there was no evidence that the national authorities had explored the possibility of maintaining such a lifestyle or any other appropriate solution, or that a best interests assessment had been carried out when deciding on the appointment and extension of their detention. The Committee considered that, by failing to consider possible alternatives to the detention of children, the State party had not given due consideration to their best interests as a primary consideration, either during their detention or during its extension (paragraph 13.14 of the Views).
The Committee's conclusions: The detention of E.H., R.B., S.B. and Z.B. constituted a violation of article 37 of the Convention, considered separately and in conjunction with article 3 (paragraph 13.15 of the Views).