issued by the Registrar of the Court

ECHR 239 (2021)

22.07.2021

Detention of a mother and her young child at the Mesnil-Amelot no. 2

administrative detention centre for 11 days: multiple violations of the

Convention

In today’s Chamber judgment¹in the case of M.D. and A.D. v. France (application no. 57035/18) the

European Court of Human Rights held, by a majority, that there had been:

a violation of Article 3 (prohibition of inhuman and degrading treatment) of the European

Convention on Human Rights;

a violation of Article 5 § 1 (right to liberty and security); and

a violation of Article 5 § 4 (right to a speedy review of the lawfulness of detention).

The case concerned the administrative detention of a mother and her four-month-old daughter in

the Mesnil-Amelot no. 2 administrative detention centre pending their transfer to Italy, the country

responsible for examining their application for asylum.

Having regard to the very young age of the child, the reception conditions at the Mesnil-Amelot no.

2 administrative detention centre and the length of the detention (11 days), the Court found that

the competent authorities had subjected the child and her mother to treatment exceeding the level

of severity required for Article 3 of the Convention to apply.

The Court also found a violation of paragraphs 1 and 4 of Article 5 of the Convention. In principle, it

was not the Court’s task to substitute its own assessment for that of the national authorities.

However, in view of the circumstances of the case, the Court held that the evidence before it was

sufficient to conclude that the domestic authorities had not carried out a proper examination, as

required by the legal rules now applicable in France, to satisfy themselves that the initial

administrative detention of the mother, accompanied by her infant daughter, and its subsequent

extension were measures of last resort which could not be replaced by a less restrictive alternative.

The Court observed that neither the liberties and detention judge at the Meaux tribunal de grande

instance nor the judge delegated by the President of the Paris Court of Appeal had had sufficient

regard, while performing their function of judicial review, to the second applicant’s status as a minor

in the assessment of the lawfulness of the initial administrative detention and the decision to order

its extension for 28 days, a period that had ended after 11 days following the indication of an interim

measure by the Court. It had been the task of the domestic courts to carry out an effective review of

the lawfulness of the child’s initial and continued detention while considering whether a less

restrictive alternative such as a compulsory residence order might be envisaged, a measure to which

the applicants had previously been subjected. The minor applicant had therefore not had the benefit

of a judicial review encompassing all the conditions required for administrative detention to be

lawful for the purposes of Article 5 § 1 of the Convention.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Principal facts

The applicants, Ms M.D. and Ms A.D., are Malian nationals who were born in 1995 and 2018

respectively and live in France.

Having fled from Mali claiming to be at risk of female genital mutilation and forced marriage, M.D.

arrived in France, via Italy, on 15 January 2018. On 14 June 2018 the prefect of Loir-et-Cher issued an

order for her transfer to the Italian authorities, which were responsible under the “Dublin III”

Regulation for examining her application for asylum. In a decision of 6 July 2018 the Orléans

Administrative Court dismissed an application for judicial review of the order.

On 20 July 2018 M.D. gave birth to her daughter in France.

In an initial order of 17 October 2018 M.D. was subjected to compulsory residence for 45 days

pending her transfer to Italy. The order was set aside on the grounds that it imposed excessive

obligations on her, and it was replaced by another order entailing less restrictive conditions. The

Orléans Administrative Court dismissed an application for judicial review of that order.

On 26 November 2018 the first applicant was notified of an order by which the prefect of Loir-et-

Cher, finding that there was a considerable risk of her absconding, decided to place her in an

administrative detention centre together with her child for a maximum duration of 48 hours with a

view to her transfer to Italy. M.D. and A.D. were taken to the Mesnil-Amelot no. 2 administrative

detention centre.

On 27 November 2018, after refusing to board a flight to Italy, M.D. and her daughter were taken

back to the administrative detention centre.

In an order of 28 November 2018, the judge responsible for matters relating to civil liberties and

detention (“the liberties and detention judge”) at the Meaux tribunal de grande instance dismissed

an appeal by M.D. against the order for her administrative detention and allowed an application by

the prefect of Loir-et-Cher for her detention to be extended by 28 days. In an order of 1 December

2018 the judge delegated by the President of the Paris Court of Appeal upheld the order made on 28

November 2018 by the liberties and detention judge.

Following an urgent application by M.D. for protection of a fundamental freedom, the urgent-

applications judge of the Melun Administrative Court instructed the prefect of Loir-et-Cher to send

the necessary information about the particular situation of M.D. and her child to the Italian

authorities, in accordance with the requirements of the Dublin III Regulation, in advance of the

implementation of the order for their transfer to Italy, so that those authorities would be in a

position to provide the first applicant with adequate assistance.

On 6 December 2018 the applicants made a request to the Court for an interim measure under Rule

39 of the Rules of Court. On the same day, the Court granted the request and asked the French

authorities to end the applicants’ administrative detention. The authorities executed the measure.

M.D. and her child were subsequently taken into the care of the département council services.

As the order for M.D.’s transfer had not been implemented by 6 January 2020, France became

responsible for examining her application for asylum. She lodged an asylum application with the

Office for the Protection of Refugees and Stateless Persons and was granted a temporary residence

permit on that account.

Complaints, procedure and composition of the Court

Relying on Article 3 (prohibition of inhuman and degrading treatment), the applicants complained

that their administrative detention had amounted to inhuman and degrading treatment. They

submitted that the child’s detention was in breach of Article 5 § 1 (right to liberty and security).

Relying on Article 5 § 4 (right to a speedy decision on the lawfulness of detention), they complained

that the second applicant had not had an effective remedy by which to challenge the lawfulness of

her initial administrative detention and its extension. Relying on Article 8 (right to respect for family

life), they also submitted that their detention breached that Article.

The application was lodged with the European Court of Human Rights on 6 December 2018.

Judgment was given by a Chamber of seven judges, composed as follows:

Síofra O’Leary (Ireland), President,

Mārtiņš Mits (Latvia),

Stéphanie Mourou-Vikström (Monaco),

Jovan Ilievski (North Macedonia),

Lado Chanturia (Georgia),

Arnfinn Bårdsen (Norway),

Mattias Guyomar (France),

and also Victor Soloveytchik, Section Registrar.

Decision of the Court

Article 3

The Court pointed out that the absolute right protected by Article 3 prohibited an accompanied

minor from being held in administrative detention in conditions such as those in the present case for

a period whose excessive length contributed to crossing the severity threshold for proscribed

treatment. The parent’s behaviour – in this instance, the first applicant’s refusal to board the flight –

was not decisive for the assessment of whether the proscribed level of severity had been attained in

respect of the child. The Court found that the detention of a four-month-old baby in the conditions

observed at the time of the events in question in the Mesnil-Amelot no. 2 administrative detention

centre, for a period extending over 11 days which had only ended after the Court had indicated an

interim measure, was excessive in terms of the requirements of Article 3.

Having regard to the very young age of the second applicant, the reception conditions at the Mesnil-

Amelot no. 2 administrative detention centre and the length of the detention, the Court found that

the competent authorities had subjected the child to treatment exceeding the level of severity

required for Article 3 of the Convention to apply. In view of the ties between a mother and her four-

month-old baby, the interaction between them as a result of breastfeeding, and the emotions they

shared, the Court held that in the particular circumstances of the case, the same finding applied to

the first applicant.

There had therefore been a violation of Article 3 of the Convention in respect of both applicants.

Article 5 § 1

The Court observed firstly that since its judgment in A.B. and Others v. France (no. 11593/12, 12 July

2016), there had been significant amendments to French legislation. French law now set out an

exhaustive list of cases in which the administrative detention of a person accompanied by minor

children could be ordered, and the conditions in which the duration of such detention could be

extended. French law also provided, in accordance with the requirements of Article 5 § 1, that the

administrative detention of a minor could only be ordered as a measure of last resort and for the

shortest appropriate period of time.

Secondly, the Court observed that it was apparent from the order for the administrative detention of

the first applicant, issued the day before a flight had been scheduled to transfer her to Italy, that the

prefect had sought to determine whether, in view of the presence of a minor, a less restrictive

alternative to detention was possible. The prefect had considered that the compulsory residence

orders initially in place were no longer feasible, in view of the risk of absconding that, in the prefect’s

view, could be inferred from the first applicant’s stated refusal to comply with the transfer

procedure. The order of 28 November 2018 indicated that the liberties and detention judge had

carried out similar checks and assessments before extending the applicants’ administrative

detention for a further 28 days.

Although it was not the Court’s task to substitute its own assessment for that of the national

authorities, the evidence before it was sufficient to conclude that the domestic authorities had not

carried out a proper examination, while applying the legal rules now in force in France, to satisfy

themselves that the initial administrative detention of the first applicant, accompanied by her infant

daughter, and its subsequent extension were measures of last resort which could not be replaced by

a less restrictive alternative.

There had therefore been a violation of Article 5 § 1 of the Convention in respect of the second

applicant.

Article 5 § 4

First of all, the Court noted with satisfaction that French law gave a precise definition of the

conditions in which the liberties and detention judge reviewed the lawfulness of the initial detention

order (Article L. 512-1 III of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA))

and then decided, where appropriate, to extend the duration of the detention (Article L. 552-1 of the

CESEDA).

Secondly, the Court found that the liberties and detention judge and subsequently the judge

delegated by the President of the Paris Court of Appeal had had regard, while performing their

function of judicial review, to the presence of the child in the assessments they were required to

make as to the lawfulness of the initial detention and the need for its extension. The Court observed,

however, that the liberties and detention judge had simply noted that the administrative detention

centre was authorised to admit families and had specially equipped facilities, and, when assessing

the lawfulness of the detention order and whether it could be extended beyond a brief period, had

also mentioned the limited duration of the detention without addressing the specific conditions in

which the baby had been deprived of her liberty.

Next, the Court noted that despite the fact that no flights to Italy had been scheduled in the short

term, the liberties and detention judge had held that no alternative solutions were available after

finding that the applicants had not put forward any alternative accommodation and did not satisfy

the conditions for a compulsory residence order as laid down in Article L. 552-4 of the CESEDA. The

Court observed, nevertheless, that no serious consideration had been given to the fact that until

they had been admitted to the detention centre, the applicants had been the subject of compulsory

residence orders, which they had complied with.

Lastly, the Court noted that neither the liberties and detention judge at the Meaux tribunal de

grande instance nor the judge delegated by the President of the Paris Court of Appeal had had

sufficient regard to the presence of the second applicant and her status as a minor before assessing

the lawfulness of the initial detention and ordering its extension for 28 days.

The Court found a violation of Article 5 § 1 on the grounds that the domestic authorities had not

carried out a proper examination to satisfy themselves that the initial administrative detention of

the first applicant, accompanied by her infant daughter, and its subsequent extension were

measures of last resort which could not be replaced by a less restrictive alternative. This failure to

conduct an effective review of compliance with the conditions relating both to the lawfulness of the

detention order and to the principle of legality for the purposes of the Convention was attributable

in particular to the domestic courts, which had been under an obligation to ensure that the child’s

initial and continued detention was in fact lawful. The minor applicant had therefore not had the

benefit of a judicial review encompassing all the conditions required for administrative detention to

be lawful for the purposes of paragraph 1 of Article 5.

There had therefore been a violation of Article 5 § 4 of the Convention in respect of the second

applicant.

Article 8

Having found a violation of Article 3 of the Convention in respect of both applicants, the Court found

that in the circumstances of the case, there was no need for a separate examination of the

complaint under Article 8.

Rule 39 of the Rules of Court

As the applicants’ administrative detention had ended on 6 December 2018, the Court found that

the interim measure had become devoid of purpose and decided to discontinue it.

Just satisfaction (Article 41)

The Court held that France was to pay the applicants 10,000 euros (EUR) in respect of non-pecuniary

damage and EUR 6,780 in respect of costs and expenses.

Separate opinions

Judge Mourou-Vikström expressed a separate opinion, which is annexed to the judgment.

The judgment is available only in French.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.